The Issue Whether the Respondent, the Department of Revenue, acted in a fraudulent, arbitrary, illegal or dishonest manner in deciding to award a contract to the Intervenor, Recognition Equipment Incorporated, based upon the Intervenor's response to Request for Proposal No. 90/91-261?
Findings Of Fact The Parties. The Respondent, the Department of Revenue (hereinafter referred to as the "Department"), is an agency of the State of Florida. On or about June 24, 1991, the Department issued Request for Proposal on No. 90/91-261 (hereinafter referred to as the "RFP"). The Petitioner, Scan-Optics, Inc. (hereinafter referred to as "Scan- Optics"), is an unsuccessful responder to the RFP. The Intervenor, Recognition Equipment Incorporated (hereinafter referred to as "REI"), is the successful responder to the RFP. Scan-Optics and REI have standing to participate in this proceeding. Development of the RFP. For a number of years prior to the formal hearing of this case, the Department has been interested in purchasing optical scanning equipment for use in processing certain tax returns filed with the Department. The Department made inquiries and performed investigations concerning available optical scanning equipment as a result of its interest in the equipment. The Department contacted private producers of optical scanning equipment, including Scan-Optics and REI, and other state agencies that already had acquired optical scanning equipment. The Department observed Scan-Optics and REI optical scanning equipment in use by purchasers of the equipment in Florida and other States. During the Spring of 1991, the Department's budget was sufficient to allow the Department to purchase optical scanning equipment and the Department actually began to plan for such a purchase. The Department ultimately decided to acquire the equipment through a request for proposal instead of an invitation to bid because the Department knew what function the equipment was to serve but not how best to fulfill this function. James R. Evers, the Assistant Director of the Department's Division of Tax Processing, was assigned responsibility for drafting the specifications for the equipment to be acquired through the request for proposal. Mr. Evers travelled to several States with agencies that already had acquired optical scanning equipment, observed the equipment in use and discussed the equipment with personnel familiar with the equipment. Mr. Evers acquired and reviewed the specifications used in Florida and in other States in purchasing optical scanning equipment. Mr. Evers acquired requests for proposals and invitations to bid from other States and reviewed them. After preparing the specifications for the equipment to be included in the RFP, the Department submitted the specifications to the Information Technology Resource Procurement Advisory Council (hereinafter referred to as the "ITRPAC"). The ITRPAC was created pursuant to Section 287.073(5), Florida Statutes, and is composed of the Director of the Division of Purchasing of the Department of General Services, the executive administrator of the Information Resource Commission and the Director of the Governor's Office of Planning and Budgeting. The ITRPAC, pursuant to the duty imposed on it by Section 287.073(5)(b), Florida Statutes, reviewed and approved the Department's specifications. The weight of the evidence failed to prove that the Department's actions in drafting the RFP were fraudulent, arbitrary, illegal or dishonest. Issuance of the RFP. On June 24, 1991, the Department issued the RFP, No. 90/91-261, "Scanning Equipment Operation". Scan-Optics reviewed the RFP and concluded that several of the requirements of the RFP were product-specific; that only REI's equipment could meet some of the specifications. Based upon Scan-Optics' concerns, Scan-Optics sent a letter to the Department objecting to the RFP as "being a directed procurement to an individual company, namely Recognition Equipment Incorporated." In particular, Scan-Optics questioned why the features on pages 10 through 13 "which define a single vendor's product specifications . . . " were "mandatory" features. Scan- Optics requested that all REI-specific requirements be removed from the RFP. Pursuant to the RFP, a pre-proposal conference was held by the Department on July 16, 1991. This conference was attended by, among others, representatives of Scan-Optics and REI. The purpose of the pre-proposal conference was to provide written responses to written questions submitted by prospective vendors. Prospective vendors were informed through provisions of the RFP of the following concerning modifications to the RFP: Any question concerning the RFP was required to be submitted in writing. No interpretation of the RFP would be considered binding unless issued in writing by the Department. See paragraph 5 of the General Conditions of the RFP. Paragraph 5 of the General Conditions of the RFP also provided that protests to any part of the RFP were to be filed in writing as specified in Rule 13A-1.006, Florida Administrative Code. Section 1.4 of the RFP provided the following: No negotiations, decision, or action shall be initiated or executed by the offeror as a result of any discussions with any Department employee. Only those communications which are in writing from the purchasing office may be considered as a duly authorized expression on behalf of the Department. During the pre-proposal conference written questions that had previously been submitted by prospective vendors, including Scan-Optics' question concerning the "mandatory" features of section 3 of the RFP, and the Department's written responses thereto were distributed. Some discussion of the questions and responses also took place and some oral questions were answered. During the pre-proposal conference the Department's representative answered specific questions concerning the Department's desire to acquire "full multifont, set upper case, lower case alpha/numeric and hand print" capability. The questions to, and the comments of, the Department's representative during the pre-proposal conference were not reduced to writing or otherwise included in the RFP. Although the Department answered the oral questions asked during the pre-proposal conference, the Department's answers were not inconsistent with the intent of the Department evidenced in the RFP as discussed, infra. The evidence failed to prove that the Department's actions during the pre-proposal conference were fraudulent, arbitrary, illegal or dishonest in light of the clear directions of the RFP concerning modifications thereto being in writing. In response to Scan-Optics' initial complaint about the RFP, the Department changed its "mandatory" features, beginning at Section 3.2 of the RFP, to "desired" features. This the Department did through the issuance of Addendum No. 1, which was issued by the Department after the pre-proposal conference on July 17, 1991, and included all written questions submitted prior to the conference and the Department's responses thereto. No other written modification to the RFP was made by the Department other than Addendum No. 1 and the attached written questions and responses. Other than the questions raised by Scan-Optics concerning the vendor- specific issue and the written questions attached to Addendum No. 1, no written clarification of the RFP was requested by Scan-Optics or any other prospective vendor. No written protest to the RFP was filed by Scan-Optics or any other prospective vendor. The evidence failed to prove that the Department's actions in issuing the RFP or it actions between the issuance of the RFP and the filing of proposals by vendors (i.e., the conduct of the pre-proposal conference) were fraudulent, arbitrary, illegal or dishonest. Purpose of the RFP. The RFP included the following "overview" of why the Department issued the RFP: The Department of Revenue is planning the purchase of scanning equipment to enhance its data entry capabilities. The Department currently utilizes the Tartan Data Entry System to capture data from tax returns and related documents