The Issue Whether the proposed action to award a contract to the Intervenor, Three Springs, Inc., is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact In April of 2001, the Department of Juvenile Justice (Department) issued a Request for Proposals (RFP) for proposals to design and operate a 50 bed high-risk sexual offender program in Broward County, Florida for male youth ages 10-18. Such facility, known as the Elaine Gordon Treatment Center, was to be operated 24 hours per day, seven days per week. Two entities timely submitted proposals for the facility: BSF and TSI. Their responses were submitted on May 8, 2001. Three Department employees (Jennifer Gallman, Ken Mason, and Barbara Manakas) were to evaluate the proposals based upon the criteria identified in the RFP. The Department gave each of the evaluators a score sheet upon which to calculate each proposal relative to the RFP criteria. The evaluators assigned scores ranging from 0 to 5 for each listed item. The evaluator's score was then multiplied by an assigned weight to calculate an overall score for the criterion. After all the computations were completed, Jennifer Gallman scored TSI at 325 and BSF at 346. Similarly, Ken Mason scored TSI at 399 and BSF at 399. Barbara Manakas scored TSI at 326 and BSF at 282. The scores from the three evaluators were then averaged to reach scores of 342.33 for TSI and 337.33 for BSF. On June 4, 2001, the Department posted its Notice of Intended Contract Award and identified TSI as the offeror with the highest score (and therefore the intended recipient for the contract). The Petitioner timely filed the instant challenge to the proposed award to TSI. The Petitioner currently operates the Elaine Gordon Treatment Center. On May 8, 2001, the same date the proposals were due for the instant RFP, the Petitioner received a "cure notice" from the Department citing alleged deficiencies at the Elaine Gordon Treatment Center. The purpose of the notice was to advise the provider (BSF) that the agency intended to take action on the alleged deficiencies. The allegations of the notice surprised Petitioner's management as it had been working in tandem with the Department to correct deficiencies that had occurred at the facility and were well known to the parties. One of the evaluators for the instant RFP was aware of the cure notice and the alleged deficiencies. That evaluator scored the BSF proposal approximately 40 points lower than the proposal submitted by the Intervenor. The Petitioner asserts that the evaluator's assessment of the BSF proposal was biased. In essence, the Petitioner theorizes that an evaluator considering only the information within the four corners of the proposals would have more objectively scored the Petitioner's proposal. Petitioner maintains that the evaluator's bias is demonstrated by the written comments on the forms that are positive for the Intervenor, but are inappropriately silent or negative toward the Petitioner. In support of these assertions, the Petitioner relies in part on an e-mail sent by the evaluator to a superior that stated: If I am aware of deficiencies in operating programs may I include my knowledge (such as results of DJJ QA reviews) in scoring this item or do I have to use only the information provided in the proposal? The evaluator was aware of quality reviews (QA reviews) wherein the Petitioner had been deemed unsatisfactory. That rating had led to the cancellation of a Department contract with the Petitioner in Palm Beach County. The evaluator maintains that despite a reference to the outside information she possessed (specifically cited in one section of her assessment of the Petitioner's proposal), she judged the instant proposal on the merits of the information contained within the proposal itself. Nevertheless the contract cancellation she referred to had occurred a couple of years ago. The other two evaluators did not consider such outside information in scoring the proposals. Neither evaluator knew of the alleged deficiencies at the subject facility or of the history in Palm Beach County. The evaluators were also obligated to review a second portion of the proposals known in this record as "the cost proposal." One evaluator refused to consider that information in scoring the contested portions of the proposal. That is, she would not consider data included in the cost proposal to clarify or augment the technical response even if such information helped to more fully understand the first portion. In comparing the scores, if the Petitioner's scores were increased to allow for additional points and TSI's points are not reduced, the overall scoring of the RFP would not change. That is, the overall result of the proposal calculations would not change the outcome of the intended award. Only if TSI's scores are lowered could the result change. The unchallenged, unbiased evaluators gave TSI scores comparable to the third evaluator. TSI's score fairly relates to the responses it submitted for the RFP.
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 dismissing the challenge filed by the Petitioner. DONE AND ENTERED this 25th day of October, 2001, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 25th day of October, 2001. COPIES FURNISHED: David C. Ashburn, Esquire Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32301 Brian D. Berkowitz, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Cynthia S. Tunnicliff, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095 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 Respondent was properly terminated by Petitioner for just cause or is entitled to reinstatement with back pay and benefits.
Findings Of Fact Respondent is a 48-year-old man who was employed between 1997 and August 15, 2005 (eight years), by Petitioner FAMU. During that period, he had attained permanent status in the classifications of Computer Programmer and Senior Computer Programmer in Petitioner FAMU’s Information Technology (IT) Services Unit. Respondent is a member of an AFSCME union bargaining unit. Petitioner reorganized its IT unit in 2004-2005. As a result, several employees of that unit, including Respondent, were targeted for layoff. FAMU’s standard procedure for advising employees for the first time that they were being laid off was to call them to the personnel office. After returning to work from sick leave on August 15, 2005, Respondent was informed that he was to report to the personnel office that afternoon. Four or five people already had been laid off, and Respondent anticipated that he would be laid off. Indeed, Respondent’s position as a Senior Computer Programmer Analyst had been eliminated as a result of the reorganization, but he did not know this in advance of the August 15, 2005, meeting. With apprehension, Respondent unsuccessfully attempted to secure a union representative to accompany him to the afternoon meeting. He subsequently secured a tape recorder from his home, with the intent of recording the meeting. The meeting turned out to be scheduled in the office of FAMU’s Human Resources Administrator. When Respondent arrived at the meeting location, there were two campus police officers, John Cotton and Audrey Alexander, present. Also in attendance were Dr. Janie Greenleaf, FAMU Human Resources Administrator; Dr. Kenneth Perry, at that time Associate Vice-President and Chief Technology Officer; and Howard Murphy, the IT consultant hired as special assistant to the university president. Mr. Murphy had done the assessment leading to the layoffs, and it was he who had recommended which employees to lay off. The meeting was intended by the administrators as an initial layoff meeting, wherein Respondent would be presented with a letter advising him that he was being laid off as of that date and of his rights under the rules governing layoffs (the Notice of Layoff); he would sign another letter acknowledging that he had received the Notice of Layoff; and any questions he had would be answered by those present. Upon entering Dr. Greenleaf’s office, Respondent was instructed to take a seat, and he did so. Dr. Greenleaf laid a Notice of Layoff (Exhibit P-2), dated August 15, 2005, on a table in front of him. Respondent then removed his tape recorder from an attaché case. This movement appears to have put the other attendees on edge, because terminations, for whatever reason, can turn violent. Respondent then placed the recorder on the table, and announced that he intended to record the meeting. He stated that anyone who did not want to be recorded could leave. Respondent testified that he had assumed that his behavior would cause the administrators to end the meeting and do what they intended to do without any input from him. (TR-74) Instead, Dr. Greenleaf told Respondent that he could not record the meeting because she did not want to be recorded. She told him to turn off his tape recorder. Apparently, Dr. Greenleaf was the only attendee who objected out loud to being taped. Respondent would not turn off his recorder. Respondent believed that he had a right to tape the meeting because of his status as a University Support Personnel Services (USPS) employee. He testified that during his employment with FAMU, he had attended workshops where he had been allowed to record the meeting for accuracy and make his written report to his superiors from the taped record. He also testified that he had recorded “in the open” a conversation with a superior about a promotion. He further testified that he had been in meetings and hearings with an AFSCME union representative when administrative personnel asked them to turn off the recorder and told them when they could turn on the recorder. In these instances, there were apparently “on the record” and “off the record” conversations. (TR 73-74) There is the suggestion in Respondent’s testimony that he believed that, in the absence of a union representative, he was entitled to tape any meeting. More