Findings Of Fact Petitioners are inmates presently incarcerated at Polk Correctional Institution, Polk City, Florida. Polk Correctional Institution is a prison facility maintained by the Florida Department of Corrections. The superintendent of Polk Correctional Institution issued a directive, which is dated February 18, 1982, and entitled "Interoffice Memorandum". The memorandum is directed to all inmates and relates to visiting procedures. It provides: Effective Saturday, March 6, 1982, inmates will no longer be permitted to receive visitors on both Saturday and Sunday of the same week. Visiting policy in the past has permitted inmates to receive visits on both Saturday and Sunday of the same week, but not from the same visitor. This change means that you must receive all your visitors on either Saturday or Sunday. If your (sic) receive a visit on Saturday, you will not be permitted to receive another visit on Sunday. This change in visiting procedure will help alleviate the overcrowded situation in the visitor's park and allow you and your family to visit together more comfortably. The memorandum applies only within Polk Correctional Institution. It was issued by the superintendent without any effort being made to promulgate it as a rule. No effort was made to publish notice, to give affected persons an opportunity to be heard, nor to conduct hearings and allow input from members of the public. The superintendent did not construe the memorandum as being a rule. He considered it authorized under the provisions of Section 945.21, Florida Statutes; Department of Corrections Rule 33-5.01, Florida Administrative Code; and Department of Corrections "Policy and Procedure Directive" Number 3.04.12, which was issued April 8, 1981. Rule 33-5.01 provides: The Secretary shall authorize each Superintendent to adopt policies stating the conditions and circumstances under which visits may be conducted including: the regular visiting hours of the insti- tution; the items which visitors may take in or out of an institution, and what items are contraband; what persons or groups may visit, and in what numbers; and the specific standards of conduct which shall prevail during such visits. All visiting policies promulgated by the Superintendents shall be subject to approval by the Secretary. Department of Corrections Policy and Procedure Directive 3.04.12 provides at Paragraph V.A. 1: Visiting days shall normally be designated as Saturday and Sunday between the hours of 9:00 a.m. and 3:00 p.m. Where unusual circum- stances occur, additional days may be designated for visiting. Institutions are authorized to restrict visiting to one of these days; or when facilities permit, visiting may be permitted more than one day. The directive provides at Paragraph V.B.: There is no limit on the number of individuals that may visit an inmate on any particular visiting day other than those restrictions imposed regarding limited space at each institution. Each institution is authorized to place a limitation when physical facilities are restrictive. However, reasonableness should be exercised when possible in regard to the number of visitors that would be permitted. Those institutions restricting visits to either Saturday or Sunday, but not both, may permit special exception in the case of those individuals that have traveled a significant dis- tance, especially when such visits are on an infrequent basis. This policy directive has not been promulgated as a rule. It is not published in the Florida Administrative Code, does not bear a numerical designation that accords with rules of the Department of State, and appears to have been adopted on authority of Department of Corrections Rules 33-4.02(), 33-3.06, and 33-5, Florida Administrative Code. None of these rules sets out visiting conditions with the specificity found in the policy and procedure directive. Prior to the March 6, 1982 effective date of the Superintendent's memorandum, which is the basis for this proceeding, inmates at Polk Correctional Institution were allowed to receive visitors on both Saturday and Sunday. This prior policy was based upon memoranda that had been issued by the superintendent in the same manner as the February 18, 1982 memorandum.
The Issue Whether Respondent, a certified correctional officer and a certified instructor, committed the offenses alleged in the Administrative Complaint issued November 16, 2004, and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer and as an instructor. At all times relevant to this proceeding, Respondent was employed by the Florida Department of Corrections (DOC) at its Indian River Correctional Institution (IRCI) with the rank of Major. At all times relevant to this proceeding, Ken Torres was employed by the DOC at IRCI with the rank of Lieutenant. On June 11, 2003, Tvaris Burch, Errol Whiley, and Keith Conley were inmates at IRCI. At no time did any of these three inmates have authorization to be in Respondent’s office at IRCI. The only door to Respondent’s office opens to a long hallway. This door is normally locked. At approximately 6:15 p.m. on June 11, 2003, Respondent entered his office at IRCI and was followed by Lt. Torres. Respondent and Lt. Torres saw three inmates on the floor attempting to hide under Respondent’s desk. Each inmate attempted to conceal his identity by pulling his tee shirt up over his head. It is undisputed that both Respondent and Lt. Torres ordered the three inmates to come out from under the desk and the inmates refused those orders. It is also undisputed that the inmates came out from under the desk after Respondent threatened to order Lt. Torres to spray them with chemical agents. What happened next is the center of the dispute in this proceeding. Petitioner alleged that Respondent kicked one of the inmates and that he kicked and punched another inmate as they came out from under his desk. Petitioner also alleged that Respondent failed to file a mandatory Use of Force Report and that he lied to an investigator (Mr. Glover) in a sworn statement. Respondent asserted that he did not kick or otherwise use unauthorized force against any of the three inmates, that he had no reason to file a use of force report, and that he did not lie to the investigator. In support of its allegations, Petitioner presented the testimony of inmate Burch, Mr. Glover, and Lt. Torres. In addition, Petitioner presented the investigative report prepared by Mr. Glover and certain affidavits gathered by Mr. Glover during the course of his investigation. The following facts are not in dispute. After the three inmates came out from under the desk and were on their feet, they were ordered to remove the tee shirts from their heads and were identified as being inmates Burch, Whiley, and Conley. They were stripped searched by Respondent and Lt. Torres and contraband was removed from them. Additional security was called and took the three inmates to the prison nurse for a pre-confinement physical. This type medical examination is mandatory for an inmate about to be confined for disciplinary purposes. The inmates did not complain to anyone that they had been injured or mistreated by Respondent or by anyone else. The nurses noted no injury on any of the inmates. The three inmates were then confined for disciplinary reasons. An incident report was written and a Disciplinary Report was filed for each of the three inmates. Neither Respondent nor Lt. Torres filed a Use of Force Report, which is a mandatory report after physical force is used against an inmate. On June 12, 2003, approximately 24 hours after the incident in Respondent’s office, both inmate Burch and inmate Whiley declared a medical emergency. Both inmates were promptly taken to the medial unit and examined by prison nurses. Inmate Burch told nurse Rhea Harris that he had been injured by being kicked in the head, but he would not identify the person who kicked him. At the final hearing, inmate Burch testified that Respondent kicked him in the head as he was coming out from under the desk and in the knee when he tried to stand up. He further testified that the blow to the knee caused him to fall to the floor, which broke his glasses. Ms. Harris observed a bump on the side of inmate Burch’s head that could be consistent with inmate Burch’s being kicked.5 Inmate Whiley was seen by Nurse Debra Barriner on June 11 and June 12, 2003. On June 12, 2003, inmate Whiley told Ms. Barriner that he had a sore neck and a sore area on his face on the left cheek. Ms. Barriner observed areas of slight swelling and discoloration that were consistent with inmate Whiley’s complaints. Inmate Whiley refused to tell the nurse what caused his neck and left cheek to become sore. In an affidavit subsequently secured by Mr. Glover, inmate Whiley alleged that Respondent had kicked him as he was coming out from under the desk and hit him in the stomach after he stood up. In an affidavit secured by Mr. Glover, inmate Conley stated that he was not struck by Respondent on June 11, 2003, but that he saw Respondent strike inmates Burch and Whiley. Approximately a week after the incident in Respondent’s office, corrections officers intercepted a note being passed from the cell of inmates Burch and Whiley to the cell of inmate Conley. This note was turned over to Lt. Torres, who was the shift supervisor, who testified that he threw the note away and could not recall its details. Lt. Torres did recall that the note made a reference to his being promoted as a result of the allegations that had been made against Respondent. In a sworn interview given to Mr. Glover, Lt. Torres stated that he saw Respondent kick inmates Burch and Whiley. He repeated that statement at the formal hearing. On closer examination, Lt. Torres testified that he did not witness Respondent make physical contact with any of the inmates, but that he saw him making kicking motions in the directions of the inmates. On further examination, the following exchange occurred between Petitioner’s counsel and Lt. Torres beginning at page 85, line 22 of the Transcript: Q. Let me ask you this: If you did not see Major Passino actually strike an inmate, why then did you feel that it was necessary to report such an incident.[6] A. Why did I feel that? That’s my responsibility. Q. At the time that this incident occurred, why did you consider that there had been a use of force. A. Why? Q. Yes. A. Only because of what the inmates said, that they were injured, did I suspect that there was a use of force. Q. And that was only after the inmates had declared a medical emergency – A. Yes, sir. Respondent’s testimony that he did not use unauthorized force against inmates Burch and Whiley is found to be credible. The conflict in the evidence is resolved by finding that Petitioner failed to prove by clear and convincing evidence that Respondent battered inmate Burch or Whiley.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing all counts of the Administrative Complaint. DONE AND ENTERED this 24th day of, June, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 24th day of June, 2005.
The Issue The issue is whether the Department of Corrections' decision to award a contract to Intervenor Securus Technologies, Inc., is lawful.
Findings Of Fact The Department is a large state agency whose purpose includes the protection of the public through the incarceration of criminals. It maintains 59 major institutions and 69 other facilities housing approximately 87,800 inmates. It is important for the well-being of the inmates and the security of the facilities that the inmates of these facilities have telephone services available so that they may call friends and family members. It is necessary for the Department to have a Statewide Inmate Telephone System (ITS) that provides for the needs of its inmates and for the security of Department personnel, and that also protects the public from inmate fraud. The Department provides the ITS in 77 facilities. The telephone services addressed are for outbound calls only. Persons outside of the Department are not generally permitted to telephone an inmate. Under the current contract, in order to place a call, an inmate must initiate a collect call to a number that has been approved by the Department. A conversation may ensue only if the person outside of the facility agrees to pay for the call. An inmate is allowed to have ten terminating numbers on his or her calling list. The contract sought is a concession contract. Pursuant to Subsection 945.215(1)(b), Florida Statutes, it is contemplated that the Department will receive proceeds from contracted telephone commissions. That Subsection also requires that contracted telephone companies accurately record and report all telephone calls made by inmates and requires that the Department ensure that persons who accept collect calls from inmates are charged the contracted rate. Currently, the Department has only one provider of inmate telephone services. That provider is Verizon. The ITN seeks to continue the practice of having only one provider. Securus, Verizon, GTL, and PCS are companies that provide telephone services to many state correction systems and other correctional entities. Securus provides inmate telephone services to correctional facilities in 35 Florida counties. Securus provides inmate telephone services to the Florida Department of Juvenile Justice and also, to many other states. GTL currently provides contractual communication services to Verizon as Verizon carries out its ITS contract with the Department. MCI and Verizon are deemed to be one entity for purposes of this Recommended Order. In an asset purchase agreement dated November 7, 2006, MCI agreed to sell, and GTL agreed to buy, certain assets, properties, and rights relating to MCI's inmate telecommunication business. However, this transaction had not closed when the hearing in this cause concluded. For all purposes of the ITN, Verizon and GTL were considered to be separate entities. The Invitation to Negotiate--Background James R. McDonough, the Secretary of the Department of Corrections (Secretary McDonough), concluded that there were problems with the ITS contract in March of 2006. He discussed the telephone contract with appropriate members of the Florida Legislature personally, and sent letters to appropriate members of the Legislature addressing the subject in April and June of 2006. Secretary McDonough was concerned because families of inmates had complained to him. They asserted the system required them to pay outrageous telephone rates that were "pinching their budgets." Florida procurement law states that fair and open competition is a basic tenet of public procurement. Section 287.057, Florida Statutes, requires that competitive sealed bidding be used for purchases that exceed the Category Two threshold provided for in Section 287.017, Florida Statutes. As the Verizon contract approached an end, a procurement of inmate telephone services became necessary to address future needs. This procurement substantially exceeded the Category Two threshold, as adjusted by the Department of Management Services. Lisa Bassett is the Chief of the Bureau of Procurement and Supply for the Department. Her bureau procures goods and services exceeding one billion dollars each year. She is Elaine Atwood's supervisor. Ms. Atwood is the Assistant Bureau Chief for the Bureau of Procurement and Supply. She decided that an ITN, as provided in Subsection 287.057(3)(a), Florida Statutes, was the best vehicle to use for the inmate telephone procurement because the Department was seeking innovative solutions and flexibility. Ms. Atwood was the manager of the ITN development process. It began in the spring of 2006 and was a collaborative effort. She was the principal