The Issue Whether Respondent's intended award of a contract to Ramsay Youth Services, Inc., pursuant to RFP No. K8027, is contrary to Respondent's governing statutes, applicable rules, or polices or the specifications of the request for proposals.
Findings Of Fact On August 13, 1999, Respondent, Department of Juvenile Justice (Department), advertised and released a request for proposals (RFP) for the operation of a 62-bed Male Moderate Risk Residential Education Program in Dade County, Florida, RFP K8027. Petitioner, Youthtrack, Inc. (Youthtrack), and Intervernor, Ramsay Youth Services, Inc. (Ramsay), submitted the only two proposals in response to the RFP. On September 20, 1999, the Department posted an intended contract award to Ramsay. Based on the evaluations conducted by the Department, Ramsay received 401.66 points, and Youthtrack received 376 points. The RFP requested proposals to design, develop, implement, and operate a Moderate Risk Residential Education Conservation Corps on land owned by the South Florida Water Management District located outside of Florida City. The RFP called for a daily capacity of 62 male youths who are committed to the Department after having been classified as a moderate risk to society. Youthtrack is the incumbent provider. The RFP specified the proposal award criteria. The proposals were to be evaluated on the statement of work/program services, organizational capability, management approach, and past performance. The evaluation areas were assigned a maximum number of percentage points. Each area contained subcategories, which were assigned percentage points to equal the maximum number of percentage points that could be awarded in that particular category as follows: Award Criteria STATEMENT OF WORK/PROGRAM SERVICES 50 Soundness of Approach 25 Compliance with Requirements 25 ORGANIZATIONAL CAPABILITY 20 Soundness of Approach 10 Compliance with Requirements 10 MANAGEMENT APPROACH 20 Soundness of Approach 10 Compliance with Requirements 10 PAST PERFORMANCE 10 Historical implementation 2 Educational achievements 2 Recidivism rates 2 QA evaluation 2 Community involvement 1 CMBE subcontracting 1 In addition to the above criteria, ten bonus points were available for offerors who were certified minority business enterprises (CMBEs) or who utilized CMBEs as subcontractors. The evaluators were to rate each category using the following rating system. A rating of excellent would receive a score of five. Criteria deemed to be very good would be rated as a four. An adequate response for a category would be scored as a three. A rating of poor would garner a score of two. An unsatisfactory rating would be scored as one. If the criteria was not addressed in the proposal, a zero would be assigned. Three Department employees served on the technical evaluation committee: Robert Rojas, Anne McVey, and Joan Berni. Mr. Rojas is the facilities superintendent for the Department's Miami Halfway House, which is a 28-bed moderate risk facility similar to the 62-bed facility addressed in the RFP at issue. Ms. Beri is a program administrator over probation units in the north area. Maria Elena Cadavid served as the contract administrator for the RFP. She was responsible for overseeing the development of the RFP, the evaluation process, and the integrity of the procurement process. On September 15, 1999, Ms. Cadavid held a meeting with two of the evaluators to distribute the RFP, the Ramsay and Youthtrack proposals, and a memorandum of instructions. In addition to the instructions within the memorandum, the evaluators were provided with copies of a sample scoring sheet and an "Evaluation Factor Guide" as attachments to the memorandum. Ms. Berni did not attend the September 15 meeting. At the beginning of the evaluation process, the RFP, the proposal, and the instruction memorandum with attachments were delivered to her office. Once the technical evaluation was complete, the cost proposals were to be evaluated by Martha Bermudez. The members of the technical evaluation committee were not provided with the cost proposal. During the evaluation process, Mr. Rojas could not determine whether Youthtrack intended to provide psychiatric services to residents who were not eligible for Medicaid. In a letter attached to Youthtrack's proposal as an Appendix, (CPC), states that individual therapy and case management services are provided to eligible clients. In Mr. Rojas' past experience with (CPC), services had been provided only to Medicaid eligible clients. Mr. Rojas called Ms. Cadavid and asked whether Youthtrack's separate cost proposal included a budget item for mental health services that are not billable to Medicaid. Mr. Rojas was trying to determine the level of mental health services to be provided by Youthtrack's proposed subcontractor, (CPC). Ms. Cadavid told Mr. Rojas that there was no such budget item and that he did not need to take it into consideration. She did not provide Mr. Rojas with a "bottom-line" price or any other budget information from the Youthtrack proposal. Mr. Rojas concluded that Youthtrack would not provide mental health care unless the individual was eligible for Medicaid. The Department maintains a Contract Manager's Manual (Manual), which "establishes policy, assigns responsibilities, and prescribes implementing procedures for soliciting and evaluating Offeror's proposals." Section 9.3.2.a of the Department's Manual provides: Technical as well as cost (price) proposals will be submitted to the Contract Manager who will provide technical proposals to the technical evaluators. The technical evaluation will be conducted independent of the cost (price) evaluation. Technical evaluators (unless the district appoints only one team) will not have access to cost data at any time prior to the decision. In the case of one team, the team shall complete the technical evaluation of all technical proposals before beginning the evaluation of the cost proposals. In this context, cost data does not include information required for types and quantities analysis such as labor hours, personnel qualifications, equipment and material list, and other non- rate information. Technical personnel may examine such data even if it is extracted from the cost proposal. However, they may not be given access to the complete cost proposal. The September 15 memorandum stated: Each Section of the rating sheet has a section for comments. It is requested that you explain your rationale for the scoring of the proposal under each section. The manual provides that the individual evaluators will prepare narratives, which is to be the principal means available to do a comparative analysis of the offers. The narratives are to include as a minimum the following: What is offered; Whether it meets or fails to meet the evaluation standard; Any strengths or weaknesses; and An assessment of the Offeror's proposal approach and ability to perform. Mr. Rojas included comments on his scoring sheets for Youthtrack and Ramsay. The other evaluators, Ms. McVey and Ms. Berni, did not provide any comments on their scoring sheets for either proposal. The Manual provides that the individual narratives are to be consolidated into an evaluation report that is prepared by the evaluation team. The Manual contemplates that "the strengths and weaknesses determined by the individual team members are to be distilled into an integrated, team consensus, preferably by group discussion." Based on the Manual, the evaluation report is done after both the technical and cost proposals have been evaluated. The evaluation report may be done in any format, but it must include the following information: Narrative assessment of the technical evaluation; An analysis of the Offeror's cost (price) (realism, completeness, and reasonableness); and Results of evaluating contractual considerations and any other general considerations that were evaluated by the SSET [Source Selection Evaluation Team]. In Section 9.3.7, the Manual further provides: The objective of the proposal evaluation report is to present a summary of the evaluation of each proposal against solicitation requirements based on established evaluation criteria. The proposal evaluation report encompasses information derived from the results of the evaluation of the proposals. It is an official record of the evaluation of proposals and supporting rationale and, therefore, shall be maintained as a portion of the official contract file. On September 20, 1999, the evaluation committee reconvened to hand in their scores and to allow the contract manager to ensure that there were no math errors. During the meeting, the evaluators were instructed that the points entered under "Criteria" headings on the score sheets should equal the sum of the points of the underlying subfactors. This instruction comports with the directions on the scoring sheets. As a result of this clarification, Mr. Rojas made changes to his criteria scores so that they equaled the sum of his subfactor scores. Mr. Rojas lowered his criteria scores for Youthtrack by 58 points and increased his criteria score for Youthtrack by ten points. For Ramsay's proposal, Mr. Rojas lowered the criteria scores by 13 points. After the scores were tabulated and averaged, a summary of the scoring was prepared and signed by each of the evaluators. The summary stated that Ramsay's average score was 401.66 and that Youthtrack's was 376.00. Ms. Cadavid reported these scores to Ronald E. Williams, the Department's Senior Juvenile Justice Manager, who posted the results and recommended award of the contract to Ramsay by memorandum dated September 20. 1999. At the final hearing, it was noted by Ms. Cadavid that an error had occurred in calculating the average scores. Ms. McVey's score for Ramsay was listed as 500 points, rather the 510 points that was listed on Ms. McVey's score sheet. When the correct 510-point score from Ms. McVey is used, Ramsay's average score is 405, which is 29 points higher than Youthtrack's average score. If an offeror was a CMBE, the RFP required the following: The Offeror, if applicable, shall include a copy of certification or proof of registration (letter) as an eligible certified minority business enterprise to do business in the State of Florida, as set forth in Section 287.0945, Florida Statutes. To be an eligible minority vendor/offeror you shall possess current certification issued by the State of Florida Minority Business Advocacy and Assistance Office. If an offeror planned to use CMBEs as subcontractors, the RFP required the following: The Offeror shall include a subcontracting plan in every proposal in excess of $75,000. Each subcontracting plan must include the percentage of the total proposed contract dollars the offeror anticipates expending under subcontract to CMBE's as well as the type of services/commodities that will be included as subcontracts. The subcontracting plan shall be incorporated into the contract. Minority Business Enterprise subcontracting shall be an evaluation factor and shall be used as a measure of provider past performance. The clause is not applicable to registered CMBE's. The Ramsay proposal contained a list of the CMBE vendors with whom Ramsay intended to subcontract, the dollar amounts of the intended contracts, and the types of goods or services to be performed by the CMBE subcontractors. Ramsay also included CMBE certificates for three of the subcontractors. Ramsay intended to subcontract raw food products with a minority vendor in the amount of $90,520, but no vendor was listed and no certificate was provided. Youthtrack's proposal contained the following as Youthtrack's CMBE subcontracting plan: As an equal opportunity employer and national member of the National Association of Blacks in Criminal Justice (See Appendix), Youthtrack will continue to diligently pursue the development of subcontracts with available minority business enterprise contractors. This will be accomplished by consulting Department of Labor and Employment Security, Minority Business Advocacy & Assistance Office, and by utilizing its Business Commodity Directory for Dade County. Furthermore, Youthtrack has established a goal of spending a minimum of 10% of the programs' goods and services budget on goods and services procured from local minority business enterprises. Services to be provided may include mental health services, vocational and educational services and facility maintenance services such as refuse removal, pest control, clothing, etc. Currently Youthtrack's Hurricane program is in the process of finalizing an agreement with Rockdale Auto Services which is a minority owned business, for the provision of auto repair services, and with Dr. Peterson, whose medical practice is a certified minority business, for the provision of health services. Ms. McVey had awarded Youthtrack ten bonus points for minority subcontracting. At the September 20 meeting, the evaluators were told that the CMBE bonus points could not be awarded unless the offeror submitted CMBE certificates from the Department of Labor with the proposal. As a result of this directive, the ten bonus points awarded to Youthtrack by Ms. McVey were deducted. Neither Mr. Rojas nor Ms. Berni awarded Youthtrack bonus points for CMBE subcontracting. In his evaluation comments, Mr. Rojas questioned the caseload assignments for Youthtrack's case management personnel. Youthtrack included a staffing plan in Appendix I of its proposal, indicating that case management would be provided by four team leaders and two counselors. Mr. Rojas was under the impression that the two counselors would be providing the case management for the 62 children. His notes on Ramsay indicated that Ramsay had three case managers. Mr. Rojas scored Ramsay a three for Section 1.2.2.1 and scored Youthtrack a 2 for the same section dealing with the soundness of approach for organizational capability. Mr. Rojas concluded that Youthtrack had not provided for communicating gang information to the police based on the Department's Policy No. 8.09 regarding street gangs. The policy establishes elaborate procedures for identifying members of street gangs, controlling their behavior, housing them in Department facilities and interfacing with other law enforcement and community groups. The RFP included requirements that the offerors comply with several Department policies which were specifically identified; however, Policy No. 8.09 was not part of the RFP and was not referenced in the RFP. Mr. Rojas