in a key to disk environment. . . . Scanning equipment would enable the Department to capture handwritten or typed data through optical character recognition. It is estimated that over 90% of typed data and 70% of handwritten data can be captured through optical character recognition. The initial application of Intangible Tax Returns represented over 68 million keystrokes during the last year. . . . . Joint Exhibit 1 (Tab D), section 1.2, page 1. The Department provided the following more specific indication with regard to what it was seeking through the RFP: It is the intent of the State to procure a total turn-key system comprised of all equipment, software, and services associated with optical scanning/optical character recognition of source data to provide output data for further processing at Florida Department of Revenue via magnetic tape or telecommunications. The system must be current state-of-the-art, allowing for future integration of imaging techniques into the scanner system as a field upgrade without replacing installed equipment. . . . A turn- key proposal is envisioned which will include installation, the design of the initial forms, scanner and edit and reject/re-entry system programming, operations and programmer training on-site, and any other support services essential to the successful operation of the system. It is requested that the successful vendor propose a minimum of 100 hours of software support for future applications to be allocated at the discretion of the Department. Reference Current System for details regarding the two Intangible Tax Form(s) and Documentary Tax Forms which we propose as initial scanning applications. We believe that the Section below appropriately sets forth the hardware and software sub-objectives including a scanner/imaging system, but we would like any potential Offerors to know that our overall objectives are a continuing improvement in all areas of operation at Florida Department of Revenue. In order of importance, the following are our goals: . . . . Joint Exhibit 1 (Tab D), section 3.1, page 9. The RFP went on to list a number of objectives (generally referred to as lower costs, enhance taxpayer service, improve quality, accelerate cycle time and decrease paper handling) and approximately 30 "desired" features the Department wanted vendors to address. Joint Exhibit 1 (Tab D), sections 3.2 through 3.31, pages 10-16. There were three forms attached to the RFP which the RFP indicated the Department intended to process with the system initially purchased pursuant to the RFP. Each form was identified and the potential data to be collected was identified by indicating the data elements currently captured, their size and their class. Although the data elements currently captured included only numeric data for two of the forms and numeric and some alpha data for the third form, the RFP did not specify that all data currently captured would necessarily be captured as a result of the RFP. The RFP also indicated that "[s]ubstantial changes to the layout will occur at design time" indicating that the forms were to be redesigned to accommodate a vendor's proposed method of collecting data from the forms. The RFP did not require that the Department acquire equipment which would read all Department forms which may ultimately be processed with optical scanning equipment or even that the exact three forms attached to the RFP for initial processing be processed as a result of any purchase under the RFP. The intent of the Department reflected in the RFP and as explained during the hearing of this matter was for vendors to provide the Department with details concerning their full capability (equipment and costs) to process Department materials with their optical scanning equipment and allow the Department to select a combination of equipment which would initially allow the processing of the three forms, in whatever format could best serve the Department's needs, and allow the Department to later upgrade and increase its use of optical scanning equipment. The RFP requested that vendors identify each component of their systems, including all recommended features for the initial task. Joint Exhibit 1 (Tab D), section 5.2, page 19. Vendors were also required to provide itemized prices for all components of their proposals: This tab must show the itemized prices for all components to include hardware, software, cables/connectors, shipping, installation, training, maintenance, start-up supplies/ equipment and any other goods/services. Pricing information must include all items that may be needed to provide a configuration of equipment and software to the Department. Any recurring charges must also be shown. Any quantity or price discounts offered in the proposal should be clearly stated. Pricing information must be submitted in the formats provided. It is imperative that adequate pricing information be included in the proposal. The Department cannot purchase any item against the proposal if adequate pricing information is not included in the proposal. Therefore, pricing information should be provided for optional features, equipment, software and services that are not a required part of any particular configuration herein, but may be desired if changes become necessary to any configurations purchased by the Department. . . . . . . . Joint Exhibit 1 (Tab D), section 5.2, page 20. Responses to the RFP. On or about August 6, 1991, Scan-Optics, REI and GTE Vantage Solutions submitted responses to the RFP. All responses to the RFP were determined to be responsive to the RFP and were evaluated and scored. The evidence failed to prove that the Department's determination that the responses to the RFP were responsive was fraudulent, arbitrary, illegal or dishonest. Evaluation of the Proposals to the RFP; General. Section 4.3 of the RFP established the criteria for evaluation of proposals to the RFP. A total of 35 points were available for "costs", 30 points for "functional requirements", 30 points for "future requirements" and 5 points for "tax related experienced". The Department established a four person committee (hereinafter referred to as the "Committee"), to review and evaluate proposals to the RFP. Those individuals were Mr. Evers, George Brown, Larry Neilson and Gerald Johnson. Pat Gonzalez, an employee of the Information Resources Commission, also served as a non-voting member of the Committee. Subsequent to the filing of the proposals to the RFP, the Committee met on several occasions to discuss scoring criteria and to review lists of equipment submitted by each vendor. The members of the Committee reviewed and scored each proposal individually. After individually scoring each proposal, the Committee met and reviewed the individual scores. The individual scores were averaged and tabulated by Ms. Gonzalez. REI received an average score of 30 points for the functional requirements of section 3 of the RFP, an average score of 23 points for section 5 of the RFP and 5 points for section 6 of the RFP. Scan-Optics received average scores of 24.19, 12.5 and 5, respectively, for these three categories. Adding the scores for cost, discussed infra, the final tabulation of scores was as follows: REI 85.16 Scan-Optics 76.69 GTE Vantage 54.72 Based upon the foregoing, the Department decided to award the contract under the RFP to REI. Evaluation of the Proposals to the RFP; Costs. On August 6, 1991, when the proposals to the RFP were first opened, a preliminary bid tabulation sheet was completed. REI's proposed unit price was $1,389,025.00, and Scan-Optics' proposed unit price was $774,868.00. The Committee subsequently reduced the unit price of REI's proposal by $440,658.00, from $1,389,025.00 to $948,367.00. This reduction was made based upon a decision of the Committee, after a review of the REI proposal, to select a configuration of REI's equipment which the Committee believed comported with the Department's intent as evidenced by the RFP and would perform the tasks envisioned in the RFP. This decision was reasonable and consistent with the RFP in light of the following: