Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. The Petitioner is MCI Telecommunications Corporation, whose business address is Suite 400, 400 Perimeter Center Terrace NE, Atlanta, Georgia 30346. The Respondent is State of Florida, Department of General Service, whose address is 614 Larson Building, 200 East Gaines Street, Tallahassee, Florida. The Intervenors are Microtel, Inc., whose address is 7100 West Camino Real, Suite 311, Boca Raton, Florida 33433, and United States Transmission Systems, whose business address is 320 Park Avenue, New York, New York 10022. MCI, Microtel, AT&T, Southland, and USTS are all interexchange carriers authorized by the Federal Communications Commission to provide, among other things, interstate WATS. MCI, AT&T, Southland, and Microtel are all interexchange carriers certified by the Florida Public Service Commission to provide, among other things, intermachine trunks and intrastate WATS. The interexchange carriers who participated in the November 5, 1987, negotiations were not advised prior to 9:00 a.m. on that day that the negotiations would consist of three rounds of price quotations with the prices quoted and each round being posted immediately on the board for review by the other carriers. The posting by the Division of Purchasing between 3:00 p.m. on November 2, 1987, and 3:00 p.m. on November 5, 1987, of a draft memorandum from William Monroe to Glenn Mayne was not a bid tabulation. The State of Florida provides a communications system to state agencies, local governments, and public school districts through the SUNCOM Network. The SUNCOM Network consists of switches, access lines, and transmission facilities such as Intermachine Trunks, Interstate WATS, and Intrastate WATS. On the SUNCOM Network, long distance calls from one SUNCOM user to another SUNCOM user are completed on IMTs. Intrastate WATS facilities are used to place in-state long distance calls from a SUNCOM user to a party not a member of the SUNCOM Network. Interstate WATS facilities are used to complete out-of-state long distance calls. The Division of Communications desired to migrate the data users of the SUNCON Network from an analog environment to a digital environment. In order to do that, there had to be changes to the SUNCOM switching facilities and changes to the transmission facilities. In 1984, a Request for Proposal (RFP) was issued for the switches. As a result of the RFP, the network went from 5 to 11 switches on December 1, 1986. The Division of Communications decided to utilize digital transmission facilities for both IMTs and Interstate WATS facilities on the newly configured network. In 1985, the Division of Communications negotiated a contract with MCI for the provision of the Interstate WATS. MCI made no protest to being awarded the contract by negotiation. AT&T was selected to provide the IMTs. The selection of AT&T and MCI was an interim measure to give the Division of Communications time to evaluate the transmission facilities for changes after the new network had stabilized. At the time of the final hearing, AT&T was the current provider for the IMTs and Intrastate WATS and MCI was the current provider for the Interstate WATS. On March 1, 1987, the Division of Communications and the Division of Purchasing sent a letter to seventeen suppliers of transmission facilities. The letter advised the suppliers that the Division of Communications was beginning an evaluation process to determine the viability of replacing some or all of the SUNCOM Network completion facilities with different suppliers. The suppliers were advised that a potential supplier did not have to service all routes or provide all facilities in order to be considered. Suppliers were requested to provide information concerning their transmission facilities. It was contemplated that the transmission facilities would be tested for approximately 90 days, during which time there would be consideration of reliability, maintainability, cost, and billing. The evaluation process also contemplated consideration of corporate viability and status, network typology, and references from existing customers similar in size to the State of Florida. The suppliers were cautioned that their participation in the evaluation process did not guarantee a contract and that it was possible that the evaluation process might not result in any contract. The suppliers were also advised that any contract would be negotiated. The March 18, 1987, letter is a request for information and was so considered by the Division of Communications and the Division of Purchasing. By April 9, 1987, the Department of General Services had received ten responses to the March 18, 1987, letter. A five member evaluation team was formed to review the April 9 responses from the suppliers, conduct the oral presentations, conduct the 90-day test and make recommendations. The evaluation committee was comprised of five employees of the Division of Communications. Division of Purchasing personnel did not actively participate on the evaluation committee because they wanted to remain impartial in the event the Division of Purchasing would later have to decide what method of procurement to use. Each potential supplier was scheduled for an oral presentation in late April or early May of 1987. Additional information about the proposals was obtained at those presentations. The suppliers were asked during oral presentation if their prices were open for negotiation. Ed Martinez of MCI said that MCI was open for negotiation. Of the carriers that survived the technical evaluation process, MCI had submitted the lowest price for all of the solicited telecommunications facilities and services. An in-service test of the ten suppliers was conducted from July 10 to September 30, 1987. One supplier, Lightnet, disconnected its transmission facility prior to the end of the test period. Robert Davis, chairman of the evaluation committee, used a numerical rating scheme to assist in evaluating the suppliers. The numerical point system was used as a way to make the evaluation process more objective. Additionally, when the evaluation was begun, the evaluation committee did not know whether contracts would be awarded through a formal acquisition process or through negotiation. The committee thought that an orderly ranking of the participants based on a rating scheme would be beneficial to Mr. Mayne in determining the method of acquisition. Mr. Mayne was unaware that a numerical point system was being used to evaluate the responses until he read the report prepared by the evaluation committee. On October 16, 1987, the evaluation committee issued the "Report on Alternate Suppliers for SUNCOM Network Transmission Facilities." The report outlined the evaluation process, presented the findings of the committee in the areas of pricing, billing, reliability-maintainability, corporate viability and general compliance by the suppliers, and made recommendations based on their findings. The evaluation committee concluded that, based on the prices submitted by the suppliers, it was possible for the state to reduce the cost of the operation of the network by over $368,000 per month. In considering the corporate viability of a supplier, the evaluation committee did not intend to conduct an indepth financial analysis. The evaluation committee wanted to determine whether the suppliers would have the ability to survive in a competitive environment for the contract period of three years. Both DGS' staff and MCI's financial analysis expert agreed that ITT, MCI, Microtel, AT&T and Southland were in a position to maintain their corporate viability for the contract period. The evaluation committee recognized that there was an opportunity to further reduce the cost of the network transmission facilities. The committee recommended that the IMTs, Interstate WATS and Intrastate WATS not be provided by one supplier. It was also recommended that Sprint, Digital Signal, and Lightnet be eliminated from further consideration. The report did not recommend specific suppliers. The committee recognized that if the point evaluation were used that the ranking would change as the result of further negotiations. They felt that if a decision was made not to use the point evaluation, then low cost would determine the suppliers. The report was presented to Glenn Mayne for his consideration. Based on his review of the report, Mr. Mayne determined that the State was currently paying far too much money for the transmission facilities; the State desired to have more than one supplier for the transmission facilities; and there was a group of potential alternate suppliers who could supply the State with transmission facilities which would be acceptable for the SUNCOM Network. As soon as Mr. Mayne became aware of the enormous potential savings to the State (and probably because of that awareness) things began to happen very quickly. A copy of the evaluation report was given to Bill Monroe. Mr. Mayne and Mr. Monroe discussed the report and Mr. Mayne expressed some concerns relating to the Division of Communications' need to migrate data signals to the network. Monroe asked that those concerns be put in writing. Mr. Mayne complied by memorandum dated October 28, 1987, in which he expressed his concerns relating to the discontinuance of Telpak and the Division of Communications' plans to migrate data to the voice network. The desire to address these concerns in the negotiations was due primarily to an AT&T proposal submitted in the late summer or early fall of 1987, which addressed these concerns. The Department had made no effort to obtain proposals similar to AT&T's from the other suppliers prior to requesting authority to negotiate from the Division of Purchasing. The Division of Purchasing deemed the October 28 memorandum to be the Division of Communications' formal request for the authority to negotiate. Mr. Monroe authorized the Division of Communications to negotiate contracts for the transmission facilities and services for the SUNCOM Network. The authorization to negotiate was granted because the providing of transmission facilities and services was a regulated portion of the telephone industry; the participants were limited to those which met Florida Public Service Commission guidelines for facility based operations; an indepth evaluation of the suppliers had been performed; and the delay incident to using any other procurement method would result in a substantial monetary loss to the State. The most significant factor in the decision to negotiate was the monetary loss which would result from delay. The authorization memorandum recommended that the negotiation be handled as a joint venture between the Division of Communications and the Division of Purchasing, and that the Division of Purchasing participate in development of the criteria for final selection of a supplier. Mr. Mayne discussed the method of negotiations to be used with Mr. Monroe and his staff. Based on his past experience with one-on-one negotiations, Mr. Mayne felt it would be fairer to put up everyone's prices on the board so that all suppliers could see each others prices. Mr. Mayne suggested that there be two verbal rounds of pricing and a final round in writing. Mr. Monroe concurred with Mr. Mayne's suggestion. It was felt this method of negotiations would result in better pricing for the State; could be done quickly and easily; and would reduce the chance of one supplier being favored over another. The intended decision of the Division of Purchasing to authorize the negotiation was posted in the Division of Purchasing beginning November 2, 1987, at 3:00 p.m. The posting was in the form of a post-dated, unsigned memorandum from the Division of Purchasing Director to the Division of Communications Director. Stamped at the bottom of the draft memorandum was the language required by Section 120.53(5), Florida Statutes, indicating that the failure to file a timely protest would constitute a waiver of Chapter 120, Florida Statutes, proceedings. In large letters at the top of this posting was the word DRAFT. Each of the ten suppliers was notified that the Division of Purchasing had authorized negotiations and that this decision would be posted beginning November 2 through November 5, 1987. On November 2, 1987, Cherrie McClellan, a purchasing specialist for the Division of Purchasing, called MCI's Ed Martinez to advise him that the authorization for the Division of Communications to negotiate for the procurement of the SUNCOM Network alternate suppliers would be posted from 3:00 p.m. November 2, 1987 to 3:00 p.m. November 5, 1987. Ms. McClellan was unable to reach Mr. Martinez and left the message on his recording machine. On November 3, 1987, Mr. Martinez called Ms. McClellan to confirm the message. She told him that the posting was for the authority for the Division of Communications to negotiate and she assumed that the Division of Communications would be contacting him. In giving the telephone notification to MCI, the Division of Purchasing did not specifically advise MCI that its failure to file a timely protest of the Division of Purchasing's decision would waive MCI's rights to proceedings under Chapter 120, Florida Statutes. On November 3, Mr. Martinez also called John Fain, a purchasing specialist supervisor with the Division of Purchasing. Mr. Fain advised Mr. Martinez that the Division of Purchasing had received a request for authority to negotiate from the Division of Communications, final negotiation could not begin until after the conclusion of the posting at 3:00 p.m. on November 5, 1987, and he did not know if there would be another posting. On November 2, 1987, Mohammed Amirzadeh Asl, an electrical engineer with the Division of Communications, called Ed Martinez between 2:00 and 3:00 p.m.; invited him to the negotiations on November 5; told him to bring his best prices for IMT routes and personnel who could make a decision; advised