downgraded Youthtrack's proposal for not complying with Policy No. 8.09. Mr. Rojas made the same comment concerning street gang information when he evaluated Ramsay's proposal and downgraded Ramsay's proposal for not complying with Policy No. 8.09. Mr. Rojas testified that Youthtrack's proposal failed to provide for submission of progress reports every 30 days. Mr. Rojas notes state that Ramsay also failed to provide 30-day progress reports. Youthtrack and Ramsay both provided for 30-day progress reports in their proposals. In his notes on his evaluation of Youthtrack's proposal, Mr. Rojas stated, "The offeror does not clearly demonstrate a designated health authority." On page 44 of its proposal under the section describing the health services which will be provided, Youthtrack states: Health Services are provided by the Physicians Office of Florida City who is our designated health authority and provides medical services in accordance with the 1998 Department of Juvenile Justice Health Services Manual. In the event that the youth require hospital services, Homestead Hospital is located fifteen miles from the program and has indicated in writing its intent to enter into a cooperative agreement with Youthtrack for such services. In an appendix to its proposal, Youthtrack included a letter from Physician's Office of Florida City, indicating that it was providing the medical services. In another appendix to its proposal, Youthtrack included a proposal for Claudia Hall Peterson, D.O., of Homestead, Florida, to serve as the designated health authority. Thus, when Youthtrack's proposal is read in its entirety, there is an internal conflict as to who will serve as the designated health authority. In light of this discrepancy on the face of Youthtrack's proposal, Mr. Rojas' comment was not arbitrary, capricious, or clearly erroneous. The RFP requires that the offeror provide mental health services which include psychopharmacological therapy. Youthtrack stated in its proposal that CPC would provide mental health services, and that youths placed on psychotropic medications would be under the direct medical care of the prescribing physician and that a psychiatrist from CPC would provide medication for the treatment of mental health disorders. Mr. Rojas commented that Youthtrack's proposal did not include a consulting psychiatrist for psychopharmacology. At hearing, Mr. Rojas explained his view, that it was not sufficient for Youthtrack to state that psychiatric services were to be provided by its subcontractor, CPC. Mr. Rojas was looking for the name of a specific psychiatrist that would be used by the subcontractor. Mr. Rojas also based his comment on the Department's protocol requiring one person to oversee all medication; however, this protocol was not included in the RFP. Mr. Rojas had scored Youthtrack a "2" for soundness of approach for the management approach category and had scored Ramsay a "3" for the same subfactor. Mr. Rojas made comments on his scoring sheets concerning lack of integration with Youthtrack's staff and CPC and particularly questioned the interaction with the individual therapist. Youthtrack lists two individual therapists in its programming staffing. In the narrative of its proposal, Youthtrack states that when one-on-one counseling is needed, the youth will be referred to Youthtrack's overlay counselors and other local specialized service providers. The narrative also mentions overlay case managers from CPC. The narrative further talks about individual counseling being provided by "our staff." In another section on individual counseling, the proposal indicates that some individual counseling will be done by employees of Youthtrack and some will be done by the subcontractor. The proposal is unclear if the individual therapists are employees of Youthtrack or of the subcontractor's overlay counselors. It does not indicate that the individual therapists in the staffing plan are the ones referred to in the narrative. Additionally, it is not clear from Youthtrack's program staffing chart which other staff members are employees of Youthtrack and which staff members are employees of the subcontractor. Mr. Rojas' comments were not arbitrary, capricious, or clearly erroneous. Mr. Rojas' score sheet included a note stating, "no ranking uniform issued to offenders." Mr. Rojas was concerned at the time he evaluated the proposals that the children were not being classified at the time of admission. Youthtrack's classification takes place at the orientation level which follows the admission process. Mr. Rojas was concerned about security during the admission time Mr. Rojas made a similar comment concerning Ramsay's proposal. Mr. Rojas' comment was not arbitrary, capricious, or clearly erroneous. Mr. Rojas gave Youthtrack two points out of a possible five points for community involvement under the category of past performance. As explained in his score sheet comments and at hearing, Mr. Rojas based his score at least in part on Youthtrack's failure to have executed a contract with Everglades National Park for the operation of a recycling plant, despite the fact that Youthtrack is the incumbent provider. Youthtrack claims that Mr. Rojas required more of Youthtrack because it was the incumbent provider. Youthtrack overlooks that the category, is historical implementation; thus, the evaluators looking at what Youthtrack had done in the past and how it has conducted itself on the current contract is relevant. Mr. Rojas did not penalize Youthtrack because it was the incumbent provider. Youthtrack's representative conceded at the final hearing, that there was no evidence that Mr. Rojas, or any of the other evaluators, was prejudiced against Youthtrack or in favor of Ramsay.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a final order be entered dismissing Youthtrack's petition. DONE AND ENTERED this 14th day of January, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 14th day of January, 2000. COPIES FURNISHED: William G. "Bill" Bankhead, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Mary M. Piccard, Esquire Vezina, Lawrence & Piscitelli, P.A. 318 North Calhoun Street Tallahassee, Florida 32301 Joseph M. Helton, Jr., Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Gary V. Perko, Esquire Hopping, Green, Sams & Smith, P.A. 123 South Calhoun Street Tallahassee, Florida 32301
Findings Of Fact Introduction On February 26, 1988 respondent, Department of Health and Rehabilitative Services (HRS), through its District IX office, advertised a Request for Proposal (RFP) in the Florida Administrative Weekly inviting qualified and interested organizations and vendors to submit proposals for the designation of an Area Agency on Aging in District IX. The designation would run from May 2, 1988 through the end of the calendar year but the successful vendor could be expected to be redesignated in subsequent years. According to the advertisement: Proposals will be received by District IX until 12:00 p.m., EST, March 24, 1988, for the designation of an Area Agency on Aging authorized under Title III of the Older Americans Act as amended, within the jurisdictional areas of Martin, St. Lucie, Indian River, Okeechobee and Palm Beach Counties. * * * Contract awards will be based on approximately 75 percent federal funds, 11 percent general revenue and 14 percent local matching funds. * * * Written inquiries concerning the Request for Proposals will be received until 4:00 p.m., EST, March 11, 1988. A Bidders Conference, to review the proposed format and contract award process, will be held on March 4, 1988. * * * Under this proposal, HRS intended to award the contract to the best qualified firm since price proposals were not being submitted. To this extent, the proceeding differs from the typical state project where the contract is ordinarily awarded to the lowest and most responsive bidder. In response to the above RFP, petitioner, Banyan Area Agency on Aging, Inc. (Banyan), timely submitted its proposal. As it turned out, Banyan was the only organization that filed a bid. After being reviewed by a seven person evaluation committee, the proposal was given a score of 480 out of a possible 1525 and a recommendation that it be rejected. This recommendation was later adopted by the District Administrator. This decision was conveyed to petitioner by letter dated April 4, 1988. That prompted a request for hearing by petitioner to challenge the preliminary agency action. As grounds for contesting the action, petitioner contended the agency was arbitrary and capricious in rejecting its proposal. If its preliminary action is sustained, HRS intends to seek authority from the Department of General Services to negotiate a noncompetitive bid. Under this process, HRS desires to designate, after a screening process, one person from each of the five counties to serve on the board of a corporation to be established to run the program. Thus, HRS does not intend to readvertise the RFP and seek competitive proposals a second time. The Contract The contract in question is funded principally through federal grant dollars under the federal Older Americans Act of 1965, as amended. The monies, commonly known as Title III funds, are used to provide programs for senior citizens. Respondent is the State agency charged with the responsibility of administering the program funds. To receive federal funds, HRS was required to prepare a state plan and submit it to the U.S. Commissioner on Aging for his approval. A part of that plan calls for HRS, or District IX in this case, to designate an area agency on aging (AAA) to plan and administer a comprehensive and coordinated system of services for the aging in the five county area of Palm Beach, Okeechobee, Indian River, Martin and S. Lucie Counties. Among other things, the local AAA must develop an area plan for supportive services, senior centers and nutrition services in the five county area. The AAA will receive $300,000 to cover administrative costs in administering the program and will be in charge of dispensing several million dollars annually in grant dollars for aging programs. District IX had previously designated Gulfstream Area Agency on Aging (Gulfstream) as its AAA. However, due to a combination of faulty management, lack of supervision and other factors, Gulfstream was designated as AAA in May, 1987. Since then, HRS has received several waivers from the Commissioner on Aging but now faces a mandate to designate a District IX AAA by October 1, 1988 or lose its federal funding. To avoid a recurrence of the Gulfstream problem, the HRS District IX contract manager, and several other district personnel, prepared a comprehensive RFP to be issued in conjunction with the selection of a new AAA designee. After a draft was assembled at the local level, the RFP was forwarded to HRS' Tallahassee office where further refinements were made. The final product has been received in evidence as petitioner's exhibit 9 and respondent's exhibit 11. According to the District IX contract manager, the RFP is the "state of the art" in terms of what an AAA ought to be. The RFP is a voluminous document, weighing some 6 1/2 pounds according to Banyan, and requires a great deal of information and detail regarding the AAA organization, procedures, and program plans and goals to satisfy the federal act. The RFP was given to interested organizations, including Banyan, around March 1, 1988. This gave vendors approximately three and one-half weeks to prepare and submit a proposal. Only Banyan was interested in being the designee and thus was the only bidder on the job. Its proposal contained 135 pages. Evaluation Process HRS created a seven person evaluation committee to review the proposals. The committee included five HRS employees and two non-HRS members. All members were given Banyan's proposal prior to the selection date. On March 28, 1988 the committee met and each member independently evaluated Banyan's proposal. Although a top score of 1525 was theoretically possible, Banyan received an average overall score from each There of 480, or a rating of approximately thirty-one and one half percent. After the scores were tallied, Banyan was given one hour to orally explain its proposal before the full committee. At the conclusion of the presentation, the committee voted unanimously to reject the proposal. The reasons for rejecting Banyan's proposal are set forth in respondent's exhibit 2. The three primary deficiencies, as broadly stated, were the "proposal did not develop ideas fully enough to demonstrate a clear understanding of the needs and conditions of the District IX 60+ population," the proposal "did not demonstrate a clear understanding of the role and responsibility of area agency on aging nor was there evidence of administrative capability,' and (c) the proposal "did not offer assurance that current board members fully understood their position as the governing board." At hearing, several members of the committee amplified on the above three shortcomings and pointed out specific deficiencies in Banyan's proposal which led them to reject the proposal. For example, the proposal failed to focus on areas outside of Palm Beach County, did not contain a proposed budget, lacked minority representation, failed to fully identify goals and objectives, did not include a detailed description of the fair hearing process and the make- up and procedure of the advisory council and omitted the corporation's bylaws. Given these deficiencies, and others, HRS was justified in rejecting the bid. Petitioner's Case Petitioner contends that three and one-half weeks was too short a time to prepare a responsible proposal to the RFP. In this regard, HRS acknowledged it was a lengthy RFP, but it considered the time adequate for a qualified and experienced organization, particularly since much of the RFP was reference material. Banyan also pointed out that its board of directors was made up of highly qualified people with impressive work experience. While this is true, as evidenced by testimony at hearing, none were experienced in managing a federally funded program of this magnitude. Banyan further stated that, after the proposal was filed, it could have corrected or expanded on many of its abbreviated responses. However, once the proposal was filed, such changes were impermissible. Finally, Banyan conceded that while many of its responses were brief and nonspecific, this was because Banyan intended to rely upon HRS for