than once in the August 15, 2005, meeting, Respondent stated to the assemblage that he had a right “as USPS” to record the meeting. After reviewing either a statute book or labor union book, Dr. Greenleaf advised everyone present that the meeting could not be recorded without all attendees’ consent. Dr. Greenleaf advised Respondent that he could take notes; have someone present to transcribe the meeting; or have an AFSCME union representative present; but that she did not wish to be recorded. From the evidence as a whole, it appears that Respondent believed that since he could not get a union representative there at that time, his only option was to tape the meeting, but there is no evidence that he requested to reschedule the meeting for a time when he could be accompanied by a union representative. Dr. Greenleaf repeatedly advised Respondent that he could not record the meeting and/or ordered him to turn off his tape recorder. Respondent repeatedly refused to cease taping and repeatedly advised the assemblage that anyone who did not wish to be recorded could leave. At least once, Dr. Greenleaf advised Respondent that his refusal could be construed as insubordination. Apparently, the volume of both Dr. Greenleaf’s and Respondent’s voices became elevated. Respondent’s affect was described by all the witnesses who testified as “defiant,” “agitated,” “adamant,” persistent,” and/or “insistent.” Dr. Greenleaf then interrupted the meeting and asked Respondent to wait outside. Dr. Greenleaf and Dr. Perry consulted and decided that Respondent was being insubordinate. A revised letter dismissing Respondent for insubordination (the Notice of Dismissal, Jt. Ex. 1) was drafted and signed by Dr. Perry. When he was permitted to return to Dr. Greenleaf’s office, Respondent turned on his tape recorder again. Dr. Greenleaf had removed the original layoff letter from the table and delivered to Respondent the Notice of Dismissal for insubordination, also dated August 15, 2005.3/ Respondent requested a copy of the original Notice of Layoff, and was informed by Dr. Greenleaf that he was now terminated for insubordination and the Notice of Layoff was withdrawn. Respondent was not provided with a copy of the Notice of Layoff. Respondent was ultimately conducted off campus by Officers Cotton and Alexander without further incident. Although Respondent was dismissed from FAMU, effective August 15, 2005, he remained on the University’s payroll through August 29, 2005, approximately two weeks following his dismissal. The Notice of Dismissal retained the two week pay provision that had been part of the Notice of Layoff. Subsequent to his termination by FAMU, Respondent has sought other employment, but has been unsuccessful.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Agricultural and Mechanical University enter a final order which: Reinstates Respondent in his previous position as of August 15, 2005, and corrects all personnel records to reflect that he was not discharged for insubordination; Provides him with back pay dating from August 29, 2005, to the date of the final order; Provides him with all commensurate employee benefits dating from August 15, 2005, to the date of the final order; and As of the date of the final order, provides him with all layoff rights and entitlements appropriate to his job position and bargaining unit under the layoff procedures applicable at that date. DONE AND ENTERED this 2nd day of August, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 2nd day of August, 2006.
The Issue Whether the Florida Department of Transportation’s (“Respondent” or “Department”) intended award of a contract for integrated corridor management modeling software to Aimsun, Inc. (“Intervenor” or “Aimsun”), is contrary to the Department’s governing statutes, rules, policies, or the solicitation specifications; and, if so, whether the decision was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The Department is the state agency responsible for coordinating and planning a safe, viable, and balanced transportation system serving all regions of the state, and to assure the compatibility of all components of the system. See § 334.044, Fla. Stat. (2018). The RFP On February 22, 2018, the Department posted the RFP to the state vendor bid system, seeking vendors that could provide Integrated Corridor Management Modeling (“ICMM”) software. There were no challenges to the terms, conditions, or specifications contained in the RFP. The RFP describes the overall goal to acquire ICMM for the Central Florida Regional Integrated Corridor Management System (“ICMS”), which is initially centered on the I-4 Corridor and its “influence area,” including the interstate, a commuter- rail line, transit bus service, park-and-ride lots, major regional arterial streets, toll roads, and other transportation facilities. While the ICMS project focuses on the Orlando region initially, the goal of the Department is to develop a modular approach to ICMS which will be scalable to District 5 in its entirety. As summarized by Shaleen Srivastava, Petitioner’s Vice President, the Department is building a “model of the actual traffic situation [in the I-4 corridor] in the virtual world.” The ICMS is composed of three main systems, the relevant one being the Decision Support System (“DSS”). The DSS will be developed to provide a system to review and evaluate the current and predicted conditions of the Central Florida transportation network in order to help operators make smart decisions in managing both recurring and non-recurring congestion conditions. The DSS components are an Expert Rules Engine (“ERE”), a Predictive Engine (“PRE”), and an Evaluation Engine (“EVE”) that will build and select response plans to be evaluated, model the predicted outcomes of the selected response plans, evaluate and score the plans, coordinate with operators and local agency maintainers, and invoke the approved response plan actions. Through the RFP, the Department seeks a vendor to supply a Commercial Off-the-Shelf (“COTS”) software product which will be the core of the PRE. The RFP Exhibit A contains the scope of services for the project and describes in detail the requirements for the PRE. The PRE is envisioned to provide predictions of the network performance 30 minutes into the future. The PRE will have three main functions that must be met by the COTS software: 1) maintenance, 2) evaluation, and 3) offline signal simulations. The third role of the PRE is to simulate and provide measures of effectiveness for the optimized signal timing plans and coordination that will be developed by the signal optimization tool that will be part of the ICMS. The PRE is an integral component of, and must interface seamlessly with, the DSS. All of the technical requirements for the PRE/COTS are listed in Exhibit A, Table 2. The proposer must verify that its software is demonstrated to meet each of the 55 requirements. The RFP incorporates a number of required forms, including a Proposed Staffing and Availability worksheet (“staffing worksheet”), which directs proposers to provide the following information for up to 10 core staff members: List the Key Personnel, including job titles, of the Team that will be involved with this contract. Include the number of years of experience each person has in the specific job title and the type of experience they have, as well as any certifications and education. List the availability for each team member in percentage of hours per year. According to the RFP, proposals may be found to be irregular or non-responsive if they do not utilize or complete prescribed forms. Processing of Responses Both PTV and Aimsun are potential vendors which submitted timely proposals to the District 5 Procurement Unit in response to the RFP. The Procurement Unit opened the technical proposals on April 10, 2018, then distributed the proposals to the members of the Technical Review Committee (“TRC”), who evaluated and scored the technical proposals. The TRC was composed of District 5 staff with technical expertise relevant to traffic management: Traffic Design Engineer Ayman Mohamed, Transportation Modeler Jason Learned, and Freeways Engineer Jeremy Dilmore. TRC members evaluated and scored the technical proposals on a scoresheet template provided by the Procurement Unit. The template was divided into three sections, which correspond with the three sections of the RFP: Software Description and Functionality, Support and Integration Approach, and Software Deployment/Project History. The maximum score for each section was 35 points. TRC members completed their evaluation and scoring and returned their evaluation, and summaries thereof, to the Procurement Unit on April 17, 2018. Aimsun received a total score of 93 for its technical proposal. PTV received a total score of 78.67. Following opening of the price proposals, Aimsun was selected to receive the ICMM contract. Responsiveness of Aimsun’s Proposal Petitioner’s first contention is that the Department’s intended award to Aimsun is contrary to the bid specifications because Aimsun did not include the staffing worksheet, which rendered Aimsun’s proposal non-responsive. It is undisputed that the Aimsun proposal considered by the TRC did not include the required staffing worksheet. According to the Procurement Supervisor, the TRC is responsible for determining responsiveness of proposals.1/ In scoring section 2, Support and Integration Approach, Mr. Mohamed noted, “Aimsun provided general description of their supporting staff. Aimsun did not provide staffing plan showing key staff members and their availability toward the project.” Mr. Mohamed gave Aimsun 31 out of 35 possible points on this section. Mr. Learned gave Aimsun 30 out of a possible 35 points on this section. Mr. Learned noted, “Has staffing plan, but does not show availability – staff has worked on projects listed in the project history. Support staff housed in