him he would have access during the negotiations to a phone but he had to use his credit card for any calls; and told him that DGS would be faxing him additional information concerning the negotiations. Mr. Amirzadeh also advised the other suppliers on November 2 of the negotiations and told them the same thing he had told Mr. Martinez. Mr. Martinez called Mr. Amirzadeh on November 3 and 4 with questions concerning the negotiations. On November 4, DGS faxed a memorandum to the suppliers concerning the criteria for the negotiations and the prices which had been quoted thus far to the Division of Communications. The memorandum advised the suppliers that preliminary discussions would start at 9:00 a.m. on November 5 at the Division of Communications and official negotiations would not start until 3:00 p.m. When Mr. Martinez, the MCI representative, came to the negotiations, he expected the Department to negotiate first with MCI to attempt to reach a mutually satisfactory agreement for the solicited telecommunications facilities and services, and he expected the Department to negotiate with other suppliers only if the negotiations with MCI were unsuccessful. These expectations were based on MCI's status as one of the incumbent suppliers, on the fact that the Department appeared to very satisfied with MCI's performance, and on the fact that MCI had submitted the lowest price proposals for all of the solicited telecommunications facilities and services in its April 9, 1987, submittal. These expectations were unwarranted. The negotiations began at 9:00 a.m. on November 5,1987. Glenn Mayne started out the negotiations by discussing the criteria which had been faxed to the suppliers on November 4. The suppliers were also given copies of the evaluation committee report. The suppliers were advised that there would be three rounds of negotiations The first two rounds would be preliminary. The last round of negotiation was to take place prior to 5:00 p.m. There were some assumptions that the suppliers were given to use in presenting their prices. The suppliers' prices were to be for one T-1 on each route, and the costs were to include access charges. Additionally, if there was any difference between the quoted and actual access charges the difference would be the responsibility of the supplier. The format used by the Division of Communications for the negotiations on November 5, 1987, was not normally used by the Department. The first round of pricing was at 11:00 a.m. Each supplier gave its price orally and as the price was given it was written on a board in the room. An objection was raised by one of the suppliers that the method used could give the last supplier an advantage because he would have seen all of the other suppliers' prices prior to giving his price. The second round was scheduled for 2:00 p.m. The method of receiving prices was changed to accommodate the objections at the first round. In the second round each participant wrote his prices on a piece of paper, all the papers were picked up, the papers opened, and the prices were written on the board. Between the second and third rounds, each supplier was given an opportunity to meet with Mr. Mayne and his staff. Mr. Martinez met with Mr. Mayne and his staff at 3:00 p.m. During the meeting, Mr. Mayne advised Mr. Martinez that DGS would like two separate fibers for each T-1 route for IMTs. The price for IMTs given by Microtel was approximately $9.50 per mile month. The corresponding price for MCI was around $15 or $16 per mile month. Mr. Mayne advised Mr. Martinez that, in order for MCI to be considered for a portion of the IMTs, MCI's price needed to be around $10 per mile month. Mr. Mayne did not reference access charges when he discussed the $10 per mile month. One of the assumptions of the pricing for the negotiations was that all prices would include access charges. During the meeting, Mr. Mayne told Mr. Martinez that MCI's price for IMTs was almost twice as much as the other suppliers. Additionally during the 3:00 p.m. meeting between Mr. Mayne and Mr. Martinez, Mr. Mayne explained to Mr. Martinez that the suppliers would reconvene at 4:00 p.m. and report their final responses and the last round of pricing would be before 5:00 p.m. Notwithstanding the clear explanation of when the suppliers would have their last opportunity to give their final prices, Mr. Martinez was apparently confused because he thought (albeit erroneously) that he would have another opportunity to offer a price after the third round. Because he thought that as an incumbent supplier MCI would have another opportunity to offer a price after all of the other suppliers had given their final prices, Mr. Martinez made a judgment call not to offer MCI's best price during the third round of the negotiations. The best price that Mr. Martinez was authorized to offer on the interstate WATS was slightly higher than the best price actually offered by another supplier. Mr. Martinez appears to be the only one who was confused about the finality of the third round of negotiations. It would not have been fair to the other suppliers to have afforded MCI an opportunity to submit further prices after the third round. No one from the Department of General Services advised Mr. Martinez that he would be given an opportunity to present further pricing after the other suppliers had given their best and final prices. The suppliers reconvened at 4:00 p.m. A supplier inquired whether the prices could be given before 5:00 p.m. Mr. Mayne asked the other suppliers whether they were ready and no one objected to giving the prices before 5:00 p.m. Mr. Mayne emphasized the third round was the last round. The suppliers gave their final prices at 4:19 p.m. The suppliers were asked to sign the sheets which contained their prices for the last round. Microtel submitted the lowest price for IMTs at $8.89 per mile. MCI's price for the IMTs was $12.52 per mile. ITT submitted the lowest price for Interstate WATS facilities at $.1249 per minute. MCI submitted $.1285 per minute for the Interstate WATS facilities. MCI submitted the lowest price for Intrastate WATS facilities at $.1133 per minute. Microtel submitted $.1139 per minute for the Intrastate WATS facilities. At the conclusion of the final round of pricing, AT&T indicated that they had additional pricing which was contained in a proposal submitted to Mr. Mayne in late summer or early fall of 1987. Mr. Mayne thought that AT&T had submitted its final prices during the last round and he advised AT&T that he would not consider the prices that were not contained on the sheets submitted by AT&T during the last round. John Fain, representative for the Division of Purchasing at the negotiations, also stated that prices not placed on the board could not be accepted. Mr. Mayne advised the suppliers at the end of the negotiations that the Division of Communications would try to reach a decision by the close of business on November 6. At the end of negotiations on November 5, 1987, the Division of Communications returned to AT&T its proposal which had formed part of the basis for the Division of Communications' request for authority to negotiate after AT&T claimed pricing information contained in that proposal was proprietary. At the beginning of the negotiation session on November 5, Mr. Mayne was satisfied that each of the participants could provide the solicited transmission facilities and services. Since the AT&T proposal would not be considered, Mr. Mayne determined that the contract should be awarded based on lowest cost for each of the transmission facilities. Prior to acting on this determination, Mr. Mayne discussed the matter with the Division of Purchasing. The Division of Purchasing concurred in the decision to award on the basis of lowest cost. The contract awards were based on low price and not the total points assigned to the providers based upon the numeric rating system used by the evaluation committee in the evaluation report. Mr. Amirzadeh telephoned Mr. Martinez on November 6, 1987, to inform MCI that the Department intended to award the Intrastate WATS facilities to MCI. Mr. Martinez advised Mr. Amirzadeh that the prices submitted by MCI were package prices. MCI later contacted the Department and advised the Department that the MCI price for Intrastate WATS was a package price. MCI withdrew its offering for Intrastate WATS. On being advised that MCI was withdrawing its offer for the Intrastate WATS facilities, the Department decided to award the Intrastate WATS facilities to the next lowest provider, which was Microtel. On November 10, 1987, the Department issued Communications Service Authorizations (CSAs) to Microtel for the Intrastate WATS facilities and IMTs, and to ITT for the Interstate WATS facilities. These CSAs are the only contracts to be executed by the State of Florida for the solicited telecommunications services and facilities. The CSAs were signed by the Division of Communications. By contracting with Microtel for IMTs, Mr. Mayne estimated there would be a cost savings of $216,000 per month. The cost savings associated with contracting with Microtel for the Intrastate WATS is approximately $98,000 a month. It is estimated the State will save approximately $105,000 per month by contracting with ITT for Interstate WATS. MCI filed a notice of intent to protest the contract awards on November 12, 1987. MCI filed its formal written protest on November 23, 1987. In acquiring these transmission facilities the Department is leasing spaces on the supplier's fiber optic cable. The spaces within the cable are analogous to time envelopes, which may carry information or no information, being shot down the fiber optic cable. The Department leases the spaces in multiples of T-1s. A T-1 represents 1.544 million spaces per second. When the Department leases a T-1, the Department has a dedicated physical connection and the information that will be contained in the spaces or time envelopes will always appear in the same space and in the same time. The Department leases the fiber facilities on a 24-hour-a-day basis, because it is more economical than leasing for shorter periods of time. While the space is being leased to the State, no other customer of the transmission facilities supplier can use that space. The functions of the facilities can also be described as follows. The interstate WATS service, the intrastate WATS service, and the IMT service for which the Department contracted, involve the receipt by the carrier of an originating call from a SUNCOM switch and the transmission of that call over the carrier's owned or leased facilities, including access facilities leased by the carrier from the local exchange company, to its destination either outside or inside the State of Florida or to another SUNCOM switch. In addition to the lease of spaces, the Department will be acquiring maintenance and billing services and, in the case of the WATS facilities, it will also be procuring management reports concerning the location of calls. For the facilities used to provide interstate WATS service, intrastate WATS service, and IMT service, the State of Florida will not have physical access to, the ability to monitor traffic over, maintenance or repair responsibility for, or rights to use particular components of those facilities. This applies to both the carriers' facilities and the access facilities leased by the carrier from local exchange companies to connect the SUNCOM switches and the carriers' facilities. For the facilities used to provide interstate WATS service, intrastate WATS service, and IMT service, the long distance carrier will have the responsibility for maintenance and repair of those facilities, the right to replace or upgrade those facilities in a fashion transparent to the State, and the right to determine the physical path through those facilities over which information from the State of Florida would be transmitted. This applies to both the carrier's facilities and the access facilities leased by the carrier from the local exchange companies to connect the SUNCOM switches to the facilities. The Department interprets Rule Chapter 13C-2, Florida Administrative Code, to apply to the acquisition of nonregulated communications equipment. The forms referred to in Rule 13C-2.008 are forms which State agencies use in requesting approval from the Division of Communications for the purchase or lease of nonregulated communications services or equipment. Rule Chapter 13C-1, Florida Administrative Code, has been interpreted by the Department to deal with a regulated environment. The procurement at issue in this proceeding is in a regulated environment. The criteria and procedures described in Chapter 13C-2, Florida Administrative Code, were not used in this procurement of the solicited telecommunications facilities and services. The negotiation process itself was negotiated in a fair and equitable manner. Each supplier was advised at the beginning of the negotiation session that there would be three rounds of pricing. There has been no claim by MCI that any of the suppliers had knowledge prior to 9:00 a.m. on November 5, 1987, of the actual negotiation process that would be used. When an objection was made by one of the suppliers to the method of accepting pricing in round one, the method of accepting prices was changed so that no supplier would have an advantage over another. It was made clear that the third round was the last round in which the suppliers could submit their best and final offers. The Department did not consider offers which were not submitted during the third round. The Department attempted to provide competition in the negotiation process by having the suppliers compete against each other in the pricing rounds. No supplier was treated more favorably than another. MCI was never told that it would be awarded the contracts. MCI made no protest or objection to the negotiation process prior to or on November 5, 1987.