technical assistance to implement the programs. However, the RFP called for specific, detailed responses so that HRS could properly evaluate the proposal. Allegations of Bias or Impropriety There is no evidence that the committee acted unfairly or improperly during the evaluation process or that any eber was personally biased towards Banyan. There is also no evidence that HRS rejected the bid so that it could "control" the management of the program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the protest filed by petitioner be DENIED and that a Final Order be entered confirming the rejection of petitioner's proposal. DONE AND ORDERED this 20th day of June, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1988. COPIES FURNISHED: Mr. Colman B. Stein 100 Worth Avenue Apartment 416 Palm Beach, Florida 33480 Laurel D. Hopper, Esquire 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The matter for consideration in this case concerns Petitioner's challenge to the Respondent, Department of Health and Rehabilitative Services', award of a contract for services to provide treatment of youth in the Juvenile Alternative Services Projects (JASP) for Hillsborough and Manatee Counties. In particular, Petitioner contends that it did not receive due and fair consideration in accord with the criteria established by law. Petitioner stipulated, during the hearing, that it was not challenging the sufficiency of the Request for Proposal (RFP) pursuant to which bids were submitted nor the sufficiency or propriety of the criteria contained within the RFP. WITNESSES AND EXHIBITS Petitioner presented as witnesses Dr. Peter Parrado, Executive Director of Juvenile Services Program, Inc.; Mr. Jack F. Wood, Program Supervisor, Children, Youth & Families (HRS); Mr. Patrick Keefe, District VI Intake Supervisor for HRS; Judge James P. Calhoun, Circuit Judge for the Thirteenth Judicial Circuit; Mr. John Benito, Assistant Public Defender for the Thirteenth Judicial Circuit; and Mr. Andrew Alexandre, District VI Intake Supervisor for Respondent (HRS). By stipulation of counsel, the direct testimony of Mr. Benito and Mr. Alexandre were presented by deposition and counsel for Respondent had the opportunity to cross examine those two (2) witnesses during the hearing. Respondent called as its witnesses Mr. Larry Lumpee, an employee of Respondent and Mr. William F. Bowman, Director of Bay Area Youth Services, Inc. The parties presented twelve (12) joint exhibits. Joint Exhibit I was the Request for Proposal for the Manatee County JASP and Joint Exhibit 2 was the Request for Proposal for the Hillsborough County JASP. Joint Composite Exhibits 3 and 4 were the proposals or bids of Bay Area Youth Services, Inc., for Manatee and Hillsborough Counties respectively. Joint Composite Exhibit 5 was the proposal or bid of Boy's Club of Manatee County, Inc., for the Manatee County JASP. Joint Composite Exhibits 6' and 7 were the proposals or bids of Juvenile Services Program, Inc., for Manatee County and Hillsborough County respectively. Joint Composite Exhibit 8 was the rating sheets of the selection committee for Hillsborough County and Joint Composite Exhibit 9 was the rating sheets for the selection committee for Manatee County. Joint Exhibits 10, 11 and 12 were the letters of notification of action dated May 28, 1982, from the Respondent to Boy's Club of Manatee County, Inc., Juvenile Services Program, Inc., and Bay Area Youth Services, Inc., respectively. Those exhibits were admitted. Petitioner also offered the depositions of Mr. John Benito and Mr. Andrew Alexandre and with agreement of counsel for Respondent, these were admitted as Petitioner's Exhibits 1 and 2. Petitioner had marked for identification its letter of protest dated June 10, 1982. This was not admitted as an exhibit. Respondent offered no exhibits other than the Joint Exhibits listed above. Counsel for both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact are not adopted in this Recommended Order, they have been rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
Findings Of Fact The Department of Health and Rehabilitative Services has, since 1979, operated the Juvenile Alternative Services Project. The program provides diversion and treatment for first-time less serious juvenile offenders prior to an adjudication of delinquency by the courts. The JASP program came into existence in 1979, through a pilot program in HRS Districts V, VI and VII. The pilot program in District VI was operated by Youth Program Services, Inc., based in Orlando, Florida. The JASP pilot program in District V was operated by Juvenile Services Program, Inc., the Petitioner in this case. The contract for District VI, which consists of Manatee and Hillsborough Counties, was re-bid annually. The Requests for Proposal used in the years 1980, 1981, and 1982, except for very minor changes, were virtually identical. The contracts which are the subject of this case were let for bid pursuant to two (2) Requests for Proposals (hereafter RFP) dated April 23, 1982. (Joint Exhibits 1 and 2) These two (2) RFPs advertised for two (2) separate contracts for the Manatee County JASP and Hillsborough County JASP. Proposals under both RFPs were required to be submitted no later than May 14, 1982, at 5:00 P.M. The Boys' Clubs of Manatee County, Inc.; Juvenile Services Program, Inc., and Bay Area Youth Services, Inc., submitted timely proposals for the Manatee County program. (Joint Exhibits 3, 5 and 6) Timely proposals for the Hillsborough County program were received from Juvenile Services Program, Inc., and Bay Area Youth Services, Inc. (Joint Exhibits 4 and 7) The proposals were evaluated by selection committees for each county. Members of the selection committee for Hillsborough County were Judge James Calhoun, Marcia Leonard Bailey, John Benito, Jack Wood, Patricia Moran, Andrew Alexandre and Patrick Keefe. These persons included a Circuit Judge, Assistant State Attorney, Assistant Public Defender, a citizen at large, and three (3) HRS employees. A similar committee performed the evaluation for Manatee County. In addition to reviewing the written proposals, the committees heard oral presentations from those parties which had submitted written proposals. Following the oral presentations, the committee members rated the various proposals by filling out rating sheets containing the various criteria contained in the RFP and used by the selection committee in arriving at a recommendation. (Joint Exhibits 8 and 9) The criteria were: A programmatic expertise; Prior experience--personnel history; Organization abilities; Qualifications of personnel--abilities to hire qualified personnel; Budget in cost effectiveness program; and Overall adequacy of personnel. The committee for Hillsborough County rated the Petitioner and Bay Area Youth Services, Inc., very closely, with Bay Area Youth Services, Inc., receiving 677 total points and Juvenile Services Program, Inc., receiving 668 points. Following their evaluations, the committees recommended Bay Area Youth Services, Inc., as the entity to provide JASP programs for both Hillsborough and Manatee Counties. Thereafter, Juvenile Services Program, Inc., timely and properly filed its protests and requested a formal hearing pursuant to Florida Statutes, Section 120.57(1). Both Juvenile Services Program, Inc., and Bay Area Youth Services, Inc., were qualified to perform the services requested by the RFPs. No evidence was presented relating to the selection process in Manatee County and there was no evidence that the Petitioner did not receive a full, fair, and proper evaluation of all criteria in the RFP for the Manatee County program. All five (5) committee members from the Hillsborough County selection committee who were called as witnesses testified that both the Petitioner and Bay Area Youth Services, Inc., were well qualified. The major contention of the Petitioner focused on the fact that Bay Area Youth Services, Inc., was a new corporation and would not be able to perform the administrative and financial functions of the JASP programs as well as Juvenile Services Program, Inc., which had been in existence since 1976. There was no evidence presented which showed that the selection committees failed to evaluate each and every criterion established by the RFP. This was borne out by the rating sheets as well as the five (5) committee members called as witnesses by Petitioner. Dr. Peter Parrado, Executive Director of Juvenile Services Program, Inc., also testified about the inquiry by the committee into the various criteria during the oral presentations. Both the Petitioner and Bay Area Youth Services were evaluated by the committee in all criteria areas. The committee specifically inquired into the fact that Bay Area was a new organization, incorporated in April, 1982, and was satisfied that that would not interfere with the proper performance of the services requested by the RFP. Mr. William F. Bowman, Director of Bay Area Youth Services, Inc., and one (1) of the members of its Board of Directors appeared before the selection committee. The entire existing District VI staff of Youth Programs, Inc., was to continue in place with Bay Area Youth Services. Both Dr. Parrado and Mr. Bowman had been involved in the JASP program since its inception in 1979. Dr. Parrado was executive director of the Petitioner which had had the JASP contract for District V since the pilot program in 1979. Mr. Bowman, as a former employee of Youth Program Services, Inc., was the program director for the JASP program in District VI and had performed that function since the pilot program in 1979. Both men were well qualified to supervise the JASP programs for District VI. There was a specific requirement that the providers submitting proposals be able to have the projects operational by July 1, 1982. The committee was concerned with the ability of Juvenile Services Program, Inc., to step inland take over a program with which it was not familiar. The JASP program in District VI operated differently than the program in District V where Juvenile Services Program was already operating JASP. Mr. Bowman and the staff of Bay Area Youth Services were the same staff that had previously operated the JASP program in District VI for Youth Programs, Inc. Mr. Bowman and his staff were thoroughly familiar with the operation and procedures of the JASP program in District VI. The Committee was also concerned with continuity of the existing JASP operations in District VI and Dr. Parrado had not given assurance as to what, if any, of the existing staff would be retained if Juvenile Services Program, Inc., was awarded the contract. Bay Area Youth Services already had its staff and physical operation in place and would be less disruptive of the program'5 continuity if awarded the contract. The key individuals in the supervision and operation of JASP in District VI by the two (2) bidders would have been Dr. Parrado and Mr. Bowman. JASP in District VI would be the only program operated by Bay Area Youth Services and Mr. Bowman would be giving one hundred percent (100 percent) of his time to that program. On the other hand, Dr. Parrado's organization would have been operating JASP in three (3) other districts as well as several other youth programs in other counties. The budget submitted by Juvenile Services Program reflected that Dr. Parrado would spend fifteen percent (15 percent) of his time supervising the District VI JASP. Dr. Parrado testified that he would give as much time to District VI required but gave the committee no firm estimate as to how much of his time he would be able to be personally involved in District VI. The witnesses rated the performance of Mr. Bowman and his staff as excellent for the previous years they had operated JASP in District VI. Some administrative problems had developed while Youth Programs, Inc., provided JASP services in District VI. These were in the nature of late payrolls and delays in paying bills. The problems emanated from the Orlando office and were not attributable to Mr. Bowman and the staff in District VI. Because of the problems which had occurred with the large organization of Youth Programs, Inc., the committee was concerned that the same types of problems might arise with Juvenile Services Program, Inc., which is also a large organization. To aid in handling the administrative details of JASP, Bay Area Youth Services had retained an outside firm to do the payroll and tax and other payroll-related functions. A local accounting firm had been retained to monitor and take care of accounting and bookkeeping functions. The committee was satisfied that Mr. Bowman's organization would be able to adequately handle the administrative details of JASP in District VI. Although much of the administrative and personnel matters under Youth Programs, Inc., were handled out of the Orlando Central Office, Mr. Bowman had for three (3) years been responsible for all hiring, firing, and supervision of personnel in the District VI JASP. He also did all local buying of supplies and related items. He also was responsible for locating and obtaining office space and equipment. The director of the program in District VI performs a liaison function between the provider and those entities using the services such as the State Attorney's office, Public Defender's office, and the Circuit Judges responsible for juvenile matters. Mr. Bowman had developed good rapport and credibility with each of these entities as well as HRS counselors in District VI and had done an excellent job in selling the JASP program to these agencies.
The Issue The threshold issue in this case is whether the decisions giving rise to the dispute, which concern the allocation and disbursement of funds appropriated to Respondent by the legislature and thus involve the preparation or modification of the agency's budget, are subject to quasi-judicial adjudication under the Administrative Procedure Act. If the Division of Administrative Hearings were possessed of subject matter jurisdiction, then the issues would be whether Respondent is estopped from implementing its intended decisions to "de- obligate" itself from preliminary commitments to provide low- interest loans to several projects approved for funding under the Community Workforce Housing Innovation Pilot Program; and whether such intended decisions would constitute breaches of contract or otherwise be erroneous, arbitrary, capricious, or abuses of the agency's discretion.