draftsman of the ITN. Ms. Bassett made corrections to the draft and approved the issuance of the ITN. It was released on November 22, 2006. The Invitation to Negotiate--Contents The ITN stated that its purpose is to standardize inmate telephone operations, reduce rates, and maximize revenue to the State. It sought a "turn-key, fully operational, local and long distance, secure, and reliable telephone system meeting specified restriction and monitoring requirements." A five-year contract, renewable for five years was sought by the ITN. The ITN would expand payment opportunities in that it would permit a prepayment plan in addition to merely allowing collect calls. The ITN was comprised of two distinct parts as contemplated by Subsection 287.057(3), Florida Statutes. In Part 1, responders were required to meet mandatory requirements. For those that did, further evaluation took place of each responder's statement of qualifications, financial documentation, and technical response. This evaluation was conducted using evaluation criteria in the ITN and scored using the same criteria. These scores were combined with cost points assigned based on the responders' initial pricing proposal, in order to determine the initial ranking of qualified responders. In Part 2, the ITN required the Department to conduct negotiations with the three responders that survived the Part 1 evaluation. Subsequent to negotiations, the ITN required the Department to request a best and final offer (RBAFO) from the three survivors. The ITN noted that at any time during the process the Department could reject any and all responses and could modify its statement of services sought, tasks to be performed, and the project description. Section 3 of the ITN provided a "Statement of Services Sought." Generally, the Department through its ITN sought telephone services for its inmates that provided the lowest cost to the inmates and the highest commission to the Department. Included in the services sought were programs and processes designed to maximize security and avoid inmate fraud. The portions of Section 3 that are specifically pertinent follow: 3.7 Inmate Telephone System Functionality (General) The Department is seeking an Inmate Telephone Service (ITS) with a technology system fully supported by an infrastructure which has the capability to provide specified services such as secure and real- time monitoring of telephone calls meeting the Department's system security requirements. In addition, the system shall contain a secure database for transactional call records and provide data feeds to the Department's official data repository. This shall include redundant system(s) as deemed necessary to accomplish this requirement and a continuity of operations plan and disaster recovery plan which will ensure that the system and services will be available without disruption at the required service level. * * * 3.7.1. Network and Infrastructure Requirements The system shall include a monitoring component that is capable of being accessed from a vendor-provided dedicated monitoring terminal as specified for on Attachment 8 and/or through a vendor-provided secure Internet connection from desktop, laptop or remote means by authorized Department personnel who have appropriate security clearance and have been provided Contractor- supplied security codes. NOTE: Final determination of networking access will be determined through negotiation. In addition, the telephone system shall be capable of interfacing with network services provided by local exchange carriers as well as inter-exchange carriers. This includes analog and digital facilities (i.e., analog business trunk, DS-1, etc.). The Contractor shall address, in system response, the types of network services to which the system will interface and the purpose (use of a specific application) of such services for the Department. 3.7.3. Database Requirements The Department desires that a data record of all transactions through the inmate telephone system be maintained in a database for monitoring and analysis of inmate telephone calls. This data is used to alert authorized Department staff of possible trends with inmate calls that could jeopardize the security of inmates, staff, or facilities. The Contractor shall be responsible for the generation and creation of a centralized system database. The system shall provide the capability for every call in and out of the system to be recorded with a transaction record that includes, at a minimum, a recording of the telephone call in a .wav or other format acceptable to the Department. The database shall be maintained in such a manner as to allow authorized personnel the capability to review and monitor inmate call data regardless of which Department facility is housing the inmate. * * * The system shall provide the capability for the Department to download reports from the database, through secured internet access, as outlined in Section 3.12, Reporting Requirements. In addition, the Contractor shall provide access to the database through a secure "ftp" webserver so the Department can retrieve certain data on a daily basis. The Contractor shall provide certain data elements in a pipe delimited format, to be determined by the Department's Office of Information Technology. Data extracts shall be downloadable into a SQL Server database hosted by the Department of Corrections in such a manner as to allow the Department to perform further analysis on the system data. The security and confidentiality of data in the system is of critical importance. The Contractor shall be capable of recovering all inmate telephone data for all locations, to the point of full service operation, using a data backup. The Contractor shall perform all service and database back-ups and archiving. The Contractor shall provide all archival hardware, supplies, network, and recovery procedures that will ensure that no data is lost. The database shall have duplicate data storage devices with automatic fail-over and automatic re-establishment of the duplicate databases upon replacement of the failed storage device and shall be equipped with automated fire detection and suppression equipment. The system shall provide that all data be recorded with a historical transaction record and stored/archived for retrieval/backup in a database when requested by Department personnel in accordance with the following: All historical data shall be centrally stored and accessible for reporting purposes; This information must be available for reporting in a standard transaction file format; All current and historical data files shall be retained for a period of five (5) years by the Contractor; and This information shall be available at no charge to the Department after termination of the contract. * * * 3.7.4. System Calling Protocol Requirements * * * Additional system features/functionalities that the Department desires, but is not requiring as a minimum requirement for purposes of this ITN, include the following: the ability for a called party to activate a code (via the touch tone pad of their telephone) that automatically deletes their telephone number from the calling inmate's "Authorized Telephone Number List." that the above feature provide some form of alert or notification to authorized Department personnel to ensure that the inmate does not add this number to his/her requested list of telephone numbers in the future. the capability of being configured to control the amount of time between inmate completed calls. 3.7.6. System Call Blocking Requirements The Contractor shall provide a system with call block capability and shall be responsible for ensuring that the system is programmed for call blocking, to include, but not be limited to the following types of calls: calls made to business numbers identified during the billing number address (BNA) search. calls made to any 911 number; calls made to any telephone numbers which incur excess charges, such as 900, 972, 976, 550, etc.; calls to current long distance carrier access numbers (i.e., 10333, 10285) or future 101-XXXX carrier access numbers; calls for all local numbers which access long distance carriers (i.e., 950-XXXX); call access to directory assistance access numbers (i.e., 411, 555-1212, etc.); call access to toll free numbers (i.e., 800, 888, 877, etc.) except the Florida Relay Service toll-free number(s), so that hearing impaired inmates may access a "Telephone Devices for the Deaf" (TDD) service; and call access to any number upon request by the Department. Call blocking requirements shall apply to all inmate telephone equipment specified on Attachment 8. In addition, the call blocking requirement shall apply to the coin-operated telephone equipment located at the Department's road prisons and work release centers. Call blocking shall not apply to coin-operated phones for visitors or the public at large. 3.7.8. System Restriction, Fraud Control and Notification Requirements The security and confidentiality of inmate- placed telephone calls is of critical importance. Security features which prevent unauthorized individuals from accessing any information held by the Contractor must provide for restriction to the system, fraud control for prevention purposes, and notification capabilities for attempted security violations or breaches. Secure access to the system shall be maintained at all times. The Contractor shall provide a system which contains security capabilities that include, but are not limited to the following: * * * c) A call alert feature. This feature will alert Department personnel that a designated inmate is placing a call or is placing a telephone call to a specific number that has been assigned alert status. This status is an investigative tool which will be activated by authorized Department personnel. * * * 3.7.14. System Disaster Recovery The contractor shall have a written Disaster Recovery Plan and Continuity of Operations Plan and associated internal system equipment that shall be capable of providing for support in the case of failures in power, telephone system, data networking, and Contractor's equipment at its host site through the user-level equipment provided by the Contractor, and for all natural or man- made disasters including flood or fire at the host facility. These plans and all updates will be reviewed and accepted by the Department and kept for reference purposes by the Department's Local Contract Coordinator - Operations, Office of Institutions, and Office of Information Technology. The system shall be capable of recovering from a power outage automatically or remotely once commercial power is restored. 3.8.3. Rate and Call Charge Requirements * * * The Contractor shall not charge, pass on, or pass through to the customer paying for the collect calls any charges referred to as Competitive Local Exchange Carrier's (CLEC) billing cost, bill rendering fee or billing recovery fee. 3.8.5. Prepaid Collect Call Service (PPCCS) The Contractor shall allow families and friends to establish a PPCCS account(s) with the Contractor for billing purposes so that inmates can call pre-authorized numbers that may not be accessible via normal collect calling. Each prepaid account shall have an authorized billing number. Any calls billed to a family or friend's prepaid account shall meet the same security requirements as set forth for normal collect calls. The contractor shall ensure that notice of the prepaid account availability is provided when a party receives a call and shall offer the option of being connected to a live operator for the purpose of establishing a prepaid account, if a normal collect call cannot be completed by the inmate due to billing issues. The Contractor's PPCCS shall (emphasis in original) allow the called party (family and friends) to deposit money into a PPCCS account by multiple means (i.e. check, money order, and/or credit card). The Contractor shall provide instructional brochures explaining the process for establishing prepaid collect services for family and friends' prepaid accounts. The ITN stated that questions should be directed in writing to Jeri Bailey, Procurement Manager, Bureau of Procurement and Supply. The ITN set forth mandatory responsiveness requirements and fatal criteria in Section 5.1. Mandatory requirements included timely filing, the submission of a "Certification Attestation Page," and a certified "Conflict of Interest Statement." The ITN also set forth a review and evaluation process. It provided a ten phase process. After Phase 7, the posting of qualified respondents, the remainder of the phases included Phase 8, Negotiations; Phase 9, Best and Final Offers from Respondents; and Phase 10, Notice of Intended Decision. The ITN noted that Phase 2 (Evaluations of Statement of Qualifications) and Phase 8, would be completed by the Response Evaluation/Negotiation Committee. It further stated, "A Response Evaluation/Negotiation Committee will be established to assist the Department in the evaluation and selection of the three highest ranking responses." (The "Response Evaluation/Negotiation Committee" will hereinafter be referred to as the Negotiating Team.) It goes on to state, "This same team of individuals will conduct negotiations with the top three highest ranking Respondents. The Department reserves the right to make changes to the foregoing committee in the best interest of the Department." The ITN provided an elaborate scoring mechanism for Part 1 of the process. No scoring mechanism was provided in the ITN for Part 2. A process was established for addressing the possibility of identical scores in Part 1, but not Part 2. The ITN provided that only the top three respondents could participate in Phase 8, Negotiations. It noted that after negotiations, the Department would request BAFOs from each of the three winning participants. The ITN provided at Section 6.3, "After receipt of BAFOs, the Negotiating Team will prepare a summary report of negotiation and recommend an award." This sentence appears immediately before the ITN's discussion of Phase 9, Best and Final Offers. The Response Evaluation and Review Manual for the ITN provided, under Phase 9, Best and Final Offers, "After receipt of BAFOs, the Negotiation Team will review, and recommend the response which provides the best overall value to the Department. A summary report of negotiations and recommendation for award will be presented to the Secretary for final approval prior to posting of the agency's decision." Ms. Atwood testified under oath that it was intended that the "summary report of negotiation and recommendation for award" was to be presented to Secretary McDonough by the Bureau of Procurement and Supply staff, not the Negotiating Team, as suggested in paragraphs 22 and 23, above. Moreover, as noted in paragraph 19, above, the ITN provides that the Evaluation Team was established to ". . . assist the Department in the evaluation and selection of the three highest ranking responses." The Response Evaluation and Review Manual further states that the Negotiating Team was to participate only in Phases 2 and 8 of the process. It is found as a fact that to the extent that the ITN appeared to require the Negotiating Team to prepare a summary report of negotiation and to recommend an award, it is in error. It is the Department's procurement section that was to supervise the ITN process, and to forward any necessary material to Secretary McDonough. Section 7 of the ITN addressed only matters involving the contract that will ensue once the ultimate contractor is determined. On December 6, 2006, a Responders' Conference was held. Fifteen vendors attended and posed 95 questions in writing. These questions and the answers were included in what became Addendum #1 to the ITN. Addendum #1 On December 21, 2006, the Department issued Addendum #1 to the ITN. Addendum #1 removed 18 pages from the ITN and replaced them with 24 pages. It stated that revisions were highlighted in yellow. However, the Addendum #1 that became Joint Exhibit 3 had no highlights. As noted above, Addendum #1 contained a section entitled Responses to Written Inquiries. This section included inquiries from responders IC Solutions, Securus, GTL, Unisys Corporation, PCS, Verizon, and Embarq. Question 67 in Addendum #1 was posed by Verizon and read as follows: "General - Will the State allow for call control equipment to either be placed in a centralized network based environment or at each correctional facility." The Department answered by stating: "In order to prevent a state-wide or region-wide system failure, there shall be control equipment at each major institution, with the exception of Gainesville, CI, where there is additional control equipment located at the Work Camp." Addendum #1, including the page changes, responses to written inquiries, and revised attachments and exhibits became a part of the ITN just as if it was included in the original document. A change to Section 3 of the ITN, Statement of Services Sought in Addendum #1, was made causing the "call notification" feature to be mandatory rather than desired. The portion that is pertinent to this proceeding is set forth below: 3.7.4. System Calling Protocol Requirements * * * Additional system features/functionalities that the Department desires, but is not requiring as a minimum requirement for purposes of this ITN, include the following: the ability for a called party to activate a code (via the touch tone pad of their telephone) that automatically deletes their telephone number from the calling inmate's "Authorized Telephone Number List." The Contractor's system shall capture and track this event for transmittal (notification) to the Department. that the above feature provide some form of alert or notification to authorized Department personnel to ensure that the inmate does not add this number to his/her requested list of telephone numbers in the future. The Department's preferred method for receiving notification is via some method of automated system update to the inmate's account information file. Final determination of method of notification to be determined during final negotiations. the capability of being configured to control the amount of time between inmate completed calls. GTL, Embarq, PCS, Securus, Verizon, and Unisys responded to the ITN, as amended by Addendum #1. The evaluators for Part 1 of the ITN, the aforementioned Negotiating Team, were selected in order to provide representation to all of the Department's stakeholders. Selected as members were William Dupree of Facility Services, the Department's expert on the inmate telephone system; Jacques DeRemer of the Department's Inspector General's Office; Wayne Green, Assistant Bureau Chief of Security; Michael Deariso of the Bureau of Finance and Accounting; and Scott Stewart of the Division of Technology. A Response Evaluation and Review Manual, dated January 5, 2007, was provided to the members of the Negotiating Team to aid them in selecting those who would be invited to negotiate. This document provided forms to aid the evaluators as they weighed the responses in Part 1. All responses to Part 1 were opened at 2:00 p.m. on January 4, 2007. The Effect of the Part 1 Decision On January 18, 2007, the Department filed its Notice of Intent to Negotiate. It noticed its intent to negotiate with GTL, Securus, and Verizon. This meant that these three responders were technically qualified to accomplish the services required by the Department. Of the three, Securus was awarded the most points. PCS finished fourth. The Notice of Intent to Negotiate provided that any protest must be filed within 72 hours and specifically noted that the 72 hour period would expire on January 23, 2007, at 4:30 p.m. Prior to the expiration of that time, Embarq, a disappointed responder, filed a notice of intent to protest. That protest was withdrawn by Embarq on February 12, 2007. Because the Notice of Intent to Negotiate provided a clear point of entry and no protest was maintained, the time to complain about the selection of GTL, Securus, and Verizon as winners of Part 1 has passed. Therefore, Public Communications Services, Inc., should be dismissed as a party to these proceedings. Additionally, the failure by any party to protest the selection of Securus means that Securus complied with all aspects of the ITN, and allegations of noncompliance with the ITN cannot now be raised, except to the extent that the ITN was specifically changed or amended by the RBAFO. After the Notice of Intent to Negotiate was issued, negotiations with Securus were held on January 24 and 25, 2007. The Negotiating Team at this time consisted of William Dupree, Jacques DeRemer, Wayne Green, and Michael Dearisso. Ms. Bailey was present during the negotiations, and Ms. Atwood was present during a portion of the negotiations. GTL and Verizon also made presentations to the Negotiating Team. When the negotiations were completed, the Negotiating Team met to discuss what material should be included in the RBAFO. Subsequent to this discussion, the RBAFO was principally drafted by Ms. Atwood. The RBAFO The RBAFO was released on March 27, 2007. It advised that, "It contains a revised Section III [sic], Statement of Services Sought, with revised minimum specifications, where indicated, replacing the original Section 3 - Statement of Services Sought." The RBAFO stated clearly that the original ITN and Addendum #1 were incorporated in the RBAFO unless requirements were specifically changed by the RBAFO. The RBAFO contained four categories requiring each responder to explicitly address in their BAFOs. These requirements were staffing plan, final implementation plan and transition date schedule, value-added services, and pricing. With regard to pricing, the RBAFO recited that, "It is the Department's intention to generate the highest percentage of revenue for the State commensurate with the lowest surcharge and rates per minute for telephone calls for inmates and families similar to those available to the public-at-large." RBAFO changes to Section 3 pertinent to this proceeding are addressed below: 3.7.1. Network and Infrastructure Requirements The Contractor shall provide a system that includes a monitoring component that is capable of being accessed through dedicated monitoring terminals (as specified on Attachment 8) and through a vendor provided secure Internet connection from desktop, laptop or remote means by authorized Department personnel who have appropriate security clearance and have been provided Contractor-supplied security codes. The Department is requiring the ability to monitor calls from both dedicated monitoring terminals AND via secure, password protected, internet access. In addition, the telephone system shall be capable of interfacing with network services provided by local exchange carriers as well as inter-exchange carriers. This includes analog and digital facilities (i.e., analog business trunk, DS-1, etc.). The Contractor shall address, in system response, the types of network services to which the system will interface and the purpose(use of a specific application) of such services for the Department. 3.7.3. Database Requirements is changed to Database Requirements The Department desires that a data record of all transactions through the inmate telephone system be maintained in a database for monitoring and analysis of inmate telephone calls. This data is used to alert authorized Department staff of possible trends with inmate calls that could jeopardize the security of inmates, staff, or facilities. The Contractor shall be responsible for the generation and creation of a centralized system database. The system shall provide the capability for every call in and out of the system to be recorded with a transaction record that includes, at a minimum, a recording of the telephone call in a .wav or other format acceptable to the Department. The database shall be maintained in such a manner as to allow authorized personnel the capability to review and monitor inmate call data regardless of which Department facility is housing the inmate. * * * The system shall provide the capability for the Department to download reports from the database, through secured internet access, as outlined in Section 3.12, Reporting Requirements. In addition, the Contractor shall provide access to the database through a secure "ftp" web server so the department can retrieve certain data on a daily basis. The Contractor shall provide certain data elements in a pipe delimited format, to be determined by the Department's Office of Information Technology. Data extracts shall be downloadable into a SQL Server database hosted by the Department of Corrections in such a manner as to allow the Department to perform further analysis on the system data. The security and confidentiality of data in the system is of critical importance. The Contractor shall be capable of recovering all inmate telephone data for all locations, to the point of full service operation, using a data backup. The Contractor shall perform all service and database back-ups and archiving. The Contractor shall provide all archival hardware, supplies, network, and recovery procedures that will ensure that no data is lost. The database shall have duplicate data storage devices with automatic fail-over and automatic re-establishment of the duplicate databases upon replacement of the failed storage device and shall be equipped with automated fire detection and suppression equipment. The system shall provide that all data be recorded with a historical transaction record and stored/archived for retrieval/backup in a database when requested by Department personnel in accordance with the following: All historical data shall be centrally stored and accessible for reporting purposes; This information must be available for reporting in a standard transaction file format; All current and historical data files shall be retained as specified for a period of five (5) years by the Contractor. Call records detail and call recordings shall be available "on- line" for a minimum of twelve (12) months from the date of the call and call records detail shall be available "off-line" for an additional forty- eight (48) months, or a total of sixty (60) months from the date of the call. Off-line records shall be in a format readily accessible to the Department upon request. (sic) This information shall be available at no charge to the Department after termination of the contract. * * * 3.7.4. is changed to 3.7.3. System Calling Protocol Requirements. 3.7.3. System Calling Protocol Requirements * * * The following system features/functionalities are being established as a minimum requirement for service delivery: The Contractor's system shall have the capability for a called party to activate a code (via the touch tone pad of their telephone) that automatically deletes their telephone number from the calling inmate's "Authorized Telephone Number List." The system shall also provide an alert or notification to authorized Department personnel to ensure that the inmate does not add any number deleted via the above indicated feature to his/her requested list of telephone numbers in the future. The Department's required method for receiving notification is via automated system update to the inmate's account information file (sic) 3.7.6 System Call Blocking Requirements is changed to 3.7.5., but the text remains the same as in the ITN.3.7.8. System Restriction, Fraud Control, and Notification Requirements is changed to 3.7.7. The RBAFO adds subsection "i)." That addition does not affect this proceeding. 3.7.14 is changed to 3.7.13 but the language therein is unchanged. 3.8.3. Rate and Call Charge Requirements retains the same number, but is renamed Call Charge Requirements - "To Connect" Surcharges and Rates Per Minute. A new penultimate paragraph is added and the ultimate paragraph is changed, and they now read as follows: * * * There shall be no additional fees, surcharges, or other types of costs associated with collect or prepaid calls or for establishing prepaid accounts billed to either the Department or families and friends of inmates establishing prepaid accounts. In addition, the Contractor shall not charge, pass on, or pass through to the customer paying for collect or prepaid calls any charges referred to as Competitive Local Exchange Carrier's (CLEC) billing cost, or any bill rendering fee or billing recovery fee. The Contractor shall also ensure the CLEC does not charge or pass on to the customer any fees or surcharges through the CLEC, with the exception of the LEC's monthly billing fee authorized by law. The RBAFO at Section 4.1, provided instructions for submissions, including the requirement that BAFOs be submitted no later than 5:00 p.m. on April 2, 2007. Section 4.1.3 of the RBAFO was entitled "Value-added Services." It had no corresponding section in the ITN or Addendum #1. It reads as follows: 4.1.3 VALUE-ADDED SERVICES: Value-added services include any of ITS service, system or equipment functionality that the Contractor offers to provide as part of the Contract resulting from the ITN that is either not required to be provided in the ITN or RBAFO or clearly exceeds the minimum requirements of required service delivery. The Respondent shall provide a detailed description of each value-added service, system and/or equipment functionality, in narrative form. If included in the Contractor's BAFO and accepted by the Department, "Valued-Added Services" [sic] shall be provided as part of the contracted service at no additional cost to the Department. Note: Provision of E-messaging is not considered a Value-Added Service, as it is a minimum requirement of the Contractor providing Inmate Telephone Service. However, pricing for E-messaging will be separate from the costs of the Inmate Telephone service. The RBAFO at Page 24, recited the following statement: BEST AND FINAL OFFER PRICING SHALL INCLUDE ALL SYSTEMS, EQUIPMENT AND PROVISION OF SERVICES IN ACCORDANCE WITH THE MINIMUM REQUIREMENTS SET FORTH IN THE ITN, ADDENDA AND AS REVISED IN THE RBAFO. The Responses to the RBAFO and the selection process The three finalists responded to the RBAFO with BAFOs on April 2, 2007. Securus responded by reciting verbatim the items in the RBAFO and then noting after each item that they had read the RBAFO and would comply with each particular section or subsection. Securus, following that language, set forth additional information addressing how they would comply. The Negotiating Team met on April 9, 2007. They were provided with the RBAFO, the BAFOs, and a document entitled Best and Final Offer Negotiation Ranking Sheet (Ranking Sheet). The Ranking Sheet advised, "Please utilize this sheet to independently rank each vendor with comments supporting your ranking. Comments should include a reason for your decision and determination of why highest ranking respondent provides best value to the Department. Rank: 1 to 3 with 3 = Highest & 1 Lowest." Members of the Negotiating Team were advised to accomplish their rankings without discussing the material with each other. Michael Dearisso and Wayne Green signed their rankings on April 11, 2007, and William Dupree and Jacques DeRemer signed their rankings on April 12, 2007. Thereafter Ms. Bailey totaled the scores in a matrix identified as "Scoring Summarization Sheet." This resulted in GTL averaging 5.25 points, Securus 9.75 points, and Verizon 10 points. Ms. Bassett, in accordance with Secretary