The RFP informed vendors that the Department reserved the right to select any configuration of equipment submitted by vendors. Paragraph 7, General Conditions of the RFP, provided, in pertinent part: As the best interest of the State may require, the right is reserved to make award(s) by individual item, group of items, all or none, or a combination thereof; to reject any and all proposals or waive any minor irregularity or technicality in proposals received. . . . At Tab 11, Section 5 of the RFP, it was provided, in pertinent part: Offerors are required to include all equipment and software availability for their series or family of equipment proposed. The Department shall use these to determine the final ordered configuration from the selected proposal and from time to time, for additional equipment or software. This will also allow the Department the option of selecting equipment from State contract or under this RFP/Contract. This will also allow the Department to implement functions either undefined or unforeseen. The Department reserves the right to acquire any and all of the equipment, software and services necessary to meet the requirements of this proposal. Vendors were also required by Tab 11, Section 5 of the RFP to submit itemized prices for all components of a proposal: "Pricing information must include all items that may be needed to provide a configuration of equipment and software to the Department." REI's proposal included its entire array of equipment with itemized prices. This information allowed the Committee to equalize the vendors' proposals and, thus, allow a fair comparison of the two vendors. It also allowed the Committee to perform its task of deciding what configuration of equipment would best meet the Department's needs. Scan-Optics' proposal did not include separate itemized prices. Therefore, the Department was not able to decide the most advantageous configuration of Scan-Optics' equipment. Without the reduction in costs, REI's proposal was more extensive and more expensive than Scan-Optics' proposal. The Committee discussed the matter and questioned the Department's purchasing director as to whether REI's proposal could be reduced pursuant to the RFP to make it more compatible with the RFP. After being assured that such a reduction was permissible under the RFP, the Committee removed some of the REI proposed vocabulary kits and the costs of those kits. The Committee was unable to make a similar reduction to Scan- Optics' proposal because Scan-Optics had not itemized the cost of its equipment. With the reduction in REI's unit price made by the Committee, REI received a total of 27.16 points for the cost component during the evaluation process. The total score awarded to REI was 85.16. If the Committee had not given REI the reduction in unit price, REI would have only received 7.26 points for cost and its total score would have been 65.26. Scan-Optics received 76.69 total points (including 35 points for "cost"), which is higher than the points REI would have received but for the Committee's reduction of REI's unit price. REI was contacted by the Department to verify that the Department's understanding of the pricing information contained in REI's response to the RFP was correct. The evidence failed to prove that this contact allowed REI to provide any additional information to the Department or was otherwise improper. The Department did not contact Scan-Optics because Scan-Optics had not provided any information upon which the Department could have evaluated Scan-Optics' proposal in a similar manner as it had REI's. Therefore, there was no similar conclusion reached concerning Scan-Optics to be verified. The evidence failed to prove that the Department's evaluation of the costs of the vendors or the award of cost points to REI or Scan-Optics was fraudulent, arbitrary, illegal or dishonest. Evaluation of the Proposals to the RFP; An Oklahoma Tax Commission Evaluation Form. Prior to the evaluation of the proposals to the RFP Mr. Evers requested that an evaluation form used by the Oklahoma Tax Commission be provided to him. Mr. Evers made this request because he wanted to use the evaluation format he knew the Oklahoma Tax Commission had used. The evaluation form provided to Mr. Evers included the actual results of the Oklahoma Tax Commission's evaluation of proposals it had received. REI was awarded the Oklahoma Tax Commission contract. Mr. Evers provided a copy of the Oklahoma Tax Commission's evaluation to one of the members of the Committee and told him to give a copy to one other member. The evidence failed to prove if the fourth member and Ms. Gonzalez were provided a copy. The evaluation general point scale on the Oklahoma Tax Commission evaluation form was used by the Committee: Item not bid or does not meet specifications. Partially meets specifications. Meets specifications. Exceeds specifications. Substantially exceeds specifications. ? Need additional information from vendor. Although Mr. Evers could have avoided all appearance of impropriety by distributing a blank Oklahoma Tax Commission evaluation form, the weight of the evidence failed to prove that Mr. Evers' actions in distributing the Oklahoma Tax Commission evaluation form was fraudulent, arbitrary, illegal or dishonest. The evidence failed to prove that the Committee was in fact influenced by the Oklahoma Tax Commission evaluation form in any substantial way. I. Evaluation of the Proposals to the RFP; REI's TARTAN XP80. REI's proposal included equipment named the TARTAN XP80. This equipment is the basic optical scanning system of REI. The XP80 system proposed by REI is capable of including from 40 to 720 templates. The Department, after evaluation of the proposals, decided that the XP80 with only 40 templates would be sufficient to meet the Department's initial goal as set out in the RFP. The Department concluded that it was not necessary to acquire the XP80 with its 720 template capacity. The 40 template system is the system which the Committee evaluated with regard to the cost of the REI proposal. Section 3.17 of the RFP included the following desired characteristic: Optical Character Recognition - The document scanning system must be capable of employing both feature matching and feature analysis recognition techniques. The system must be capable of processing all standard OCR fonts in single font, multiple font, or multi-font mode under program control. The Offeror must provide a list of all fonts recognized by their system and any restrictions that apply. Vendor to define number of fonts recognized by his system, i.e., single font, multiple font, omnifont, and multifont. The specifications of Section 3.17 of the RFP were not "mandatory" requirements of the system ultimately to be acquired by the Department. The Department requested information concerning these capabilities, but did not specify in the RFP that the system it would ultimately purchase for its initial project would contain the specifications of Section 3.17 of the RFP. In light of Scan-Optics own challenge to the provisions of section 3 of the RFP as "mandatory" and the Department's decision to eliminate the reference to the provisions of section 3 as "mandatory", it is clear that there was no requirement that the ultimate system acquired pursuant to the RFP had to be capable of processing all standard OCR fonts in single font, multiple font, or multifont mode under program control. The evidence failed to prove that REI did not provide information concerning its capabilities to meet the specifications set out in Section 3.17 of the RFP or that the information provided was inaccurate. Two of the forms to be initially processed (forms 601I and 601C) only required capability to read numeric characters. The third form (form 219) could, in a limited number of instances, contain numeric and alpha characters. In evaluating the proposals, the Department decided that, to the extent that alpha characters may be contained on form 219's, the alpha characters could be ignored without creating significant problems in processing. The Department's