Findings Of Fact Petitioners Pasco CWHIP Partners, LLC ("Pasco Partners"); Legacy Pointe, Inc. ("Legacy"); Villa Capri, Inc. ("Villa Capri"); Prime Homebuilders ("Prime"); and MDG Capital Corporation ("MDG") (collectively, "Petitioners"), are Florida corporations authorized to do business in Florida. Each is a developer whose business activities include building affordable housing. The Florida Housing Finance Corporation ("FHFC") is a public corporation organized under Chapter 420, Florida Statutes, to implement and administer various affordable housing programs, including the Community Workforce Housing Innovation Pilot Program ("CWHIP"). The Florida Legislature created CWHIP in 2006 to subsidize the cost of housing for lower income workers performing "essential services." Under CWHIP, FHFC is authorized to lend up to $5 million to a developer for the construction or rehabilitation of housing in an eligible area for essential services personnel. Because construction costs for workforce housing developments typically exceed $5 million, developers usually must obtain additional funding from sources other than CWHIP to cover their remaining development costs. In 2007, the legislature appropriated $62.4 million for CWHIP and authorized FHFC to allocate these funds on a competitive basis to "public-private" partnerships seeking to build affordable housing for essential services personnel.1 On December 31, 2007, FHFC began soliciting applications for participation in CWHIP. Petitioners submitted their respective applications to FHFC on or around January 29, 2008. FHFC reviewed the applications and graded each of them on a point scale under which a maximum of 200 points per application were available; preliminary scores and comments were released on March 4, 2008. FHFC thereafter provided applicants the opportunity to cure any deficiencies in their applications and thereby improve their scores. Petitioners submitted revised applications on or around April 18, 2008. FHFC evaluated the revised applications and determined each applicant's final score. The applications were then ranked, from highest to lowest score. The top-ranked applicant was first in line to be offered the chance to take out a CWHIP loan, followed by the others in descending order to the extent of available funds. Applicants who ranked below the cut-off for potential funding were placed on a wait list. If, as sometimes happens, an applicant in line for funding were to withdraw from CWHIP or fail for some other reason to complete the process leading to the disbursement of loan proceeds, the highest-ranked applicant on the wait list would "move up" to the "funded list." FHFC issued the final scores and ranking of applicants in early May 2006. Petitioners each had a project that made the cut for potential CWHIP funding.2 Some developers challenged the scoring of applications, and the ensuing administrative proceedings slowed the award process. This administrative litigation ended on or around November 6, 2008, after the parties agreed upon a settlement of the dispute. On or about November 12, 2008, FHFC issued preliminary commitment letters offering low-interest CWHIP loans to Pasco Partners, Legacy, Villa Capri, Prime (for its Village at Portofino Meadows project), and MDG. Each preliminary commitment was contingent upon: Borrower and Development meeting all requirements of Rule Chapter 67-58, FAC, and all other applicable state and FHFC requirements; and A positive credit underwriting recommendation; and Final approval of the credit underwriting report by the Florida Housing Board of Directors. These commitment letters constituted the necessary approval for each of the Petitioners to move forward in credit underwriting, which is the process whereby underwriters whom FHFC retains under contract verify the accuracy of the information contained in an applicant's application and examine such materials as market studies, engineering reports, business records, and pro forma financial statements to determine the project's likelihood of success. Once a credit underwriter completes his analysis of an applicant's project, the underwriter submits a draft report and recommendation to FHFC, which, in turn, forwards a copy of the draft report and recommendation to the applicant. Both the applicant and FHFC then have an opportunity to submit comments regarding the draft report and recommendation to the credit underwriter. After that, the credit underwriter revises the draft if he is so inclined and issues a final report and recommendation to FHFC. Upon receipt of the credit underwriter's final report and recommendation, FHFC forwards the document to its Board of Directors for approval. Of the approximately 1,200 projects that have undergone credit underwriting for the purpose of receiving funding through FHFC, all but a few have received a favorable recommendation from the underwriter and ultimately been approved for funding. Occasionally a developer will withdraw its application if problems arise during underwriting, but even this is, historically speaking, a relatively uncommon outcome. Thus, upon receiving their respective preliminary commitment letters, Petitioners could reasonably anticipate, based on FHFC's past performance, that their projects, in the end, would receive CWHIP financing, notwithstanding the contingencies that remained to be satisfied. There is no persuasive evidence, however, that FHFC promised Petitioners, as they allege, either that the credit underwriting process would never be interrupted, or that CWHIP financing would necessarily be available for those developers whose projects successfully completed underwriting. While Petitioners, respectively, expended money and time as credit underwriting proceeded, the reasonable inference, which the undersigned draws, is that they incurred such costs, not in reliance upon any false promises or material misrepresentations allegedly made by FHFC, but rather because a favorable credit underwriting recommendation was a necessary (though not sufficient) condition of being awarded a firm loan commitment. On January 15, 2009, the Florida Legislature, meeting in Special Session, enacted legislation designed to close a revenue shortfall in the budget for the 2008-2009 fiscal year. Among the cuts that the legislature made to balance the budget was the following: The unexpended balance of funds appropriated by the Legislature to the Florida Housing Finance Corporation in the amount of $190,000,000 shall be returned to the State treasury for deposit into the General Revenue Fund before June 1, 2009. In order to implement this section, and to the maximum extent feasible, the Florida Housing Finance Corporation shall first reduce unexpended funds allocated by the corporation that increase new housing construction. 2009 Fla. Laws ch. 2009-1 § 47. Because the legislature chose not to make targeted cuts affecting specific programs, it fell to FHFC would to decide which individual projects would lose funding, and which would not. The legislative mandate created a constant-sum situation concerning FHFC's budget, meaning that, regardless of how FHFC decided to reallocate the funds which remained at its disposal, all of the cuts to individual programs needed to total $190 million in the aggregate. Thus, deeper cuts to Program A would leave more money for other programs, while sparing Program B would require greater losses for other programs. In light of this situation, FHFC could not make a decision regarding one program, such as CWHIP, without considering the effect of that decision on all the other programs in FHFC's portfolio: a cut (or not) here affected what could be done there. The legislative de-appropriation of funds then in FHFC's hands required, in short, that FHFC modify its entire budget to account for the loss. To enable FHFC to return $190 million to the state treasury, the legislature directed that FHFC adopt emergency rules pursuant to the following grant of authority: In order to ensure that the funds transferred by [special appropriations legislation] are available, the Florida Housing Finance Corporation shall adopt emergency rules pursuant to s. 120.54, Florida Statutes. The Legislature finds that emergency rules adopted pursuant to this section meet the health, safety, and welfare requirements of s. 120.54(4), Florida Statutes. The Legislature finds that such emergency rulemaking power is necessitated by the immediate danger to the preservation of the rights and welfare of the people and is immediately necessary in order to implement the action of the Legislature to address the revenue shortfall of the 2008-2009 fiscal year. Therefore, in adopting such emergency rules, the corporation need not publish the facts, reasons, and findings required by s. 120.54(4)(a)3., Florida Statutes. Emergency rules adopted under this section are exempt from s. 120.54(4)(c), Florida Statutes, and shall remain in effect for 180 days. 2009 Fla. Laws ch. 2009-2 § 12. The governor signed the special appropriations bills into law on January 27, 2009. At that time, FHFC began the process of promulgating emergency rules. FHFC also informed its underwriters that FHFC's board would not consider any credit underwriting reports at its March 2009 board meeting. Although FHFC did not instruct the underwriters to stop evaluating Petitioners' projects, the looming reductions in allocations, coupled with the board's decision to suspend the review of credit reports, effectively (and not surprisingly) brought credit underwriting to a standstill. Petitioners contend that FHFC deliberately intervened in the credit underwriting process for the purpose of preventing Petitioners from satisfying the conditions of their preliminary commitment letters, so that their projects, lacking firm loan commitments, would be low-hanging fruit when the time came for picking the deals that would not receive funding due to FHFC's obligation to return $190 million to the state treasury. The evidence, however, does not support a finding to this effect. The decision of FHFC's board to postpone the review of new credit underwriting reports while emergency rules for drastically reducing allocations were being drafted was not intended, the undersigned infers, to prejudice Petitioners, but to preserve the status quo ante pending the modification of FHFC's budget in accordance with the legislative mandate. Indeed, given that FHFC faced the imminent prospect of involuntarily relinquishing approximately 40 percent of the funds then available for allocation to the various programs under FHFC's jurisdiction, it would have been imprudent to proceed at full speed with credit underwriting for projects in the pipeline, as if nothing had changed. At its March 13, 2009, meeting, FHFC's board adopted Emergency Rules 67ER09-1 through 67ER09-5, Florida Administrative Code (the "Emergency Rules"), whose stated purpose was "to establish procedures by which [FHFC would] de- obligate the unexpended balance of funds [previously] appropriated by the Legislature " As used in the Emergency Rules, the term "unexpended" referred, among other things, to funds previously awarded that, "as of January 27, 2009, [had] not been previously withdrawn or de-obligated . . . and [for which] the Applicant [did] not have a Valid Firm Commitment and loan closing [had] not yet occurred." See Fla. Admin. Code R. 67ER09-2(29). The term "Valid Firm Commitment" was defined in the Emergency Rules to mean: a commitment issued by the [FHFC] to an Applicant following the Board's approval of the credit underwriting report for the Applicant's proposed Development which has been accepted by the Applicant and subsequent to such acceptance there have been no material, adverse changes in the financing, condition, structure or ownership of the Applicant or the proposed Development, or in any information provided to the [FHFC] or its Credit Underwriter with respect to the Applicant or the proposed Development. See Fla. Admin. Code R. 67ER09-2(33). There is no dispute concerning that fact that, as of January 27, 2009, none of the Petitioners had received a valid firm commitment or closed a loan transaction. There is, accordingly, no dispute regarding the fact that the funds which FHFC had committed preliminarily to lend Petitioners in connection with their respective developments constituted "unexpended" funds under the pertinent (and undisputed) provisions of the Emergency Rules, which were quoted above. In the Emergency Rules, FHFC set forth its decisions regarding the reallocation of funds at its disposal. Pertinent to this case are the following provisions: To facilitate the transfer and return of the appropriated funding, as required by [the special appropriations bills], the [FHFC] shall: * * * Return $190,000,000 to the Treasury of the State of Florida, as required by [law]. . . . The [FHFC] shall de-obligate Unexpended Funding from the following Corporation programs, in the following order, until such dollar amount is reached: All Developments awarded CWHIP Program funding, except for [a few projects not at issue here.] * * * See Fla. Admin. Code R. 67ER09-3. On April 24, 2009, FHFC gave written notice to each of the Petitioners that FHFC was "de-obligating" itself from the preliminary commitments that had been made concerning their respective CWHIP developments. On or about June 1, 2009, FHFC returned the de- appropriated funds, a sum of $190 million, to the state treasury. As a result of the required modification of FHFC's budget, 47 deals lost funding, including 16 CWHIP developments to which $83.6 million had been preliminarily committed for new housing construction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FHFC enter a Final Order dismissing these consolidated cases for lack of jurisdiction. DONE AND ENTERED this 18th day of February, 2010, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 18th day of February, 2010.
The Issue The issue in this case is whether Respondent had good cause, pursuant to Section 230.23(5)(a), Florida Statutes, to reject the Superintendent's recommendation that Petitioner's employment be continued from June 30, 1986 to June 30, 1987.
Findings Of Fact Petitioner was employed by Respondent as Deputy Superintendent from 1980 to June 30, 1986, and prior to this, he was employed by Respondent as Director of Secondary Education from 1978 to 1980. From August 1, 1985 until December 1, 1985, Petitioner also served as Interim Superintendent while the position of Superintendent was vacant and Respondent was in the process of selecting a new Superintendent. The educational background of Petitioner includes a Bachelor of Science Degree from the University of Miami, Master of Public Education from the University of Michigan, Education Specialist Degree from Michigan State University, and a Doctorate in Administration from Wayne University. He also served two terms as a member of a school board in Michigan in the early 1960's. The position of Deputy Superintendent has line authority over Elementary Schools, Secondary Schools, Personnel, Finance, Purchasing, Transportation, Data Processing, Facilities and Maintenance. Instructional matters are not handled by the Deputy Superintendent. The position of Deputy is second only to the Superintendent in the administrative organization of the school district, and the Deputy routinely fills in for the Superintendent in his absence. When former Superintendent James H. Fox resigned effective July 30, 1985, Petitioner was appointed on June 18, 1985 to become Interim Superintendent, effective August 1, 1985, until a new Superintendent was selected. According to School Board member Susan Richardson, who was chairperson of the Board at the time, it was a routine matter for Petitioner, as Deputy, to become Interim Superintendent. The current Superintendent, Charles Fowler, assumed his position on December 1, 1985, at which time Petitioner resumed his duties as Deputy Superintendent. Petitioner had applied to be Superintendent when Fox resigned, but was not a finalist for the position. Fowler had not been previously employed by Respondent. In addition to his other duties as Deputy Superintendent, Petitioner was also the chief negotiator for the School District in collective bargaining matters from February to June, 1985. Negotiations continued after Petitioner became Interim Superintendent, and were concluded in October, 1985 with contract approval. After he became Interim Superintendent, Petitioner was replaced as chief negotiator by Walter Pierce, Director of Personnel, but continued as a lead member of the negotiating team with Pierce, and Bruce Monson, Director of Finance, each of whom gave presentations and responded to questions during executive sessions which were called by Respondent to consider contract proposals. On January 14, 1986, Superintendent Fowler recommended a salary increase for Petitioner, effective December 1, 1985, the date Fowler assumed his position. This increase was for the remainder of Petitioner's employment contract, which was to expire on June 30, 1986. Salary increases and contract renewal for all administrative staff, except Petitioner and one other top-level manager, had previously been approved by Respondent. However Respondent's action on Petitioner's salary increase and contract renewal was delayed so that the new Superintendent could address them. Fowler also recommended that Petitioner's contract be extended until June 30, 1987 at the increased salary level. This recommendation was presented to Respondent on several occasions between January and March, 1986, but each time Respondent deferred action. Finally, on March 18, 1986 Superintendent Fowler's recommendation and an employment contract continuing Petitioner's employment as Deputy Superintendent were submitted to, and rejected by Respondent. In making his recommendation to retain Petitioner, Fowler was aware of the fact that after he, as Superintendent, recommended Petitioner for continued employment, his recommendation could only be rejected by Respondent for good cause. Further, Fowler had been informed by School Board member Richardson in early December, 1985 that she had serious concerns about whether Petitioner should remain as Deputy Superintendent. Nevertheless, Fowler did recommend Petitioner's continued employment. Petitioner timely filed a Petition for Formal Hearing following Respondent's rejection, by a three to two vote, of the Superintendent's recommendation on March 18, 1986, and contends that good cause has not been established for such rejection. 