McDonough's standard procedure, prepared a document entitled "Inmate Telephone Services Proposed Courses of Action (COA) (Draft 4-19- 07)." This was the document that was prepared for the purpose of briefing Secretary McDonough. The first course of action was "Secretary considers rankings and selects vendor based on best value decision." The second course of action was "Secretary selects Verizon based on rankings." The COA also contained "pros and cons" under each column. The information contained in the COA was objective. In a memorandum dated April 13, 2007, Ms. Bassett provided Millie J. Seay, Director of Administration, an ITN Summary Report, the Best and Final Offer Ranking Sheets, and the Scoring Summarization Sheet. Ms. Seay was the final editor of the COA document that went to Secretary McDonough. This document, despite the "Draft 4-19-07" notation, was in fact the actual COA ultimately presented to Secretary McDonough. Ms. Seay presented these materials to Secretary McDonough and discussed the results with him. He decided that Securus would provide the best value to the Department and made a notation to that effect on the COA that was presented to him. That document was misplaced. Accordingly, he instructed Ms. Seay to post a Notice of Agency Decision stating the Department's intent to award the ITS contract to Securus. In a memorandum of May 25, 2007, Secretary McDonough stated that the offer by Securus ". . . is the best value to the State, since it provides the lowest rate for customers combined with the highest commission rate to the State and meets the service delivery requirements in the Invitation to Negotiate." Although Secretary McDonough spent only about ten minutes with Ms. Seay, as noted heretofore, he had been involved with the process of improving telephone services for inmates and their friends and family for the prior 18 months. He closely supervised the reforming of what he believed to be a very unfair ITS contract. He gave repeated instructions to his staff with regard to seeking a new ITS contract and emphasized that the central focus was obtaining a cost that was fair to the inmates and their friends and family. The staffing plan, the final implementation plan and transition date schedule, the commission rate, and value-added services were all important factors in Secretary McDonough's decision. He understood clearly that price and commission could not be the only factors, and he considered all of the factors in determining the best value to the State. He determined that the difference in the scores between Securus and Verizon was so insignificant that, excluding price, they were essentially tied. That determination resulted in price becoming the factor that tipped the scales. Subsequent to Secretary McDonough's decision to award the contract to Securus, the Notice of Agency Decision was promulgated on May 1, 2007. Issues raised by the protest Verizon's assertion that Securus was unresponsive to an asserted requirement for a premise-based system. Verizon asserted that Securus failed to agree in its BAFO, for the price quoted, to have "premise-based" call control equipment on-site at the Department's facilities, as Verizon asserted was contemplated by Addendum #1 of the ITN. This can be restated as complaining that only by having certain equipment principally located at facilities served could redundancy be achieved. This issue was addressed during testimony by Mr. Dupree, an employee of the Department. He was selected as a member of the Negotiating Team because he understands the technology of the ITS. His official title with the Department is Engineer IV. Mr. Dupree said that the current system utilizes a rack of servers at each institution. He said that it was important to him to have "the brains" at each institution. He was concerned that without having the servers located at each served institution, the failure of one system would result in a regional or system-wide failure. When questioned about the requirement for a "premise- based" system, he stated that he preferred such a system, but related that so long as a system was in place that ensured that the failure at one institution would not cause the failure at others, he would be satisfied. When he reviewed the ITN he found that the response of Securus met the test. During the negotiations, he voiced no complaint with regard to the system proposed by Securus. The few questions Mr. Dupree asked during the negotiation session with Securus addressed only the treatment of three-way calling and billing matters. Mr. Dupree provided the answer to the question posed as Question 67, as to whether ". . . the State would allow call control equipment to either be placed in a centralized network based environment or at each correctional facility?" The written answer, Answer 68, stated, in part, "In order to prevent a state-wide or region-wide system failure, there must be control equipment at each major institution." "Control equipment" does not equate to "premise-based." When Answer 68 to Question 67 is read in the context of the ITN, Addendum #1, and the RBAFO, it is clear that there is no requirement for a "premise-based" system. The word "premise-based" does not appear in the ITN, Addendum #1, or the RBAFO, even though it was repeated constantly during the course of the hearing by the Protesters. If "premise-based" means a rack of servers at each institution, it is clear that no such array was requested. In fact, the ITN was seeking redundancy (see subparagraph 15a, above); a centralized system database (see subparagraph 15c, above); duplicate data storage devices with automatic fail-over (see subparagraph 15c, above), and a disaster recovery capability (see subparagraph 15g, above). Neither Addendum #1 nor the RBAFO changed the fact that the ITN sought a centralized database without specifying whether the equipment supplying it was located at each institution, or at some other site. Mr. Dupree was not empowered to change the terms used in the ITN, Addendum #1, or the RBAFO. Answer 68, even when read in a light most favorable to the Protesters, does not require a "premise-based" system. Mr. Dupree was content with the method currently provided by Verizon, but he stated he would also be content with "some magic box that does everything." Securus addressed redundancy in the ITN under the general heading of "Premises Architecture" and in BAFO Subsection "3.7.13. System Disaster Recovery." Under the former it clearly states that in the case of a centralized failure, the system will function locally. Under the latter subsection, it responded by relating that it has a central data center connected to the "remote platforms" and notes that call records are generated at the remote sites. It further relates that, "The Securus SCP utilizes an integrated Access Device (IAD) that provides local call control and centralized storage with a built-in redundancy." In Securus' BAFO, with regard to redundancy, it again responded to "3.7.13 System Disaster Recovery," which repeated the exact wording found in Part 1, by stating, "Response: Securus has read, understands, and will comply with initial responses as previously indicated." It then repeats the answer given in the ITN. It is found that Securus was responsive to the requirements of the ITN with regard to redundancy. Moreover, and importantly, the Negotiating Team, when evaluating Part 1 of the ITN, found Securus responsive. The time for challenging that finding passed when no participant successfully challenged the Notice of Intent to Negotiate. Securus' response was not contrary to the Department's governing statutes, the Department's rules or policies, or the solicitation specifications. Verizon's assertion that Securus did not agree in its BAFO to condition 3.8.3 in the Request for BAFOs prohibiting additional charges for collect and prepaid calls. Verizon contends that Securus was not responsive to a portion of Subparagraph 3.8.3 in the RBAFO entitled Call Charge Requirements - "To Connect" Surcharges and Rates Per Minute. This section is recited at paragraph 46g, above. Addendum #1 to the ITN repeated the requirement that the contractor could not pass on to ITS users any charges referred to as Competitive Local Exchange Carrier's (CLEC) billing cost, bill rendering fee, or billing recovery fee. The RBAFO, however, added a sentence which recited, "The Contractor shall also ensure the CLEC does not charge or pass on to the customer any fees or surcharges through the CLEC, with the exception of the LEC's monthly billing fee authorized by law." Securus responded in its BAFO by repeating the paragraph and thereafter stating, "Response: Securus has read and will comply." Securus followed this with a sentence that read, "Securus will not charge, pass on, or pass through to the customer paying for the collect calls any charges referred to as Competitive Local Exchange Carrier's (CLEC) billing cost, bill rendering fee, or billing recovery fee." Mr. Dupree was aware that in some other states providers had passed on these charges, which he referred to as "surcharges." He stated that it was clear to him that the Department would not allow these charges. He stated that when the members of the Negotiating Team discussed these additional charges, they agreed that the vendors were going to have to "take it out of their hide." As noted by Negotiating Team member Green, there could be no "hidden charges." A LEC is the incumbent telephone company in an area. It is generally thought of as the local telephone company. A CLEC is typically a new entrant in a market. Subparagraphs 3.8.5 in Part 1 and 3.8.3 in the RBAFO introduced a method for friends and families of inmates to pay for calls that is not available in the current contract. This method permits friends and families of inmates to deposit funds in a prepaid account as an alternative to accepting collect calls. On March 29, 2007, two days after the RBAFO was published, the Department, in an email to Securus, GTL, and Verizon, reworded 3.8.3 of the RBAFO to read: In addition, the Contractor shall not charge, pass on, or pass through to the customer paying for collect or prepaid calls any charges referred to as Local Exchange Carrier's (LEC's) or Competitive Local Exchange Carrier's (CLEC's) billing costs, or any bill rendering fee or billing recovery fee. The Contractor shall also ensure that LEC's and CLEC's do not charge or pass on to the customer any additional fees or surcharges for billing. The Contractor shall be responsible for any such LEC or CLEC surcharge incurred if billing through the LEC or CLEC. It is clear from the changes that occurred during the ITN process that it was extremely important that fees assessed by LECs and CLECs, as well as other fees, were not to be passed on to the friends and families of inmates. The record does not indicate that either Securus, GTL, or Verizon responded to the email. Verizon's BAFO stated, "Verizon . . . hereby acknowledges and accepts the minimum specifications and will comply with the terms and conditions contained in the . . . Invitation to Negotiate . . ., the . . . Request for Best and Final Offer; and this Verizon Business response to the Best and Final Offer." Verizon did not specifically address the matters in the Section 3 Revised Statement of Services Sought. GTL's BAFO stated, "Per requirement of 4.1.5 of the Request for Best and Final Offers, GTL accepts the minimum specifications and will comply with all terms and conditions indicated in the ITN, GTL's Initial Response, the Request for Best and Final Offer and GTL's Best and Final Offer." GTL did not specifically address the matters in the Section 3 Revised Statement of Services Sought. It would be incorrect to conclude that Securus intended to limit its obligation to not pass through certain charges in its response, and thus was not responsive. The Negotiating Team did not come to that conclusion and neither does the fact finder in this case. Securus did not have to respond at all with specificity, and the acknowledgement that they had read and would comply with the section is found to be responsive, not limiting. Accordingly, Securus' response was not contrary to the Department's governing statutes, the Department's rules or policies, or the solicitation specifications. Verizon's assertion that Verizon, not Securus, received the higher score when its BAFO was ranked utilizing the objective criteria chosen by the Department for purposes of ascertaining best value to the State of Florida. The ITN did not provide that the responder with the highest score on the ranking sheets would be awarded the ITS contract. The Negotiating Team independently arrived at rankings on the Best and Final Offer Ranking Sheets. Both Mr. DeRemer and Mr. Green had some questions about properly completing the ranking sheets, and they were answered by Ms. Bassett. Ms. Bassett did not influence the outcome of the rankings of the Negotiating Team. It should be further noted that there were ten phases to the ITN, and the Negotiating Team was only involved in two of them. As noted above, Ms. Bailey totaled the scores in a matrix identified as "Scoring Summarization Sheet." This document addressed only the four items that were the main points of the RBAFO with a section for price, another for value-added services, another for final implementation and transition schedule, and one for staffing plan. This resulted in GTL averaging 5.25 points, Securus 9.75 points, and Verizon 10 points. Securus and Verizon received total scores that did not differ meaningfully. Therefore, in light of Secretary McDonough's observation that the friends and families of inmates were complaining to him about the high cost of conversing with inmates, cost became the distinguishing factor. Securus proposed a price of four cents per minute, and Verizon proposed a price of six cents a minute. Therefore, Securus had the best price when considering the rates charged to friends and families of inmates. Securus proposed a 35 percent commission to the Department, and Verizon proposed a 20.5 percent commission. Securus clearly prevailed in both categories and that is the reason Securus was selected even though Verizon had the highest numerical ranking. The Protesters complained that the Department did not provide them a method to arrive at a pricing offer because the two categories, rate per minute and percent commission, were not stated so that an "apples to apples" and "oranges to oranges" comparison could be made. This complaint is without merit. The Department clearly stated that, "It is the Department's intention to generate the highest percentage of revenue for the State commensurate with the lowest surcharge and rates per minute for telephone calls for inmates and families . . . ." An ITN was the vehicle chosen to generate those numbers precisely because the Department could not state with specificity the relative importance of the two considerations and wished for the responders to suggest the answer to the Department. The Department's action in selecting Securus despite Verizon's higher ranking was not contrary to the Department's governing statutes, the Department's rules or policies, or the solicitation specifications. GTL's assertion that Securus proposal was non-responsive because it did not include the required system for notification to the Department for inmates attempting to add numbers deleted from their authorized telephone number list. GTL asserts that Securus' BAFO was materially non-responsive because Securus did not comply with Section 3.7.3 of the RBAFO that mandated all bidders' call systems "provide an alert or notification to authorized Department personnel" any time an inmate tried to add a number to the inmate's