NYC office, which will facilitate communication with FDOT.” Mr. Dilmore gave Aimsun 33 out of a possible 35 points on this section. Mr. Dilmore noted, “Aimsun’s product requires development. It is unclear about availability of staff.” Despite the absence of the staffing worksheet from Aimsun’s proposal, Mr. Mohamed was satisfied Aimsun could support the COTS product identified in this proposal. In arriving at his conclusion, Mr. Mohamed considered the information contained in Section 2.4 of Aimsun’s proposal, which listed each staff member who would support the project, as well as each component of the project which they would support. Both Mr. Learned and Mr. Dilmore also relied upon the staffing information contained in Section 2.4 of Aimsun’s proposal in arriving at their scores of 30 and 33, respectively. Despite the absence of the required staffing worksheet, each evaluation committee member was satisfied that Aimsun demonstrated the ability to support the COTS software solution proposed. The record does not support a finding that Aimsun’s failure to include the required staffing form gave Aimsun a competitive advantage or benefit over PTV. Arbitrary Scoring Petitioner next contends that the Department scored its proposal arbitrarily, or otherwise in error, compared to its scoring of Aimsun. Staff Availability Petitioner cites, as the most egregious example, the TRC scores it received for section 2. This section requires the proposer to discuss how they will support the implementation of the modeling software as part of the ICMS development and deployment, as well as a description of how the proposer supports software integrations, application development, and general modeling support. This is the section which required the inclusion of the staffing worksheet. On this section, Petitioner received a 10 out of a possible 35 points from Mr. Dilmore. Mr. Dilmore noted, “The development staff generally has low availability. Their approach to training is 4 week courses. The implementability will be difficult [but] is generally acceptable. PTV takes exception to the SLAs [which] are part of the contract.” PTV takes umbrage at Mr. Dilmore’s severe deduction of points for perceived “lack of staff availability” when Aimsun received only minor point deductions, even though it wholly failed to include the required form detailing its staff availability. While PTV’s proposal does, in fact, propose low availability of staff,2/ that shortcoming was not the sole basis for the low score Mr. Dilmore’s assigned. As Mr. Dilmore noted on his score sheet, and explained at final hearing, in addition to availability issues, his score reflected concerns with PTV’s failure to agree to the Department’s Service Level Agreement (“SLA”), proposed approach to training, and issues with implementing the software. Department SLA The Department’s SLA sets the required timeframes for response to, and repair of, system maintenance requests and system failures. For example, the SLA sets a maximum response time of 15 minutes, during normal operating hours, for priority one failures. Likewise, the SLA sets a maximum repair time of one hour for such failures during normal operating hours. Rather than agreeing to the Department’s SLA, PTV stated that it “adopts its own standard [SLA] terms,” and explained that it is “open to discussion” on the content and terms of a final agreement. PTV did not include a copy of its standard SLA for review by the Department, but instead noted that it could be “provided upon request.” The SLA is critical to the Department. If a vendor does not agree to the Department SLA, the Department is not assured that the failures in the PRE software function, which drives the DSS, will be repaired timely. The SLA is so critical that it includes a liquidated damages clause for damages caused by the vendor’s failure to comply with the required timeframes. In contrast to PTV, Aimsun took no exception to the Department’s SLA and agreed to comply with it. The Department’s scoring of PTV’s proposal was reasonable, especially in light of the importance of the Department’s SLA. Training The vendor is required to operate, maintain, and support the COTS software system for two years after its deployment. The vendor must provide at least two training courses on the DOT premises in the use of the planning aspects of the software. Additionally, the vendor must provide administrator training for the PRE on Department premises after the integration with ICMS is complete. Mr. Mohamed gave PTV a 32 out of 35 points on this section. Mr. Mohamed’s concern was with PTV’s approach to training of Department staff. PTV proposed two separate training sessions for Department staff, each lasting four weeks. Mr. Mohamed commented that the trainings “could be unfeasible for most of the essential senior staff.” Mr. Learned gave PTV a 25 out of 30 points on this section. He also noted that the proposed trainings were not optimal and that the preferred approach was tiered training based on the Department staff member’s “level of use,” meaning that the amount of training should correlate with the staff member’s responsibilities related to the software. In contrast to PTV, Aimsun proposed two tiers of training: a first-level training for staff to master all the basic concepts of the software, and a second level which includes a detailed walk-through of the methodology and workflow for modelers who have previous practical experience. The Department’s scoring of PTV’s proposal on this issue was reasonable based on the level of training proposed. Software Description and Functionality The Department also reasonably deducted points from PTV’s proposal in section 1, Software Description and Functionality. Mr. Mohamed, Mr. Learned, and Mr. Dilmore scored PTV’s proposal 32, 30, and 30 out of 35, respectively, on section 1. PTV failed to verify that its software met all of the technical requirements for the PRE/COTS listed in Exhibit A, Table 2. Of the 55 requirements, PTV indicated that its COTS was only partially compliant with seven of the technical requirements. Further, PTV’s proposed software, DATEX2, is a European data format, which will require conversion to interface with the Department’s U.S. data format.3/ Mr. Learned testified that these conversions would require the Department to incur additional costs--both monetary and temporal. It also raised the questions of whose task it would be to complete the conversion and when conversion would take place. In addition, since the PRE is the driver of, and a critical interface with, the DSS, the necessity for conversion is not advantageous to the Department. In comparison to PTV’s proposal, Aimsun’s proposal verified that its COTS complied with all 55 technical requirements. The Department’s scoring of PTV’s proposal was reasonable and supported by the importance of the interface between the PRE and the DSS. Software Deployment/Project History PTV also received lower scores than Aimsun on section 3, Software Deployment/Project History. Mr. Mohamed, Mr. Learned, and Mr. Dilmore assigned scores of 27, 25, and 25, respectively. PTV has not previously deployed DATEX2 anywhere in the United States. All of its prior deployments were in Europe and the Middle East. This is significant because traffic operations (i.e., signal systems) and driver behavior are significantly different in North America than in Europe and the Middle East. By contrast, Aimsun’s project history includes two prior U.S. deployments, along with its European and Australian experience. The most relevant project is that of the San Diego I-15 ICMS, where Aimsun’s COTS was deployed successfully in 2013 and serves as the real-time modeling tool for the DSS in the San Diego interstate corridor ICMS project. That project is the exact model the Department is seeking to construct for the I-4 Corridor ICMS. Aimsun is currently involved in ongoing maintenance of the San Diego project. The Department did not arbitrarily score PTV’s proposal regarding section 1. Aimsun’s experience was the most relevant and demonstrated success with deployments interfacing with the DSS to support an ICMS. Scoring Contrary to RFP Criteria In scoring the proposals on availability, the TRC members also considered that most of the key PTV staff are not located in the United States. Only two key staff members, Shaleen Srivastava and Chetan Joshi, are located in the U.S., and those two members were proposed to devote to the project 15 percent and 30 percent of their annual work hours, respectively. TRC members expressed concern that international time zone differences would affect the responsiveness and availability of PTV to support the project, especially in the event of system failures. PTV posits that, in deducting points for the location of its staff outside of the U.S., the Department applied criteria that were not contained in the RFP. PTV argued that if the Department only wanted U.S.-based staff, it must have included that in the RFP criteria. Mr. Srivastava testified that someone on his staff, not necessarily someone listed on the worksheet, would be available 24 hours a day to take the Department’s calls and address any maintenance or failure issues. While Mr. Srivastava’s testimony was credible, it does not erase the Department’s reasonable concern with the availability of key staff. Mr. Srivastava conceded that the key staff listed on the worksheet would not always be available to the Department because of differences in international time zones. That, coupled with PTV’s lack of commitment to the Department’s SLA, justifies the TRC members’ deductions on section 2 of PTV’s proposal. The Department did not impose criteria which were outside of the RFP.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order dismissing PTV America, Inc.’s Petition. DONE AND ENTERED this 2nd day of November, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 2nd day of November, 2018.