conclusion that the XP80 with only 40 templates can handle the initial task contemplated by the RFP was based upon the fact that the forms may be redesigned and the conclusion that the number of instances when alpha characters appear will be insignificant enough to ignore. There was evidence presented that the XP80 with only 40 templates cannot efficiently and successfully process the three forms to be initially processed. There was also evidence that the XP80 with only 40 templates will not be successful even if the forms are redesigned. The weight of the evidence failed, however, to substantiate this claim. Whether the XP80 with only 40 templates can successfully process the three forms depends upon the environment in which the forms are completed. It is possible that if the exact environment is known so that the number and type of fonts that may be used is known, only 40 templates can process the forms coming from that environment. The Department has not determined what exactly the environment in which the forms will be completed is. The Department did, however, consider the probable environment in reaching its decision. More importantly Scan-Optics did not prove what that environment is. Nor did Scan- Optics prove that the environment is, or will be, one which will prevent the XP80 with only 40 templates from being successfully used as contemplated by the RFP. The evidence proved that an XP80 with a minimum of 200 templates up to a maximum of 350 templates could be used to successfully carry out the task contemplated in the RFP even in a random environment (one in which any number of fonts might be used to complete a form). If up to at least 280 templates were purchased the XP80 could handle the processing of the forms and, adjusting the score of REI for the additional costs and additional performance characteristics of an XP80 with up to 280 templates, REI would still be the highest scorer. Exactly where the cut-off between the number of additional templates which it may be necessary to acquire according to evidence presented by Scan-Optics (between 200 and 350) and the resulting reduction in REI's score to below Scan- Optic's score would occur was not proved. The evidence failed to prove that the actions of the Department with regard to its decision to acquire an XP80 with as low as 40 templates was fraudulent, arbitrary, illegal or dishonest. Evaluation of the Proposals to the RFP; Table C. Table C of the RFP required that vendors list any optional features, which would enhance optical scanning operations: "LIST ANY OPTIONAL FEATURES WHICH ENHANCE PERFORMANCE OF THE SCANNING EQUIPMENT OPERATION". Joint Exhibit 1 (Tab D), page 30. REI did not provide a completed Table C with its proposal. REI's proposal included additional vocabulary kits containing from 40 to 720 templates and the cost of those kits in Table B of its proposal. Table B was to be used to provide the following: "LIST EACH AND EVERY COMPONENT AND FEATURES REQUIRED FOR INSTALLATION AND FULL OPERATIONAL STATUS." REI's proposal was consistent with these instructions. The fact that the vocabulary kits involved in the award of points for costs were included on Table B and were not included on Table C does not mean that the Department could not reject vocabulary kits as unnecessary for its initial purchase based upon other information contained in REI's proposal. The inclusion of the kits on Table B merely indicates that, to acquire REI's total capability with an XP80, up to 720 templates are required for "FULL OPERATIONAL STATUS." That does not mean that the Department intended or was required by the RFP to actually acquire "FULL OPERATIONAL STATUS." Section 3.9 of the RFP provided the following desired feature: Document Imaging - The proposed document scanning system must be capable of being field upgraded with image cameras for both front and back imaging of documents. Imaging must occur on both sides of the document in a single pass. The proposed system must be capable of taking partial images of the document within the confines of windows, zones, or strips. When and if imaging is added to the proposed system, it must not slow any other operations or functions of the system below that of normal throughput speed of the identical system without the added imaging capability. The following question, submitted in writing to the Department, and the following written answer from the Department, were included in Addendum No. 1: 48. Is the cost to retrofit to imaging included in evaluation criteria? Answer: Future costs will be considered. REI responded to section 3.9 as follows: Exceeds Requirement: The proposed TARTAN XP80 can be upgraded to imaging exactly as defined in Section 3.9. In addition, image output can be passed to an extremely wide range of image processing systems including those from IBM, NCR, Unisys, FileNet, Plexus and many others. Joint Exhibit 3 (Tab H), page 5. REI failed to list the equipment necessary to meet the desired feature of section 3.9, or the price of such equipment, on Table C of its proposal. This information, however, was included by REI on Table B according to the testimony of Mr. Evers. To the extent that Table C was not provided, REI's failure to provide the information to be contained thereon was a minor irregularity. The RFP did not require that the Department evaluate the proposals based upon the cost of future upgrades. The RFP only required that the Department determine the ability of vendors to upgrade and REI's proposal gave the Department sufficient information to accomplish this requirement. The evidence failed to prove that the Department's failure to reject REI's proposal because of its failure to provide Table C or that the Department's grading of REI's proposal in light of the failure to include a Table C with its proposal was fraudulent, arbitrary, illegal or dishonest. Evaluation of the Proposals to the RFP; The One- Year Warranty. The RFP required that a one-year warranty be included with each proposal. REI's proposal only included a 90-day warranty. REI's proposal, however, included the cost of one-year's maintenance costs of $61,587.00. The evidence failed to prove that the Department's acceptance of REI's warranty and maintenance costs was fraudulent, arbitrary, illegal or dishonest. Evaluation of the Proposals to the RFP; Grading of Sections 3.2 through 3.31. Addendum No. 1 to the RFP modified, among other things, three of the desired features of section 3 of the RFP. In particular, sections 3.5, 3.11 and 3.20 of the RFP were modified. The scores awarded to Scan-Optics by some of the members of the evaluation committee for its response to sections 3.5, 3.11 and 3.20 were lower than the scores awarded to REI. The evidence failed to prove the actual reason why the scores awarded to Scan-Optics pursuant to sections 3.5, 3.11 and 3.20 of the RFP were lower than the scores awarded to REI or that the lower scores were based upon the requirements of those sections without regard to the modifications of Addendum No. 1. The impact on the scores of Scan-Optics, even if attributable to error by the Department, would be minimal. The evidence failed to prove that even if the Department had graded Scan-Optics' proposal without taking into account the modifications of Addendum No. 1 to sections 3.5, 3.11 and 3.20, that the Department acted in a fraudulent, arbitrary, illegal or dishonest manner. Conclusion. Based upon the foregoing, it is concluded that the evidence failed to prove that the Department's actions from the time that it developed the RFP to the announcement of its proposed award of the contract under the RFP to REI was fraudulent, arbitrary, illegal or dishonest. Any unfairness to Scan-Optics was a result of the Department's broad discretion pursuant to the RFP to decide what to acquire as a result of the RFP and the apparent confusion of Scan Optics, and probably REI, caused by the RFP. The RFP was not, however, challenged.