authorized telephone number list which had previously been deleted from the list at the request of the called party. GTL further asserts that explicit compliance is mandatory and will result in rejection, citing ITN Section 1.19. ITN Section 1.19, reads as follows: 1.19 Mandatory Responsiveness Requirements/Fatal Criteria: Terms, conditions or requirements that shall be met by the Respondent to be responsive to the ITN. These responsiveness requirements are mandatory. Failure to meet these responsiveness requirements will cause rejection of a response. Any response rejected for failure to meet mandatory responsiveness requirements will not be further evaluated. Section 1.19 refers to Section 5.1 of the ITN. See paragraph 17, above. This Section does not apply to responses to the RBAFO's Section 3, Revised Statement of Services Sought. If responses to Section 3 fail to meet requirements then that failure may be addressed in the scoring mechanism. It does not mean that a single failure to respond in the BAFO requires rejection of the responder. Section 6.1.2 of the ITN provides that mandatory responsiveness requirements only apply to Phase 1 proceedings. ITN Section 3.7.4. System Calling Protocol Requirements originally had language indicating that the call blocking (Subsection a) and call alert (Subsection b) features were desired, as opposed to required. Section 3.7.4. is recited in its entirety at paragraph 15d, above. RBAFO Section 3.7.3 is recited in its entirety at paragraph 46c, above. This changed Subsections a and b so that call blocking and call alert became required. It is Securus' response to RBAFO Section 3.7.3b that is specifically at issue here. That response noted: "Response: Securus has read and will comply." Following that line, Securus' BAFO states, "Securus currently allows a called party to block his or her number from being dialed in the future. Once the called party blocks the number, the number cannot be added back to the inmate's allowed number list unless the verifiable customer of record calls in to our customer service center and requests their number be reactivated. The system will update the inmate's account information file with the blocked number status." The words used after the "read and comply" language address Subsection 3.7.3a. The absence of words addressing Subsection 3.7.3b and the provision of the call alert feature does not mean that Securus was attempting to limit its response. To the contrary, it only means that Securus did not elaborate on the assurance that it read and would comply with the requirements of all of Section 3.7.3, and there was no requirement that it do so. The acknowledgement of Securus that it had read and would comply with the section, and the language following the "read and comply" language, is found to be responsive, not limiting. Securus' response was not contrary to the Department's governing statutes, the Department's rules or policies, or the solicitation specifications. GTL's assertion that Securus' proposal deviated from the BAFO and ITN by imposing prohibited credit card payment fees, which failure wrongfully allowed it a competitive advantage and to avoid commission payments to the FDOC: (a) The Securus BAFO was non-responsive because it failed to provide for payment by credit cards without charge; (b) Securus' non-responsive bid allowed it a material competitive advantage when bidding its telephone rates and commission rate; (c) Securus' bid also deprives the FDOC of significant commission revenues. Section 3.8.5. of the ITN, which is unchanged by the RBAFO, recited at paragraph 15i, above, states that payment into a prepaid account shall be made ". . . by multiple means (i.e. check, money order, and/or credit card)." The prepaid account is referred to as PPCCS. As previously noted, the current contract allows only collect calls. This new feature establishes another method for friends and family to call inmates. Section 3.8.3 of the RBAFO, recited at subparagraph 46g, above, states, in part, "There shall be no additional fees, surcharges, or other types of costs associated with collect or prepaid calls or for establishing prepaid accounts billed to either the Department or families and friends of inmates establishing prepaid accounts." In Securus' ITN response it provides that payment to a prepaid account may be made using "Western Union Quick Collect, Visa, MasterCard by phone, check by phone, CBS website, Money Order, Cashier's check by U. S. Mail, and Friends and Family Connection Center Kiosk." CBS refers to a firm named Correctional Billing Services. Securus' BAFO response is identical to its ITN response. Securus' response does not refer to any fee for establishing a prepaid account. It says it will establish the account at no charge through CBS. The enumerated methods of paying may result in a fee to the friends and families of the inmate, depending on the method of payment chosen by the friends and families of the inmate. The Department's ITN does not ask responders to reimburse the cost of money transmittal incurred by friends and families of the inmate. If one were to read the ITN and BAFO as the Protesters would have it read, then Securus would have to provide postage stamps to persons mailing payments to the PPCCS. One paying into a PPCCS is likely to have costs. However, the costs may be a consequence of dealing with a third party money transmitter, like, for example, companies in the business of selling money orders. Securus' response recites that it will accept payment by Visa, and mentioned some other facilitators whose method of operation were not described with particularity by the evidence of record. For instance, it may be (and it is probable) that the payee in a Visa transaction must bear the transaction costs. If that is the case, Securus has agreed to pay those costs and not charge them to the payor. In Securus' BAFO, in response to Section 4.1.3: Value-Added Services, Securus, under the heading Friends and Family Assistance, offers friends and families the opportunity to speed the prepayment process through the payment of a convenience fee. This is more like a value-subtracted service since Securus has already agreed that they would accept payment at no cost using, for example, credit cards. The convenience fee alternatives would include credit cards, debit cards, Western Union, and ACE Cash Express. Importantly, convenience fees pursuant to Securus' response, could only be charged with the consent of the Department, and considering that the Department had an aversion to additional fees, as set forth in subparagraph 60f, above, and subparagraphs preceding subparagraph 60f, Department approval seems unlikely. Securus' response with regard to value-added services makes it clear that "There is never a fee imposed for establishing an account or for funding an account through a money order or check." Based on Securus' response to the ITN there is never going to be a fee charged by Securus for funding an account using "Western Union Quick Collect, Visa, MasterCard by phone, check by phone, CBS website, Money Order, Cashier's check by U. S. Mail, and Friends and Family Connection Center Kiosk" either. Because any convenience charge benefiting Securus is contingent on the Department's approval, the Securus BAFO with regard to fees is responsive and does not affect the competitive nature of the process. Securus' response was not contrary to the Department's governing statutes, the Department's rules or policies, or the solicitation specifications. GTL's assertion that Securus did not clearly propose a premise-based technical solution as required by the FDOC. See paragraph 60, above. GTL's assertion that Verizon's BAFO was materially non-responsive to the RBAFO and the ITN. This complaint is, for the most part, insufficiently specific to permit a logical analysis of the assertion. However, GTL did point specifically to a single alleged defect affecting Section 4.1.1 of the Verizon BAFO that addresses the staffing plan. The RBAFO at Subsection 4.1.1 provides the staffing positions required in Revised Subsection 3.13, Contractor Staff Requirements of the RBAFO. Revised Subsection 3.13 required the contractor to have direct oversight, be responsible for, and monitor the performance of all contractor staff, to provide adequate trained, qualified, and, where necessary, licensed staff. Revised Subsection 3.13 also set forth certain required positions in support of the contract. Verizon, in its BAFO, responded to the requirement by stating at the beginning of the BAFO that Verizon ". . . acknowledges and accepts the minimum specifications and will comply with the terms and conditions contained in the Department's Invitation to Negotiate (ITN) # 06-DC-7695 for Statewide Inmate Telephone Services dated November 22, 2006 (including any issued addenda), Verizon Business response to the ITN, the Department's request for Best and Final Offer to ITN # 06-DC-7695 dated March 27, 2007; and this Verizon Business response to the Best and Final Offer." Verizon, contrary to the assertion that Verizon failed to provide specific job descriptions for each type of position, did in fact provide detailed job descriptions for each type of position both in their BAFO and response to Part 1. Verizon, contrary to the assertion that Verizon failed to provide a percentage of time devoted to the system for each position, stated that the employees and positions listed would be full- time. It is not within the jurisdiction of the Administrative Law Judge to evaluate the submissions of the three participants in order to determine whether or not Verizon should have received the highest ranking. The information with regard to staffing submitted by Verizon was responsive to the ITN and RBAFO, and there is nothing in the record to support the assertion that the rankings were arbitrary or capricious. GTL's assertion that the entire ITN process was fundamentally flawed, which resulted in an arbitrary and capricious award. 1. "Pricing" Evaluations/Rankings. Other arbitrary and capricious ranking/evaluation. GTL asserts that in addition to being materially non-responsive, the entire ITN and RBAFO process was arbitrary and capricious because the ITN and RBAFO were arbitrary in that they did not provide criteria for scoring, which allowed the Department to score the BAFOs and award the contract to any bidder without regard to any criteria. GTL further asserts there was no objective basis or criteria or scoring methodology for selecting the contractor. GTL specifically alleges that the Evaluating Team made no recommendation of award to Secretary McDonough following its scoring process as it claims was required by Section 6.3 of the ITN. As noted in paragraphs 19, 22, 23, 24, and 25, the language in Section 6.3 of the ITN and the Response Evaluation and Review Manual for the ITN at the section entitled, Phase 9, Best and Final Offers, was placed in those documents in error. It is clear from the four corners of the ITN that it was the procurement staff that would tabulate the Negotiating Team's ranking subsequent to the evaluation of the BAFOs, and it is clear that it was the procurement staff's job to put the matter in a form that would permit Secretary McDonough to review the results and choose a contractor. Contrary to the assertions of GTL, the contract was awarded after careful thought by Secretary McDonough, and he memorialized his reasons in a memorandum dated May 25, 2007. That memorandum stated that the Department should post an intent to award the ITS to Securus after reviewing the documentation presented to him and having determined that ". . . Securus' offer is the best value to the State, since it provides the lowest rate for customers combined with the highest commission rate to the State and meets the service delivery requirements in the Invitation to Negotiate." GTL complained, like Verizon, that there was a lack of specific criteria identifying how the Department would score the pricing component. GTL suggests that this information was crucial to all bidders so that they could understand how their bid was to be measured against competitors. GTL misses the point of the ITN. It was not how a bid measured against that of a competitor that was important. The Department was seeking suggestions from the three entities presenting BAFOs as to how they could ". . . generate the highest percentage of revenue for the State commensurate with the lowest surcharge and rates per minute for telephone calls for inmates and families similar to those available to the public-at-large." Florida procurement law provides a continuum in competitive bid processes running from invitations to bid, through requests for proposals, to invitations to negotiate. Invitations to bid are used where specifications can be stated with certainty; invitations to negotiate, on the other end of the spectrum, invite responders to tell the agency the best course of action. See subparagraphs 62e and f, above. GTL's assertion that Secretary McDonough only used the cost to the friends and families of inmates in making his decision is not supported by the record. Secretary McDonough considered the BAFO rankings of Securus and Verizon to be a statistical dead heat. Thereafter, he chose Securus because it had the most advantageous pricing. GTL asserts that Negotiating Team member Mr. DeRemer ignored GTL's conformance to the RBAFO by stating under the staffing plan block, that "GTL met most requirements, no mention of CSR's." The reference to CSRs was to contractor staff requirements. GTL's BAFO includes an extensive response to the RBAFO's requirement for a staffing plan (or contractor staff requirements). Mr. DeRemer acknowledged that he was mistaken when he made that notation and did not realize his mistake until it was too late to change it. The ITN process was not fundamentally flawed. The actions of the Department in this procurement process were not contrary to the Department's statutes, or the Department's rules or policies, or to the proposal specifications.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitions of Verizon Business Network Services, Inc., on behalf of MCI Communications, Inc., d/b/a Verizon Business Services; Global-Tel Link; and Public Communications Services, Inc., be dismissed. DONE AND ENTERED this 13th day of August, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 13th day of August, 2007. COPIES FURNISHED: Susan P. Stephens, Esquire Karen E. Armstrong, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Gary V. Perko, Esquire Wesley S. Haber, Esquire Hopping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Allan P. Clark, Esquire John A. Tucker, IV, Esquire Foley & Lardner One Independent Drive, Suite 1300 Post Office Box 240 Jacksonville, Florida 32202 Robert H. Hosay, Esquire Foley & Lardner, LLP 106 East College Avenue Highpoint Center, Suite 900 Tallahassee, Florida 32301-7732 W. Robert Vezina, III, Esquire Eduardo S. Lombard, Esquire Vezina, Lawrence & Piscitelli, P.A. 413 East Park Avenue Tallahassee, Florida 32301 Brian A. Newman, Esquire Cynthia S. Tunnicliff, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095 James R. McDonough, Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Kathleen Von Hoene, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
The Issue Whether Respondent’s intended decision to award a contract to Intervenor, Global Tel*Link Corporation (GTL), for telecommunication services pursuant to an “INVITATION TO NEGOTIATE FOR INMATE TELECOMMUNICATIONS SERVICES FDC ITN-17-122” (the ITN), is contrary to Respondent’s governing statutes, its rules, or the ITN specifications; and, if so, whether it was contrary to competition, clearly erroneous, arbitrary, or capricious.