0n June 26, 1986 Superintendent Fowler wrote to Petitioner stating: I want to say how much I appreciate the professional way in which you have handled an extremely difficult and pressure-filled situation these past several months. I could not ask for a more cooperative person; many, in this circumstance, would not be so eager and willing to be of assistance. Right up to these last days and the difficult budget decisions we are wrestling with, you have been forthright and cooperative. Your demeanor has made it so much easier on me and all those in the school system with whom you work. Thank you....Your support and kindness are much appreciated. Respondent alleges that Petitioner "willfully or negligently withheld from the Board financial information required by the Board to make an informed decision regarding whether to enter into a multi-year salary agreement with the Sarasota Classified/Teachers Association" (SCTA). On September 20, 1985, Bruce Monson, Director of Finance, wrote Petitioner a memo in which he expressed his concern about the School District's increasing rate of expenditures, summarized grim economic forecasts for the world, and clearly stated he was not comfortable with a three-year negotiated salary contract. His recommendation was for the annual negotiation of salary increases, with a three-year agreement which only dealt with contract language and starting salaries. Monson wrote this memo at Petitioner's request after he had orally informed Petitioner of his concerns in August and early September, 1985. He copied Walter Pierce, Director of Personnel, on his memo, but not School Board members. Monson assumed that Petitioner would provide his memo to all School Board members, but Susan Richardson, Eugene Matthews, Mary Margaret McAdoo and Kay Glasser, Board Members, each testified they were not given a copy of the Monson memo until after the multi-year salary contract was approved. The remaining Board member, Dick Olson, had the Monson memo at the time the multi-year contract was approved. Petitioner did not provide Respondent with a copy of the Monson memo. Negotiations had begun with the SCTA in February, 1985 with Petitioner as chief negotiator. Respondent had made it clear to the negotiating team that it wanted a three-year salary contract, if possible, and it was on that basis that negotiations proceeded. In prior years, Monson had informed Respondent about his concerns with multi-year contracts, but Respondent still directed that a multi-year contract be sought during negotiations in 1985. In early July, 1985 Pierce became chief negotiator and Petitioner, as Interim Superintendent, was simply a member of the negotiating team from that point forward. At the time Monson wrote his memo, negotiations with the SCTA were virtually concluded and Pierce was chief negotiator. According to Board members Olson and McAdoo, negotiations were too far along on a multi-year contract to back out in late September, even if the Monson memo had been considered. Respondent gave final approval to the multi-year contract in the first week of October, 1985, having come to closure on virtually all issues in executive session held on September 24, 1985, four days after the Monson memo. The evidence does not support the allegation that Petitioner willfully or negligently withheld the Monson memo from Respondent. It took Monson several weeks to reduce his concerns to writing, as Petitioner requested. Monson was a member of the negotiating team and attended executive sessions. He was therefore aware of the status of negotiations, and the fact that by late September it would have been virtually impossible for Respondent to back out of the multi-year contract its team had been negotiating with the SCTA all summer. It was reasonable for Petitioner to assume that if Monson was really concerned, he would have spoken up during executive sessions, or promptly reduced his concerns to writing. He did neither. In any event, Pierce was chief negotiator from July through contract approval in early October, 1985. He reported to Respondent in executive sessions, and did have the Monson memo prior to the final executive session on September 24, 1985. He said nothing. Pierce did ask Respondent's labor counsel to draft escape clauses which would allow Respondent to avoid paying negotiated salaries if financial problems developed. The escape clauses were viewed as precautions for Respondent's consideration. Neither Pierce, Monson or Petitioner advised Respondent to include an escape clause in the negotiated contract. It was reasonable for Petitioner, who was acting as Interim Superintendent at the time with many other duties, to rely on the chief negotiator to bring to Respondent's attention those matters which he felt were important and significant. Such reliance does not constitute a willful or negligent withholding of information. It is further alleged that Petitioner willfully or negligently authorized improper payments under a contract between Respondent and MAI, a consulting firm, and that he improperly handled changes in the contract which deprived the Respondent of an opportunity to consider the changes and resulted in the improper expenditure of funds. This contract was entered into in December, 1982, while Fox was Superintendent and payments under the contract had been criticized by the Auditor General for two years. The contract was for professional services for improvements in the pupil transportation system, and payment to the consultant was to be from monies saved through implementation of the consultant's program. The Auditor General's criticism was that the method for determining payments under the contract was vague and indefinite. MAI sought payment of $90,000 for their services, but a negotiated settlement for $30,000 was arrived at by Fox. Petitioner had no involvement in drafting this contract or presenting the settlement to the School Board; those matters were handled by former Superintendent Fox. Respondent alleges that Petitioner willfully or negligently failed to inform the Board that certain Capital Outlay Projections were inadequate and incorrect, thereby falsely leading Respondent to believe that future expenditures would be less than should reasonably have been anticipated. Additionally, it is alleged that certain long range planning projections were inaccurate and were not based on reliable census and cost projections, and that Petitioner knew or should have known about these inaccuracies but failed to inform the Respondent. One of the first things that Superintendent Fowler did after becoming Superintendent was to try to get a clear understanding of capital outlay needs of the District. He reviewed a document entitled, "1985-91 Capital Outlay Needs" and prepared a memo to Respondent on February 12, 1986 which expressed his concern that capital outlay needs of the District had been seriously underestimated. He recommended employing a consultant to verify his enrollment projections and develop an integrated facility planning approach. As Deputy Superintendent responsible for the Facilities Department, Petitioner supervised the preparation of capital outlay projections and their presentation to Respondent. However, the committee which actually developed these projections had been appointed by former Superintendent Fox, who also took an active role in the development and presentation of these projections. According to Charles E. Collins, capital projects administrator, Fox directed the capital outlay needs projects and gave specific instructions about what he wanted. Superintendent Fowler testified that the School District will have an actual need for six or seven new schools, although a need for only two new schools had been projected under Fox. During his tenure as Interim Superintendent, Petitioner did not report to Respondent that capital outlay needs and projections had been underestimated. He always considered the "Capital Outlay Needs" document to be a generalized planning forecast which was to some extent also a "political" document, and had not felt the need to raise this matter with Respondent. Nevertheless, Petitioner did know that said projections were inaccurate, but failed to alert Respondent to the greater need which actually existed during budget considerations, as Fowler did immediately upon becoming Superintendent. Fowler took appropriate and necessary action to apprise Respondent of this inadequacy, and the incorrect basis for these projections, in contrast with Petitioner who withheld this information simply because he did not feel it necessary to make such a report. Petitioner exercised poor judgement in this regard and thereby lead Respondent to believe that future expenditures and the need for new facilities would be less than could reasonably be anticipated. Regarding the construction of North Port Elementary School, it is alleged that Petitioner caused Respondent to suffer an unnecessary and unjustified expense of $50,000 which was paid to the general contractor, even though deficiencies existed and the contractor was not entitled to this payment. According to Larry Derryberry, the architect who designed North Port Elementary School, a meeting took place on February 21, 1985 concerning $57,000 that was retained on this job by the District to insure that certain outstanding items and deficiencies noted by the Fire Marshall were corrected. The school had been accepted as substantially complete and was occupied in the Fall of 1984, approximately eight months prior to this meeting. The cost of the entire project was between four and five million dollars. Following the meeting, Petitioner authorized the payment of $50,000 to the general contractor from the retainage, contrary to the recommendation of Charles Collins, capital projects administrator, and Derryberry, the architect. Petitioner authorized this payment, after discussions with former Superintendent Fox, because the cost to correct all remaining items on the punch-list was only $7,000. In fact, all remaining items were corrected by the general contractor. The evidence does not show that Petitioner improperly or inadequately administered or supervised the North Port Elementary School construction contract, or that he authorized any unnecessary or unjustified expenses. Only minor deficiencies existed in February, 1985 amounting to approximately $7,000 and Petitioner acted reasonably in consulting with the Superintendent, and then authorizing release of excess retainage. This did not deprive Respondent of leverage needed to require the contractor to complete his contract obligation because, in fact, all remaining items on the punch-list were then completed. Respondent alleges that Petitioner failed to adequately supervise and administer the Facilities Department in that he usurped the function of a review committee which had been formed to review the contract and relationship between Respondent and Federal Construction Company. Respondent had asked former Superintendent Fox to form this committee, and Fox put Petitioner in charge of the formation and functioning of the committee. The committee only met two or three times, and then failed to meet again or make recommendations due to resignations and illness of committee members. Petitioner kept the Respondent fully informed of committee meetings, through minutes, and of the committee resignations. He solicited input from Respondent for new committee members. When new members could not be found in a timely manner, Petitioner and other staff members completed an amendment to the Federal Construction Company contract, which was presented to Respondent and approved. This action does not evidence any wrongful usurpation of the role of the committee by Petitioner. Cassius Scott was an employee of the Facilities Department who had been transferred out of the Department by Respondent and assigned directly to the Deputy Superintendent's office for supervision. After a period of time, Petitioner sought Respondent's approval to assign Scott back to the Facilities Department by placing this item on the consent agenda. Chairperson Richardson objected and it was pulled from the consent agenda; Board member Glasser confirmed that it was Respondent's intent that Scott remain under petitioner's supervision. It is alleged that Petitioner reassigned Scott back to the Facilities Department contrary to Respondent's instructions. In fact, Scott was physically moved back to the Facilities Department after Richardson pulled the consent item. Petitioner claims Scott continued to work with him on facilities matters, but admits he moved his office out of the Deputy Superintendent's office without specific approval of Respondent, or even informing Respondent of this move. Petitioner did act contrary to Respondent's explicit instructions in this regard, especially after Chairperson Richardson had pulled this item from the consent agenda. When serving as Interim Superintendent, it is alleged that Petitioner knew that enrollment figures submitted to the Florida Department of Education had been misstated by double counting approximately 100 students, thereby leading the State and Respondent to overestimate revenues to which the School District was entitled. In early 1986 Superintendent Fowler discovered that the full time equivalency count (FTE) for the 1985-86 school year was overestimated by 100 FTE. This necessitated an immediate budget adjustment since revenues for the then-current school year had been overestimated. At the direction of Fowler, Petitioner took care of the preparation, presentation and approval of this amendment by Respondent. Even though this inflated FTE was prepared while Fox was Superintendent, Petitioner had not informed Respondent of this overestimate and its impact on revenues while he was Interim Superintendent. Fowler brought it to Respondent's attention on February 11, 1986. As a result of this overestimate of FTE, Respondent's revenues had been overestimated by approximately $250,000. However, there is no competent substantial evidence that Petitioner deliberately inflated this FTE, or that he specifically knew that enrollment projections were overstated and purposely withheld this information from Respondent. It appears that Petitioner simply had not checked the estimates against actual enrollments prior to December 1, 1985 when Fowler became Superintendent, and so had no knowledge of this problem while he was Interim Superintendent. Other than his overall responsibilities as Deputy and Interim Superintendent, the evidence does not establish that he had any specific role in the preparation and submission of FTE estimates. Board members Richardson and Glasser testified that Petitioner did not provide Respondent with complete information of items before them, that he did not follow up on questions, and that he avoided responding to issues presented by Board members. However, this testimony was contradicted by testimony of Board members McAdoo and Olson, and Superintendent Fowler also commended Petitioner's performance by recommending him for continued employment, and by letter dated June 26, 1986 (see Finding of Fact 8). No evidence was presented of any prior disciplinary action taken against Petitioner on this basis, or on any other basis. Therefore, the allegation that Petitioner was unable to respond to or follow up on questions, or that he avoided issues is not supported by competent substantial evidence. When Petitioner was informed that he had not been selected as a finalist for the position of Superintendent, it is alleged that he called certain School Board members and behaved inappropriately, suggesting they change their decision to avoid adverse consequences. Board member Richardson testified that Petitioner called her after he learned he was not a finalist, and he was agitated, accusing her of turning the School Board against him. She testified that Petitioner offered her a way out to avoid serious trouble if she got the Board to put his name back on the list of finalists. Board member Matthews testified that Petitioner also called him and made derogatory remarks about the finalists. Board member Olson testified that Petitioner did not act inappropriately at any time concerning the selection of finalists. Petitioner admitted he did call Board members and was emotional at the time. He testified that the press was calling him for comment on not being selected, and his friends were also calling wanting to know what happened. His reaction to this situation was out of character. Based on the evidence presented, it is found that Petitioner did act inappropriately toward Board members Richardson and Matthews, when informed he was not a finalist for Superintendent, by threatening serious trouble if they did not reverse their decision and also making derogatory statements about the persons they had selected as finalists. Respondent has further alleged that Petitioner wrongly and repeatedly subdivided purchase orders into smaller amounts to avoid competitive bidding and School Board approval of expenditures in excess of $4,000. Superintendent Fowler conducted a review of purchase orders issued while Petitioner was Deputy Superintendent. The purchase orders in question were issued while Fox was Superintendent; Petitioner did not sign any of the purchase orders, but purchasing is a function under the Deputy. Charles Collins, capital projects administrator, testified that Petitioner had no knowledge of the practice of subdividing purchase orders when it was occurring in 1984. After Collins brought it to Petitioner's attention, the practice stopped. There is no evidence that Petitioner wrongly or repeatedly subdivided purchase orders, as alleged. In the Fall of 1984, an agreement was made with the SCTA to advance certain food service employees on the salary schedule, and it is alleged that Petitioner willfully or negligently failed to inform Respondent of this agreement, did not obtain Respondent's approval, and thereby committed Respondent to higher wages to affected employees. The effect of the agreement was to advance forty-three food service employees two steps, when Respondent had only authorized a one step advance. Petitioner testified that at the time of this agreement, former Superintendent Fox was handling these negotiations and he knew nothing of what was done, or why. Nevertheless, Petitioner did coauthor a memo with Fox to Respondent in October, 1984 which described the food service agreement. In response to that memo Respondent approved a one step advance. It appears likely that if forty-three employees under his supervision received a two step advance when he had jointly recommended a one step advance, which was then approved, Petitioner would have, or at least should have, known about it. He did not inform Respondent, and was therefore negligent in not informing them of this matter. It is alleged that Petitioner willfully or negligently failed to properly supervise the management of the Food Services Department resulting in a substantial financial deficit in the Department. The testimony of Board members Richardson and Matthews in support of the allegation was vague and indefinite. According to Monson, the finance director, the Food Services Department has a $200,000 negative cash balance, but it was not established by competent substantial evidence that this resulted in any way from Petitioner's willful or negligent failures. Board member Olson testified that the food service program has been a continuing problem, and he pointed out that local food service managers in individual schools have a great deal of authority and autonomy, and that the Department is not centrally managed. Respondent has not established that Petitioner willfully or negligently failed to properly supervise the Food Services Department. The final allegation against Petitioner is that, while he served as Interim Superintendent, he presented to Respondent a series of facility improvement expenditure requests, but failed to advise Respondent that approval would cause a material deficit in budgeted capital outlay project funds. Respondent did not offer competent substantial evidence in support of this charge. In fact, virtually no direct evidence in support of this charge was offered. The primary allegation against Petitioner which caused Board members Matthews, Richardson and Glasser to vote against the Superintendent's recommendation was that Petitioner willfully or negligently withheld financial information required by Respondent to make an informed decision regarding the multi-year contract agreement with SCTA. (See Findings of Fact 9-11, above.) The other allegations contributed to their decision, but this allegation actually precipitated their action. Board members Matthews, Glasser and Richardson decided Petitioner should not be reemployed after they learned that Petitioner had received the Monson memo on September 20, 1985, but had not shared it with them. They testified that they would have viewed the multi-year contract materially differently if they had known about the Monson memo on September 20, 1985. The Respondent approved the multi-year salary schedule on September 24, 1985.