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a Final Order dismissing the Formal Written Protest and Petition for Formal Administrative Hearing filed by Scan-Optics, Inc. DONE and ENTERED this 17th day of January, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1992. APPENDIX Case Number 91-6545BID Scan-Optics and REI have submitted proposed findings of fact. The Department has indicated its intent to adopt the proposed findings of fact of REI. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Scan-Optics' Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 3 and 5. 2 4-5. 3 See 31-37. See 32. See 33. 6-7 Hereby accepted and see 33 and 64-69. Not supported by the weight of the evidence. See 31-37 and 64-69. 11 and 13. The third, fourth and seventh sentences are not relevant. The fifth and sixth sentences are misleading and not totally accurate--there was only one RFP and one ITB and they were included in Mr. Evers' file on REI. See 19-20. The last sentence is not relevant. 11-12 20 and 26. 13 26. 14 22-23 and 26. 15 Hereby accepted. 16 See 20. But see 22, 25 and 27-30. 17-19 See 22, 25 and 27-30. 48, 58 and hereby accepted. Hereby accepted. But see 31-37. 58 and hereby accepted. 32, 70-71 and hereby accepted, except the fourth sentence, which is not supported by the weight of the evidence, and the last sentence, which is not relevant to this proceeding. 24-28 Hereby accepted. Not relevant. Hereby accepted. 31 32. 32 41. 33 44. 34 48 and 50-51. 35 See 47-48 and 51 and hereby accepted. 36 50-51. 48-49 and 51 and hereby accepted, except the fifth and last sentences, which are not supported by the weight of the evidence. See 54-57. The third sentence mischaracterizes Mr. Evers' testimony and is, therefore, not supported by the weight of the evidence. Not supported by the weight of the evidence or not relevant. 40 56. 41-42 Not supported by the weight of the evidence. 43 See 60. 44 See 60-63. 45 Not relevant. 46-47 Not relevant. See 60-63 48 49-51 Not relevant. See 66-69. Not supported by the weight of the evidence. See 66-69. 52 See 45. But see 83-86. 53 Hereby accepted. 54 See 83 and hereby accepted. 55 Hereby accepted. 56 See 84-86. 57 Hereby accepted. 58 See 83 and hereby accepted. 59 See 84-86. 60-62 Hereby accepted. 63 See 84-86. 64 32. 65 74. 66 75. 67 76. 68 See 70-71 and hereby accepted. 69 Not supported by the weight of the evidence. See 77. 70 First sentence: hereby accepted. Second sentence: not supported by the weight of the evidence. Third sentence: hereby accepted as to the scores given REI; the rest of the third sentence is not supported by the weight of the evidence. 71 Not relevant. 72 See 80-81. The computation of maintenance cost ignores the apparent discount which is given, depending on the length of the maintenance period purchased. For example, if a year's maintenance is purchased, the costs is less than the monthly rate times. 73 Not relevant. See 60-63. 74 58. 75 Not relevant. See 31-37 and 60-63. 76 Not supported by the weight of the evidence. 77-79 and 81 Although these proposed findings of fact include correct quotations, other evidence was more persuasive. 80 Hereby accepted. 82 Not supported by the weight of the evidence. See 68. 83 Not supported by the weight of the evidence. See 65 and 68. 84 See 67. 85 67. 86 See 67. 87-88 Not supported by the weight of the evidence. See 68. Not relevant. See 68. 92 52. 93 Not supported by the weight of the evidence. See 31-37. REI's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 6. 2 7. 3 8. 4 9. 5 10. 6 11 and 13. 7 14. 8 15. 9 There was no proposed finding of fact 9. 10 18. 11 19-20. 12 20 and 26. 13 22 and hereby accepted. 14 22. 15 22 and hereby accepted. 16 29. 17 21. 18 26. 19-20 28. 21 24-25. 22 38. 23 41. 24 Hereby accepted. 25 42. 26-30 48. 31-32 48-49. 33 43. 34 40. 35 50-51. 36 44. 37 43. 38 45. 39 46. 40 39. 41 Hereby accepted. 42 59. 43 Hereby accepted. 44 See 61-63. 45 Hereby accepted. 46 See 37, 70 and 78. 47 77. Not relevant. Hereby accepted. 50-51 64. 52 59 and 65. 53 33 and 65. The last sentence is not supported by the weight of the evidence--there was some evidence presented. 54 67. 55-59 See 68. 60 See 83-86. 61 87. 62 Hereby accepted. 63 81. COPIES FURNISHED: James W. Linn, Esquire Rosa H. Carson, Esquire 1711-D Mahan Drive Tallahassee, Florida 32308 William E. Williams, Esquire Rex D. Ware, Esquire Post Office Box 1794 Tallahassee, Florida 32302 Gene T. Sellers Assistant General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Vicki Weber, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue is whether Respondent, Model 2000, Inc., a talent agency, violated Sections 468.402(1)(d), 468.402(1)(e), 468.402(1)(s), 468.402(t), 468.410(2), 468.410(3), 468.412(6) and 468.413(2)(e), Florida Statutes, through solicitation, fraud, misrepresentation, concealment, false promises, false pretenses, exploitation, trick, scheme, or device, exercise of undue influence, requiring photography services as a prerequisite condition of employment, and failure to provide contracts of representation as alleged in each of the 15 separate Administrative Complaints filed in this cause.
Findings Of Fact Petitioner is responsible for the licensing and regulation of talent agents in Florida. Authority for the licensure and regulation is set forth in Chapter 468, Florida Statutes, and associated provisions of the Florida Administrative Code. At all times relevant and material to this inquiry, Respondent, Model 2000, Inc., was owned and operated by Nancy Sniffen, a.k.a. Nancy Keogh (Sniffen), and was licensed in the State of Florida as a Talent Agency, having been issued license number TA 0000618. The last known address for Respondent is 4852 West Gandy Boulevard, Tampa, Florida. At all times relevant to this case, Sniffen advertised in print, served, operated, managed, and held herself out to the public as a Talent Agent by and through Model 2000, Inc. In the Tampa Tribune daily newspaper under the headings, Classified, Employment General Section, Sniffen published the following ad and variations thereof: ACT/MODEL NOW Kids! Teens! Adults! For TV commercials, print, catalogs, movies. Get started the right way now!! Call 837-5700 for interview. No fees Model 2000 Inc. TA#681. As a direct result of the above advertisement, Renee Donaldson, Irma Avery, Charlene Mars, Gina Hughes, and Robert Mikolajczak responded to the Tampa Tribune advertisement. In the Weekly Planet, a hiring ad, similar in content to the Tampa Tribune ad, containing "Call 837-5700" was published by Model 2000, Inc. As a direct result of this advertisement in the Weekly Planet, Athena Lopez and Lisa Menuto responded. During the initial meeting between Sniffen and the witnesses herein, she made promises, guarantees, and statements known to be false when made regarding each individual's looks and their latent talents. They were told that each had great employment opportunities as models, and with her connections with several department stores, J.C. Penny, Beall's, and Dillards, and her connections with their catalog companies, each model was assured of employment. Based upon their individual looks and ethnic differences, Sniffen stated to one or more of the witnesses who testified that there was: "a high demand for ethnic models" (non-whites), "lots of job for Hispanics," "abundance for work for people with your looks," "they are looking for someone your age," and "there is a demand and need for someone like you." Sniffen intended these statement to induce individuals to rely upon her assessment and expertise as a modeling agent to secure employment. At the time Sniffen made the above statements, she knew or should have known that employment opportunities for models required more than her one-look assessment. Sniffen assured each witness that "there was a lot of work in the area"; "companies were looking for people like [sic]"; "have so much work and not enough models to fill jobs"; "I'm affiliated with J.C. Penny, Burdines, and Dillards in their casting area for hiring for photo shots"; and "Florida is number one in hiring for print work." Based upon these representations or variations thereof, Athena Lopez, Irma Avery, Charlene Mars, Fiona West (for her daughter Christy West), Lisa Menuto, Robert Mikolajaczak, Gina