Recommendation Based on all of the foregoing, it is recommended that a final order be entered denying the relief requested by the Petitioner. DONE AND ENTERED this 11th day of February, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH 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 11th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5338BID The following are my specific ruling on all of the findings of fact proposed by all of the parties. Findings proposed by the Petitioner: Paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9: All generally accepted, but some details have been omitted as either subordinate or unnecessary. Paragraph 10: Rejected as subordinate and unnecessary details. Paragraphs 11 and 12: Rejected as irrelevant. Paragraphs 13, 14, and 15: Accepted. Paragraph 16: Rejected as irrelevant. Paragraphs 17, 18 and 19: Accepted. Paragraph 20: Rejected as irrelevant in light of other evidence. Paragraphs 21, 22, 23 and 24: Accepted. Paragraph 25: Accepted in substance. Paragraphs 26 and 27: Accepted. Paragraph 28: Rejected as subordinate and unnecessary details. Paragraph 29: Accepted in substance. Paragraph 30: Rejected a subordinate and unnecessary Paragraphs 31 and 32: Accepted: Paragraph 33: Rejected as contrary to the greater weight of the evidence. Paragraphs 34, 35, 36, 37, 38 and 39: Accepted. Paragraphs 40 and 41: Rejected because the analogies fail. Paragraph 42: Accepted. Paragraph 43: Rejected as subordinate and unnecessary details. Findings proposed by the Respondent: Paragraphs 1, 2, 3, 4, 5, 6 and 7: Accepted. Paragraph 8: Rejected as subordinate and unnecessary details. Paragraphs 9 and 10: Accepted. Paragraph 11: Rejected as subordinate and unnecessary details. Paragraphs 12, 13, 14, 15, 16, 17 and 18: Accepted. Paragraph 19: Rejected as subordinate and unnecessary details. Paragraphs 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32,33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 and 44: Accepted. Paragraph 45: First sentence accepted. The remainder is rejected as subordinate and unnecessary details. Paragraph 46: First four sentences accepted. Last sentence is a conclusion of law. Paragraphs 47 and 48: Accepted. Findings proposed by the Intervenors: Paragraph 1: Rejected as statement of position rather than proposed finding. Paragraph 2 and 3: Accepted. Paragraphs 4, 5 and 6: Rejected as subordinate and unnecessary details. Paragraphs 7, 8, 9 and 10: Some of the details proposed in these paragraphs have been included, but most are rejected as subordinate and unnecessary. Paragraph 11: Rejected as subordinate and unnecessary, details. Paragraphs 12 add 13: Accepted in substance. Paragraphs 14: Rejected as unnecessary. Paragraph 15: Accepted in substance. Paragraphs 16 and 17: Rejected as irrelevant or as subordinate and unnecessary details. Paragraphs 18, 19, 20, 21, 22, 23 and 24: Some of the details proposed in these paragraphs have been included, but most have been rejected as subordinate and unnecessary. Paragraphs 25, 26 and 27: Rejected as subordinate and unnecessary details. Paragraph 28: Accepted. Paragraph 29, 30, 31 and 32: Rejected as subordinate and unnecessary details. Paragraphs 33, 34, 35, 36, 37 and 38: Accepted. Paragraphs 39, 40, 41, 42, 43, 44, 45, 46, 47, 48 and 49: Rejected as subordinate and unnecessary details. Paragraphs 50 and 51: Rejected as subordinate and unnecessary details. Paragraphs 52 and 53: Accepted. Paragraph 54: Rejected as subordinate and unnecessary details. Paragraph 55: Accepted in substance. Paragraph 56: Rejected as subordinate and unnecessary details. Paragraphs 57, 58 and 59: Accepted in substance. Paragraphs 60 and 61: Rejected as subordinate and unnecessary details. COPIES FURNISHED: Susan Kirkland, Esquire Sandra D. Allen, Esquire Office of General Counsel Department of General Services Room 452, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 Carolyn S. Raepple, Esquire Richard D. Melson, Esquire Hopping, Boyd, Green & Sams Post Office Box 6526 Tallahassee, Florida 32314 Patrick K. Wiggins, Esquire Wings Solcum Benton, Esquire Ranson & Wiggins 325 West Park Avenue Post Office Drawer 1657 Tallahassee, Florida 32302 Ronald W. Thomas Executive Director Department of General Services 133 Larson Building Tallahassee, Florida 32399-0955
The Issue The issue for determination is whether Respondent should grant Petitioner's application for a commercial telephone seller's license.
Findings Of Fact Petitioner, Stanley Sarentino, Jr. (Sarentino) is the owner and president of the The A/C Guy, Inc. (The A/C Guy) an air-conditioning service business based in Pompano Beach, Florida. The A/C Guy was incorporated in 1996, and serves residential and business customers in Broward and Palm Beach Counties. Respondent Department of Agriculture and Consumer Services (the Department) is the state agency charged with the enforcement of state regulation of telemarketing businesses in accordance with the provisions of the Florida Telemarketing Act, Chapter 501, Part IV, Florida Statutes (2000) (the Telemarketing Act). Sarentino has worked in the air-conditioning business in South Florida for over ten years. Both as an employee of other companies and since he formed The A/C Guy, Sarentino works exclusively as an air-conditioning mechanic. Sarentino has no expertise in, and has never been involved with, the daily running of the business, nor in the marketing of services, at the A/C Guy. Neither has Sarentino worked in the business side of any of the prior companies in which he was employed. Sarentino is assisted in managing The A/C Guy by his wife of 10 years. The Sarentinos have three children, and the family is well regarded in the community. Prior to the marriage, Sarentino's life was less exemplary. In 1991, Sarentino was charged with felony transportation of stolen stock certificates. Close in time to the stock charges, Sarentino was charged with unlawfully purchasing cocaine. Both incidents were disposed of by plea agreements which spared Sarentino a jail sentence. Since then, Sarentino has devoted himself to “turning his life around” by attending church, providing for his growing family, and otherwise occupying himself with lawful pursuits. Recently, Sarentino has made efforts to grow his small business. Those efforts included hiring John Frank Aiello, Jr. (Aiello) as full-time General Manager of The A/C Guy in the spring of 2001. Sarentino and Aiello came to believe that The A/C Guy had grown about as much as it could via word of mouth and print media advertising. They desired to expand the customer base for the business through telemarketing. Under the provisions of the Telemarketing Act, individuals who wish to have their business engage in telemarketing are required to be licensed (the Department). Aiello prepared a telemarketing license application for Sarentino in accordance with the instructions contained in the application package provided by the Department. Before commencing to prepare the application, Sarentino and Aiello carefully reviewed the licensing criteria. They paid special attention to the requirement that any criminal background be disclosed, and acted in good faith to disclose Sarentino’s history with as much precision as Sarentino’s 10-year-old memory would allow. The Department’s independent investigation corroborated that Sarentino had truthfully provided all requested information. Since his successful completion of probation for the decade-old incidents revealed on his telemarketing application, Sarentino has been a law abiding citizen. All applications for a telemarketer's license must be accompanied by a non-refundable $1500 processing fee. Applicants must also provide proof that they have paid the premium and have otherwise fulfilled the requirements to obtain a $50,000 bond from a private bonding company. The bond premium in this case was $1000.00. It is also necessary for applicants to provide extensive information about the business in whose name telemarketing will be conducted, along with information about individuals affiliated with the business, so that the Department may investigate their backgrounds for the public’s protection. Sarentino spent in excess of $350.00 in accounting fees for the preparation of financial statements required for the application. Prior to investing the time and incurring the expense associated with the application process, both of which are considerable, Sarentino carefully considered the question of whether he had a realistic chance to obtain a license. At the time he submitted his application, Sarentino reasonably believed, based upon the information provided by the Department itself, that his application would not be automatically rejected on account of his decade-old legal difficulties. After Sarentino’s application was submitted, Aiello, in his capacity as The A/G Guy general manager, had telephone conversations with the Department’s Regulatory Consultant Tom Kenny (Kenny) to follow-up on the status of the application. During the course of such conversations, Kenny revealed that the plea to the stock charge as well as the plea to the cocaine charge---each, by itself---would trigger the denial of the license application once the Department had independently confirmed that Sarentino had indeed truthfully disclosed the pleas. The evidence established and the Department conceded that there is an informal, unwritten practice enforced by Kenny's supervisor, James R. Kelly (Kelly), the Department’s Director of the Division of Consumer Services, that a plea of guilty to a felony charge, no matter what the felony, no matter how remote in time, no matter whether the applicant was rehabilitated or not will automatically result in the denial of a license application. The Department has no written rules, policies, or guidelines to which a citizen may refer in order to be apprised that the applications of individuals like Sarentino, and those similarly situated, are, in fact, dead on arrival. The Department's interpretation of the law is directly contrary to the discretionary language of the statute, which plainly does not foreclose all possibility that mitigating factors would be taken into account by Department officials in evaluating an applicant's criminal history. Sarentino has fulfilled all the statutory criteria for licensure. The Department would have granted the license were it not for its unwritten policy that the statute requires that any plea to a criminal charge mandates automatic denial.