Recommendation Based upon the foregoing, it is recommended that Respondent issue a Final order approving the Superintendent's recommendation that Petitioner's employment as Deputy Superintendent be continued from July 1, 1986 to June 30, 1987, and that Petitioner be awarded back-pay to the date of his reemployment, at the rate of pay recommended by the Superintendent. D0NE AND ENTERED this 4th day of December 1986 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1400 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2. Adopted in Findings of Fact 3, 4. Adopted in part in Finding of Fact 18, but otherwise rejected as irrelevant. Adopted in part in Finding of Fact 3, but otherwise rejected as irrelevant. Adopted in Finding of Fact 8. Adopted in Finding of Fact 6. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 6,7. 9-10. Rejected as a characterization of testimony and not a proposed Finding of Fact. Adopted and Rejected in part in Findings of Fact 9-11. Adopted and Rejected in part in Finding of Fact 12. Adopted and Rejected in part in Finding of Fact 13. Adopted and Rejected in part in Finding of Fact 14. Adopted and Rejected in part in Finding of Fact 15. Adopted and Rejected in part in Finding of Fact 16. Adopted and Rejected in part in Finding of Fact 17. Adopted and Rejected in part in Finding of Fact 18. Adopted and Rejected in part in Finding of Fact 19. Adopted and Rejected in part in Finding of Fact 20. Adopted and Rejected in part in Finding of Fact 21. Adopted and Rejected in part in Finding of Fact 22. Adopted in Finding of Fact 23. Adopted and Rejected in part in Finding of Fact 24. Rulings on Respondent's Proposed Findings of Fact: Not a proposed Finding of Fact. Rejected as unnecessary. 3-4. Adopted in Finding of Fact 6. 5. Adopted in Findings of Fact 4, 6. 6-7. Adopted and Rejected in part in Findings of Fact 6,8. Rejected in Finding of Fact 6. Adopted in Finding of Fact 6. Rejected in Findings of Fact 6, 8. Rejected as irrelevant. Rejected as not based on competent substantial evidence. Rejected as unnecessary. 14-19. Adopted and Rejected in part in Findings of Fact 9-11, and otherwise rejected as irrelevant and not based on competent substantial evidence. 20-23. Adopted and Rejected in part in Finding of Fact 17. 24. Adopted and Rejected in part in Findings of Fact 9-11,17. 25-33 Adopted and Rejected in part in Finding of Fact 13, and otherwise rejected as irrelevant and not based on competent substantial evidence. 34-38 Adopted in part in Finding of Fact 24, but otherwise rejected as not based on competent substantial evidence. 39-45. Adopted and Rejected in part in Finding of Fact 11, and otherwise rejected as irrelevant and not based on competent substantial evidence. Rejected in Finding of Fact 10. Adopted in part in Finding of Fact 24, but otherwise rejected as irrelevant. Rejected as irrelevant. The issue is not whether the Monson memo was in error but whether Petitioner willfully or negligently failed to inform Respondent. Adopted in Finding of Fact 9. Rejected in Finding of Fact 11. Adopted in part in Finding of Fact 24, but otherwise rejected as irrelevant. What Respondent did or did not believe is not the issue. Rejected in Finding of Fact 11. Rejected as not based on competent substantial evidence. 54-58. Adopted and Rejected in part in Finding of Fact 12. 59-67. Adopted and Rejected in part in Finding of Fact 14, and otherwise rejected as irrelevant and not based on competent substantial evidence. 68. Adopted in Finding of Fact 3. 69-76. Adopted and Rejected in part in Finding of Fact 15, and otherwise rejected as irrelevant and not based on competent substantial evidence. 77-80. Adopted and Rejected in part in Finding of Fact 16. Adopted and Rejected in part in Finding of Fact 18. Rejected as not based on competent substantial evidence. 83-86. Adopted and Rejected in part in Finding of Fact 19, and otherwise rejected as not based on competent substantial evidence. 87-92. Adopted and Rejected in part in Finding of Fact 20, and otherwise rejected as irrelevant and not based on competent substantial evidence. 93-95. Adopted and Rejected in part in Finding of Fact 21. 96-97. Adopted and Rejected in part in Finding of Fact 22. 98. Rejected in Finding of Fact 23. 99-101. Rejected in Finding of Fact 24 and otherwise as irrelevant. The Respondent did vote 3-2 to reject the Superintendent's recommendation. 102. Rejected as not based on competent substantial evidence. COPIES FURNISHED: John R. Blue, Esquire Carol A. Masio, Esquire Charles J. Pratt, Esquire Post Office Box 1866 Bradenton, Florida 33506 Daniel H. Kunkel, Esquire 290 Cocoanut Avenue Sarasota, Florida 33577 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Charles W. Fowler Superintendent 2418 Hatton Street Sarasota, Florida 33577 =================================================================
The Issue Did Respondent, Fresenius Medical Care (Fresenius), discriminate against Petitioner, David E. McDonald, in employment on account of his disability? Did Fresenius discriminate against Mr. McDonald in employment on account of his age?
Findings Of Fact Mr. McDonald worked for Fresenius as a social worker in its Sebring, Florida, facility. Fresenius provided Mr. McDonald family and medical leave because of back and knee problems. After Mr. McDonald exhausted the available leave, Fresenius granted him non-FMLA medical leave. Because of his continuing health problems, Mr. McDonald obtained long-term disability benefits in 2013 under a plan provided by CIGNA and sponsored by Fresenius. Mr. McDonald was 79 years old. Mr. McDonald’s testimony established that he received one year of benefit payments under the plan. On August 29, 2013, Mr. McDonald wrote Fresenius a letter identified as regarding “L.T.D. approval.” The first three paragraphs stated: On Saturday 7/27/13, I received a copy of the letter dated 7/19/13 sent to you by Ryan Zech, of CIGNA, informing you that my “claim for Long Term Disability was approved, benefits starting on 8/07/13.” This means, barring the time it takes for me to reconcile my affairs with our H.R Dept. that my employment with F.M.C. has come to an end. I had hoped that my medical condition would have improved, such that I would have been able to perform effectively, the required percentage of my duties to qualify to return to F/T employment. This has not turned out to be the case. It is therefore with mixed sentiments that I accept the medical decision/s of CIGNA and my attending physicians including my “Eye specialists." This letter stated Mr. McDonald’s voluntary decision to end his employment with Fresenius. Mr. McDonald did not present evidence that the decision was coerced or even encouraged by any representative of Fresenius. Mr. McDonald voluntarily terminated his employment with Fresenius. Mr. McDonald does not maintain that Fresenius discriminated against him on account of age or disability. He testified repeatedly and clearly that he does not claim that Fresenius discriminated against him in any way on account of his age or physical condition. Mr. McDonald bases his complaint upon his assertion that CIGNA representative Mr. Zech did not properly advise him that the long-term disability policy provided only one year of payments. Mr. McDonald also did not present any evidence that could support an inference that Fresenius discriminated against him on account of his age or a disability. Mr. McDonald did not argue or present evidence that CIGNA employee Ryan Zech was an employee or agent of Fresenius.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny the Petition for Relief of David E. McDonald. DONE AND ENTERED this 13th day of May, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 13th day of May, 2015.
The Issue The issue in these cases is whether the Department of Juvenile Justice's (Department) proposed award of certain contracts to Bay Area Youth Services, Inc. (BAYS), based on evaluations of proposals submitted in response to a Request for Proposals is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact On July 2, 2003, the Department issued Request for Proposal (RFP) No. V6P01 for operation of IDDS programs in Judicial Circuits 1 through 20. The Department issued a single RFP and anticipated entering into 20 separate contracts, one for each circuit. Each contract was for a three-year period with the possibility of a renewal for an additional three-year period. The RFP was prepared based on a "contract initiation memo" generated within the Department and upon which the scope of services set forth in the RFP was based. The Department assigned one contract administrator to handle the procurement process. An addendum dated July 18, 2003, was issued to the RFP. As amended by the addendum, the RFP required submission of information in a tabbed format of three volumes. Volume I was the technical proposal. Volume II was the financial proposal. Volume III addressed past performance by the vendor. The addendum also allowed providers to submit some information in electronic format. The addendum requested, but did not require, that it be signed and returned with the submission. BAYS did not return a signed copy of the addendum in its proposal. Failure to sign and return the addendum was not fatal to the consideration of a proposal. The RFP set forth only two criteria for which noncompliance would be deemed "fatal" to a proposal. Failure to comply with a fatal criterion would have resulted in automatic elimination of a provider's response; otherwise, all responses submitted were evaluated. The proposals were opened on July 31, 2003. The contract administrator and staff reviewed the bids to ascertain whether required items were included, and noted the proposed costs on bid tabulation sheets. The first fatal criterion was failing to submit a properly executed "Attachment A" form to a submission. Attachment A is a bidder acknowledgment form. Both BAYS and JSP included a completed Attachment A in the responses at issue in this proceeding. The second fatal criterion was exceeding the Maximum Contract Dollar Amount. RFP Attachment B, Section XIII, provides in relevant part as follows: The Maximum Contract Dollar Amount will be the Annual Maximum Contract Dollar Amount multiplied by the number of years in the initial term of the Contract . . . . EXCEEDING THE ANNUAL MAXIMUM CONTRACT DOLLAR AMOUNT IS A FATAL CRITERION. ANY PROPOSAL WITH A COST EXCEEDING THE ANNUAL MAXIMUM CONTRACT DOLLAR AMOUNT WILL BE REJECTED. The information reviewed as to each provider's cost proposal was set forth in Volume II, Tab 1, which included RFP Attachment J. RFP Attachment J is a cost sheet where providers were required to set forth proposal costs identified as the "Maximum Payment" under their proposal. Attachment K to the RFP identifies the counties served in each circuit, number of available slots in each circuit, and the Annual Maximum Contract Dollar Amount for each circuit. JSP appears to have simply copied information from Attachment K onto Attachment J. The Department's contract administrator was the sole person assigned to review Volume II of the responses. Volume II included the cost proposal, the supplier evaluation report (SER), and the certified minority business enterprise (CMBE) subcontracting utilization plan. Neither BAYS nor JSP exceeded the Annual Maximum Contract Dollar Amount applicable to any circuit at issue in this proceeding. Both BAYS and JSP identified a Maximum Payment equal to the Annual Maximum Contract Dollar Amount as their proposal cost. Both BAYS and JSP received scores of 100 points for cost proposals in all responses at issue in this proceeding. JSP asserts that the instructions as to identification of the Annual Maximum Contract Dollar Amount were confusing and that its actual cost proposal was less than that set forth as the "Maximum Payment" on Attachment J. JSP asserts that it actually listed its cost proposal at the section identified on Attachment J as "renewal term dollar amount proposed." JSP asserts that the Department should have reviewed supporting budget information set forth in Attachment H to the RFP to determine JSP's cost proposal, and that the Department should have determined that JSP's actual cost proposal was less than that of BAYS. The Department did not review the budget information in Attachment H, but based its cost evaluation of the proposals on the total figures set forth on Attachment J. Nothing in the RFP suggests that underlying information as to cost proposals would be reviewed or evaluated. The evidence fails to establish that the Department's reliance on the information set forth on Attachment J was unreasonable or erroneous. The evidence fails to establish that the Department's scoring of the cost proposals was contrary to the RFP. The evidence fails to establish that JSP is entitled to have its cost proposal re-scored. One of the requirements of the RFP was submission of a "Supplier Evaluation Report" (SER) from Dunn & Bradstreet. The submission of the SER was worth 90 points. Dunn & Bradstreet transmitted most of the SERs directly to the Department, and the Department properly credited the providers for whom such reports were transmitted. The Department's contract administrator failed to examine BAYS submission for the SER, and BAYS did not receive credit for the SER included within its proposal. The failure to credit BAYS for the SERs was clearly erroneous. BAYS is entitled to additional credit as set forth herein. The RFP sought utilization of a CMBE in a provider's proposal. BAYS proposal included utilization of The Nelco Company, an employee leasing operation. The Nelco Company is a properly credentialed CMBE. Under the BAYS/Nelco arrangement, BAYS would retain responsibility for identification and recruitment of potential employees. BAYS performs the background screening and makes final employment decisions. BAYS retains the right to fire, transfer, and demote employees. The Nelco Company would process payroll and handle other fiscal human resource tasks including insurance matters. The Nelco Company invoices BAYS on a per payroll basis, and BAYS pays based on the Nelco invoice. JSP asserts that under the facts of this case, the participation of The Nelco Company fails to comply with the RFP's requirement for CMBE utilization. BAYS proposals also included utilization of other CMBEs. There is no credible evidence that BAYS utilization of The Nelco Company or of the other CMBEs included within the BAYS proposals fails to comply with the RFP's requirement for CMBE utilization. The Department assigned the responsibility for service proposal evaluation to employees located within each circuit. The contract administrator and staff distributed appropriate portions of Volume I of each proposal to the evaluators. The evidence establishes that the evaluators received the documents and evaluated the materials pursuant to written scoring instructions received from the Department. Some reviewers had more experience than others, but there is no evidence that a lack of experience resulted in an inappropriate review being performed. In two cases, the evaluators worked apart from one another. In one circuit, the evaluators processed the materials in the same room, but did not discuss their reviews with each other at any time. There is no evidence that evaluators were directed to reach any specific result in the evaluative process. JSP asserts that there was bias on the part of one evaluator who had knowledge of some unidentified incident related to JSP. The evidence fails to establish the facts of the incident and fails to establish that the incident, whatever it was, played any role in the evaluator's review of the JSP proposal. JSP also asserts that another evaluator had contact with JSP at some point prior to his evaluation of the RFP responses. There is no evidence that the contact was negative