Hughes (for her daughter Gabriella Hughes), Tom Stanton, and Nelita Parris agreed to have their photographs taken and agreed to engage Sniffen as their respective modeling agent and representative. The record contains no evidence that Sniffen presently had or had in the past "affiliations" with any of the major chain stores or their casting departments. During the initial meeting with these witnesses, Sniffen required them, as a condition precedent to beginning their modeling career, to have photographs made. These photographs were to be taken by Sniffen's staff photographers, and from those photographs each model was required to have composite cards printed at an additional cost. Based upon the representations made by Sniffen requiring each model to have composite card photography, each witness agreed and paid Sniffen a photograph and composite card fee. The witnesses below made payments either in cash and/or by credit card to have their photographs taken by Sniffen's photographers at a location she designated. Spencer Borisoff $934.07 Tom Stanton $855.00 Athena Lopez $466.94 Lisa Menuto $693.00 Gina Hughes $1,040.82 Robert Mikolijcak $347.00 Aaliyah Womack $603.92 Charlene Mars $261.15 Irma Avery $774.90 Nelita Parris $150.00 Christy West3 $855.00 Nelita Parris $150.00 No witness hereinabove secured employment with any company as a result of the composite card photographs. Sniffen's representation as their talent agent that composite cards were a pre-employment requirement in the modeling business was untrue and knowingly made with the intent to, and in fact did, cause each witnesses to reply thereon to their determinant. Sniffen hired Anthony Guagliardo, a Florida-licensed public service photographer since 1999, as one of her three photographers to take photographs of her clients. From November 1999 to April 2000, Guagliardo worked for Sniffen taking photographs of her clients. Sniffen called the Photo Hut were he worked seeking a photographer that would assist her with photographing her clients who came in to have their composite cards made. Sniffen's initial phone conversation at Photo Hut was with another person on duty who asked other employees if anyone was interested in part-time work. After a brief conversation, Guagliardo agreed to be a photographer and began working for Model 2000, Inc. According to his testimony, Guarliardo's daily employment hours were from 9:00 a.m. to 5/6:00 p.m. daily. He worked infrequently on Saturdays and Sundays. For his photography services, he was paid $25.00 per hour. During a routine day, Guagliardo testified that as many as 20 persons would arrive to have their pictures taken, and he would take 18 shots of each client in three different poses or positions. Mr. Guagliardo testified that a bulk purchase of film reduced cost of each roll of film to $2.00 per roll. The contact sheet cost $20.00 per sheet from which 72 photographs were made. A single roll of film was needed to photograph two clients. The cost to Sniffen for one hour of the photographer's time, a roll of film, and two contact sheets averaged $65. The average amount Sniffen charged each of the 11 clients listed above for their photo-shoot was $583.00 each. During the time he was on duty, Guagliardo testified that normally two additional photographers were also working doing photo shoots for Sniffen. The evidence clearly demonstrates that Sniffen advertised to attract customers, each of whom she required payment for photographs upon her representations that composite photograph cards were a pre-employment requirement for modeling. The evidence sufficiently demonstrates that Sniffen had no honest intent; her singular purpose was financial gain, and her means was the photography/composite card requirement. Once monies were paid, few of the witnesses were able to contact Sniffen and none secured modeling employment through Sniffen's efforts. The models, believing Sniffen's assurances that composite card photographs were necessary for securing employment in modeling, later came to realize Sniffen's intent was only to secure payment for the photo sessions. Sniffen's continued refusals to answer phone calls, to communicate with the witnesses after composite card payments were made, and the lack of leads and/or contacts from potential employers demonstrated her single-minded purpose not to assist them as their modeling agent. They were intentionally misled by Sniffen's false promises. The Agency proved the allegations in the following Administrative Complaints: DOAH 02-2982 - Spencer Borisoff DOAH 02-2983 - Tom Stanton DOAH 02-2984 - Athena Lopez DOAH 02-2985 - Lisa Menuto DOAH 02-2988 - Gina Hughes DOAH 02-2990 - Robert Mikolkczak DOAH 02-2992 - Aaliyah Womack DOAH 02-2993 - Charlene Mars DOAH 02-2994 - Irma Avery DOAH 02-2995 - Nelita Parris DOAH 02-2996 - Christy West The Agency presented no evidence concerning the administrative complaints below and have not met its required burden of proof. DOAH 02-2986 - Bilan Evans DOAH 02-2987 - Louis Kelbs DOAH 02-2989 - John Greene DOAH 02-2991 - Van Saint Meyer
Recommendation Upon consideration of the facts found, the evidence admitted, and the Conclusions of Law reached, it is hereby RECOMMENDED that: Petitioner enter a final order dismissing the following Administrative Complaints: DOAH Case No 02-2986; DOAH Case No. 02-2987; DOAH Case No. 02-2989; and DOAH Case No. 02-2991. It is further Recommended that: Petitioner enter a final order finding Respondent in violation of Section 468.413(2), (3) and (4), Florida Statutes, and impose the following penalties: Require Respondent to make restitution to the Complainants below within 60 days: Case Nos. Complainants Amount DOAH 02-2982 Spencer Borisoff $934.07 DOAH 02-2983 Tom Stanton $855.00 DOAH 02-2984 Athena Lopez $466.94 DOAH 02-2985 Lisa Menuto $693.02 DOAH 02-2988 Gina Hughes $1,040.82 DOAH 02-2990 Robert Mikolkczak $347.00 DOAH 02-2992 Aaliyah Womack $603.92 DOAH 02-2993 Charlene Mars $261.15 DOAH 02-2994 Irma Avery $774.90 DOAH 02-2995 Nelita Parris $150.00 DOAH 02-2996 Christy West $855.00 Impose a fine in the amount of $1,000 for each of the following Administrative Complaints: DOAH Case No. 02-2982; DOAH Case No. 02-2983; DOAH Case No. 02-2984; DOAH Case No. 02-2985; DOAH Case No. 02-2988; DOAH Case No. 02-2990; DOAH Case No. 02-2992; DOAH Case No. 02-2993; DOAH Case No. 02-2994; DOAH Case No. 02-2995; and DOAH Case No. 02-2996, for a total of $11,000 in fines. Permanent revocation of Respondent's license. Should Respondent fail to timely comply with full payment of the restitutions and the fines as herein ordered, the Agency pursue those sanctions as provided in Sections 468.413(2) and 468.413(4), Florida Statutes. DONE AND ENTERED this 10th day of January, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 2003.
The Issue The issue for determination is whether Respondent violated section 1012.795(1)(j), Florida Statutes (2015),1/ and Florida Administrative Code Rules 6A-10.081(5)(a), (h), and (i); and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. Mr. Kellen is currently licensed as a teacher in Florida and has been issued Florida educator certificate 1007357. Mr. Kellen's certificate covers the areas of Educational Leadership, English, Pre-Kindergarten/Primary Education, Reading, and Exceptional Student Education. Mr. Kellen's certificate expires on June 30, 2020. Prior to obtaining his Florida educator certificate, Mr. Kellen was employed as a teacher in the State of Indiana from 1997 to 2005. In 2006, Mr. Kellen moved to Florida and became a reading teacher in Collier County from 2006 to 2007. From 2007 to 2008, he was a middle school teacher at Six Mile Charter Academy with Charter School USA. From 2009 to 2011, Mr. Kellen was employed as a substitute teacher in Lee County, Florida. From January through March 2012, Mr. Kellen was a paraprofessional in Monroe County, Florida. In August 2012, Mr. Kellen was employed as a teacher at Knox Academy in Lee County, Florida. Three months later, in November 2012, Knox Academy terminated his employment. Brad Buckowich was the principal at Knox