Recommendation Based on the foregoing, it is hereby recommended that a Final Order be entered by the Department granting a commercial telephone seller's license to Stanley Sarentino, Jr. DONE AND ENTERED this 28th day of September, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 28th day of September, 2001. COPIES FURNISHED: James Curran, Esquire 633 Southeast Third Avenue Suite 201 Fort Lauderdale, Florida 33301 William N. Graham, Esquire Department of Agriculture and Consumer Services Mayo Building, Room 515 407 South Calhoun Street Tallahassee, Florida 32399-0800 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 541 East Tennessee Street India Building Tallahassee, Florida 32308 Honorable Terry L. Rhodes Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact The Respondent, Michael L. Illes, holds law enforcement certificate number 02-24636. On or about December 1981, while on duty, the Respondent responded to a call from Deborah Raybin regarding a malfunctioning alarm system at her home in Broward County, Florida. At said time, the Respondent was employed by the Broward County Sheriff's Department in the capacity of a deputy sheriff. The Respondent went to the Raybin home in the routine course of his duties. The Respondent admitted having been to the Raybin home after December 1981 in response to further false alarms and on other occasions not related to his duties. However, no competent evidence was introduced that the Respondent harassed Ms. Raybin by going to her home while either on duty or off duty. No evidence was received in support of the allegations that the Respondent, while on duty, went to the Raybin home and offered pornographic movies to Ms. Raybin. The only competent evidence presented was the credible testimony of the Respondent that while at the Raybin house on official business on or about June 19, 1982, he was asked by Ms. Raybin for a video tape. Respondent admitted that on the night of June 23, 1982, he arrived at the Raybin house with said video tape. At that time, prior to his ringing Ms. Raybin's doorbell, Respondent was stopped by his shift supervisor and another officer of the Broward County Sheriff's Department. They were there in response to a telephone call from a person whose identity was not established by competent evidence. The Respondent was out of his assigned patrol zone and had not checked out of his patrol car (unit). While proceeding to the Sheriff's Department prior to the beginning of his shift, Respondent made a traffic arrest of a driver for driving while under the influence. Respondent was involved in booking the arrested driver until after 12:00 midnight on the evening of June 23, 1982. Thereafter, he went to the Raybin house. On the night shift, the policy regarding leaving an assigned patrol area was flexible, particularly during those periods in which on-duty personnel were on break or eating. While on break, officers were not required to be in their patrol zones. Respondent would have been entitled to a break at the time he was at the Raybin house. Conflicting testimony was received concerning whether officers were required to check out of their units while on break. The shift supervisor stated that officers were required to check out when on break or at meals. Respondent stated that the night shift officers did not customarily check out on breaks because criminals monitored their radio reports and committed crimes when they knew that the officers were on break or at meals. Neither side could substantiate their testimony with any written policy. No evidence was received regarding when officers would report that they were on break, i.e., when they left their assigned zone, when they arrived at a break location, or when they left their units. Based upon the testimony received and the fact that officers wore portable radio units, it is found that officers were required to check out if they intended to be away from their units for more than a few minutes. When stopped by his shift supervisor, the Respondent was wearing his police radio. Respondent's uncontroverted and credible testimony was that he had stopped at the Raybin house on his way to his break location to drop off the tape Ms. Raybin had requested and had not intended to remain at the Raybin house longer than was necessary to drop off said tape.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint filed against the Respondent, Michael L. Illes, be dismissed. DONE and RECOMMENDED this 22nd day of August, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 22nd day of August, 1983. COPIES FURNISHED: William H. Ravenell, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301 Charles T. Whitelock, Esquire 1244 SE Third Avenue Fort Lauderdale, Florida 33316 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission 408 North Adams Street Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact On June 17, 1983, Respondent, Department of State, Bureau of Systems Management, issued Invitation to Bid No. DOS 80-82/83 to prospective bidders to provide 22,059 square feet of office space for use as offices for the Division of Licensing and Division of Corporations in Leon County, Florida. According to the general specifications and requirements, the space was to be located within one mile of the Capitol Building and available by August 1983, or within 30 days after execution of a valid lease. Sealed bids were to be received no later than 2:15 p.m. on July 27, 1983. At that time, all bids would be publicly opened. Petitioner, George E. Winchester, a partner in George and Lewis Winchester Construction Company, is the current lessor to Respondent of space used by the two divisions that will utilize the space requested in the bid. The monthly rental amount is $12,639.50. Although the lease expired on August 11, 1983, Respondent continues to lease the office space from Petitioner while this controversy remains pending. As is pertinent here, paragraph eleven of page seven of the Invitation to Bid contained the following miscellaneous requirements: Pest control. Soundproofing in specified areas (see floor plan Attachment H). Office must be prewired for telephone service (DMS-100 telephone system) 50-pair cable to support 20-button sets. Special climate control for selected areas where a concentration of heat-producing machines are located. All such equipment must be maintained at a maximum of 78 degrees. Capability for coaxial cable to be installed in all areas at lessor's expense. Capability for lessee to install additional coaxial cable at a later date. Office space must be able to receive dedicated electrical outlet for EDP and other specialized equipment. Offices to be prewired to provide for public announcement system in specified areas (Space 8,060 square feet). Offices to be located on one floor in reasonably close proximity (desired for Space 8,060 square feet). Window coverings to be provided on all windows. If office space has structural pillars or protrusions, lessee reserves the right to require decorative treatment of those struc- tures. Attached to the Invitation to Bid was a one-page document entitled "Attachment H" which provided a suggested configuration of offices and rooms. The "specific electrical, telephone and soundproofing requirements" within the office area were also reflected in Attachment H. Paragraph five of the General Conditions of the Invitation to Bid provides as follows: INTERPRETATIONS Any questions concerning conditions and specifica- tions shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening. No inter- pretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Petitioner was in possession of The Invitation to Bid for several weeks prior to The bid deadline of July 27, 1983. However, because he considered the matter to he only a "small lease," and one which would not take a great deal of time to prepare, he waited until five or six days before July 27 to begin preparations for submitting a bid. In reviewing paragraph eleven on page seven of the general specifications and requirements, he concluded that items 2, 3, 4, 5, 7, 8, 9 and 10 were too "vague" to prepare a bid. In an effort to clarify the alleged ambiguities, he sought assistance from Department personnel on Thursday, July He was advised to contact a Mr. Cushing, chief of the Department's Bureau of Management Systems. He did so by telephone on July 22 but did not receive satisfactory information. Finally, on the afternoon of July 26, he met with five or six employees of the Department of State to discuss the items in question. After the meeting, Winchester did not indicate he was still confused. Based upon Winchester's questions, the Department decided to issue a revised page seven. The revisions were not substantive in nature but were merely intended to provide further clarification and assistance to the bidders. As revised, paragraph eleven of page seven provided as follows: Pest control (once monthly--professional exterminator.) Soundproofing in specified area (see floor plan Attachment H). (Maximum soundproofing acoustical tile to be used in two rooms-- llx7 and 18x10--which will house computer equipment; other rooms specified for sound- proofing should have material to prevent voices from being heard through the walls.) Office must be prewired for telephone service (DMS-100 telephone system) 50-pair cable to support 20-button sets. Special climate control for selected areas where a concentration of heat-producing machines are located. All such equipment must be maintained at a maximum of 78 degrees. Capability for coaxial cable to be installed in all areas at lessor's expense. Capability for lessee to install additional coaxial cable at a later date. Breaker box or fuse box must be able to receive three 220 lines for EDP and other specialized equipment. Offices to be prewired to provide for public announcement system in specified areas (Space A 8,060 square feet only). (Muzak-type sys- tem with PA capability is acceptable.) Offices to be located on one floor in reasonably close proximity (desired for Space A 8,060 square feet). Window coverings to be provided on all windows (flame-retardant drapes or mini-blinds) If office space has structural pillars or protrusions, lessee reserves the right to require decorative treatment of those struc- tures. (The structural protrusions shall be made compatible with the wall areas in the rooms in which they are located.) All three prospective bidders were either advised by telephone or in person that afternoon that a revision was being issued. The Petitioner received his copy shortly after his meeting with the Department's representatives. After receiving the revision, Winchester called several subcontractors the next morning to obtain price quotations for the various items. Although he still maintained the bid was a guess" and he did not know if he could make any profit, he was nonetheless sufficiently informed to prepare specific prices for each item he had questioned. The bid package was filed prior to the deadline. Winchester did not use other professionals to interpret the specifications or to assist him in the preparation of his bid. He also did not avail himself of the provisions in paragraph five of the General Conditions which permitted him to make written inquiry to the Department concerning any alleged ambiguities. On the afternoon of July 27, 1983, the bids, numbering three, were opened by Respondent. 1/ Thereafter, on August 1, 1983, the Director of the Department's Division of Administration wrote Intervenor/Respondent, Hobco, Inc., a letter which reads in pertinent part as follows: In response to your bid to provide 22,089 square feet of office space to the Department of State, you are hereby notified that you are awarded the bid. The award prompted the instant proceeding. Although item 9 stated that offices were "to be located on one floor in reasonably close proximity," this was not a mandatory requirement. Rather, it was a preference on the part of the Department. This was confirmed by a letter from the Department to Crown Properties, another bidder, which had made a written inquiry to the Department on June 23, 1983, concerning that provision. Further, the specifications indicate that one floor was "desired," and that in the weighting process, the providing of one floor was not a dispositive attribute in determining the award. The evidence is conflicting as to whether certain items within the miscellaneous requirements in question are vague and ambiguous. However, it is found that the evidence is more persuasive that the specifications were sufficiently clear to allow a bidder to formulate a competitive bid to lease office space. A reading of the specifications themselves, including Attachment H, a visual inspection of the presently leased premises, and the use of other professionals for assistance would provide sufficient information relative to soundproofing, communications and electrical requirements to prepare a bid that would conform with specifications. Moreover, the General Conditions of the Invitation to Bid provided all prospective bidders with the opportunity to make written or oral inquiry concerning any "conditions and specifications" that they questioned.
Recommendation Based on The foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent award Invitation to Bid No. DOS 80-82/83 to Hobco, Inc. DONE and ENTERED this 9th day of November, 1983, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 9th day of November, 1983.
The Issue Whether the Petitioner, Gina M. Hunton, filed her request for a formal administrative hearing within the time required by Rule 22T-9.008(1), Florida Administrative Code.