or was a factor either for or against JSP in the evaluation of the RFP responses. The RFP required that each provider's proposal include letters of intent from "local service resources" indicating a willingness to work with the provider and a letter of support from the State Attorney in the judicial circuit where the provider's program would operate. The RFP indicates that Volume I of a provider's response should contain five tabbed sections. The RFP provides that "information submitted in variance with these instructions may not be reviewed or evaluated." The RFP further provides that failure to provide information "shall result in no points being awarded for that element of the evaluation." JSP included letters of support in Tab 5 of Volume I. BAYS included letters of support in a tabbed section identified as Tab 6 of Volume I. JSP asserts that information included in Tab 6 of BAYS proposals should not have been evaluated and that no points should have been awarded based on the information included therein. The evidence fails to support the assertion. Based on the language of the RFP, submission of information in a format other than that prescribed is not fatal to a proposal. The Department reserved the authority to waive such defects and to evaluate the material. Here, the Department waived the variance as the RFP permitted, and reviewed the material submitted by BAYS. JSP asserts that BAYS proposal breached client confidentiality by inclusion of information regarding an individual who has allegedly received services through BAYS. Records regarding assessment or treatment of juveniles through the Department are deemed confidential pursuant Section 985.04, Florida Statutes (2003). The evidence fails to establish that an alleged violation of Section 985.04, Florida Statutes (2003), requires rejection of the BAYS proposals. There is no evidence that the information was released outside of the Department prior to the bid protest forming the basis of this proceeding. The evidence establishes that JSP misidentified the name of its contract manager in its transmittal letter. The evidence establishes that the misidentification was deemed immaterial to the Department, which went on to evaluate the JSP proposals. The results of the evaluations were returned to the contract administrator, who tabulated and posted the results of the process. On August 25, 2003, the Department posted a Notice of Intent to Award contacts based on the proposals submitted in response to the RFP. Insofar as is relevant to this proceeding, the Department proposed to award the contracts for Circuits 5, 6, and 20 to BAYS. The Department received four proposals from IDDS program providers in Circuit 5 (DOAH Case No. 03-3671BID). According to the Notice of Intended Contract Award, BAYS was the highest ranked bidder with 651.8 points. JSP was the second highest bidder with 642.6 points. White Foundation was the third highest bidder at 630.7 points, and MAD DADS was the fourth bidder at 442.8 points. The evidence establishes that BAYS included its SER in its Circuit 5 proposal. The Department neglected to examine BAYS submission for the SER, and BAYS did not receive credit for its SER. BAYS should have received an additional 90 points, bringing its total points to 741.8. The Department received two proposals from IDDS program providers in Circuit 6 (DOAH Case No. 03-3672BID). According to the Notice of Intended Contract Award, BAYS was the highest ranked bidder with 649.0 points. JSP was the second highest bidder with 648.8 points. The evidence establishes that BAYS included its SER in its Circuit 6 proposal. The Department neglected to examine BAYS submission for the SER, and BAYS did not receive credit for its SER. BAYS should have received an additional 90 points, bringing its total points to 739.0. The Department received two proposals from IDDS program providers in Circuit 20 (DOAH Case No. 03-3673BID). According to the Notice of Intended Contract Award, BAYS was the highest ranked bidder with 644.2 points. JSP was the second highest bidder with 620.6 points. The evidence establishes that BAYS included its SER in its Circuit 20 proposal. The Department neglected to examine BAYS submission for the SER, and BAYS did not receive credit for its SER. BAYS should have received an additional 90 points, bringing its total points to 734.2. MOTION TO DISMISS BAYS asserts that the Petitions for Hearing filed by JSP must be dismissed for failure to comply with Section 287.042(2)(c), Florida Statutes (2003), which requires that a protesting bidder post a bond or cash in an amount equal to one percent of the estimated contract amount by the time a formal written bid protest is filed. Item 8 of the RFP indicated that the bond or cash amount required was one percent of the total contract amount or $5,000, whichever was less. However, RFP Attachment "B," Section IX, indicates that it replaces RFP Item 8, and provides that the required bond or cash amount is one percent of the estimated contract amount. Pursuant to Section 120.57(3)(b), Florida Statutes (2003), JSP had 72 hours from the announcement of the bid award to file a Notice of Protest and an additional ten days to file a Formal Written Protest. The notice of intended bid award was posted on August 25, 2003. Accordingly, the written protest and appropriate deposits were due by September 8, 2003. The Department's Notice of Intended Award referenced the bond requirement and stated that failure to post the bond would constitute a waiver of proceedings. On September 8, 2003, JSP provided to the Department a cashier's check for $2,159.70 in relation to its protest of the award for Circuit 5. The contract amount was $647,910. One percent of the contract amount is $6,479.10. On September 8, 2003, JSP provided to the Department a cashier's check for $3,414.52 in relation to its protest of the award for Circuit 6. The contract amount was $1,025,857.50. One percent of the contract amount is $10,258.57. On September 8, 2003, JSP provided to the Department a cashier's check for $2,231.69 in relation to its protest of the award for Circuit 20. The contract amount was $669,507. One percent of the contract amount is $6,695.07. In response to JSP's insufficient cashier's checks, the Department, by letter of September 12, 2003, advised JSP of the underpayment and permitted JSP an additional ten days to provide additional funds sufficient to meet the requirements of the statute. JSP, apparently still relying on the superceded language in the RFP, forwarded only an amount sufficient to bring the deposited funds to $5,000 in each case. By letter dated September 25, 2003, the Department again advised JSP that the deposited funds were insufficient and provided yet another opportunity to JSP to deposit additional funds. On September 29, 2003, JSP forwarded additional funds to provide the appropriate deposits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a Final Order as follows: Dismissing the Petition for Hearing filed by MAD DADS of Greater Ocala, Inc., in Case No. 03-3670BID based on the withdrawal of the Petition for Hearing. Dismissing the Petitions for Hearing filed by JSP for failure to comply with Section 287.042(2)(c), Florida Statutes (2003), and for the other reasons set forth herein. DONE AND ENTERED this 16th day of January, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 16th day of January, 2004. COPIES FURNISHED: James M. Barclay, Esquire Ruden, McClosky, Smith, Schuster & Russell, P.A. 215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 Brian Berkowitz, Esquire Kimberly Sisko Ward, Esquire Department of Juvenile Justice Knight Building, Room 312V 2737 Centerview Drive Tallahassee, Florida 32399-3100 Larry K. Brown, Executive Director MAD DADS of Greater Ocala, Inc. 210 Northwest 12th Avenue Post Office Box 3704 Ocala, Florida 34478-3704 Andrea V. Nelson, Esquire The Nelson Law Firm, P.A. Post Office Box 6677 Tallahassee, Florida 32314 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Whether Petitioner failed to secure worker’s compensation coverage for seven employees who worked from February 28, 2006, to March 3, 2006, in violation of Chapter 440, Florida Statutes, and whether, as a result, Petitioner should be assessed a penalty in the amount of $1,115.52.
Findings Of Fact Respondent, Department of Financial Services, Division of Workers’ Compensation ("the Division"), is the state agency responsible for enforcing the statutory requirement that employers provide workers' compensation coverage for their employees. Subsection 440.107, Florida Statutes (2006). Petitioner, Boudreau Concrete, Inc. (BCI), was, at all relevant times, an employer and engaged in concrete construction work in Florida. John Cipyak is a vice president with Builders Plus, a Boynton Beach Company hired to work on a Westview Office Building Site, in Port St. Lucie, Florida. Builders Plus subcontracted with BCI to perform pre-concrete form carpentry work at the site, including construction of the foundation and panels into which the concrete slab would be poured. Near the end of February 2006, Mr. Cipyak told Mr. Boudreau that the Westview project was falling behind schedule and that BCI needed more laborers on the job. Mr. Cipyak testified that Mr. Boudreau specifically agreed that his company, BCI, would hire sufficient additional manpower and would not use subcontractors. That agreement was not reduced to writing. In response to the need for additional laborers, the Division claims that BCI violated the applicable statutes and the insurance code by hiring seven carpenters, who worked at the Westview site from February 27, 2006, through March 3, 2006, as employees of BCI without providing workers' compensation insurance coverage for them. The seven carpenters are Dimas Zelaya, Francisco Figueroa, Gerardo Nava, Hector Sevilla, Jeremias Martinez, Carlos Quevedo and Jesse Hernandez. BCI claims that the seven carpenters were employees of a subcontractor, J. A. J. Construction Company, owned by Jose Alfredo Jiminez, and that Mr. Jiminez, BCI believed, carried the required workers' compensation insurance. The arrangements to have the additional workers on the project were made during a telephone call between Mr. Boudreau, Mr. Jiminez and Mr. Zelaya, who got the other six men to come with him and once they reported to the job, served as a translator for them. On March 2, 2006, Lynn Cornelius, a manager with Woodland Construction Company, Inc. (“Woodland”), sent an e-mail to Thomas Puglis, of the Division, listing the names of seven former employees of Woodland who had left Woodland’s employment, on February 24, 2006, to work for a subcontractor on another project. He named the same seven people who started work on the Westview site on the following Monday, February 27, 2006. On March 3, 2006, Mr. Puglis and Lieutenant Vance Akins, both investigators for the Division, visited the construction site where the seven former Woodland employees were working. With the assistance of an interpreter over the telephone, because no Spanish speaker was available for the site visit, the investigators instructed the seven workers to fill out Spanish language questionnaires for public works contractor licensing, provided by St. Lucie County. The investigators also tape recorded a statement from the only one of the seven men who spoke some English, Dimas Zelaya, during which, at best, he could be understood to have recognized and identified a picture of Mr. Boudreau. Lieutenant Akins telephoned another Division investigator Robert Barnes from the work site. Mr. Barnes testified that he telephoned someone who identified himself as Todd Freeman, a BCI employee, from whom he got the name of William Yocum of First Financial Employee Leasing, Inc., as the leasing company that provided workers' compensation coverage for BCI. Although he had no personal knowledge about where the seven carpenters were working from February 27 through March 3, 2006, Mr. Yocum noted that they were not covered on the policy for BCI and that the failure of BCI to report the names of all of its employees to the leasing company would violate the agreement between those two companies. Mr. Boudreau, on behalf of BCI, wrote a check dated March 10, 2006, to J. A. J. Construction Services, Inc., for $3860.00, with the notation "7 men - 2/27-3/3." BCI had no evidence of a written agreement with J. A. J. and the compensation to J. A. J. was solely for the wages earned by the carpenters. The Division's case is essentially based on the inference, without corroborating evidence, that Mr. Boudreau fabricated the subcontractor relationship and furthered that deception by writing the check after he knew BCI was being investigated for failure to secure workers’ compensation insurance. The Division based its assertion on the fact that Mr. Boudreau could not name the subcontractor during his first interviews by Mr. Barnes, saying that he was dealing with the subcontractor through Mr. Zelaya. The Division also presented evidence to demonstrate that the nature of the working relationship between BCI and the seven men was that of employer and employee, not independent contractors. That evidence was inconclusive. Although Mr. Boudreau kept their time sheets and personally supervised the work at the job site everyday from Monday through Thursday, with the assistance of Mr. Zelaya, as a translator, the carpenters brought their own tools and used materials and supplies provided by Builders Plus. The argument that J. A. J.'s role was administrative in nature is not convincing, since the same can be said of the leasing company, with which the Division asserted BCI should have obtained coverage. Mr. Barnes testified that he reviewed records of J. A. J., that someone from his office questioned Mr. Jiminez, and that they determined that the seven carpenters were not covered by J. A. J.'s workers' compensation policy during the time that they were working for Mr. Boudreau, based on some sworn statement made by Mr. Jiminez to the investigators. Mr. Jiminez did not appear as a witness in this case. The Division's investigator conceded that the Division did not determine whether or not the seven workers should have been on the J. A. J. policy. Mr. Zelaya testified that he spoke to Mr. Jiminez about getting more pay and understood that he would ". . . work with the license and insurance of Jose Jiminez. Mr. Boudreau was going to pay Jose and Jose was to pay me." Further, he stated that "Jose gets the workers, Jose makes a dollar off of the pay that we make. Mr. Boudreau was to give Jose a check, and Jose was to pay us, but Jose never paid us." Before he paid Mr. Jiminez, Mr. Boudreau requested and received from J. A. J. a workers' compensation policy, but that certificate of insurance was dated March 6, 2006, and did not appear to cover BCI for the prior week. At the same time, Mr. Boudreau added some of the workers to his own lease company policy, in an apparent attempt to continue the job, but was unable to do so after the stop work order was issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order rescinding the Stop Work Order and Order of Penalty Assessment, Amended Order of Penalty Assessment, and Second Amended Order of Penalty Assessment. DONE AND ENTERED this 8th day of June, 2007, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 8th day of June, 2007. COPIES FURNISHED: John M. Iriye, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Mary Morris, Esquire Morris & Morris, P.A. 224 Datura Street, Suite 300 West Palm Beach, Florida 33401 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
The Issue Whether Petitioner's protest, challenging Respondent's decision to award to Intervenor, "pending a successful interview," the "Federal Relations Governmental Liaison" contract advertised in Request for Proposal 99-01, should be sustained?