Findings Of Fact Based upon the oral and documentary evidence presented at hearing, the following facts are found: DOC is the state agency responsible for the supervisory and protective care, custody and control of all inmates incarcerated by DOC, its buildings, grounds, and property in the state. See § 945.025, Fla. Stat. In carrying out this statutory responsibility, DOC provides access to inmate telephone services. DOC believes that inmate contact with their family and friends reduces recidivism by encouraging family connections and prepares inmates for their eventual release back into society. DOC records all non-privileged calls in order to prevent and detect the coordination of violent and/or illegal activity over the telephone. Inmates may contact their family and friends by using a prepaid card or calling collect. The current rates for prepaid inmate calls are $0.04 per minute for local calls and $0.14 per minute for intra-Local Access Transport Area (LATA), inter-LATA and long distance calls. Under the current system, there is no deposit or funding fee for each call. The majority of inmates are not incarcerated in their home community, thus approximately 75 percent of current inmate calls fall into the $0.14 per minute categories. Inmate calls are limited to 15 minutes per call, however if there is no one waiting to use the telephone, the inmate may call again. A 15-minute local call currently costs $0.60 cents. A 15-minute intra-LATA, inter-LATA or long distance call currently costs $2.10. Securus, through its wholly owned subsidiary T-Netix Telecommunications Services, Inc., currently holds the contract to provide DOC inmate telephone service. DOC does not provide or pay for inmate telephone services, but is authorized pursuant to section 945.215(1)(b), Florida Statutes, to contract with telephone-service providers who install and maintain all the necessary telephone equipment for this service. On July 25, 2016, Ms. Faulk8/ (DOC’s bureau chief of procurement and lead negotiator) proposed a “justification memo” (memo) to DOC’s chief of staff for the use of an ITN “for the purpose of competitively procuring Statewide Inmate Telecommunication Services.” The stated purpose of the ITN was: to solicit replies from fully capable and qualified respondents, and to ultimately establish a Contract, based on the “Best Value”, for quality tele-communication services for inmates under” DOC’s care and custody. The memo suggested that the ITN process provided flexibility that would help DOC in “determining the service and programming options available and the opportunity to understand the implications of those services and proposed rates.” Further, the use of an ITN would allow DOC: to discuss in detail, each respondent’s technical capabilities, professional experience, and capability to provide quality services in relation to the rates charged to inmate friends and family members. The negotiation phase . . . will provide a venue for discussion of value-added services, and will ensure the most qualified vendor is selected. Section 287.012(17), Florida Statutes, defines “Invitation to negotiate” as: written or electronically posted solicitation for competitive sealed replies to select one or more vendors with which to commence negotiations for the procurement of commodities or contractual services. Section 287.057(1)(c) further explains an ITN as a type of procurement method which allows an agency to “determine the best method for achieving a specific goal or solving a particular problem” and to identify “one or more responsive vendors with which the agency may negotiate in order to receive the best value.” On November 2, 2016, DOC released the ITN, seeking competitive replies from qualified vendors to provide telecommunications services for inmates at all DOC institutions, and its associated satellite facilities. The ITN specifically sought a no-cost contract, meaning DOC would not expend any State funds for the services procured. Instead, the winning vendor would charge an inmates’ family or friends on a per-minute basis for an inmate to place each telephone call. The original ITN timeline provided that the anticipated posting of the intent to award the contract was in April 2017. However, that original timeline was changed on December 22, 2016, and revised another 16 times before the intent to award was actually published. Revisions or changes (excluding solely timeline revisions) to the actual requirements of the ITN were found in the following addenda9/: 1, 3, 5, 6, and 8. The ITN’s “Statement of Purpose” found in section 2.2 provides: The Department is seeking responses, from interested and qualified Vendors, for the provision of telecommunication services for inmates at all its institutions, and associated satellite facilities, listed in Attachment II. Vendors must have at least three years, out of the last five years, of business/corporate experience, specifically providing telecommunication services through multiple sites in a correctional or other security/law enforcement setting, as described in this ITN. Specifically, the Department is seeking replies for telecommunication services for all its facilities. The Department intends to award the resultant Contract to a single Vendor, Statewide. The ITN’s “Procurement Overview” found in section 2.3 provides: The Department is requesting competitive, sealed replies, from responsible Vendors, in order to establish a multi-year Contract for the provision of telecommunication services to inmates in the Department’s care. The Department is interested in considering value- added services that would be beneficial to, or will otherwise complement, the services required by this ITN. The process for evaluating and selecting a Vendor will consist of two phases. The first phase involves evaluation of the replies to the ITN, which will result in the selection of Vendors to proceed to the negotiation phase. In the second phase, Vendors will be asked to provide a presentation of their Reply. This phase also includes negotiation of a final statement of work, pricing, and terms and conditions of the final Contract. The negotiation phase culminates in one or more of the Vendors receiving a request, from the Department, to submit a best and final offer (BAFO), which must include: (1) a revised statement of work; (2) a final Contract draft; and (3) a final cost and compensation model. (Emphasis added). The ITN’s goals and specific goals are found in sections and 2.4.1, which provide: FDC Goals The Department is looking to not only continue providing quality telephone services for inmates in our care, at the minimum, levels of service required by law and rule, but also to achieve strategic improvements in the area of tele-communication services. Overall goals for the Department include: Reduce recidivism through increased family re-unification and re-entry efforts. Ensure the safety and security of staff, inmates, and the public through the use of modern technology. Control inmate telephone usage and limiting the use of the telephone service for fraudulent activity. Ensure a quality telephone service with reasonable and justifiable telephone call rate charges for inmate’s families and friends similar to those available to the public at large. The intent of this procurement is to contract with a Vendor who will assist the Department in meeting these goals. Specific Goals of this ITN: Establish a flexible contract, with transparency of service costs and better alignment of costs with services. Establish a contract that allows the Vendor to bring market expertise and an ability to shape strategy, to lower the cost of telecommunication services for inmates friends and family, and maximize the benefits to the Department. Ensure a smooth transition/continuation of services from the current Contract to a new Contract without disruption. Award to a Vendor that applies technical and operational expertise to ensure a smooth continuation of services with minimal risk. Ensure pricing that is cost effective through entire term of the Contract. Establish a collaborative relationship, with the prospective Vendor, which will maximize the extent to which the Department can achieve the objectives of this ITN. (Emphasis added). DOC mandated an initial five-year contract, with an option for DOC to renew the contract up to five more years or any portion thereof. The additional five-year renewal period was “contingent, at a minimum, upon satisfactory performance by the Vendor, as determined by the Department, and will be subject to the availability of funds.”10/ The ITN’s pricing methodology found at 2.7 provided: The Department is seeking pricing that will provide the most favorable terms the Vendor can offer in terms of lowest phone rates to the State[11]; therefor, interested Vendors must submit a Cost Reply, utilizing the Price Information Sheet, Attachment III. Best and Final Offers from Vendors will be solicited to establish the lowest possible telephone rates and most beneficial value added services. Vendors are encouraged to submit a Cost Reply in such a manner as to offer the most cost effective, and innovative solution for services and resources, as cost efficiency for the State will be a consideration in determining best value. Vendors must provide the Cost Reply in accordance with the instructions in Section 4.8. (Emphasis added). The definition for value added service (VAS) is found in the ITN at section 1.29 as: Advanced and/or additional services provided to the Department that include new and innovative technologies relating to the telecommunication services sought, and at no additional cost to the Department. There is no definition for telecommunication services found in the ITN. DOC included a list of VASs in section 3.2 of the ITN. That list included in pertinent part: As part of this revenue generating Contract, the Department is interested in obtaining value-added services in lieu of commissions. The Department requests that Vendors provide with their Reply, a detailed description of all value-added services the Vendor is offering to the Department. These services would be in addition to those services that meet the minimum service requirements and specifications of this ITN. At no cost to the Department, for the duration of the Contract term and any subsequent renewals, the Department is especially interested in the following value-added services; however, Vendors are encouraged to provide additional or alternate value-added services. Handheld Cell Phone Detection Units (CEIA or equivalent). A fully functioning Cell Phone Forensic Laboratory with the following: * * * Access to ICER (Inmate Inter- Communications Evaluation and Reporting) national database for identifying and reporting inmate-to-inmate communications. Word spotting services through the Vendors proposed inmate telephone system. Voice Biometric Analysis through the Vendors proposed inmate telephone system. Vendor-provided call monitoring. A Managed Access System (MAS), in an effort to control and eliminate wireless communications within our institutions. Vendors are encouraged to include a single facility, multi-facility or statewide solution that will prevent unwanted or unauthorized access to commercial wireless networks while simultaneously enabling legitimate, mission- critical, or emergency connections. Any Managed Access Solution being proposed by the Vendor shall be inclusive of all equipment, installation, infrastructure and network, training, operation, and ongoing repairs and maintenance. Change number 3 found in the ITN’s Addendum 5, posted on February 23, 2017, provided revisions to section 3.2, the VASs section. The changes are shown via strike-through for the deleted language, and underscored for the new language: As part of this revenue generating Contract, the Department is interested in obtaining value-added services in lieu of commissions. The Department requests that Vendors provide with their Reply, a detailed description of all value-added services the Vendor is offering to the Department. These services would be in addition to those services that meet the minimum service requirements and specifications of this ITN; at no cost to the Department, for the duration of the Contract term and any subsequent renewals, The Department is especially interested in the following value-added services; however, reviewing Vendor proposed value-added services or technology to aid in the prevention and detection of cellular devices, peripheral hardware and hazardous contraband at entry points and within the secure perimeter of our correctional institutions. Vendors are encouraged to provide additional or alternate value-added services, beyond what is included in this Section. While value-added services are considered in the evaluation (see Section 4.9 of this ITN), Vendors are not required to propose a particular value-added service or group of services to be considered. Change number 4 found in the ITN’s Addendum 5, posted on February 23, 2017, provided revisions to section 3.2.7. The changes are shown via strike-through for the deleted language, and underscored for the new language: A Managed Access System (MAS), in an effort to control and eliminate wireless communications within our institutions. Vendors are encouraged to include a single facility, multi-facility or statewide solution that will prevent unwanted or unauthorized access to commercial wireless networks while simultaneously enabling legitimate, mission- critical, or emergency connections. Any Managed Access Solution being proposed by the Vendor shall be inclusive of all equipment, installation, infrastructure and network, training, operation, and ongoing repairs and maintenance. Vendors are not required to provide a MAS as part of their solution; however, if a Vendor chooses to include a MAS in their Reply, the Department is interested in the MAS meeting the below minimum requirements: Locations * * * 3.2.7.2. Implementation * * * 3.2.7.3 System Requirements * * * 3.2.7.4 Vendor Responsibilities * * * 3.2.7.5 Department Responsibilities * * * 3.2.7.6 System Maintenance * * * 3.2.7.7 Reporting * * * 3.2.7.8 Support The ITN process to select qualified vendors consisted of two distinct parts: Part 1 and Part 2. Part 1 required vendors to submit a “straightforward, concise delineation of the Vendor’s capabilities to satisfy the requirements” of the ITN. Eight specific components were described, and the evaluation criteria were provided. However, the actual components need not be reviewed here, as section 4.9.C provided the “score from the Evaluation Phase will not carry over into negotiations and the Negotiation Team will not be bound by those scores.” CenturyLink, GTL, and Securus are providers of telecommunications services for inmates, and each timely submitted the “Technical Reply and Cost Replies” for Part 1 of the ITN. It is well settled and uncontested that Securus scored the highest in Part 1, followed by GTL and CenturyLink. Part 2 allowed DOC to select one or more qualified vendors for the negotiation phase. DOC invited all three vendors to negotiate. The negotiation team (Team) included three DOC employees: Ms. Faulk, Mr. Kirkland12/ (DOC’s deputy director of Institutional Operations), and Mr. Harrell13/ (DOC’s bureau chief of Security Operations). Section 4.9 B. in the ITN set forth the following “Negotiation Phase Methodology”: The Department reserves the right to negotiate with any or all responsive and responsible Vendors, serially or concurrently, to determine the best solution. During the negotiation process the Department reserves the right to exercise the following rights. This list is not exhaustive. Schedule additional negotiating sessions with any or all responsive Vendors. Require any or all responsive Vendors to provide additional revised or final written Replies addressing specified topics. Require any or all responsive Vendors to provide a written Best and Final Offer (BAFO). Require any or all responsive Vendors to address services, prices, or conditions offered by any other Vendor. Pursue a contract with one or more responsive Vendors for the services encompassed by this solicitation, any addenda thereto, and any request for additional revised or final written Replies or request for best and final offers. Pursue the division of contracts between responsive Vendors by type of service or geographic area, or both. Arrive at an agreement with any responsive Vendor, finalize principal Contract terms with such Vendor and terminate negotiations with any or all other Vendors, regardless of the status of or scheduled negotiations with such other Vendors. Decline to conduct further negotiations with any Vendor. Reopen negotiations with any Vendor. Take any additional administrative steps deemed necessary in determining the final award, including additional fact-finding, evaluation, or negotiation where necessary and consistent with the terms of this solicitation. Review and rely on relevant information contained in the Replies received from Vendors. Review and rely on relevant portions of the evaluations conducted. Reject any and all Replies if the Department determines such action is in the best interest of the State. Negotiate concurrently or separately with competing Vendors. Accept portions of a competing Vendor’s Reply and merge such portions into one project, including contracting with the entities offering such portions. Waive minor irregularities in Replies. Utilize subject matter experts, subject matter advisors, and multi-agency advisors to assist the negotiation team. The ITN provided that DOC had “sole discretion in deciding whether and when to take any of” these actions. This methodology section included that the focus of the negotiations would be on “achieving the solution that” provided “the best value to the State based upon the ‘Selection Criteria’ and satisfies the Department’s primary goals as identified in the ITN.” Section 4.9 B. also included the Selection Criteria as: The Respondent’s articulation of its approach to provide the services. The innovativeness of Respondent’s approach to provide the services. Respondent’s articulation of its solution and the ability of the solution to meet the requirements of this ITN and provide additional innovations. Respondent’s demonstrated ability to effectively provide the services. Respondent’s experience in providing the services being procured and the skills of proposed staff relative to the proposed approach and offering. Respondent’s technical Reply and Cost Replies as they relate to satisfying the primary goals of the telecommunication services identified herein. Change number 2 found in the ITN’s Addendum 8 posted on June 13, 2017, provided revisions to section 4.8.A (2), the description of offering section. The changes provided the number of points allocated for each section in the Part 1 evaluation phase. However, paragraph “4.8.A.2.