The Issue In its formal written protest, Petitioner VisionQuest National, Ltd. (VisionQuest), through paragraph 6.d. and e., challenged the manner in which Respondent Department of Juvenile Justice (DJJ) assigned and weighed points in accordance with specifications set forth in RFP I5J01 (the RFP). The first issue to be resolved concerns the timeliness of that challenge to the specifications. The aspects of the RFP specifications challenged in the formal written protest are related to the assignment of points for past performance in carrying out contracts with DJJ for non-residential programs which can total 250 out of 1000 possible points in the competition. Section 120.57(3)(b), Florida Statutes. The second issue to be resolved concerns the appropriate disposition in the case where DJJ has conceded that the actions of some of its evaluators in considering responses to the RFP materially deviated from agency policy and the expectations in the RFP, thus compromising the evaluation process. Section 120.57(3)(f), Florida Statutes.
Findings Of Fact STIPULATED FACTS On or about April 12, 2002, DJJ issued an RFP under Solicitation Number I5J01 for "84 Community-based Conditional Release Slots in Orange and Osceola Counties." DJJ appointed one of its employees, Diana Blue, as the Contract Administrator for this RFP. As a Contract Administrator, she had the duties and obligations of the Source Selection Evaluation Team Chairperson. On or about April 10, 2002, Deborah H. Dickerson, DJJ's Chief Probation Officer for the 9th Circuit, appointed Shelley Maxwell, Nathan Marcou and Marcus Freeman as the evaluation team for RFP I5J01. The evaluation team was to review the responses to the RFP and subjectively evaluate the categories labeled "C.2 - Management Capability" and "C-4 - Program Services." These two criteria combine for a possible 550 points out of a possible 1000. Each category is further broken down into subcategories: C.2 - Management Approach and Organizational Structure and C.4 - Soundness of Approach and Comply with Retirements. The RFP also provides for an objective review of the responses in some respect. The RFP provides for up to 250 points, out of the possible 1000, to be awarded in the area of past performance. One way these points are earned is by a provider having operated a DJJ Program(s) within the last three years and the program(s) having earned a "commendable or higher recognition." Such a program(s) would receive 20 points for each year, thereby allowing a single program to earn multiple scores, or multiple programs to earn multiple scores. A second way these points are earned is by a provider having operated a DJJ Program(s) within the last two years and the program(s) having met or exceeded DJJ's approved Performanced Based Budgeting performance measure for recidivism rates. Such a program(s) would receive 20 points for each year, thereby allowing the single program to earn multiple scores, or multiple programs to earn multiple scores. VisionQuest, Eckerd Youth Alternatives (Eckerd) and Children's Comprehensive Services (CCS) submitted timely responses to the RFP which were due no later than May 14, 2002. On May 14, 2002, the evaluation team was contacted and provided addresses so they could receive the RFP and the responses. This was the first contact the evaluation team had with anyone regarding their role on the evaluation team since the date of their appointment, April 10, 2002. Some of the evaluation team received their packages on Friday, May 17, 2002 and were to have their evaluations back on Tuesday, May 21, 2002. At least one of the evaluation team members did not receive their packages until Monday, May 20, 2002. The date to return the evaluations was extended to Wednesday, May 22, 2002. In this package was the RFP, the responses to the RFP, a score sheet, the Briefing for Source Selection Evaluation (SSET) Team Members and Advisors Form, and Conflict of Interest Questionnaire. Shelley Maxwell, evaluator number 3 for this RFP, is a DJJ probation officer for Osceola County. Part of Ms. Maxwell's responsibilities are to oversee the youth assigned to the current contract provider of community based conditional release slots in Osceola County, VisionQuest. Ms. Maxwell has no experience with RFPs, the evaluation of responses to RFPs nor has she received any training with regards to an RFP. Ms. Maxwell was not told what she would be doing or given any instruction between the time of being appointed to the evaluation team and receiving her materials. Ms. Maxwell reviewed her packet of materials on Friday, May 17, 2002, and was still unclear on what was expected of her. She then contacted a DJJ supervisor who informed her to review the responses and evaluate them. Upon learning that VisionQuest had submitted one of the responses she was to review, Ms. Maxwell thought that she and Nathan Marcou had been appointed to the evaluation team because they worked with VisionQuest on a daily basis. This allowed them to compare VisionQuest's written response with the daily activities of the current program. On Monday, May 20, 2002, Ms. Maxwell met with Nathan Marcou. Ms. Maxwell was told to get together with the other team members and perform the evaluations. Ms. Maxwell and Mr. Marcou discussed the proposal they were reviewing during this meeting, which was Eckerd's. Ms. Maxwell later reviewed the proposals from CCS and VisionQuest at home during the evening of Monday, May 20, 2002. In evaluating the response to the RFP filed by VisionQuest, Ms. Maxwell used her knowledge obtained through her day-to-day contact with VisionQuest. Her knowledge further affected the scores she awarded to VisionQuest. Ms. Maxwell signed her Briefing for Source Selection Evaluation (SSET) Team Members and Advisors Form, Conflict of Interest Questionnaire, and score sheets for CCS and VisionQuest on May 20, 2002. Her score sheet for Eckerd's response is not signed. Ms. Maxwell submitted her paperwork to go to the main office in Orlando, and then on to Tallahassee via courier. Based on the evaluations, DJJ issued a notice of intent to award a contract to Eckerd posted June 4, 2002. VisionQuest timely filed its Notice of Intent to Protest and its Formal Protest Petition and Request for Hearing. During the pendency of this action, DJJ has admitted that the evaluation process of RFP I5J01 was flawed and contrary to DJJ's policies and practices. In an attempt to remedy the flaws, DJJ desires to conduct a new evaluation of the RFP responses with a new evaluation team. VisionQuest desires to have the RFP rebid.