Academy. Mr. Buckowich both hired and fired Mr. Kellen. In July 2013, Mr. Kellen applied for a teaching position at James Stevens International Academy ("James Stevens Academy"), a school within the School District. Alice Barfield, principal at James Stevens Academy, interviewed Mr. Kellen for a reading teacher position. Shortly, thereafter, she offered him the position. As part of the hiring process, the School District required Mr. Kellen to submit references from previous employers. On July 31, 2013, Mr. Kellen met with Georgianna McDaniel, the Executive Director of Personnel Services for the School District, to discuss the School District hiring procedures. Ms. McDaniel explained to Mr. Kellen that School District policy required the hiring school to contact the candidate's previous employer before the School District would hire him. Following the July 31 meeting, Mr. Kellen brought to Ms. Barfield at James Stevens Academy a recommendation letter from Knox Academy dated July 8, 2013, and signed by Brad Buckowich. The recommendation letter was a photocopy. However, Mr. Kellen represented throughout the hiring process (and maintained during the final hearing) that Mr. Buckowich prepared and signed the original recommendation letter on behalf of Knox Academy.2/ The photocopied recommendation letter which Mr. Kellen provided to Ms. Barfield included a Knox Academy letterhead. The letter also bore the signature of Brad Buckowich at the bottom. Upon review of the recommendation letter, however, Ms. Barfield noticed that the signature seemed odd. The top of the letter "B" in the name "Brad" and "Buckowich" was cut off. The signature was also slightly slanted. Thereafter, Ms. Barfield contacted Mr. Buckowich to personally inquire about Mr. Kellen's employment with Knox Academy, obtain his verbal recommendation as Mr. Kellen's last employer, and discuss the recommendation letter. When Ms. Barfield's secretary reached Mr. Buckowich by phone, however, he declined to recommend Mr. Kellen for the position. Furthermore, he denied that he had ever written a recommendation letter for Mr. Kellen. Ms. Barfield then faxed the recommendation letter to Mr. Buckowich. After reviewing the letter, Mr. Buckowich repeated to Ms. Barfield that he did not draft or sign the letter. Ms. Barfield faxed a copy of the recommendation letter to Ms. McDaniel at the School District office on August 2, 2013. On August 5, 2013, Mr. Kellen visited James Stevens Academy. He was told there was a problem with his reference letter. Later that morning, Mr. Kellen met again with Ms. McDaniel at the School District office. Ms. McDaniel informed Mr. Kellen that Mr. Buckowich said he did not prepare or sign the recommendation letter. Mr. Kellen disclosed that he had actually prepared the letter for Mr. Buckowich's signature. However, Mr. Kellen insisted that Mr. Buckowich signed the letter he submitted. In the afternoon of August 5, 2013, Mr. Kellen wrote an e-mail addressed to Mr. Buckowich. In the e-mail, Mr. Kellen asked Mr. Buckowich to "please fill out this form as you promised in March, that you would give me a good recommendation based on my working as Asst. Principal/Instructor." Mr. Kellen added, "[t]o avoid any mis-communication, email the form signed to me at this email and to Mrs[.] McDaniel in HR." On August 9, 2013, Mr. Buckowich met with Ms. McDaniel to discuss and review the recommendation letter. Mr. Buckowich observed that the signature on the photocopied letter was, in fact, a copy of his signature. However, Mr. Buckowich reiterated that he did not draft or sign the recommendation letter. Further, Mr. Buckowich produced for Ms. McDaniel another document he signed in October 2012, which he believed was the source of the signature that was "cut and pasted" onto the recommendation letter Mr. Kellen presented to Ms. Barfield. Mr. Buckowich had provided this document to Knox Academy employees, including Mr. Kellen. Mr. Buckowich surmised that Mr. Kellen, likely by using a computer Word or PDF program, cut his signature from the October 2012 document and pasted it onto the recommendation letter. Based on her meeting with Mr. Buckowich, Ms. McDaniel concluded that the recommendation letter Mr. Kellen submitted to support his application for the teaching position was fraudulent. Ms. McDaniel determined that the School District would not hire Mr. Kellen. At the final hearing, Mr. Buckowich expanded on why the recommendation letter should not be considered genuine. Mr. Buckowich stated that the recommendation letter had several formatting and style errors that he would not have used or made. These mistakes included: he would have adjusted the date to the right margin, not centered it under the Knox Academy seal; he would have placed the subject line flush with the left margin, not indented it; and he would not have capitalized every word of the addressee line. As far as the letter's content, Mr. Buckowich stated that he would not have used the words or phrases written in the letter. He would not have identified Mr. Kellen as the "Assistant Principal/Instructional Leader." Neither would he have used the term "RTI strategies." Finally, regarding the signature, other than not actually signing the recommendation letter, Mr. Buckowich commented that the signature looked as if it had been cut and pasted, as if from another PDF or scanned document, onto this letter. Aside from this fact, Mr. Buckowich testified that his actual signature block reads "Brad J. Buckowich, Principal/Director, Knox Academy," not "Mr. Brad Buckowich, Founder/Principal, Knox Academy," as written on the letter. To conclude, Mr. Buckowich commented that if he would have actually drafted a recommendation letter for Mr. Kellen, he would have sent an original letter with a Knox Academy color logo and an original signature, not a photocopy. At the final hearing, Mr. Kellen adamantly asserted that the recommendation letter with Mr. Buckowich's signature was genuine. Mr. Kellen stated that he obtained the letter from his former attorney. His attorney had received it from Mr. Buckowich and then forwarded it to Mr. Kellen. The Florida Education Practices Commission is the state agency charged with the certification and regulation of Florida educators. See Chapter 1012, Fla. Stat. Prior to this current matter, the Education Practices Commission entered two, separate final orders against Mr. Kellen sanctioning his educator certificate for misconduct, one dated December 4, 2006, and one dated October 23, 2008. Based on the evidence and testimony presented during the final hearing, Petitioner demonstrated, by clear and convincing evidence, that Mr. Kellen submitted a fraudulent recommendation letter to the School District as part of his application for employment in a teaching position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent, Irwin Kellen, in violation of section 1012.795(1)(j) and rules 6A-10.081(5)(a), (h), and (i). It is further RECOMMENDED that Petitioner revoke Respondent's certificate for a period of time deemed appropriate by the Education Practices Commission. DONE AND ENTERED this 27th day of August, 2015, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2015.
The Issue Whether Porter failed to display his license prominently and permitted his license to be used by an unlicensed person when Porter was not present.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Board suspend the license of Stanley T. Porter for a period of sixty (60) days. DONE and ORDERED this 9th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1978. COPIES FURNISHED: Thomas Lang, Esquire Suite 302 801 North Magnolia Avenue Orlando, Florida 32803 Daniel Wiser, Esquire Post Office Box 1752 Tallahassee, Florida
The Issue The issue in this case is whether the Respondent, the Department of Highway Safety and Motor Vehicles (the Department), should enter into a contract with Southern Photo Supply as low responsive bidder under Invitation to Bid (ITB) 052-98; the Petitioner, E. L. Cole Photography, Inc., contends such a contract would breach the Petitioner's contract under ITB 055-97.