Findings Of Fact Pleadings. The Petitioner, Gina M. Hunton, filed a Charge of Discrimination against Southern Bell Telephone and Telegraph Company (hereinafter referred to as "Southern Bell"), with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"), alleging that Southern Bell had discriminated against her on the basis of sex. On October 11, 1991, the Commission entered a Notice of Determination: No Cause, concluding that there was no reasonable cause to believe that Southern Bell had committed an unlawful employment practice against Ms. Hunton. On January 27, 1992, the Commission entered a Notice of Redetermination: No Cause, (hereinafter referred to as the "Notice") again concluding that there was no reasonable cause to believe that Southern Bell had committed an unlawful employment practice against Ms. Hunton. In the Notice Ms. Hunton was informed of the following: The parties are hereby advised that the Complainant may request that a formal, post- investigative proceeding be conducted. Any Request for Hearing/Petition for Relief must be filed within 30 days of the date of this Notice and should be in compliance with the provisions of Rule 22T-9.008 and Chapter 22T-8, Florida Administrative Code. . . . On June 15, 1992, Southern Bell filed a Motion to Dismiss Ms. Hunton's Petition because it had not been timely filed. No response to the motion was filed by Ms. Hunton on or before June 29, 1992. On July 1, 1992, an Order Granting Motion to Dismiss, Cancelling Final Hearing and Establishing Deadlines was entered by the undersigned. The deadlines established in the Order were July 13, 1992, for the filing of proposed recommended orders and August 3, 1992, for the entry of a recommended order of dismissal in this case. On July 20, 1992, more than two months after the motion to dismiss was filed, and after Southern Bell had filed a proposed recommended order, Ms. Hunton filed a Response to Motion to Dismiss. On July 29, 1992, an Order to Show Cause was entered by the undersigned. In the Order to Show Cause, Southern Bell was given an opportunity to show cause why the motion to dismiss should not be denied in light of Ms. Hunton's explanation of why she had not filed her request for a formal administrative hearing timely. On August 10, 1992, Southern Bell filed a Renewed Motion to Dismiss and Response to Order to Show Cause. Southern Bell argued in the response that the doctrine of equitable tolling should not be applied in this case. No response to the renewed motion to dismiss was filed by Ms. Hunton. On August 17, 1992, a Second Order of Dismissal was entered. In the Second Order the parties were informed that the undersigned intended to grant the renewed motion to dismiss and recommend dismissal of this matter. On September 1, 1992, Ms. Hunton filed a Supplement to Response to Motion to Dismiss. For the first time Ms. Hunton alleged certain facts and gave a further explanation for why she had not timely filed her request for formal hearing in this matter. On September 8, 1992, Southern Bell filed Southern Bell's Reply to the Petitioner's Supplement to Response to Motion to Dismiss. Ms. Hunton's Failure to Timely File Her Petition. Thirty days from the date of the Notice, January 27, 1992, was Wednesday, February 26, 1992. Although Ms. Hunton was referred by the Commission in the Notice to the appropriate rule governing the time for filing a petition for relief, she was not specifically told that to "file" a petition meant that it had to be received by the Commission. Based upon Ms. Hunton's first response to Southern Bell's motion to dismiss, Ms. Hunton believed that she was only required to "serve" or mail her request for hearing within 30 days of the date of the Notice. According to her first response, Ms. Hunton also believed that "30 days" meant "one month". Ms. Hunton further believed that "one month" meant that she had until the same date (the 27th) of the next month (February) that the Notice was dated to mail her petition for relief. Based upon these conclusions, Ms. Hunton assumed that she had until February 27, 1992 to mail her petition for relief: I received a NOTICE OF REDETERMINATION: NO CAUSE on January 30, 1992 which was dated January 27, 1992 and postmarked (mailed) January 28, 1992 (Attachment A). The Notice of Redetermination states 'any request for Hearing/Petition for relief must be filed within 30 days of the date of Notice', my interpretation being one month from January 27, 1992, specifically February 27, 1992. [Emphasis added]. Even though it may have been reasonable for Ms. Hunton to assume that "filed" meant to "mail" her request for hearing, her interpretation of the time within which she was required to "mail" her response was not reasonable. The Notice informed Ms. Hunton that she had "30 days" to act. Even an unrepresented party should understand that "30 days" means just that. By counting 30 days from January 27, 1992, on a calendar, Ms. Hunton should have realized that she had to act no later than February 26, 1992. It was unreasonable for Ms. Hunton to interpret the terms "30 days" to mean a month, and that a month from January 27, 1992, meant February 27, 1992. On Thursday, February 27, 1992, Ms. Hunton spoke to Mr. Hardin King, an employee of the Commission (incorrectly identified as an employee of the Federal Commission on Human Relations by Ms. Hunton). Ms. Hunton telephoned the Commission in an effort to get an extension of time to file her request for hearing. At the time of this conversation, Ms. Hunton had already determined that she was required to mail her request no later than February 27, 1992. Although Mr. King reinforced this conclusion by failing to properly inform Ms. Hunton that her request for hearing was required to be received (filed) no later than February 26, 1992, the fact is that Ms. Hunton had already unreasonably concluded that she was not required to mail her request for hearing until February 27, 1992, and she had already failed to at least mail her request for hearing on February 26, 1992. Therefore, Ms. Hunton's error in this matter was not made in reliance on anything that Mr. King told her. The error had already occurred before her conversation with Mr. King. After speaking to Mr. King on February 27, 1992, Ms. Hunton mailed a Petition for Relief (hereinafter referred to as the "Petition"), to the Commission. A copy of the Petition was also mailed to Southern Bell. The Petition was not received (filed) by the Commission until Monday, March 2, 1992. The Petition was not filed by Ms. Hunton within 30 days of the date of the Notice. It was filed 35 days after the date of the Notice. Giving Ms. Hunton the benefit of the doubt concerning her lack of understanding as to the meaning of the term "filed" and assuming that Ms. Hunton was reasonable in concluding that "filed" meant to mail, Ms. Hunton still did not mail her request for hearing within 30 days of the date of the Notice. Therefore, even accepting Ms. Hunton's explanation of how she interpreted the term "file", Ms. Hunton's Petition was not timely filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief of Gina M. Hunton, as untimely filed. DONE and ENTERED this 29th day of October, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1992. COPIES FURNISHED: Gina M. Hunton 4929 Fauna Drive Melbourne, Florida 32934 E. Barlow Keener, Esquire Francis B. Semmes, Esquire Southern Bell Telephone and Telegraph Company Suite 4300 675 West Peachtree Street, N.E. Atlanta, Georgia 30375 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32303-4113
The Issue The central issue in this case is whether Petitioner should be awarded Bid No. 432-730-310-W for configurations 1, 2, and 3, Service Area 1.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The ITB for Bid No. 432-730-310-W consisted of three sections: general conditions, special conditions, and technical specifications. Bidders were evaluated on their technical and non-technical responses to the ITB. Once the Department determined the bidders to be compliant with their non-technical responses, they were ranked according to the evaluation award criteria described in Appendix F of the ITB. Once ranked, the Department forwarded the bid responses to the engineering staff of the Division of Communications for a technical review. This technical review consisted of verifying a lowest compliant bidder and a competitive compliant bidder. To complete the technical review the engineering staff considered the responses submitted on the ITB forms, technical literature provided by the bidder, and technical responses submitted to supplement other information. To the extent that an ambiguity in one response was satisfactorily explained elsewhere in the bid documentation, the bidder was given the benefit of the doubt and found to be responsive to the ITB. Prior to submitting bids, all bidders were given an opportunity to raise questions regarding the ITB at a pre-bid conference conducted by the Department. Petitioner's representative attended the conference and received a copy of the specimen bid. The ITB required specific mandatory responses. Failure to include the mandatory information resulted in the disqualification of the bid. An equipment list for the baseline system was a mandatory requirement of the ITB. Identification of the manufacturer and the part number, if any, were required to be provided. Another mandatory feature required by the ITB was a "handsfree" intercom. The ITB defined this feature as follows: Handsfree answer and talk back on intercom: Enables a station user to answer an intercom call through the station instrument's internal speaker/microphone without lifting the instruments handset. (This feature shall not be controlled by the calling party instrument intercom button.) Speed-dialing was another mandatory feature of the ITB. This feature could be provided at the station (an individual telephone) or by the system. If at the station, there was no requirement that the instrument retain memory in the event of a power outage. The central memory of the system, however, had to retain its memory in the event of a power failure. The ITB prohibited a method of programming which required access to the inside of the Key Service Unit (KSU) to make switch settings or set a switch to enter and/or leave the program mode. All mandatory operational service features of the ITB were listed on page 27, Section 3.4. Optional operational service features and equipment were listed on page 34, Section 3.16.8 of the ITB. An optional operational feature listed was "Station Message Detail and Equipment." The bidding of an SMDR or an option for an SMDR was not required. No bidder was disqualified because it failed to bid an SMDR or an SMDR option. All bidders were required to submit a spare parts price list. Any bidder failing to submit the list was disqualified. Any bidder which submitted the list automatically met the requirement. The lists were not evaluated as art of the bid criteria and no bidder was disqualified based upon the content of the information supplied on the list. Configuration 1 The Department determined Petitioner to be the seventh lowest bidder for configuration 1. Lower bidders, in order of their ranking, were Henkels & McCoy, Southern Bell Advanced, St. Joe Communications, Inter-Tel, Lanier Business, and Tel-Plus Communications. Tel Plus was considered the low compliant bidder and Inter-Tel was the competitive compliant bidder. Following a complete review of the bid responses, the parties agreed that Southern Bell Advanced, St. Joe Communications, and Lanier Business were non-compliant for configuration 1. The Henkels & McCoy bid provided a "handsfree" feature as described above in paragraph 8. The Henkels & McCoy bid did not provide an SMDR or an SMDR option. The Inter-Tel bid did not provide an SMDR or an SMDR option. The Tel Plus bid included a spare parts price list. The Tel Plus bid included an equipment list for the baseline system, however, such list did not completely and accurately describe the baseline system. The discrepancies with the equipment list were fully explained elsewhere in Tel Plus' bid response. Configuration 2 The Department determined Petitioner to be the fourth lowest bidder for configuration 2. Lower bidders, in order of their ranking, were Inter-Tel, Tel Plus Communications, and St. Joe Communications. St. Joe was determined to be non-compliant, leaving Tel Plus as the low compliant bidder and Inter-Tel as the competitive compliant bidder. The Inter-Tel bid provided a statement indicating the equipment bid would be modified to relocate a "DIP" switch to the outside of the KSU. This modification was necessary to comply with the requirement described in paragraph This modification is a minor, simple procedure done by many technicians. No documentation was provided as to how Inter-Tel intended to make the modification. The parties agreed, however, that the modification could be done. The Inter-Tel bid provided the speed-dialing feature described in paragraph 9 at the station. The findings of fact relating to configuration 1 and the Tel Plus bid are applicable to configuration 2. Configuration 3 The Department determined Petitioner to be the seventh lowest bidder for configuration 3. Lower bidders, in order of their ranking, were Business Telephone Systems, Henkels & McCoy, Marcom Telecommunications, Lanier Business, Tel Plus Communications, and Inter-Tel. Inter-Tel was determined to be the low compliant bidder with Henkel & McCoy the competitive compliant bidder. Following a complete review of the bid responses, the parties agreed that Marcom, Tel Plus and Lanier were non- compliant for configuration 3. The Business Telephone bid included a spare parts price list. The Business Telephone bid failed to include on the baseline equipment list the surge protector part number, however, such information was provided elsewhere in the bid response. The Business Telephone bid failed to include a part number for wiring, however, the part number for wiring was not required. The Henkels & McCoy bid included a spare parts price list. The Henkels & McCoy bid failed to list a console card on the baseline equipment list, however, this was to be provided with the console which was properly described elsewhere in the bid response. The findings of fact relating to configuration 2 and the Inter-Tel bid are applicable to configuration 3. Petitioner's bid for configuration 1 was $3641.08. The lowest responsive bid was $2343.00. Petitioner's bid for configuration 2 was $5407.97. The lowest responsive bid was $4723.00. Petitioner's bid for configuration 3 was $12,136.90. The lowest responsive bid was $9271.00. The parties stipulated that Petitioner timely filed its notice of intent to protest and the formal protest of bid award.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department of General Services enter a Final Order dismissing the formal protest of the Petitioner. DONE and ENTERED this 5th day of January, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 5th day of January, 1988. APPENDIX Rulings on Findings of Fact submitted by Petitioner: Paragraph 1 is accepted. Paragraph 2 is accepted. Paragraph 3 is accepted in part. The information requested on the spare parts price list was for planning purposes only. Response of hourly rate etc. was not required to comply with the ITB. Paragraph 4 is accepted; see Finding of Fact paragraph 13. Paragraph 5 is accepted. 