Findings Of Fact ICF Kaiser Engineers, Inc. is a foreign corporation authorized to do business in Florida. KE Realty Services, Inc. is a Florida corporation which has its principal place of business in Fort Lauderdale, Florida. On February 26, 1993, the Department issued a RFP to solicit offers on the SR 7 contract. This RFP was identified as RFP-DOT-92-93-4008. Proposals submitted in response to the request were to be opened March 26, 1993, and the bid tabulations were to be posted on April 29, 1993. Four vendors submitted proposals in connection with the subject RFP: the Petitioners; Gulf Coast Property Acquisition, Inc. (Gulf Coast); The Urban Group; and Keith and Schnars, P.A. Each proposal was scored based upon four criteria: technical plan; price; certified DBE; and executive judgment. The points available for each were preset and known to all vendors. The technical plan could receive a maximum of 75 points, price could receive 20 points, and each of the other criteria could receive 5 points. Obviously, the technical plan portion was the more weighted criterion. The technical plan portion of each vendor's proposal was evaluated by a Technical Review Committee (TRC). This committee consisted of Claire Tronel, Kevin Szatmary, Steve Gonot, Lynda Parsons, Van Neilly, and Cheryl Balogh. The membership of the TRC was not kept secret and Petitioners knew, and perhaps other vendors as well, who would be evaluating the proposals. Each member of the TRC scored the proposals independently. The average of all of the independent scores for each proposal was then computed as the technical plan score. The vendors received the following technical plan scores: Petitioners a 67.42; Gulf Coast a 56.79; The Urban Group a 36.42; and Keith & Schnars a 29.71. To determine the price score, the lowest priced proposal received the maximum number of points (20). The other proposals received a fraction of the twenty points available based upon the relation of their price to the lowest price. According to the formula, Keith & Schnars received the highest price score (20), then The Urban Group (17.20), Gulf Coast (15.60), and finally, Petitioners (10.60). Petitioners received the lowest price score because it submitted the highest priced proposal. The ratio of its price with the lowest priced proposal multiplied by 20 resulted in the 10.60 score. The scores for the DBE criterion are not in dispute but were assigned as follows: Petitioners, 5.0; Gulf Coast, 5.0; The Urban Group, 0.0; and Keith & Schnars, 2.0. The TRC did not know the prices submitted with the proposals until it had completed the technical scores for each vendor. The final criterion, executive judgment, was determined by the Selection Committee which consisted of: Rick Chesser, James Wolfe, and Joseph Yesbeck. This committee considered two factors in assigning its five points. First, the vendor's ability to do the work; and second, the cost of the work. The scores for executive judgment were: 0 for The Urban Group and Keith & Schnars because their technical proposals were poor; 1 for Petitioners because, while their technical proposals were good, their price was high; and 5 for Gulf Coast. Following tabulation of all criteria scores, the vendors were ranked as follows: Petitioners with 84.02; Gulf Coast with 82.39; The Urban Group with 53.62; and Keith & Schnars with 51.71. On April 29, 1993, the Department posted the foregoing tabulation and its intent to award the SR 7 contract to Petitioners on May 3, 1993. Thereafter, allegations of impropriety and/or conflict of interest were raised by an unsuccessful vendor. The claims were: that members of the TRC had family members who were either employed by or under contract to Petitioners; that Petitioners had conversations with Department employees prior to the submission of the proposals regarding a revised Department budget for the SR 7 contract; and that an employee of the Department served as the registered agent for Petitioners. Gulf Coast met with the Department and alleged that improprieties had occurred or conflicts of interests existed that had affected the technical evaluation of the bids. Based upon the allegations, the Selection Committee decided to avoid the appearance of any impropriety and to rescind the intent to award to Petitioners and to reject all proposals submitted. The decision reached by the Selection Committee was hurried as the Department believed it was bound, by law, to reach such decision before 8:00 a.m., May 4, 1993. A complete investigation into the truthfulness of the charges was not finished prior to the imposed deadline. On May 5, 1993, the Department posted its formal notice of its intent to reject all proposals. The basis for such decision was "perceived improprieties in the selection process and possible conflict of interest." There were no actual conflicts of interest in the review of the subject proposals. Further, there were no actual improprieties in the proposal review or scoring. With regard to the allegations related to family members employed by Petitioners, no such conflict existed. Claire Tronel's husband has a contract with Petitioners unrelated to any of the issues of this case. Such contract is well-known in the industry and was known to the vendors prior to the assessment of these proposals. Further, the Department knew of such relationship prior to Ms. Tronel being selected for membership on the TRC. Mr. Tronel is not an officer, partner, director, or proprietor of either Petitioner. Nor does he have a direct or indirect ownership interest in more than a five percent of the total assets or capital stock of either company. Ms. Tronel had refrained from serving as a scoring member of earlier technical review committees because of her husband's contractual relationship. Ms. Tronel's supervisor was aware of the relationship Mr. Tronel had to Petitioners and did not consider his limited business relationship to be a conflict. Ms. Tronel was chosen to serve on the TRC because of her experience in right-of-way services, and the relative lack of experience of some of the other committee members. Before serving on the TRC, Ms. Tronel consulted with the district general counsel in order to determine whether her participation would violate Florida Statutes or the Department's ethical standards. After receiving advice and making same known to her supervisors, it was decided Ms. Tronel should serve as a committee member. The contractual relationship between Mr. Tronel and Petitioner did not effect Claire Tronel's evaluation of the proposals. In fact, if the scores assigned by Ms. Tronel to the technical plans of each proposal were subtracted from the average scores, the margin between Petitioners' technical score and the next highest score would widen. Ms. Tronel showed no favoritism or bias in favor of Petitioners. Gulf Coast did not complain about improper conflicts related to their proposal yet Michael Sheridan, the son of TRC member Linda Parsons, is employed by O.R. Colan, an appraisal firm which was listed as a subcontractor in Gulf Coast's proposal. Perhaps Gulf Coast did not complain about Ms. Parsons' membership on the TRC because Ms. Parsons' relationship to Michael Sheridan is also widely known in the vendor community. Petitioners knew of such relationship but did not dispute the accuracy or fairness of Ms. Parsons. If Ms. Parsons' score were deleted from the scoring, Gulf Coast would have received the highest score. Ms. Parsons, who is the chief review appraiser, generally serves on the technical review committee for projects which include appraisal services. Since her son became an employee of O.R. Colan, Ms. Parsons has served on technical review committees which evaluated proposals submitted by O.R. Colan and those submitted by vendors who listed O.R. Colan as a subcontractor. Michael Sheridan is not an officer, partner, director, or proprietor of either Gulf Coast or O.R. Colan and does not own, either directly or indirectly, more than five percent of the total assets or the capital stock of either company. While Ms. Parsons has been instructed not to serve on technical review committees in the future when her son is reflected as a participant in one of the proposals, she has not been instructed to refrain from participating whenever her son's employer participates in a proposal. Ms. Parsons showed no favoritism toward Gulf Coast in her evaluation of the proposals. The facts do not support even an appearance that Ms. Parsons showed any favoritism toward Gulf Coast. Ms. Tronel and Ms. Parsons did not disregard their public duties in favor of a private interest. Therefore, no impropriety by reason of their participation resulted. The Department's decision to rescind the award to Petitioners and to reject all bids was also premised, in part, on concerns regarding contacts between Petitioners and the Department employees before proposals were submitted. Petitioners contacted the