(c)” provided a further break- down of the overall points allocated to the “Vendor’s proposed value-added services” and provided important information for the negotiation phase. The pertinent changes are shown via underscore for the new language: c) To what extent do the Vendor’s proposed value-added services maximize the benefits to the Department? (Worth 21 weighted points, allocated below) Cell phone detection equipment and phone system surveillance services, including those listed in Sections 3.2.1, 3.2.4, and 3.2.5. (4 points) Cell phone forensics and intelligence, including those listed in Sections 3.2.2 and 3.2.3. (4 points) Managed Access Systems described in Section 3.2.7. (4 points) Vendor-provided phone call monitoring services referenced in Section 3.2.6. (4 points) Any other Vendor proposed value-added services or technology to aid in the prevention and detection of cellular devices, peripheral hardware and hazardous contraband at entry points and within the secure perimeter of our correctional institutions. (5 points) In the negotiation phase of this procurement, the Department reserves the right to negotiate for these or other value-added services identified through the negotiation process. Further, the Department is not bound to the point allocation or prioritization included in this section when determining the best value to the Department. Securus did not file a protest when Addendum 8 was posted. In the later part of November 2017, roughly a year after posting the ITN, DOC’s Team began conducting negotiation meetings with each vendor separately. Over the course of the next several months, the Team held a total of 20 negotiation sessions: 6 sessions with CenturyLink; and 7 sessions each with GTL and Securus. In addition, the Team held 24 strategy sessions where they discussed potential negotiation strategies, the vendors’ offerings, and options for achieving the best value to the State. DOC used a negotiating strategy that “flipped” Securus’ negotiating strategy. Instead of starting the negotiations with the low cost telephone rate charges and securing the VASs through the money collected in that manner, DOC elected to use a higher telephone rate charge to seek more VASs. Ms. Faulk explained this tactic as similar to how a car company operates. Instead of starting with a base price and adding specific features one at a time, a car company bundles added features, and a consumer has to take the bundle just to get the individual features they want. In Securus’ first negotiation meeting with DOC, Ms. Faulk informed Securus that DOC was: fairly comfortable with the base phone system . . . they are fairly solid system platforms. So the main focus will be on the value added services, as I’m sure you all expected it to be. Ms. Faulk made clear that the negotiations “as a whole are intended to be a two-way street.” Although Ms. Faulk advised Securus that DOC would not be “dictating” what was in Securus’ best and final offer (BAFO) to DOC, DOC was providing Securus “an opportunity to understand what’s important to” DOC. During the negotiation meetings, Ms. Faulk also stated that DOC was looking for: the solutions that we [DOC] can deploy and hit the biggest, the most number of institutions and kind of spread our buck or your [vendor’s] buck essentially the furthest that we can. Because, you know, we have funding struggles like any other public entity. And so, we want to utilize [the ITN process] in the best way we can. Ms. Faulk provided that DOC was trying to find a “sweet spot,” a call rate that was “reasonable” for inmates’ family and friends that also provided the VAS that DOC wanted. The ITN was a “revenue-generating contract” for the vendor to provide DOC with VASs “in lieu of commissions.” See ITN, section 3.2 Value-Added Services. However that changed during the negotiation phase. During the third or fourth negotiating session, “a change to the terms laid out in the ITN” was provided. DOC coveted a $5 million commission paid on a yearly basis. Ms. Faulk testified that the reasons for this change dealt with the need to fill a revenue gap created when a different DOC contract expired. According to Ms. Faulk, DOC “wanted to ensure that we [DOC] did not reduce our [DOC] contribution to the general revenue.” All proceeds from telephone commissions are deposited into the State’s General Revenue Fund. See § 945.215(1)(b), Fla. Stat. Ms. Faulk further testified that the ITN was structured to allow for negotiation, and DOC was, at that point, “negotiating terms and conditions.” DOC reviewed available telephone industry pricing for other state correctional departments (including Florida’s current provider) and found rates vary from a low of $0.04 (DOC) for local per minute calls to $0.13 (Georgia Department of Corrections, GDOC) for local per minute calls; and from a low of $0.06 (Texas Department of Corrections, TDOC) for an interstate per minute call to $0.25 (California Department of Corrections, CDOC) for an interstate per minute call. The other states also included a funding fee or account set up fee ranging from CDOC’s $3.00 (for a one-time set up fee) and $0.99 for each “Advanced Pay One Call,” up to TDOC’s $5.95 to fund prepaid accounts, plus $2.00 per collect call. No direct comparison can be made from these other states as there are too many variables in play. The Federal Communications Commission (FCC) recently conducted a study that determined a “reasonable rate” to charge inmates for telephone usage was $0.21 per minute. During the negotiation stage, Securus suggested to DOC that it provide a specific fixed per-minute rate, as well as include a deposit fee, in an effort to level the playing field for all competing vendors. Further, Securus explored the multiple VASs options that DOC discussed during the negotiation sessions. On April 23, 2018, following completion of the multiple negotiation sessions with all the vendors, DOC issued a Request for Best and Final Offers (RBAFO) pursuant to section 4.9 of the ITN. The RBAFO directions had a specific reference to VASs. It provided: Value-added Services to include any additional ideas for improvement or cost reduction, additional commodities or additional services, which the Vendor will provide to the Department at no additional cost(s). These should be thoroughly detailed including an exact quantity, proposed implementation schedule, and maintenance, as applicable. The RBAFO also provided specific directions on the format for the BAFO response and required that detailed information be provided on a revised price information sheet (RPIS). The RPIS included: The Vendor shall provide their proposed monthly commission rates per the stated per minute rate and deposit fee. Value-added services should be included on a separate sheet, along with any price assumptions. Please note, these rates are the only fees to be charged to inmate friends and family and shall include any surcharges and connection fees. The RPIS also required the initial term and renewal term be stated. The RPIS also supplied: the per minute telephone rate for all calls at $0.135; the deposit fee of $0.9914/; and a monthly commission rate of “$ .” The RPIS then again instructed that “The Vendor should include all Value-added Services on a separate sheet.” The form also contained the appropriate lines for the date, Federal Identification Number, the vendor’s name, the vendor’s printed authorized representative’s name and his/her signature. On May 30, 2018, Securus, GTL, and CenturyLink submitted their BAFOs. GTL and CenturyLink each submitted one BAFO, while Securus initially submitted four BAFOs. The Team requested clarification from the vendors, and additional responses were submitted on June 25, 2018. GTL and CenturyLink each revised or submitted one BAFO, while Securus submitted an additional three BAFOs. Securus provided multiple scenarios as to how it could best accomplish DOC’s goals, using different telephone rates. GTL’s BAFO provided the required call rate, deposit fee, monthly commission, and VAS within the five-year initial contract period. Option 5 of Securus’ BAFOs, which was closest to the GTL BAFO, provided the required call rate, deposit fee, monthly commission, and VAS, but delivery was over a 10-year period as opposed to the five-year initial contract. The Team held a final meeting on November 21, 2018, to discuss the various BAFO proposals. Ultimately, the Team recommended GTL for the contract award. The Team’s recommendation memorandum provided the Team “felt that both Securus and GTL offered similar core inmate telecommunication services to inmates and the Department with a robust management system.” The difference, and the basis for the Team’s recommendation to award the contract to GTL, was grounded on GTL’s “offered commission rates and value-added services that would be implemented throughout the course of a five (5)-year initial contract term” as opposed to Securus’ proposal “over a 10-year initial contract term.” The remaining six options by Securus, offered the “five (5)-year contract term, [but] provided lower commission rates and less value-added services” to DOC. On December 11, 2018, DOC posted its Notice of Intent to Award the contract to GTL. Securus timely protested DOC’s selection of GTL. Securus’ protest focused on what it perceived to be VASs that were not related to inmate telecommunications services, specifically: hand-held walkie-talkies; a biometric entry/exit system for inmates, staff and visitors; and a radio frequency identification system (RFID). Securus failed to appreciate DOC’s stated goal: “Ensure the safety and security of staff, inmates and the public through the use of modern technology.” Each of these VASs falls within that goal. DOC maintained its goal of “reasonable and justifiable telephone call rates.” DOC failed to maintain its specific goal for establishing a contract that lowered, not raised, the cost of telecommunication services for inmates’ friends and family, but held fast to maximizing the benefits to DOC. Although contrary to the goal, DOC placed all vendors on notice of its intention to seek the desired VASs in relation to the telecommunication services.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a final order dismissing the protest by Securus. It is further recommended that the Department of Corrections award the contract under Invitation to Negotiate, ITN-17-122, to GTL. DONE AND ENTERED this 25th day of March, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2019.
The Issue The issue in this case is whether Respondent, Department of Corrections (“DOC” or the “Department”), engaged in discriminatory practices against Petitioner, Patrick Quercioli, on the basis of his disability; and, if so, what relief should be granted.
Findings Of Fact Petitioner is a 53-year-old Caucasian male. From approximately November 19, 2004, until August 4, 2016, Petitioner was employed by the Department as a Correctional Officer. He was promoted to the rank of Correctional Officer Sergeant on July 28, 2006. At all times relevant hereto, Petitioner was working at the Annex section of the Lowell Correctional Institution (“Lowell”) located in Marion County. Lowell is a maximum security prison for female inmates; it has an average daily count of approximately 2,800 prisoners. The Department is an agency of the State of Florida, created pursuant to section 20.315, Florida Statutes, and is responsible for, inter alia, hiring and monitoring all employees engaged in operations at a state prison. Petitioner was separated from his employment with DOC due to the fact that he could not “perform the essential functions of his job.” That determination was based on a report from Petitioner’s therapist, Mrs. Robinson, and her opinion that Petitioner could not effectively perform his duties in the presence of inmates. Inasmuch as all Correctional Officer Sergeant positions require contact with inmates, DOC terminated Petitioner’s employment. The facts leading to the ultimate termination of Petitioner’s employment are anything other than ordinary. A discussion of those facts follows. In October 2014, a female inmate at Lowell was found dead in her cell. Petitioner was named as a suspect in the death, despite the fact that at the time of death he was on vacation with his family, i.e., he was not working at the prison. Local and national news outlets began reporting about the death, and Petitioner was named numerous times as a suspect and possible participant. Apparently, Petitioner’s name had been provided to the inmate’s family prior to her death as someone who had been harassing her. Nonetheless, Petitioner’s character and reputation were impugned by the news stories. Petitioner was placed on administrative leave pending further review by the Department. Meanwhile, the Florida Department of Law Enforcement (“FDLE”) commenced its own extensive investigation into the death of the inmate. The investigation focused quite heavily on Petitioner and one other correctional officer, but FDLE ultimately concluded that there was no evidence to prove either of the men had taken part in the inmate’s death. The inmate’s death, in fact, was ruled to be from natural causes.1/ The FDLE investigation was concluded on January 21, 2015. The Department did not issue a particular statement concerning Petitioner’s vindication, nor did it publish a notice about the FDLE findings. Petitioner takes great umbrage at this perceived failure by DOC, but cited to no requirement that the Department do so. The Department acknowledges that it did not make any effort to make public the findings of the FDLE investigation. During the FDLE investigation and while Petitioner’s alleged involvement in the incident was being broadcast by the news services, Petitioner began receiving threats against his life and the lives of his family members. Who made such threats or why such threats may have been made was not made clear at final hearing. Whether it was family and friends of the inmate, concerned citizens who perceived Petitioner as some kind of monster, or someone else making the threats, Petitioner was concerned for his safety. He was especially worried for his daughter, who had been living part-time with Petitioner on a split schedule with his ex-wife. When the news stories began to appear, the ex-wife refused to allow the daughter to visit with Petitioner. While he wanted to see his child, Petitioner knew that it was better for her to stay away from him until the situation improved. As a result of the publicity, the threats, and the stress on him and his family, Petitioner developed PTSD. The Department approved Petitioner for participation in EAP on March 6, 2015. EAP paid for counseling sessions with Petitioner’s chosen therapist, Mrs. Robinson. Petitioner had about 12 sessions with Mrs. Robinson while he was covered by EAP. After his EAP coverage expired, Petitioner met with Mrs. Robinson for two more sessions paid for as part of his FMLA leave. Mrs. Robinson identified Petitioner’s condition at the beginning of their sessions as quite extreme. He suffered from nightmares, crippling fear, paranoia, and unwillingness to leave his home. He had dark circles under his eyes and was obviously distraught. Mrs. Robinson began to work with Petitioner to help him view his fears and concerns differently. She taught him to utilize mindfulness meditation techniques. He was shown how to perform activities of daily life without being reminded of the trauma he had experienced. The number of sessions he spent with Mrs. Robinson was not sufficient for her to fully address his needs, however. She was able to diagnose his PTSD and began treatment for that condition, but their relationship ended before she could do much for him. By the time her treatment of Petitioner was concluded, they were working toward Petitioner’s acceptance of some inmates in his workplace, as long as they were not “general population inmates.” Ms. Robinson reiterated that Petitioner should not work within the prison compound, i.e., within the perimeter, at this time. She believed that with further assistance, Petitioner may one day be able to do so. By letter dated March 13, 2015, Mrs. Robinson notified the Department that, concerning Petitioner, “It is recommended that he does not return to work until further notice due to the hostility he has faced from the public, his co-workers and other inmates that he would be responsible for which could trigger further de-compensation and contribute to greater emotional disturbance. Mr. Quercioli is open to learning positive coping skills for improved feelings