6 With regard to paragraphs 6-8, to the extent such paragraphs track the language of the ITB they are accepted; however, the SMDR or SMDR option was not a mandatory item of the bid. It was indicated as an optional operational feature. To the extent paragraph 9 sets forth optional operational features (as described in Section 3.16.8 of the ITB) it is accepted; however this specific proposed Finding is irrelevant and unnecessary to the conclusion of issues raised in this proceeding. Paragraph 10 is accepted. Paragraph 11 is rejected. The SMDR or SMDR option was an optional operational feature. No bidder was disqualified because it did not have the SMDR or an SMDR option. Paragraph 12 is accepted. Paragraph 13 is accepted. Paragraph 14 is accepted. Paragraph 15 is accepted. Paragraph 16 is accepted. Paragraph 17 is accepted. With regard to paragraphs 18-20, to the extent such paragraphs track the information on p.23 of ITB they are accepted; however, the listing of the printed circuit card may not be required when bid as a component of the console which is properly described in the bid response. Paragraphs 21-23 are accepted, however, speed dialing may be provided at the station which does not require memory retention. Paragraph 24 is accepted. Paragraphs 25-26 are accepted. Paragraphs 27-29 are accepted. Paragraphs 30-33 are rejected. Each paragraph makes a conclusion contrary to the weight of evidence. Paragraph 34 is accepted. Paragraph 35 is rejected as unnecessary. For the reasons explained in the conclusions of law, whether Petitioner was or was not compliant is not material. Assuming, arguendo, Petitioner was compliant, it still lacked sufficient standing to challenge the awards. Paragraph 36-38 are rejected as contrary to the weight of evidence. Paragraphs 39-40 are accepted. Paragraphs 41-44 are rejected as contrary to the weight of the evidence. Rulings on Findings of Fact submitted by the Department. Paragraphs 1-7 are accepted. Paragraph 8 is accepted to the extent it rephrases the definition found in the ITB. Paragraphs 9-11 are accepted. With regard to paragraph 12, the system was required to retain memory. Accordingly, that reference is accepted, however, the station was not required to retained memory. Paragraphs 13-15 are accepted. Paragraphs 16-18 are accepted. Paragraphs 19-21 are accepted. Paragraph 22 is accepted in part as it correctly restates the ranking of the bidders; the rest of the paragraph is rejected as argumentative. Paragraph 23 is accepted in part as it correctly states the ranking of the bidders and disqualifications; however the rest is rejected as argumentative. Paragraph 24 is accepted in part as it correctly states the ranking of the bidders, however, the rest is rejected as argumentative. Paragraph 25 is rejected as unnecessary. Paragraph 26 is accepted. COPIES FURNISHED: Edward W. Dougherty, Jr., Esquire Post Office Box 11127 Tallahassee, Florida 32302-3127 Susan B. Kirkland, Esquire Department of General Services 453 Larson Building Tallahassee, Florida 32399-0955 Joseph W. Lawrence, II, Esquire Post Office Box 589 Tallahassee, Florida 32302-0589 Ronald W. Thomas, Executive Director Department of General Services Room 133, Larson Building Tallahassee, Florida 32399-0955
The Issue Did the Respondents commit the offenses alleged in the Administrative Complaint, and, if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida responsible for the enforcement of the Florida Motor Vehicle Repair Act (Sections 559.901-559.9221, Florida Statutes). At all times pertinent to this proceeding, Respondents were engaged in the business of motor vehicle repair. At all times pertinent to this proceeding, Allen J. Hobbs (Hobbs), was employed by the Department as a Law Enforcement Investigator. Hobbs became familiar with Respondents, Brian Waterman, John Waterman, and Transmission Mart, Inc., through complaints sent to the Department's office in Polk County, Florida, from the Department's office in Tallahassee, Florida Hobbs opened an investigation concerning Respondents on January 22, 1999. The investigation involved "preparing a vehicle" by taking the transmission apart to make sure the transmission was working properly and marking all parts of a transmission with an identifying number. The purpose of marking the parts was to determine if a part had in fact been replaced when such was indicated on Respondents' repair bills. On February 11, 1999, while working undercover, Joanne M. Taylor (Taylor), Law Enforcement Officer with the Department, presented a 1992 Buick Skylark, which had previously been prepared by having the transmission checked and the transmission parts marked with the number 04, to Transmission Mart at 3550 Recker Highway, Winter Haven, Florida. Taylor had a coupon for a transmission service. A man, with a name patch of "John" on his shirt, advised Taylor that he could service the transmission. Upon being advised that the transmission service had been completed, Taylor paid the bill and received an invoice for the service, which indicated that a new filter had been installed. Taylor left Transmission Mart and returned the 1992 Buick Skylark to Hobbs. On February 15, 1999, John Denny (Denny), the Department's mechanic who had originally marked the transmission parts, inspected the transmission along with Hobbs and found that the filter marked with the number 04 was still in place and had not been replaced by Transmission Mart as indicated on the invoice. Other than the time during which the vehicle was being serviced at Transmission Mart, the vehicle was under the control of the Department's employees. On February 25, 1999, while working undercover, M. E. (Cookie) Sikes (Sikes), Law Enforcement Officer with the Department, presented a white 1990 Oldsmobile Eighty-Eight, which had previously been prepared by having the transmission checked and the transmission parts marked with the letter T and the number 5 (T5), to Transmission Mart at 3550 Recker Highway, Winter Haven, Florida. Sikes had a discount coupon for a transmission service. The Service Manager named Brian, advised Sikes that it would take approximately one and one- half hours to service. Sikes had someone pick her up and later returned to pickup the vehicle. Sikes was given an invoice that indicated that she was being charged $15.00 for a new filter, with a total amount owed of $35.99. However, due to the unavailability of change, Sikes' bill was reduced to $30.00. Sikes returned the car to the Division of Plant Industry Office where it was secured. On March 1, 1999, the vehicle in question was transported to the Division of Forestry Vehicle Repair Shop in Brooksville, Florida. On March 16, 1999, Denny, with Hobbs observing, removed the transmission from the vehicle and inspected the filter to determine if Transmission Mart had in fact replaced the filter that was in the vehicle when presented to Transmission Mart on February 25, 1999. Upon examination, both Denny and Hobbs observed that the filter containing the identifying mark T5 was still in the transmission. Although Sikes paid for a new filter, Transmission Mart did not install a new filter in the vehicle presented by Sikes. Other than the time the Oldsmobile Eighty-Eight was being serviced by Transmission Mart, the vehicle was under the control of the Department's employees. On August 16, 1999, Hobbs drove a black 1991 Ford Taurus automobile to the Division of Forestry Motor Vehicle Repair Shop in Brooksville, Florida, for the purpose of having the transmission checked by John Denny, Forestry Mechanic, to assure that the vehicle's transmission was functioning properly. After determining that the vehicle's transmission was functioning properly, Denny, with Hobbs observing, removed the transmission fluid pan and the transmission filter. Denny installed a new fluid pan gasket and fluid filter. The fluid filter was marked with the letter O and the number 3 (O3), which was the code used by Denny to previously identify the other parts of the transmission. On August 19, 1999, Paula R. Wheeler (Wheeler), Law Enforcement Officer with the Department, while working undercover, presented the black 1991 Ford Taurus for servicing. Wheeler spoke with Brian Waterman. After a few minutes, Wheeler was advised by Brian Waterman that they were unable to service the transmission due some problem with the transmission. After some discussion, Wheeler authorized the expenditure of $225.00 for the repair of the transmission. On August 20, 1999, when Wheeler called to inquire about the transmission, she was informed that there were additional problems and that the estimate for repair was now $1,849.60. Wheeler agreed to this new estimate for repair. Although Wheeler was advised by Waterman that the vehicle would be ready on Monday, August 23, 1999, the vehicle was not ready until Wednesday, August 25, 1999. On Wednesday, August 25, 1999, Wheeler paid Transmission Mart $1,972.29 for the repair of the transmission and received an invoice for the repair. The invoice indicated that Wheeler was charged for the installation of a Transmission Mart remanufactured transmission with an exchange recondition torque converter using the following parts: (a) 1-OH Kit with steels; (b) 1- Bushing Kit; (c) 1- Reconditioned Valve Body; (d) 1- Reconditioned front Pump; (e) 1-Torque Converter; (f) 1- Set of Snap Rings; and (g) a filter. After picking the Ford Taurus up from Transmission Mart on August 25, 1999, Wheeler proceeded to the Department's office in Winter Haven, Florida, where the vehicle was loaded on a trailer and turned over to Hobbs. On August 31, 1999, Steve Merrick, Investigator for the Department, transported the vehicle by trailer to the Division of Forestry Repair Shop in Brooksville, Florida, so that Denny could disassemble the transmission for the purpose of determining if Transmission Mart had performed the work and replaced the parts indicated on the invoice presented to Wheeler. Hobbs videotaped the disassembling of the transmission on August 31, 1999, and September 1, 1999. Upon disassembling the transmission, it was determined that the front pump and both parts of the valve body had not been replaced in that they still had the code O3 on them, which had been placed there earlier by Denny. The forward, intermediate, and rear clutch was inspected, and it was determined that 11 steels and 7 friction plates had not been replaced by Transmission Mart as indicated on the invoice in that these parts still bore the code O3 which had been previously put there by Denny. The rear clutch was removed and upon inspection it was determined that four steels had not been replaced as indicated on the invoice in that they still bore the code O3, which had been placed there earlier by Denny. At all times pertinent herein, the Ford Taurus was in the possession of, or under the control of, Department employees. There is no evidence that Respondents, on May 10, 1999, knowingly and falsely charged Bob Bloomquist for the removal, rebuilding, and reinstallation of a transmission as alleged in paragraph 11 of the Administrative Complaint. Likewise, there is no evidence that Bob Bloomquist had any contact with Respondents until sometime in late April or early May 2000. The Administrative Complaint contains no allegation charging Respondents with having falsely stated that they were members of the Automatic Transmission Rebuilders Association and thereby an authorized warranty dealer. On November 10, 1999, Judi Sylvia (Sylvia) presented her 1995 Ford Windstar Van (Van) to Transmission Mart for a service check of her transmission. The purpose of the service check was preventive maintenance because the transmission had a slight hesitation in reverse. Brian Waterman initially inspected the Van and concluded that there was a problem. Brian Waterman advised Sylvia that he would need to remove and dismantle the transmission in order to make an internal inspection. The cost for this internal inspection would be $225.00. However, if major repairs were needed, the $225.00 would apply toward that bill. Sylvia gave her approval for the cost of the internal inspection. After the internal inspection, Brian Waterman advised Sylvia that it would cost $500.00 to repair but changed that estimate to $750.00, which Sylvia agreed to pay because she was not knowledgeable about transmission repair and did not understand what she was being told by Brian Waterman. Subsequently, the estimate went to $750.00 and then to $1,749.00. Not having any choice, Sylvia agreed to the repairs. The invoice given to Sylvia by Transmission Mart indicated that a Transmission Mart Reconditioned Transmission with a full Life Time Warranty had been installed in the Van. The invoice indicated that warranty did not cover towing. However, the newspaper ad, which included the coupon, indicated that there was free towing with internal repairs. Sylvia was charged for internal repairs. Transmission Mart falsely charged Sylvia for towing. The Van stayed in the shop at Transmission Mart for a large part of the time between November 10, 1999, and December 22, 1999. Sylvia continued to experience problems with the transmission during this period. Eventually, Sylvia paid Transmission Mart a total of $1,981.50, which included towing charges. During the time the Van was being allegedly repaired at Transmission Mart, Brian Waterman told Sylvia that the Van was at Rowan Lincoln Mercury being repaired. However, the van was never at Rowan Lincoln Mercury being repaired during the time it was at Transmission Mart. On December 22, 1999, Sylvia retrieved her van from Transmission Mart and transported the Van to Aamco for repairs. Sylvia paid $1,757.48 for the repairs made by Aamco to the Van's transmission. Transmission Mart falsely charged Judi Sylvia for the removal, rebuilding, and installation of a Transmission Mart Reconditioned Transmission. There is insufficient evidence to establish facts to show that Transmission Mart falsely charged Raymond D. Skipper for the removal, rebuilding, and reinstallation of a transmission in Skipper's 1994 Dodge Caravan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that the Department of Agriculture and Consumer Services enter a final order finding Respondents guilty of: (a) violating Section 559.920(3), Florida Statutes, on four separate occasions as alleged in paragraphs 6, 7, 9, and 12 of the Administrative Complaint; (b) violating Section 559.920(4), Florida Statutes, on one occasion as alleged in Paragraph 8 of the Administrative Complaint; (c) violating Section 559.920(8), Florida Statutes, on one occasion as alleged in paragraph 14 of the Administrative Complaint; and (d) violating Section 559.920(9), Florida Statutes, on one occasion a alleged in paragraph 13 of the Administrative Complaint. It is further recommended that an administrative fine of $1,000.00 for each violation be imposed for a total administrative fine of $7,000.00. It is further recommended that the allegations contained in paragraphs 10, 11, and 15 through 18 be dismissed. DONE AND ENTERED this 18th day of September, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2001. COPIES FURNISHED: Honorable Terry L. Rhodes Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Trischler, General Counsel The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture 541 East Tennessee Street, India Building Tallahassee, Florida 32308 Suzanne V. Estrella, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street 515 Mayo Building, Fifth Floor Tallahassee, Florida 32399-0800 James R. Franklin, Esquire Post Office Box 2883 Lakeland, Florida 33806-2883