Department to ask questions because during the course of preparing its proposal an issue of pricing became apparent. An inconsistency between the amounts that they were developing for the project and the amounts reflected in the Department's work program budget for the project became obvious. Because of the disparity between the Department's budget for the project and the prices that Petitioners developed, Mr. Thomas became concerned that he was misinterpreting the RFP. Mr. Thomas called the Department and spoke, first, to Van Neilly and, subsequently, to Claire Tronel about his concerns. Ms. Tronel confirmed that all services, including appraisal, were to be included in the proposals submitted. Ms. Tronel did not tell Mr. Thomas that the Department intended to revise its budget for the project, nor did Mr. Thomas tell Ms. Tronel or Mr. Neilly what Petitioners' price for the SR 7 proposal would be. Subsequently, the Department did revise its budget for the SR 7 contract by forty to fifty percent. The revised budget exceeds the price bid by Petitioners. The Department's work program budget is a public document which lists all of the projects planned by the Department for a five-year period and includes the Department's price estimate for each project. Petitioners submit bids for Department projects and normally submit proposal prices which exceed the Department's budget. Petitioners normally submit proposals which are highly ranked for their technical quality. It was not improper for Petitioners to ask the question regarding the inclusion of appraisal services and it was not improper for a Department employee to confirm that appraisal services were to be included in the project. It is common practice for vendors to call Department employees before the submittal of proposals. However, vendors are warned not to rely upon information which is not provided to them in writing. In addition, it would be improper for a Department employee to share information with one vendor, which could be advantageous to that vendor, without also providing the information to all other vendors. Petitioners received no information which gave them an advantage over the other vendors. Rick Conner is a Department employee who was, until recently, the resident agent for KE Realty Services, Inc. Mr. Conner served in this position without compensation. He was not involved in any way in the RFP or the evaluation of the subject proposals. His role as resident agent had no effect on the scoring of proposals, and was not a factor in the Department's decision to rescind the award to Petitioners. There was no evidence offered at the hearing to suggest that the relationship between Rick Conner and KE Realty gave the appearance of impropriety. Petitioners expended approximately $40,000 in the preparation of the proposal; and, if there is a rebid, will incur additional amounts to prepare a new proposal. Petitioners hired additional employees for the SR 7 contract, so that it could report in its proposal that it had the staff on hand to begin work immediately. If the SR/7 Contract is not rebid until late 1993 or early 1994, the opportunity to recoup the overhead expenses associated with these additional employees will be lost. In addition, Petitioners' ability to rebid is adversely affected by the Department's decision since Gulf Coast made a copy of the proposal and may now benefit from the technical ideas and suggestions developed by Petitioners.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Transportation enter a final order awarding job no. 86100-3576/2508 for the SR 7 project to Petitioners. DONE AND RECOMMENDED this 17th day of September, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3034 Rulings on the proposed findings of fact submitted by the Petitioners: 1. Paragraphs 1 through 23, 25, 26, 28, 29, 31 through 48, 50, 51, and 53 through 61 are accepted. Paragraph 24 is rejected as a statement of law, not fact. Paragraph 27 is rejected as irrelevant. The first sentence of paragraph 30 is accepted; the remainder rejected as irrelevant. Paragraph 49 is rejected as irrelevant. Paragraph 52 is rejected as argument or comment. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1 through 17, 21, and 22 are accepted. While paragraphs 18 through 20 accurately state the rationale expressed by the selection committee (one member of which changed his opinion after a thorough review of the facts), the ultimate facts expressed by the paragraphs (for example, that there was an appearance of impropriety) are rejected as not supported by the weight of the credible evidence. Not one person from the public or from the other vendors testified. The Department took the unfounded allegation of an unsuccessful bidder (not even corroborated at trial) as proof that an appearance of impropriety existed. Paragraph 23 is rejected as argument, conclusion of law, or contrary to the weight of credible evidence. Paragraph 24 is rejected as contrary to the weight of credible evidence. Paragraph 25 is rejected as irrelevant or argument. Paragraph 26 is rejected as irrelevant or argument. The first two sentences of paragraph 27 are accepted; the remainder rejected as irrelevant or argument. Paragraphs 28 and 29 are rejected as argument. Paragraph 30 is rejected as contrary to the weight of the credible evidence. Paragraph 31 is rejected as argument and contrary to the weight of the credible evidence. Paragraph 32 is rejected as argument. COPIES FURNISHED: Paul Sexton Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Martha Harrell Chumbler CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P.A. First Florida Bank Building 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302 Ben G. Watts, Secretary Department of Transportation ATTN: Eleanor F. Turner, Mail Station 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Is Petitioner entitled to the receipt of an additional point(s) for her cosmetology examination given by Respondent on December 17, 1997?
Findings Of Fact Petitioner was a candidate for the written clinical part of the cosmetology examination given by Respondent on December 17, 1997. Petitioner had requested ADA accommodations for her dyslexia as part of her examination. On December 5, 1997, Respondent through a special testing coordinator of the Bureau of Testing, wrote to Petitioner to inform Petitioner that Petitioner's request for special testing accommodations for the December 17, 1997, cosmetology examination had been approved. Through this correspondence Petitioner was told: The following provision(s) have been approved: READER who will also mark your answers on your scan sheet, time and a half, and a private testing area. * * * If you experience any problems at or during the examination, please notify the examination supervisor on site immediately. In furtherance of its commitment, Respondent provided Ms. Ruth Schneider to read the examination questions and the multiple answer choices in the written clinical cosmetology examination given on December 17, 1997. Before serving in the role of reader Ms. Schneider had several hours of training. Ms. Schneider had attended a meeting at the test site. In her orientation, Ms. Schneider was instructed concerning any changes in procedures from the last time she had worked as part of a group administering examinations, to include the cosmetology examination in this case. Ms. Schneider was informed about how the paper work should be handled in the cosmetology examination at issue, specifically how to protect a candidate's papers. In carrying out her duties in assisting Petitioner at the December 17, 1997 cosmetology examination, Ms. Schneider read Petitioner the questions and choice of answers and marked the letter answer that represented Petitioner's choice for responding to the question. Ms. Schneider did not discuss with Petitioner any possible answer to be given to any question. Ms. Schneider did not suggest an answer to be given. Ms. Schneider was not competent to suggest an answer to be given, not having training as a cosmetologist. Ms. Schneider marked the letter of the answer which Petitioner chose for a given question by using a no. 2 pencil and bubbling in the circle of the letter chosen for the answer as reflected on the cosmetology examination score sheet for Petitioner. Later, when the score sheet was graded by Respondent by the use of a template placed over the score sheet, in the event the answer given by Petitioner was not the answer deemed by Respondent to be correct, a dashed line would be marked through the answer Respondent found acceptable, with the bubbled- in answer chosen by Petitioner remaining on the answer sheet. The bubbling of an answer means that the circle with a letter equated to the answer to the specific question would be filled- in. When the examination had been completed both Petitioner and Ms. Schneider executed a form of the Bureau of Testing referred to as an ADA Site