management as well as the treatments necessary for recovering from PTSD.” For about three months, the Department attempted to determine whether Petitioner would be able to return to work as a Correctional Officer Sergeant. On June 9, 2015, DOC notified Petitioner that his FMLA leave had been exhausted and he needed to talk to his supervisor, Major Patterson, about when he could come back to work. Mr. Patterson contacted Petitioner and basically said he would need to come back to work at the Lowell Annex, i.e., return to his old job. Meanwhile, the Department, by letter dated June 16, 2015, asked Mrs. Robinson for her opinion regarding whether Petitioner could work as a Correctional Officer Sergeant. The parties to this matter characterize the tone of that letter quite differently. It is therefore quoted here in its entirety for the purpose of objectivity: Dear Mrs. Robinson: The above employee [Petitioner] is a Correctional Office Sergeant with the Florida Department of Corrections at Lowell Correctional Institution. Your opinion regarding Mr. Quercioli’s medical status while working in a potentially dangerous environment will assist management in their decision to retain Mr. Quercioli in his current position. In order for us to determine whether or not Mr. Quercioli can safely perform his duties as a Correctional Officer Sergeant, we request that you complete this questionnaire as to his ability to perform the duties and responsibilities of a Correctional Officer Sergeant to full capacity. Please bear in mind that Correctional Officer Sergeants must be able to work split, rotating or fixed shifts, weekends, holidays and overtime possibly without notice as required. Overtime may include double shifts and working on off duty days. In order to assist you in making this determination, I am enclosing a position description and a list of essential functions for the Correctional Officer Sergeant position held by Mr. Quercioli. Also, please bear in mind that Mr. Quercioli’s job does require that he be able to possess a firearm. Furthermore, he could at any time be placed in a situation where the use of physical force, including deadly force may be necessary, to control violent inmates or prevent imminent threat to life. We ask that you provide information regarding how Mr. Quercioli can treat and control his condition in a correctional environment. In addition, we need to know what precautionary measures are required to ensure his physical condition is not exacerbated when he is involved in a highly dangerous situation with inmates or volatile situations with supervisors and/or co-workers. In rendering your opinion, if you determine Mr. Quercioli can perform some duties but not others, please specify which duties cannot be performed and the reason why. Additionally, if there is anything that can be done to allow him to perform these duties, please provide this information. In the letter making this request, the Department included a job description and a brief questionnaire to be filled out by the therapist. The questionnaire asked, “After reviewing the position description of Correctional Officer Sergeant, can Mr. Quercioli perform the duties of a Correctional Officer Sergeant with no restrictions?” The questionnaire went on to ask for any reasons that the question was answered in the negative. Mrs. Robinson replied that “No,” Petitioner could not perform the duties without restrictions. She went on to say that, “With 100% supervision of inmates as his primary duties and his constellation of PTSD symptoms, Mr. Quercioli would be at risk of decompensation. A job with no inmate contact may be possible in the future.” Mrs. Robinson had previously, in response to a Medical Certification request from FCHR, listed a few alternative jobs that Petitioner may be able to do, including: “administration away from inmates; staff security away from general population inmates; key keeper or arsenal maintenance away from general population inmates.” The evidence is unclear as to whether the Department was aware of her suggestions regarding those potential jobs for Petitioner. At final hearing, Ms. Robison reiterated her concern about Petitioner being asked to work in an area where general population inmates might be present. Her testimony, in part, was as follows: Q: “[W]ould he have been able to perform the required functions of his employment position based on what you read in his personnel description, the essential functions of his position, had the department considered or approved any request for accommodations Mr. Quercioli made on the department? A: The current job description, position description for a sergeant as a correctional officer, he couldn’t do that job. Q: Could he do others? A: He could do other jobs and we were working towards limited, you know, his acceptance and, you know, with the cognitive behavioral therapy helps you think different about things and he was opening up to the idea that yes, there will be inmates around but they’re at a lower level of risk, and so he was open to that and for trying to work in a different position. * * * Q: So, earlier or a few moments ago when you said he couldn’t perform under [sic] the position of a correctional sergeant, that’s not a hundred percent accurate, correct? A: Right, that was the job description, that is what he was doing in general population, supervising inmates. He can’t supervise inmates and that has a hundred percent by it, supervision of male or female inmates. That what he -- the part of his job that he couldn’t do. Q: Uh-huh, but with an accommodation, he could do that? A: Yes. In another job, other than supervising his primary one hundred percent duties of supervising male or female inmates. Tr., pp. 48-50. Exactly what duties Petitioner could perform without difficulty is unclear. It is certain he could not supervise inmates 100 percent of the time. Whether he could work around inmates in an environment separated from the prison compound is not certain. Whether he could respond to an emergency situation inside the compound is extremely doubtful.2/ Petitioner’s attorney submitted a letter to DOC dated June 26, 2015. The letter requested accommodations that might make it possible for Petitioner to perform one or more jobs at Lowell. The letter suggested part-time or modified work schedules, job restructuring, and other possibilities. The letter also stated, in part, “Instead of requiring Sergeant Quercioli to once again re-live the nightmares arising from his previous duty in the Lowell Annex, the Department could instead assign him to a less stressful desk job.” DOC responded that a less stressful desk job is not a feasible accommodation because a person in that position would not be able to perform the essential duties of a Correctional Officer Sergeant. The attorney responded to the Department that his previous request for an accommodation was not meant to be limited to a “desk job” only; he meant to include any reasonable accommodations. Though the two conversants used different terminology, it is obvious they were both addressing alternative jobs that did not require Petitioner to work within the prison compound, whether that meant literally sitting at a desk or not. Petitioner intimated, but did not conclusively prove, that there were certain jobs in the administration offices, i.e., outside the compound, that he might be capable of filling. No evidence was presented concerning the exact nature of those jobs, the responsibilities attached thereto, or Petitioner’s qualifications to fill them. Following the exchange of letters between DOC and Petitioner (through his attorney), the Department notified Petitioner via letter dated July 9, 2015, that a “personnel action” was being contemplated by DOC which could result in his dismissal from employment. The basis for a personnel action was that Petitioner’s therapist said he was “currently unable to perform the duties of . . . a Correctional Officer Sergeant.” Petitioner was given the opportunity to attend a pre- determination conference with DOC personnel to provide oral or written statements in regards to the personnel action. A conference was held on July 23, 2015. The Department was represented by Warden Gordon and Colonel Edith Pride. A teamster representative, Michael Riley, accompanied Petitioner to the conference. Petitioner’s attorney, Mr. Bisbee, attended the conference via telephone. Petitioner did not bring his therapist, Ms. Robinson, to the meeting because “it never crossed my mind” that she should attend. At the conference, Petitioner reiterated his desire to return to work, but stated he would rather not interact with inmates, even though he believed he might be able do so. His belief was inconsistent with his therapist’s determination and contrary to his attorney’s representations. It is unclear whether DOC could have assigned Petitioner to a position that did not involve some contact with inmates. There were a few jobs mentioned that take place in the prison’s administration building, outside the perimeter. Some of the “trustee” type inmates working within the administration building may have been much less threatening to Petitioner than general population inmates. But because every Correctional Officer Sergeant is deemed to be on call to attend to disturbances within the prison compound, regardless of their job or workplace, Petitioner could be subject to having close contact with the general population inmates. Petitioner identified one specific job in administration that he thought he might be able to handle despite some inmate contact. That job, in the area of training, was filled by another Correctional Officer Sergeant. Petitioner did not ever formally apply for the job. Subsequent to the predetermination conference, the Department issued a letter to Petitioner advising him that “You will be dismissed from your position as a Correctional Officer Sergeant effective August 4, 2015.” The letter gave Petitioner the right to grieve the action or to appeal it to the Public Employees Relations Commission. Petitioner did not avail himself of either of those options. Instead, he filed a claim with FCHR, resulting ultimately in the present action. DOC based its decision to terminate Petitioner’s employment on the fact that his own therapist had opined that he could not perform the essential functions of a Correctional Officer Sergeant. That is because persons in that position–-no matter what duties they were performing--must be able at a moment’s notice to react personally to any emergency situation that may arise within the inmate population. A correctional officer working in the motor pool, for example, may have to drop what he is doing, pick up a firearm, and rush into the compound to quell a disturbance. A sergeant who is performing training for other officers may have to cease her training and immediately report to duty inside the compound to respond to inmate unrest. There is no job under the Correctional Officer Sergeant umbrella that is immune from contact with inmates at any given time. There was, in short, no reasonable accommodation the Department could offer Petitioner. Two pertinent quotes from the record explain concisely the basis of the Department’s position in this case: As a general rule, we don’t “accommodate” correctional officers because the accommodations requested generally include exemption from the essential functions. We provide alternate duty for those officers who are temporarily unable to perform the duties of their position because of a work related injury. However, while on alternate duty, they do not wear a uniform, nor do they perform the duties of a [Correctional Officer]. * * * Quercioli’s therapist, Beth Robinson, stated he was not able to perform the duties of his position, although a job with no inmate contact may be possible in the future. There are no correctional officer positions, regardless of rank, whose essential functions do not include dealing with inmates. Exhibit 4 to Petitioner Exhibit 1, email from Patricia Linn, human resources analyst. It is not unusual for employees to request so-called “accommodations” from DOC relating to their duties as correctional officers. Such requests may include exceptions to the dress code, a need for ergonomic chairs, leave extensions, parking space changes, alternate work schedules, and the like. Each request is reviewed on its own merits and some are granted, some are denied. In fact, Petitioner alluded to the fact that after the inmate death incident, he had been reassigned to alternate duties not having to do with inmate monitoring. His duties were related to assisting applicants for jobs at Lowell to fill out their applications. Petitioner intimated that he did not enjoy that position. Petitioner asserts that DOC made no effort to contact him to discuss possible accommodations. He did not cite to any existing policy or rule which would require the Department to do so, however. Further, Petitioner admitted that he did not attempt to initiate such conversations with the Department, either. Since losing his job at Lowell, Petitioner has been unable to obtain gainful employment. Of the scores of internet applications for employment (and one in-person interview), not a single position came to fruition. As a result, Petitioner cashed out his state retirement plan, using the money to pay bills and provide for his daughter’s needs. Petitioner presented no evidence in this case that persons with disabilities were treated any differently by the Department when they requested accommodations.
Recommendation RECOMMENDED that a final order be issued by the Florida Commission on Human Relations, determining that the Department of Corrections had legitimate cause for the dismissal of employment of Petitioner, Patrick Quercioli, and that there is no evidence of discrimination. DONE AND ENTERED this 16th day of May, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2017.
The Issue Whether Petitioner has presented clear and convincing evidence that he is of good moral character, and should be granted an exemption from employment disqualification, thereby allowing him to work in a position of special trust or responsibility pursuant to Section 435.07(3), Florida Statutes.
Findings Of Fact On April 25, 1995, the Orlando Police Department responded to an emergency call from Petitioner's residence. Petitioner was arrested and charged with domestic violence, aggravated assault and false imprisonment. The domestic violence and false imprisonment charges were subsequently dropped. Petitioner entered a plea of nolo contendere to the reduced misdemeanor charge of simple assault upon his wife, an act of domestic violence. On September 18, 1996, adjudication of guilt was withheld by the Orange County Circuit Court. Petitioner was given credit for 43 days time served in the Orange County Jail. He was also ordered to pay court costs. Petitioner was not placed on probation and was not ordered to attend domestic violence counseling. Petitioner disputes the narrative contained in the charging affidavit and claims that at no time did he threaten his wife, and that the firearm was present in the room only for cleaning, and was not displayed inappropriately. Petitioner's description of the events is not credible. Petitioner began work as a detention care worker at the Orange Regional Juvenile Detention Center in October 1995. The position required a level 2 background screening be conducted. On August 23, 1996, Petitioner submitted an affidavit of Good Moral Character which did not disclose his arrest or sentence. In August of 1996, a background screening request packet was submitted to the Background Screening Unit of Respondent's Inspector General's office. A preliminary FCIC/NCIC screening check conducted on Petitioner revealed that he had a disqualifying offense (assault on a spouse). His background screening received a rating of "Unfavorable Disqualifying." In a letter from Respondent dated August 7, 1997, Petitioner was notified that he had been disqualified and was, therefore, ineligible to work in a caretaker's position with Respondent. This disqualification was based upon the 1995 domestic assault charge. Petitioner is a 52-year-old Divinity School graduate and former church minister. Petitioner holds a Bachelor of Arts Degree from Bethune-Cookman College in Daytona Beach, and a Master of Divinity Degree from Morehouse School of Religion in Atlanta. Prior to commencing his employment with Respondent, Petitioner had successfully worked with juveniles for many years in a variety of capacities, to-wit: school teacher, counselor, youth group leader, civic leader, and minister. Petitioner received numerous awards and certificates documenting his involvement with and commitment to the welfare of his community and of juveniles in particular. After starting his work as a Detention Care Worker at the Orlando Regional Juvenile Detention Center, several Juvenile Detention Center workers in both supervisory and co-worker roles testified to the exceptional quality and caliber of Petitioner's work with juveniles. Since the alleged incident of domestic violence three years ago, no claim of any other alleged illegal conduct has been made against Petitioner.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request for exemption from disqualification for employment in a position of special trust be GRANTED. DONE AND ENTERED this 2nd day of June, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1998. COPIES FURNISHED: Timothy Terry, Esquire 1407 East Robinson Street Post Office Box 536914 Orlando, Florida 32801 Lynne Winston, Esquire Inspector General's Office 2737 Centerview Drive Tallahassee, Florida 32399 Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