Findings Of Fact Gibbons and Company, Inc. Gibbons and Company, Inc. (Petitioner) is a Washington, D.C.-based firm, 1/ which was incorporated in December of 1993, and whose primary business is advising clients on matters of public policy before the United States Congress, the White House, and federal agencies. It also provides advice and counsel to multinational businesses on market access around the globe. Petitioner's President is Clifford Gibbons, who has been with the firm since its formation. Its Chairman of the Board is Sam Gibbons, Clifford Gibbons' father. Sam Gibbons joined the firm as its Chairman of the Board on January 4, 1997, 2/ after serving, with great distinction, for 34 years as a United States Congressman from Florida. Sam Gibbons was an effective and influential member of Congress. He was Chairman of the Ways and Means Committee and head of the Florida delegation (which, with 23 members, is the fourth largest state delegation). Before his election to Congress, he served ten years in the Florida Legislature (six years as a member of the Florida House of Representatives and four years as a member of the Florida Senate). As a Florida legislator, he played a key role in the passage of legislation that created the University of South Florida, Florida Atlantic University, and the University of West Florida. James Pirius James Pirius is a graduate of the University of Minnesota with a double degree in political science and journalism. After graduating from college, Mr. Pirius (who has a certificate to teach in the State of Illinois) taught eighth grade communications and social sciences for two years. The following two years, he taught at the National College of Education in Evanston, Illinois. In 1975, Mr. Pirius returned to Minnesota to become the Minnesota State Senate's Director of Public Information. In 1977, Mr. Pirius went to work for Minnesota Congressman Bruce Vento as Congressman Vento's executive assistant. He was responsible for managing the Congressman's Washington, D.C. office (which was located in the House of Representative's Cannon Office Building). He remained in this position for four years. After the United States Department of Education (U.S. DOE) was created, Mr. Pirius received a call from Richard Moe, Vice President Walter Mondale's chief of staff, who asked him (Mr. Pirius) to be on the team to "open up the Department of Education." Mr. Pirius accepted the offer and became the Director of Legislative Policy at the U.S. DOE. As the Washington, D.C.-based Director of Legislative Policy, a position he held from 1981 to 1987, his primary duties involved lobbying education issues in the United States Congress. 3/ He was one of the agency's three key lobbyists on Capitol Hill. 4/ Mr. Pirius left his position with the U.S. DOE to become the Washington, D.C./federal relations representative for the Florida Department of Education (Florida DOE). He was hired by then Florida Commissioner of Education Betty Castor (who subsequently became the President of the University of South Florida). Mr. Pirius was the Florida DOE Washington, D.C./federal relations representative from 1987 to 1995. For the first four years, he provided such representation as a state employee. From 1991 to 1995, he operated as a paid consultant. After leaving the employ of the Florida DOE and becoming a paid consultant, Mr. Pirius was hired to become a Vice President of APCO Associates (APCO), a Washington, D.C. public affairs/governmental relations firm. Mr. Pirius headed the firm's education practice. APCO's Chief Executive Officer allowed Mr. Pirius to maintain his Florida DOE consultant contract "separate from [his] work at APCO." Since 1995, Mr. Pirius has served (as a paid consultant) as the Washington, D.C./federal relations representative of the University of South Florida. Although he does have direct dealings with the President of the University, Betty Castor, his immediate supervisor is Kathleen Betancourt, the University of South Florida's Associate Vice President for Government Relations. Mr. Pirius has also represented in Washington, D.C. (as a paid federal relations consultant) the Indiana and Minnesota Departments of Education. The Association of Governing Boards of Colleges and Universities has also been among his clients. At present, Mr. Pirius is technically on leave of absence from APCO. On July 1, 1998, Mr. Pirius moved his office from APCO to his home at 7910 West Boulevard Drive in Alexandria, Virginia (which is in the Washington, D.C. metropolitan area, inside the Beltway). He has resided at this location since 1987. In rush hour, it takes 30 minutes (by automobile) to reach the Capitol from Mr. Pirius' residence/office. When there is not rush hour traffic, the trip takes 20 minutes. Mr. Pirius has an agreement to sublease space from Broderick and Associates in the Hall of States Building (which is presently unoccupied and being reserved for Mr. Pirius) should he receive the contract that is the subject of the instant controversy. In addition, Dr. Lynda Davis, the President of Davis, O'Connell, Inc., a government relations consulting firm, has verbally agreed to provide Mr. Pirius space in her firm's office in the Hall of the States Building should the Broderick and Associates space become unavailable. The Hall of States Building, which is located at 444 North Capitol Street, is one of the best office locations in Washington, D.C. inasmuch as it offers easy foot access to the Capitol. It houses the Washington, D.C. offices of many governors and state education agencies, and has an excellent reference library, which includes educational journals and materials. Mr. Pirius has been continuously registered as a lobbyist with the Clerk of the United States House of Representatives and the Secretary of the United States Senate since 1994. He is currently registered under his own name (with the University of South Florida identified as his client 5/) and as a member of APCO's lobbying team. Mr. Pirius began doing business as JCP Associates in 1992. JCP Associates is not an incorporated entity. Mr. Pirius, who operates as a sole proprietor, does business as JCP Associates only when he needs to hire others to assist him in fulfilling the requirements of a project. 6/ (He does so for accounting purposes.) A federal tax identification number has not been assigned to JCP Associates; however, Mr. Pirius uses his social security number when he does business under the name JCP Associates. No registration under the name JCP Associates has been made under the federal Lobbying Disclosure Act of 1995. Mr. Pirius discussed the registration of JCP Associates with the Clerk of the United States House of Representatives and the Secretary of the United States Senate offices. He was told that it did not make any difference whether he registered under his own name (which he has) or under JCP Associates. State University System The State University System (SUS) consists of the Board of Regents and the ten state universities. Board of Regents The Board of Regents is responsible for establishing SUS policy and overseeing SUS activities. Chancellor Herbert Dr. Adam Herbert is the current Chancellor of the SUS. He has been Chancellor since 1998. He succeeded Charles Reed, who served as Chancellor from 1992 to January of 1998. Prior to becoming Chancellor, Chancellor Herbert was the President of the University of North Florida for approximately ten years. Vice Chancellor Healy Dr. Thomas Healy is now, and has been since June 1, 1998, the SUS's Vice Chancellor for Governmental Affairs and Development. 7/ Before becoming Vice Chancellor, he worked at the University of North Florida for approximately 26 years; first as a faculty member (the first seven years) and then as an administrator. The last position he held at the University of North Florida was Vice President for Governmental Affairs. As the SUS's Vice Chancellor for Governmental Affairs and Development, Dr. Healy reports directly to Chancellor Herbert and serves as Chancellor Herbert's "general adviser" on matters relating to governmental affairs. Among his responsibilities is to coordinate the state and federal lobbying efforts made on behalf of the ten state universities. SUS Representation in Washington, D.C. A team of private firms and individuals (the Advocacy Group team), paid with foundation monies from the ten state universities, began providing the SUS with federal relations representation in Washington, D.C. in 1992. These firms included: George Ramonas' and Robert Mills' firm, the Advocacy Group, Inc. (the Ramonas/Mills firm), with which the SUS contracted to provide such representation; Dona O'Bannon's and Clifford Gibbons' firm, O'Bannon and Gibbons; and Tom Spulak's firm, Shaw, Pittman, Potts and Trowbridge (Shaw Pittman). Gibbons and Company, Inc., replaced O'Bannon and Gibbons on the SUS representation team upon the dissolution of the latter and the formation of the former in December of 1993. The foundation monies used to pay for SUS representation in Washington, D.C. were collected and paid to the Ramonas/Mills firm. The Ramonas/Mills firm, in turn, paid the other two firms (which had a contractual relationship with the Ramonas/Mills firm) for the services they performed and their expenses. The contract into which the Ramonas/Mills firm entered to provide SUS representation was the culmination of a procurement effort that started in or around April of 1992, when the following "Request for Information" was sent to "Washington Consulting Firms" by Dr. John Lombardi, the President of the University of Florida, acting in his capacity as the Chairman of the SUS's Washington Representation Review Committee: The Washington Representation Review Committee of the State University System of Florida is seeking information from consulting firms conducting business in Washington, D.C. This committee is comprised of four University presidents, representing the Council of Presidents of the State University System. Consultants who are interested in further discussion with the State of Florida's State University System should submit materials that demonstrate: Proven ability to represent institutions of higher learning, both in Congress and in agencies of the U.S. government, including: Working relationship with key leaders, committee members and staff within the U.S. Congress and the White House; Federal agency contacts and regular communication system that enhances capabilities in identifying and securing grants in specified research fields; Systematic approach to representing a statewide system that includes universities with differentiated missions. Ability specifically to represent each of the universities of Florida's public system. The Committee is comprised of President Frederick Humphries, Florida A&M University; Modesto A. Maidique, Florida International University; Dale W. Lick, Florida State University; and John V. Lombardi, University of Florida. Interested firms should submit a brief narrative describing the types of assistance they could provide and the associated costs of such services to the State University System of Florida and documentation as outlined above by May 31 to: Dr. John V. Lombardi Office of the President University of Florida Gainesville, Florida 32611 The Ramonas/Mills firm, joined by the other members of the Advocacy Group team, responded to this "Request for Information," and on or about June 22, 1992, made a written presentation to the Washington Representation Review Committee. The written presentation revealed that George Ramonas founded the "Advocacy Group" in 1991, and was the "Advocacy Group's" President. It also provided information concerning the backgrounds of Clifford Gibbons, Thomas Spulak, Dona O'Bannon, and Robert Mills. On or about November 1, 1992, the Ramonas/Mills firm, along with the other Advocacy Group team members, submitted a "Supplemental Response to Washington Representation Review Committee," which contained the following "background information on the Advocacy Group and Organizational Structure":
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Regents enter a final order denying Petitioners' protest of the Chancellor's decision to award the contract advertised in RFP to Mr. Pirius "pending a successful interview." DONE AND ENTERED this 17th day of September, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 17th day of September, 1999.