Verification Form. In the execution of that form Petitioner replied in the affirmative to the following questions: Were you provided special provisions as indicated above (this was in relation to Petitioner's time and a half, a reader who will also mark your answers on your scan sheet, and a private testing site)? Were you satisfied with the special provisions provided during your examination? Were you informed in previous correspondence should you experience any problems at, or during examination, to notify the examination supervisor on site immediately? Did a proctor or scribe mark you answers for you? If you answered "yes", were your satisfied that your intended answer choices were marked? Ms. Schneider verified in writing that the special provisions were provided to the candidate as had been referred to above, and that Petitioner did not request the assistance of an examination supervisor during or at the examination. Both Petitioner and Ms. Schneider signed on December 17, 1997, acknowledging the responsibilities of the reader as being: The following guidelines have been established for candidates who use a reader during the written examination. This will ensure that their examination questions and answers are accurately read (and answers marked if necessary). The reader CANNOT INTERPRET, RE-WORD, OR PROVIDE ASSISTANCE IN DETERMINING THE ANSWER to any test question. The reader may read the test question and/or test materials as many times as requested by the candidate. The reader may read the questions in ENGLISH ONLY. The reader CANNOT TRANSLATE the examination questions to any other language. Both the candidate and reader will have an examination book, unless the candidate is visually impaired and does not require the use of a book. The question, answer choices and answers will be read to the candidate by the reader. If a scribe is being used (proctor to mark or transfer answers): The reader will verbally re-read the answer choice and answer to the candidate for verification. After a candidate has completed the examination, and time permits, the candidate has the option to review the examination questions and indicated responses. Due to the length of some examinations, it may be necessary for the reader to take a break. During that time the candidate is also to take a break. The same reader should be used during the entire session for continuity. As stated, Petitioner believes that the answers she gave to questions 19, 24, 25, 30, 46, 50, 55, and 78 were correct. Petitioner had made known her concern about being graded down for her answers to those questions in remarks recorded on the examination review scratch paper, when afforded the opportunity to review the examination results on February 20, 1998. See Section 455.217, Florida Statutes. In addition to Petitioner's testimony concerning her answers to the examination questions at issue, Petitioner presented the testimony of Mr. Bobby W. Parks, Jr., a practicing cosmetologist licensed in Florida, who has also served as an instructor in cosmetology at the Franklin Peterson Academy in Duval County, Florida. Mr. Parks offered his testimony concerning the results of the answers which Petitioner gave to questions 24, 46, 50, 55, and 78. In support of its decision to find the answers Petitioner gave to the subject questions to be incorrect, Respondent presented the witnesses Ms. Carol Nealy and Ms. Beth Hildebrand, cosmetologists licensed to practice in Florida who also serve as consultants to Respondent in the periodic preparation and administration of the cosmetology examination. Ms. Carol Nealy and Ms. Beth Hildebrand also pointed to references within the cosmetology profession that are generally accepted in cosmetology school and within the practice of cosmetology to support their respective opinions concerning the propriety of the answers to the subject questions which Respondent deems to be correct. In response to question number 50, Petitioner chose answer: D. pre-softening solution. The preferred answer by Respondent was: C. cream conditioner. In his opinion, Mr. Parks indicated that either answer would suffice. His opinion is accepted. Respondent's experts' opinions are rejected. Petitioner's answer to question 50 is credited. Otherwise, the answers which Petitioner gave to question numbers 19, 24, 25, 30, 47, 55, and 78 are incorrect in that Petitioner and Mr. Parks in their testimony are unpersuasive, and Ms. Nealy and Ms. Hildebrand are persuasive in their testimony, supported by references, that the answers preferred by Respondent are correct and the answers given by Petitioner are incorrect.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which credits the Petitioner for the answer given to question number 50, as well as the earlier credit extended for the answer given to question number 63, and that otherwise denies Petitioner relief. DONE AND ENTERED this 15th day of January, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 15th day of January, 1999. COPIES FURNISHED: Patricia A. Crawford Parson 8574 Vining Street Jacksonville, Florida 32210 Patricia A. Crawford Parson Mickey's House of Beauty 1233 Lane Avenue, Suite 23 Jacksonville, Florida 32210 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda A. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Joe Baker, Executive Director Board of Cosmetology Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue Whether Respondent unlawfully discriminated against Petitioner by terminating his employment in violation of the Florida Civil Rights Act of 1992, as amended, as alleged in the Petition for Relief.
Findings Of Fact Petitioner, Michael Jeffries, was employed as a trainee, then as a trooper by the Florida Highway Patrol (FHP) from August 5, 1991, to January 30, 2009. During that time, Petitioner received a written reprimand in 1985 for "failure to perform job duties" and was suspended for 40 days in 1997 because his drivers' license was about to be suspended. In 2004, Petitioner had symptoms of fatigue, low sex drive, and difficulty sleeping. Petitioner read an advertisement, as he remembers, in a muscle and fitness magazine, for PowerMedica, a facility that listed itself as a provider of hormone replacement therapy (HRT) that could alleviate fatigue and low sex drive. Petitioner visited the offices of PowerMedica which appeared to be a typical medical office in a multi-story office building. Petitioner has learned in retrospect that, as it appeared, in April 2004, PowerMedica held a valid State of Florida license as a medical facility, a pharmacy. He asked the receptionist for information about PowerMedica, she gave him a brochure, and he left. Petitioner next consulted his primary care physician, Carlos G. Levy, M.D. Dr. Levy was unable to recall if he saw Petitioner for specific complaints or for his annual physical. Petitioner's blood was drawn in Dr. Levy's office and sent to LabCorp for testing on April 28, 2004. Dr. Levy reviewed the results of the test with Petitioner and diagnosed him as having hypogonadism, a condition manifested by a low testosterone level of 201, or any level below 300, according to Dr. Levy, although the test results form indicated that 241 to 827 is the normal range. By either standard, Petitioner was, according to Dr. Levy, hypogonatic and his condition should have been treated to avoid more serious health problems. Dr. Levy is board certified in osteopathic family medicine. As a part of his regular practice, he treats patients with low testosterone, usually beginning with topical preparations. His patients have monthly blood tests and, if the topical testosterone is not being absorbed adequately, he uses testosterone injections. Despite having diagnosed his condition, Dr. Levy did not treat Petitioner. Rather than seeking treatment from Dr. Levy, Petitioner made a second visit to the PowerMedica office. This time Petitioner filled out a confidential medical questionnaire. On the form, he indicated that he had no decrease in sexual potency and no sleep disturbances, or any other medical conditions. He testified that he was embarrassed to put low testosterone, or his symptoms on the form that would be seen by the receptionist and others in the office, but that he did tell a gentleman in a white lab coat in a private room at PowerMedica about his condition. He also gave that gentleman a copy of his blood tests results and was advised that his records would be reviewed by a doctor. He did not believe that the gentleman or anyone else that he personally met at PowerMedica was a doctor. Approximately a week later, Petitioner received a telephone call from someone he believed to be a doctor or someone who was calling for a doctor at PowerMedica. That person said his records had been reviewed, and he could get prescriptions from, and could get them filled at, PowerMedica. On his third visit to PowerMedica, Petitioner received four prescriptions, dated June 11, 2004, all