Findings Of Fact In early 1984, the Florida Department of Law Enforcement in its Fingerprint Identification Section decided to replace some equipment used for purposes of analyzing finger prints. That equipment was three Kodak PR-1's, known as readers. The reason for the replacement concerned the fact that these machines had been in operation since 1969 and Kodak was no longer willing to undertake the service of the machines through a service agreement. Initially, the staff favored the idea of replacing the Kodak equipment with other Kodak equipment, having in mind the idea that Kodak was the only manufacturer that could meet the needs of this function within the Florida Department of Law Enforcement. If this suggestion had been accepted, then it would have been on the basis of a request to the Department of General Services to be given permission to enter into a contract with a sole source, namely Eastman Kodak. Indeed, preliminary steps were taken to purchase the Kodak IMT-50 reader-printer to substitute for the three PR-1's, as a noncompetitive purchase from the single source, Kodak. There had also been some discussion about the purchase of Kodak IMT-100's, a reader-printer which allowed multilevel blipping. That type of feature, i.e., multilevel blipping, was determined not to be necessary. Ultimately, the Florida Department of Law Enforcement determined to meet their needs for replacement of the PR-1 machines through a' competitive bidding, Bid No. 83-50. A copy of the invitation to bid may be found as Petitioner's Exhibit 14. This particular item is a response on the part of Lanier Business Products to the invitation to bid. Among the instructions in the invitation to bid was general condition Number 7 which reminded the prospective vendors to direct questions concerning the conditions and specifications set forth in the bid invitation to the Florida Department of Law Enforcement no later than ten days prior to the bid opening. Bid opening was scheduled for May 31, 1984. None of the vendors who offered bid responses questioned the meaning of any of the general conditions or specifications set forth in the invitation to bid related to the purchase of microfilm reader-printers as contemplated in the bid invitation. Eastman Kodak Company also submitted a bid. The bid response by Lanier Business Products was for the provision of a reader-printer known as the 900 Page Search manufactured by 3M. The Kodak product which was bid was the IMT-50 reader-printer. Another prospective bidder, Office Systems Consultants, submitted a "no bid," signifying the inability to meet the specifications of the invitation to bid. On May 31, 1984, the bid opening was held and a tabulation was made as to the bid responses offered by Lanier and Kodak. The unit price for each of the three microfilm reader-printers was $8,650 by Lanier and $9,040 by Kodak. Therefore, Lanier was the apparent low bidder on the project. Within the bid specifications are requirements which set forth specific needs for this project. One of those items pertains to film retrieval capability, and that provision states: Unit will retrieve, by automated means, 100 feet 16mm rolls of 5.4 mil film or 215 feet 16mm rolls of 2.5 mil film (such as Recordak AHU microfilm). Retrieval unit must be able to read, randomly, and ANSI standard document reference (Blip), and must have an advance-- return transport speed of 12 feet per second minimum. Related to lens requirements, the bid specifications indicated: Lens magnification must be 24:1 to be compat- operation. ible with present standards and be designed so that additional lens can be interchanged without interrupting the reader-printer Under the heading of general requirements the invitation to bid stated: By nature of the work requirements and pro- duction schedule, the equipment may be gener- ally described as a 16mm reader-printer capable of retrieving microfilm images by means of ANSI Standard Blips, and will be compatible with existing system. Prior to bid consideration, potential bidders will review, on site, typical production required as part of the overall routine of the finger- print section. Appointment for this inspec- tion will be made by calling (904) 488-9953. The Department will not alter the current production system. After bid opening and prior to award, vendors will conduct tests and provide demonstrations to personnel of the Department to assure a quality product compatible with the existing system. Where applicable, the film retrieval unit will conform to Florida Administrative Code, Chapter 1A-26. At the time the decision was made to replace the three PR-1 microfilm readers, the Identification Section within the Florida Department of Law Enforcement had four other machines which had reading capability. Those machines were also Kodak and are referred to as Starvue. As can be seen, neither the PR-1 nor the Starvue referred to had the capability to print. A review of Petitioner's Exhibit 3 reveals that the ability to print identification cards was accomplished through another Starvue type machine in operation prior to the bid invitation. When processing fingerprint cards within the Identification Section of the Respondent agency, the task of fingerprint identification and verification is addressed. Over and above this reading function, prints are sometimes made of fingerprint identification cards or documents related to a given subject. These prints either are made from the positive film being reviewed, the copy appearing as a negative image of that film, or in the alternative, the positive film is replaced with negative film and a positive print is made through the copying process. Copies were reproduced on the separate printer which the agency had available to it, prior to bidding for the purchase of three reader-printers contemplated by the invitation to bid under discussion. This required removing the film from the reader or substituting the film before printing. In addition, some lens changes within the readers would be necessary, on average a couple of times a day. The PR-1 machine had a telescoping lens which would allow magnification without lens replacement. The Starvue reader requires the replacement of the lens to gain greater magnification. This Kodak machine, following the lens substitution, would not lose contact with the image which had been on the screen prior to the substitution. The fingerprint analysis operators or technicians, at the time that the bid was prepared, used a 30:1 lens in performing their function of reading the fingerprint microfilm image. A 24:1 lens was needed for printing. Under these circumstances the Respondent indicates that in the bid specifications reference should have been made to a 30:1 lens as opposed to a 24:1 lens in describing lens requirements. The PR-1 machines that were being replaced did not have the capability to read blips on the given frames or images within the microfilm cartridges, thus automatic access of the roughly ten per cent of microfilm cartridges that contained the blips was not possible. Both the 3M 900 Series and the IMT-50 microfilm reader-printers allow for automatic retrieval of the image within the microfilm cartridge, as stated before, a required feature set forth in the invitation to bid. The operation of the Fingerprint Identification Section at the time of the bid invitation dealt with approximately forty-eight hundred reels of microfilm, 90 per cent of which could only be accessed manually. Most of the microfilm cartridges contained one hundred feet of microfilm. When reference is made in the bid document to the fact that the proposed equipment should allow for the changing of lenses without interrupting the operation of the reader-printer, this is a literal impossibility. While the first lens is being removed and the second lens is being placed, no reading or printing may occur. As a consequence, when officials with Lanier read this requirement, they perceived it as being some form of inconsequential mistake and did not seek clarification as contemplated by clause Number 7 of the general conditions to the invitation to bid. While it is not apparent from the reading of this requirement, the Florida Department of Law Enforcement intended this provision pertaining to lenses to mean that once the second lens had been placed in the machine, the image that had been being examined prior to the lens replacement would be immediately available for reading or printing. The IMT-50 Kodak equipment allows for that, the Starvue equipment by Kodak allows for that, and the PR-1 did not require lens replacement. By contrast, either in the manual mode or in the automated mode, the 3M 900 Series equipment might require a slight adjustment to recapture the image once the lens had been changed. This adjustment would take approximately two seconds to achieve. The reason for the differences between the 3M equipment and Kodak equipment concerns the fact that the power source in the 3M equipment is turned off when the lens is out of the machinery and the power source within the Kodak equipment remains constant even when the lens is removed. When the lens requirement is considered in the context of the idea expressed in the general requirements, that the Department did not intend by the replacement of its equipment to alter its current production system, use of the 3M equipment at times of lens interchange is not found to be out of compliance with that general requirement or condition. That determination is made realizing that the lens requirement was ambiguous, at best, and the more important fact that the amount of delay caused in using the 3M equipment in a lens change posture amounts to three operators x two occasions per day x two seconds per occasion or 12 seconds per day. This delay is inconsequential. On this topic, in its position in justifying its choice to reject Lanier's equipment as not complying with the lens requirement, suggestion has been made by the Florida Department of Law Enforcement that eight to ten lens changes per hour might be necessary in the "hard" identification of prints. This comment as offered as a justification for rejecting the Lanier bid as nonresponsive to the lens requirement is not borne out in the record of the hearing by competent proof. This information was imparted in Petitioner's Exhibit 45 which is information that the Florida Department of Law Enforcement submitted to the Department of General Services, having determined that the Lanier bid was not responsive because of a failure to comply with the lens requirement and the requirement for film retrieval capability, which will be discussed subsequently. That information in the exhibit was hearsay and was contradicted by the comments by two of the operators who utilized the reader-printers in the Fingerprint Identification Section. They are the source of the idea that lens changes occur once or twice a day, and their position has been accepted as factually correct. In summary, Lanier is found to have complied with the specific requirements for lens compatibility with existing needs of the Fingerprint Identification Section and future needs of that section. An official within the Florida Department of Law Enforcement had been informed by Kodak that the Starvue equipment in use by the Fingerprint Identification Section at the time that the bid invitation was prepared had a capability of performing the retrieval function at a pace of twelve feet per second. This pertained to both the forward and the return phase of that operation. Having this in mind, the previously described requirement for film retrieval capability was included within the bid specifications. Again, it was the intention of the Department, as expressed in that provision and the general requirements, that the replacement equipment maintain the same efficiency of production as existed. The manufacturers of the equipment which was offered in response to the bid have described their equipment in this fashion: The Kodak IMT-50 is described as having a speed advance of up to fourteen feet per second. The 3M 900 Series which was offered by Lanier carried a "rating" of twelve feet per second. The author of the bid specifications pertaining to film retrieval speed included within that section the phrase ". . . advance--return transport speed " This phrase is not used in the microfilm industry to describe film retrieval capability. Officials at Lanier perceived this as a manufacturer's speed "rating." Officials with Kodak who offered testimony at the hearing had various ideas about what advance and return transport speed meant, which opinions were not constant. Likewise, the author of this provision within the bid specifications offered variety in his explanation of the meaning of that phrase, that variety ranging from the idea of maximum speed when the machine was operating at full capacity in terms of the advancement or return of the microfilm within the machine, to the idea of maximum speed as ascertained shortly after the machine had started to advance or return the microfilm. In any event, he states that it did not mean transport speed as an average of time for a given length of film to move through the machine. Nothing about the specifications suggests that return transport speed equates to the idea of average speed, meaning the amount of time necessary to transport a given length of film through the machine either in the forward or reverse mode. When this requirement of transport speed is seen as a function of protecting against the acquisition of equipment that would not be as efficient as existing equipment, a further dilemma is presented. Edward E. Ricord, author of the specification related to film retrieval speed testified that testing had been done, unrelated to the present hearing, with the intention of describing the transport capabilities of preexisting equipment within the Florida Department of Law Enforcement. The recount of that testing was not offered as evidence by way of documentation. Nonetheless, the equipment that was existing is depicted as having the capability of transporting a ninety-six foot length of microfilm through the older machine, Starvue, in a shorter length of time than could be achieved by the 3M 900 