Findings Of Fact On May 14, 1997, the Respondent, the Department of Highway Safety and Motor Vehicles (the Department), awarded a contract for miscellaneous photographic supplies to the Petitioner, E. L. Cole Photography, Inc., as the low responsive bidder under ITB 055-97. ITB 055-97 replaced a similar contract awarded to Southern Photo Supply, as the low responsive bidder under ITB 039-94. Both ITBs were restricted to minority business enterprises (MBEs). Both ITBs (039-94 and 055-97) specified supplies listed under "Product Groups." The preamble to the "Product Groups" list in the bid specifications for both ITBs stated: The following product groups include the listed representative products and the anticipated order quantities for the representative products during the . . . contract period. These lists are based on a combination of experience and estimation, and are furnished to assist bidders to determine their interest in the contract and to estimate the type and volume of business that might be derived from the contract. However, the agency reserves the right to vary both products used and quantities required as may best serve the interests of the agency in carrying out agency business. Both lists included a group consisting of various types of color negative standard roll film in quantities ranging from 120 to 360 rolls. ITB 039-94 was for an eighteen-month contract (through June 30, 1995), renewable for two additional twelve-month terms. ITB 055-97 was for a five-year contract (through June 30, 2002), renewable for one additional five-year term. Both ITBs (039-94 and 055-97) included the following provision entitled "Additions/Deletions": "As products and agency requirements change over the life of the contract the agency may add new or different products to an appropriate discount group, or increase the use of products, at the same discount rate, or discontinue or reduce the use of products." Twice during the life of the 1994 contract, the Department solicited price quotes from Southern Photo for a large order of a type of color negative standard roll film not specifically listed under "Product Groups" in ITB 039-94. Southern Photo responded that it would sell the film to the Department at a 33% discount, which was even higher than the already deep 32% discount for color negative standard roll film in Southern Photo's response to ITB 039-94. The Department saw no need to solicit price quotes from other suppliers to verify that Southern Photo's 33% discount was deep enough to justify foregoing the issuance of an ITB for the film, with attendant administrative costs and delay. Instead, the Department added the purchase to the 1994 contract using the "Additions/Deletions" clause. The second time the Department added a large order of a type of color negative standard roll film not specifically listed under "Product Groups" in ITB 039-94 was about the time it was awarding the contract to the Petitioner under ITB 055-97. In the Petitioner's response to ITB 055-97, the discount for color negative standard roll film in the Petitioner's response to ITB 055-97 was 18%. Upon inquiry, the Department was advised that Southern Photo again would sell the large order at a 33% discount. Given the depth of Southern Photo's discount, as compared to the discount for color negative standard roll film offered in the Petitioner's response to ITB 055-97, the Department's decision was logical and reasonable. The Department assumed that the Petitioner would not reduce its price for color negative standard roll film from an 18% discount down to a 33% discount. It also was logical and reasonable for the Department to believe that it would not get a price quote from any other MBE that would be enough below Southern Photo's price quote to justify the administrative cost and delay of issuing an ITB for the film. On or about April 22, 1998 (long after Southern Photo's contract under ITB 039-94 had expired and well into the Petitioner's contract under ITB 055-97), the Department decided it needed to place another large (11,000-roll) order of color negative standard roll film that was not specifically listed under "Product Groups" in ITB 055-97, namely Kodak Ektapress PJ400 135/36 (PJ400). The Department asked the Petitioner for a price quote. The Petitioner took the position that the order was covered by its contract under ITB 055-97 and quoted a price ($4.95 a roll) that would reflect the 18% discount offered on color negative standard roll film in the Petitioner's response to ITB 055-97. The Department believed that it could buy the PJ400 film at a price low enough to justify the administrative cost and the delay of issuing an ITB for the film instead of adding it to the Petitioner's contract at $4.95 a roll. To ascertain if its belief was accurate, the Department solicited price quotes from several other MBEs and was able to obtain lower quotes, including a quote from Southern Photo of $3.96 a roll. The Department decided that the prospect of possibly saving $11,000 or more would be worth the administrative cost and delay of issuing an ITB for the film. On or about May 22, 1998, the Department issued ITB 052-98 for 11,000 rolls of PJ400 film. Both the Petitioner and Southern Photo responded. Southern Photo again offered a price of $3.96 a roll. Recognizing that it was not bound by the 18% discount in its response to ITB 055-97, the Petitioner bid $4.30 a roll. However, the Petitioner submitted its response "under protest." The Petitioner made clear in the cover letter to its response that the Petitioner still believed that the 11,000 rolls of PJ400 film should be added to the Petitioner's contract under ITB 055-97. On June 4, 1998, the Department posted notice of its intent to award the contract to Southern Photo. The Petitioner filed a notice of protest on June 9 and a formal protest on June 22, 1998. In its protest, the Petitioner took the position that the intended award of the contract to Southern Photo would breach the Petitioner's contract under ITB 055-97. In part, the Petitioner based its protest on its understanding that, at the opening of the responses to ITB 055-97, the Department's Chief of Contract Purchasing, William R. Rothman, answered in the affirmative a question from the Petitioner's principal, Eddie Lee Cole, Sr., as to whether the Petitioner would be the supplier of all of the Department's needs for photographic supplies under ITB 055-97. Cole's testimony in support of the Petitioner's protest is rejected as being either a miscommunication or a misunderstanding on his part. It is not believed that the Department's Chief of Contract Purchasing would have answered such a question in the affirmative in the face of the provisions of ITB 055-97. See Findings 2 through 4, supra. Despite the possible ambiguity injected by the use of the phrase "representative products" in the preamble to the "Product Groups" list in the bid specifications for ITB 055-97, Rothman testified that he viewed the purpose of the phrase to be to give the Department flexibility in the use of the "Additions/Deletions" clause. In particular, Rothman understood the purpose of the phrase to be to alert bidders that the Department would not necessarily purchase all listed products or purchase them in the listed quantities. Given Rothman's interpretation of ITB 055-97, it is not likely that Rothman would have given an affirmative answer to Cole's alleged question. If he did, it is found that Rothman's answer was intended to incorporate the provisions of the ITB as defining the contractual relationship between the Department and the Petitioner. The Petitioner's protest also was based in part on evidence that, on at least one occasion, the Department purchased from the Petitioner photographic supplies not specifically listed under "Product Groups" in ITB 055-97 without making formal use of the "Additions/Deletions" clause. However, it is found that the Department's action in that regard was an oversight from not carefully comparing its purchase orders to the "Product Groups" list. Reading the ITB in its entirety and in pari materia, it is found that the phrase "representative products" was not intended to require the Department to purchase large (11,000- roll) orders of color negative standard roll film not specifically listed under "Product Groups" in ITB 055-97 from the Petitioner. (Despite this finding, it is suggested that rephrasing the language in future ITBs may eliminate ambiguity, as well as the cost and delay it apparently caused in this case.) The Petitioner's protest also was based in part on its concern that, despite virtually identical pertinent ITB provisions, the Petitioner was not treated under its contract (ITB 055-97) the same way as the Department treated Southern Photo under its contract (039-94). However, as reflected in these findings, the Department actually treated both contractors the same; the outcome of that treatment was different only because Southern Photo's price quotes for large orders of color negative standard roll film not specifically listed under "Product Groups" were much lower than the Petitioner's.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order denying the Petitioner's bid protest and awarding the contract under ITB 052-98 to Southern Photo Supply. DONE AND ENTERED this 2nd day of October, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1998. COPIES FURNISHED: Barbara Hobbs, Esquire Cummings, Hobbs and Wallace, P.A. 1020 East Lafayette Street, Room 205 Tallahassee, Florida 32301 Judson M. Chapman, Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 2399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 2399-0500 Charles J. Brantley, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue Whether Dunlop violated Rules 21P-1.012 and 21P-6.07, Florida Administrative Code, by permitting an unlicensed person to use his license for the purpose of dispensing optics.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida State Board of Dispensing Opticians take no action against the license of Francis (Frank) Dunlop. DONE and ORDERED this 9th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Daniel Wiser, Esquire Post Office Box 1752 Tallahassee, Florida 32304 Thomas F. Lang, Esquire Suite 302 801 North Magnolia Avenue Orlando, Florida 32803 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF DISPENSING OPTICIANS In the Matter of the Suspension or revocation of the License to Practice the Trade or Occupation of Dispensing Optician in this State of FRANCIS NELSON DUNLAP DOAH CASE NO. 77-2291 As a duly licensed dispensing optician authorized to supervise the preparing, fitting and adjusting of optical devices at Vent-Air Contact Lens Service, Florida National Bank Building, Jacksonville, Florida /