signed by a Dr. Al Almarashi, whom he had never met. The prescriptions were filled at PowerMedica. Petitioner received two anabolic steroids: Stanozolol and Nandrolone Decanoate; a human chorionic gonadotropin, Novarel, that is used to stimulate testosterone and sperm production; and Clomiphene, an anti-estrogen drug. Petitioner testified that Dr. Levy was aware that he was seeking HRT for low testosterone from another facility. Dr. Levy denied that he was ever advised that Petitioner had purchased and used Stanozolol and Nandrolone. He did not recall being told that Petitioner had purchased and used Novarel or Clomiphene. According to his medical notes, Dr. Levy did not see Petitioner again after April 2004 until September 8, 2005. Petitioner became aware that State and federal agencies were investigating PowerMedica and stopped buying their controlled substances, but he did not notify his employer of his connection to the pharmacy nor did he offer to assist with the investigation. The Broward County Sheriff's Department, in cooperation with the Food and Drug Agency (FDA), determined that Dr. Almarashi was not a Florida-licensed physician and could not lawfully write prescriptions in Florida, and that PowerMedica was selling controlled substances to people without appropriate examinations and documentation of any related medical conditions. As a result, the State suspended its license and the FDA closed PowerMedica. The Sheriff's Department obtained the PowerMedica customers' list and gave law enforcement agencies the names of any of their law enforcement officers whose names were on the list. Because his name was on the list, Petitioner was investigated by Respondent. He was notified in a letter dated January 14, 2009, that his employment was terminated for the following reasons: Section 893.13(6)(a) Florida Statutes, Possession of a controlled substance without a valid prescription, 3rd Degree Felony; Florida Highway Patrol Policy Manual, Chapter 3.03.06(A)7. Code of Conduct states: "Members will maintain a level of moral conduct in their personal and business affairs which is in keeping with the highest standards of the law enforcement profession;" Florida Highway Patrol Policy Manual, Chapter 3.03.06(a)51. Code of conduct states: "Members will not possess or use cannabis or any controlled substances except when prescribed by law and Division directives"; Florida Highway Patrol Policy chapter 5.11.05, Substance Abuse. These violations constitute the following disciplinary offenses: Possession, Sale, Transfer or Use of Drugs Off the Job, first offense; Violation of Statutory Authority, rules, Regulations or Policies, Fourth Offense; Conduct Unbecoming a Public Employee, first offense. Based on his own testimony, Petitioner tried to tell FHP investigators that he had a legitimate medical condition and they refused to believe him. In fact, their report disputes Dr. Levy's diagnosis by asserting that the blood test showed "low testosterone serum but not low free testosterone." The report also faults Petitioner for not being suspicious and for not holding himself to a higher standard as a law enforcement officer who would be aware of the stigma attached to the purchase and use of controlled substances, not as alleged by Petitioner that there was a "stigma" of actually having the condition. The investigators concluded Petitioner knew he was purchasing controlled substances illegally, in part, because (1) they concluded that he really did not have any related medical condition, (2) he was not treated by his primary care doctor who diagnosed what he claimed was a condition, (3) he had no valid doctor-patient relationship with PowerMedica, and (4) he did not come forward with information about his connection to PowerMedica when he became aware of a law enforcement investigation. Taken as a whole, the evidence supports a finding that Respondent terminated Petitioner’s employment because its investigators decided, correctly or incorrectly, that Petitioner knew or should have known that he unlawfully purchased and consumed Schedule III controlled substances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 8th day of December, 2009, 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 December, 2009. COPIES FURNISHED: Sandra Coulter, Esquire Florida Highway Patrol Neil Kirkman Building 2900 Apalachee Parkway, A-432 Tallahassee, Florida 32399 Cathleen Scott, Esquire Cathleen Scott, P.A. Jupiter Gardens 250 South Central Boulevard, Suite 104-A Jupiter, Florida 33458 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact On May 30, 2008, FEC entered an Order of Probable Cause charging Respondent with the following violations: Count 1: On or about January 10, 2007, Respondent violated Section 106.07(1), Florida Statutes, when he failed to file with the filing office his 2006 Q4 CTR due on that date, listing all contributions received and all expenditures made, by or on behalf of the candidate. Count 2: On or about May 7, 2007, Respondent violated Section 106.141(1), Florida Statutes, by failing to properly dispose of surplus campaign funds within 90 days after he was eliminated and to file a report reflecting the disposition of those funds, when Respondent failed to qualify between January 30, 2007 and February 6, 2007, and failed to dispose of funds in his campaign account and file a report reflecting the disposition of the funds on or before May 7, 2007. On or about December 16, 2008, Respondent was personally served with the Order of Probable Cause by process server. Because Respondent neither elected to have a formal or informal hearing conducted before FEC nor elected to resolve the complaint by consent order within 30 days after the date of the filing of FEC's allegations, on January 30, 2009, FEC referred the case to the Division of Administrative Hearings (DOAH), pursuant to Section 106.25(5), Florida Statutes (2007). The case was filed at DOAH on February 2, 2009. On February 6, 2009, Petitioner filed and served its First Requests for Admission upon Respondent. Respondent had 35 days, including time for mailing, to either admit or deny each of the Requests for Admission. Rule 1.370(a), Florida Rules of Civil Procedure provides: Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request . . Thirty-five days from February 6, 2009, was March 13, 2009. Respondent failed to file a response to FEC's Requests for Admission by March 13, 2009. Additionally, Rule 1.370(b), Florida Rules of Civil Procedure, provides: Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. On March 17, 2009, Petitioner filed its Motion for Summary Final Order, based on the unanswered Requests for Admission, and, therefore, based upon the conclusively established admissions of fact. Respondent filed no response in opposition to the Motion for Summary Final Order, as permitted by Florida Administrative Code Rule 28-106.204. On April 3, 2009, an Order to Show Cause was entered, requiring Respondent to show cause by April 10, 2009, why a Summary Final Order should not be entered against Respondent. Respondent did not file any response. The April 3, 2009, Order to Show Cause gave Respondent a final opportunity to dispute any or all facts, to set aside the Requests for Admission, or to otherwise show cause why the Motion for Summary Final Order should not be granted. Respondent has not shown good cause. Respondent's failure to provide a written answer or objection to FEC's Requests for Admission conclusively establishes the following determinative facts, which prove the charges herein:1/ Respondent signed a Statement of Candidate form for Jacksonville City Council, District 7, on June 8, 2005. Respondent filed an Appointment of Campaign Treasurer and Designation of Campaign Depository for Candidates (DS-DE-9) on or about June 8, 2005, designating himself as the treasurer of his campaign. Respondent did not file his 2006 Q4 Campaign Treasurer's report by January 10, 2007. Respondent received a Memorandum from Beth Fleet, Director of Candidate Administration, dated January 12, 2007, notifying him that he failed to file his 2006 Q4 Campaign Treasurer's Report that was due on January 10, 2007. Respondent received an April 27, 2007, Memorandum from Jerry Holland, Duval County Supervisor of Elections, notifying Respondent that he failed to file his 2006 Q4 Campaign Treasurer's Report that was due on January 10, 2007. Respondent's failure to file his 2006 Q4 Campaign Treasurer's Report is a violation of Section 106.07(1), Florida Statutes. Respondent's Termination Report (TR) was due on May 7, 2007. Respondent received a letter dated April 27, 2007, from Jerry Holland, Duval County Supervisor of Elections, notifying him that his TR was due on May 7, 2007. Respondent did not file his TR with the Duval County Supervisor of Elections by May 7, 2007. Respondent's failure to file his TR by May 7, 2007, is a violation of Section 106.141(1), Florida Statutes.