Series. The Starvue was four seconds faster in the forward mode and ten seconds faster in the reverse or rewind phase than the 3M 900 Series, according to Ricord. The old machine was also described as being slower at one end and a little bit faster at the other end in transporting the ninety-six foot length of microfilm when contrasted with the IMT-50 Kodak. (The transport of ninety-six feet of film becomes significant in a later paragraph describing the basis for rejecting the Lanier bid offering as being unresponsive.) On the other hand, Carl Durian, one of the operators or technicians who has used the PR-1, the Starvue, the 3M 900 Series and the IMT-50 machines had these observations, in terms of a subjective analysis of speed. He felt that the Kodak IMT-50 was a subjectively faster operating machine when performing the retrieval function related to the movement of the microfilm through the machine when compared to the 3M 900 Series; however, the 3M 900 Series was found to be subjectively faster than either the Starvue or the PR-1. Finally, Durian felt that the Starvue was faster than the PR-1 when considering the retrieval capabilities of the various machines. Again, this firsthand information, though subjective, is of a better quality than the information offered by Ricord who recounted test results not produced at hearing. Looking at this problem in the most favorable light, there is conflict within the agency as to the issue of whether the 3M 900 Series equipment is as capable in the retrieval of microfilm, as a function of speed, as existing equipment within the Fingerprint Identification Section at the time that the bid invitation went out. This is significant, because, having no industry standards related to return transport speed and having no clear indication of what that term meant at the point of the preparation of the bid specification which is separate and apart from the capabilities of existing machines, it is taken to mean the capabilities of those existing machines, and the uncertainty about those capabilities must be resolved in favor of Lanier. Moreover, on this occasion the Florida Department of Law Enforcement cannot point to Lanier's obligation to ask the question about the meaning of return transport speed as a reason to reject the bid response, in that such a theoretical inquiry would not have elicited a satisfactory answer to the question and alerted Lanier that it was potentially incapable of satisfying the bid specifications related to microfilm retrieval. In accordance with the bid document, the vendors Lanier and Kodak were required to present one of their machines to the Department following the bid opening for purposes of evaluation. Once the machines were in place, some concerns were expressed about the difference in operating capabilities in the retrieval function of the two machines. To gain some understanding of those differences, a test was devised to measure the responsiveness of the two machines. The test, by its terms, measured the average time necessary to move ninety-six feet of microfilm through the machines in a forward and reverse mode. The tests were conducted, forward and reverse on each machine, by using a person holding a wrist watch and gaining an average of the time necessary to accomplish the functions, after an operator switched the machine into the fast forward and reverse positions to commence the test. The tests forward and reverse were executed three times. It was revealed that in the forward mode, the best performance by the 3M 900 Series was a speed of 5.99 feet per second and in the reserve mode 8.30 feet per second. By contrast, the speed of the Kodak IMT-50 was, at best, 12.80 feet per second in the forward mode and 16.16 feet per second in the reverse mode. No comparison was made at the time of that testing between the two proposed machines and the existing Starvue or PR-1 equipment. For that reason it is not graphically depicted whether the 3M 900 Series machine would slow down the operation of the Fingerprint Identification Section because of its inability to comply with the requirement for film retrieval. A description of the testing that was done between the 3M 900 Series and the IMT-50 cannot be found as a requirement within the bid specifications, nor does it comport with any expressed statement of what transport speed meant as described in the bid specification document. While it does point out a remarkable difference between the film retrieval capabilities of the Kodak IMT-50 and the 3M 900 Series, it does not establish that Lanier failed to comply with the bid specification related to film retrieval when offering the 3M 900 Series machine in response to the bid invitation. Lanier has met the requirement for film retrieval. In support of this finding, the scope of this inquiry as stipulated to between the parties does not allow for the discussion of the implications of the greater film retrieval capability of the Kodak IMT-50 when compared to the 3M 900 Series as it might pertain to work efficiency within the Fingerprint Identification Section. More significantly, even should it be demonstrated that this difference in film retrieval speed has a profound influence on work efficiency, it could not be said that the Lanier bid failed to meet specifications. The only consequence of this revelation might be that the agency would rebid the project, when examined in the abstract. Given what the agency considered to be a lack of responsiveness on the part of Lanier related to the lens requirement and film retrieval requirement, it was determined to seek permission from the State of Florida, Department of General Services to obtain the IMT-50 equipment from Kodak as a sole source. This is under the theory that in a competitive bid setting where only one responsive bidder has responded, a sole source purchase opportunity must be sought from the Department of General Services. Following some explanation, that authority was granted. When the authority was granted, the Department of General Services did not realize that Lanier had not been given a point of entry to question the rejection of its bid. When this circumstance was discovered, the Department of General Services recanted its stated permission pending the opportunity for Lanier to have due process concerning its claim of compliance with bid specifications. The decision by Department of General Services to change its position on permission for sole sourcing occurred on October 2, 1984. In the face of that statement and the advice by the Department of General Services that the Florida Department of Law Enforcement should give a point of entry to Lanier to contest the question of a determination that Lanier's bid was unresponsive, the Florida Department of Law Enforcement on December 17, 1984, officially noticed Lanier of the choice to award the contract to Eastman Kodak. Given this notification, a letter of protest was filed by counsel for Lanier on December 21, 1984. Kodak had been awarded the contract through the issuance of a purchase order from the Florida Department of Law Enforcement at a time when the Department of General Services had initially indicated the acceptability of a sole source arrangement, but before the October 2, 1984, decision by Department of General Services to rescind its permission to go sole source. As a part of the arrangement with Eastman Kodak, $262 per machine was allowed in the way of trade-in of the three PR-1 machines which were being replaced. The IMT-50 equipment is presently in place in the Fingerprint Identification Section of the Florida Department of Law Enforcement. Had Lanier placed the 3M 900 Series machines with the Florida Department of Law Enforcement, it would have made a profit of $5,700. This is offset by the cost of $4,080 which would have been necessary to convert the existing microfilm reels to fit the 3M equipment. With that deletion, the total profit from the sale becomes $1,620. The effective life of the 3M 900 Series of equipment is five years, and service revenues from those three reader-printers averages $2,940 per year x five years = $14,700 as total service revenues. The loss of revenues over the five-year span for the three reader-printers related to paper supplies is $24,300 based upon three reader-printers $4,860 per year. The figures given relate to gross charges for paper supplies. That paper has not been supplied, and no indication has been given on the difference between the vendor's cost for producing the paper and the retail price of the paper, giving a net figure as to profit. In view of the fact that the paper has not actually been delivered and in the absence of some indication as to the amount of net profit, this item of damages is not allowed. Finally, no indication was made as to the amount of labor cost and net profit related to the overall service charge, and, as with the paper supplies, this claim is disallowed. These items of damages are disallowed because the Petitioner would only be entitled to claim net profits, having never actually offered the services or supplies. An additional $810 is lost in interest income at a rate of ten per cent per year over the five-year effective life of the equipment, pertaining to use of the profits realized in selling the machines. The proven total damages to Lanier is $2,430. Claims by Lanier for loss of future earnings related to the sale of unrelated machines are not found to be convincing, in that they are too speculative in nature. The related claim for past damages if the 3M machines are installed is rejected in that the effective life of the machines starts from the time of their installation. Therefore, profits for sale, supplies and service would commence at that moment. Lanier is the lowest responsive bidder on Bid No. 83-50.
The Issue Whether Petitioner has been the subject of an unlawful employment practice based on her national origin.
Findings Of Fact Petitioner, Sonia V. Fortin, is a white female whose national origin is Tunisian. She has a heavy French or Tunisian accent and at the hearing was very difficult to understand. Ms. Fortin was a Southern Bell employee who had taken an extended leave of absence in 1988 in order to move from Miami to Panama City to care for her ill father. In the Fall of 1989, Ms. Fortin's extended leave of absence ended and she sought employment with Southern Bell in Panama City. Because no positions were available in Panama City, Ms. Fortin applied for and was accepted into a trainee position at the Directory Assistance (DA) operator office in Lake City. Ms. Fortin reported to work for initial training on Monday, October 23, 1989. Assistant manager Patsy Foss only needed one new person in the group of employees she was responsible for overseeing and training. Ms. Fortin was assigned to train with Ms. Foss in Ms. Foss' group. Other new trainees were assigned to other groups at various times depending on what each work group needed. During the three-day training period, the trainee listens to the manager and other experienced operators answer calls, is instructed on the proper method of "keying" in names into the directory computer in order to find the proper telephone numbers, and is given a final evaluation by a manager. In order to become a permanent employee a DA operator was expected to successfully complete a minimum of 90-92% of the calls that the operator handles. Respondent's policy is totally neutral. Ms. Foss met the Petitioner on the first day, introduced herself, and, in an effort to be friendly and out of curiousity, asked the Petitioner about herself, including where she was from. Ms. Foss used the standard Southern Bell training guide for DA operators and taught Ms. Fortin the keying method used for finding customers' numbers, observed Ms. Fortin taking actual requests from customers for directory information, and allowed Ms. Fortin to listen to other operators take calls. However, unlike other new trainees, Ms. Fortin was not able to master the keying method of locating customers and had trouble spelling customers' names even after the customer had spelled the name. In addition, Ms. Fortin was evaluated by Southern Bell Assistant manager Carolyn Land on Thursday, October 26, 1989. Ms. Fortin had an error rate of 20%. On Monday, October 31, 1989, Ms. Foss again guided Ms. Fortin through the training course a second time. Ms. Fortin continued to exhibit the same problems. On Wednesday, November 1, 1989, Manager Comer directed Assistant manager Land to conduct a second evaluation of Ms. Fortin. Ms. Fortin's evaluation resulted in an even higher error rate of 24.1%. Ms. Comer decided to continue the training and on Thursday, November 3, 1989, directed Ms. Foss to conduct a third evaluation. The third evaluation resulted in an error rate of 14%. At no time, did Ms. Fortin meet Southern Bell's standards for continued employment as a DA operator. Manager Comer, after receiving the results of the three evaluations, discussing Ms. Fortin's qualifications in detail with Ms. Land and Ms. Foss, and listening to Ms. Fortin herself, concluded that Ms. Fortin had not successfully completed the initial training for DA operator and instructed Ms. Foss to terminate Ms. Fortin. Ms. Foss informed Ms. Fortin of her termination on November 3, 1989. Ms. Fortin offered no evidence that she was treated differently or that trainees with higher error rates were hired over her. The only evidence that Ms. Fortin pointed to as supporting her charge of discrimination was that Ms. Foss asked her where she was originally from, Ms. Foss gave her what Ms. Fortin perceived to be a dirty look after she responded, Ms. Foss was nasty to her during training and that, upon termination, either Ms. Foss or Ms. Comer made the statement that Ms. Fortin had a language barrier when she was terminated. The evidence clearly showed that Ms. Foss was nasty to everyone regardless of national origin and that Ms. Fortin's difficulties in performing her duties as a DA operator may very well have been related to her inability to communicate with persons not used to her accent and manner of speaking. Neither Ms. Foss' nastiness or the statement about a language barrier were discriminatory. Likewise, none of the evidence Ms. Fortin points to as supporting her charge of discrimination comes close to establishing a prima facie case of discrimination. Therefore, Ms. Fortin's charge of discrimination should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Southern Bell's Motion to Dismiss be GRANTED, and that this action be DISMISSED with prejudice. DONE and ENTERED this 10th day of August, 1992, at Tallahassee, Florida. DIANE CLEAVINGER 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 10th day of August, 1992.
