The Issue Whether the Department of Corrections? action to withdraw its Intent to Award and to reject all replies to ITN 12-DC-8396 is illegal, arbitrary, dishonest, or fraudulent, and if so, whether its Intent to Award is contrary to governing statutes, rules, policies, or the solicitation specifications.
Findings Of Fact The DOC is an agency of the State of Florida that is responsible for the supervisory and protective care, custody, and control of Florida?s inmate population. In carrying out this statutory responsibility, the Department provides access to inmate telephone services. On April 15, 2013, the DOC issued the ITN, entitled “Statewide Inmate Telephone Services, ITN 12-DC-8396,” seeking vendors to provide managed-access inmate telephone service to the DOC. Responses to the ITN were due to be opened on May 21, 2013. The DOC issued Addendum #1 to the ITN on April 23, 2013, revising one page of the ITN. The DOC issued Addendum #2 to the ITN on May 14, 2013, revising a number of pages of the ITN, and including answers to a number of vendor questions. EPSI, GTL, and Securus are providers of inmate telephone systems and services. Securus is the incumbent contractor, and has been providing the Department with services substantially similar to those solicited for over five years. No party filed a notice of protest to the terms, conditions, or specifications contained in the ITN or the Addenda within 72 hours of their posting or a formal written protest within 10 days thereafter. Replies to the ITN were received from EPSI, GTL, Securus, and Telmate, LLC. Telmate?s reply was determined to be not responsive to the ITN. Two-Part ITN As amended by Addendum #2, section 2.4 of the ITN, entitled “ITN Process,” provided that the Invitation to Negotiate process to select qualified vendors would consist of two distinct parts. In Part 1, an interested vendor was to submit a response that described certain Mandatory Responsiveness Requirement elements, as well as a Statement of Qualifications, Technical Response, and Financial Documentation. These responses would then be scored using established evaluation criteria and the scores would be combined with cost points assigned from submitted Cost Proposals. In Part 2, the Department was to select one or more qualified vendors for negotiations. After negotiations, the Department would request a Best and Final Offer from each vendor for final consideration prior to final award decision. The ITN provided that the Department could reject any and all responses at any time. High Commissions and Low Rates Section 2.5 of the ITN, entitled “Initial Cost Response,” provided in part: It is the Department?s intention, through the ITN process, to generate the highest percentage of revenue for the State, while ensuring a quality telephone service with reasonable and justifiable telephone call rate charges for inmate?s family and friends similar to those available to the public-at- large. Section 2.6 of the ITN, entitled “Revenue to be Paid to the Department,” provided in part that the Department intended to enter into a contract to provide inmate telephone service at no cost to the Department. It provided that, “[t]he successful Contractor shall pay to the Department a commission calculated as a percentage of gross revenues.”1/ The commission paid by a vendor is the single largest expense in the industry and is an important aspect of any bid. Contract Term Section 2.8 of the ITN was entitled “Contract Term” and provided: It is anticipated that the initial term of any Contract resulting from this ITN shall be for a five (5) year period. At its sole discretion, the Department may renew the Contract in accordance with Form PUR 1000 #26. The renewal shall be contingent, at a minimum, on satisfactory performance of the Contract by the Contractor as determined by the Department, and subject to the availability of funds. If the Department desires to renew the Contracts resulting from this ITN, it will provide written notice to the Contractor no later than thirty days prior to the Contract expiration date. Own Technology System Section 3.4 of the ITN provided in part: The successful Contractor is required to implement its own technology system to facilitate inmate telephone service. Due to the size and complexity of the anticipated system, the successful Contractor will be allowed a period of transition beginning on the date the contract is executed in which to install and implement the utilization of its own technology system. Transition, implementation and installation are limited to eighty (80) days. The Department realizes that some "down time" will occur during this transition, and Respondents shall propose an implementation plan that reduces this "down time" and allows for a smooth progression to the proposed ITS. GTL emphasizes the language stating that the successful contractor must implement “its own” technology system, and asserts that the technology system which EPSI offers to install is not owned by it, but by Inmate Calling Solutions, LLC (ICS), its subcontractor. However, EPSI demonstrated that while the inmate telephone platform, dubbed the “Enforcer System,” is owned by ICS now, that EPSI has a Master User Agreement with ICS and that an agreement has already been reached that before the contract would be entered into, a Statement of Work would be executed to create actual ownership in EPSI for purposes of the Florida contract. GTL alleges that in EPSI?s reply, EPSI relied upon the experience, qualifications, and resources of its affiliated entities in other areas as well. For example, GTL asserts that EPSI?s claim that it would be providing 83 percent of the manpower is false, since EPSI has acknowledged that EPSI is only a contracting subsidiary of CenturyLink, Inc., and that EPSI has no employees of its own. While it is clear that EPSI?s reply to the ITN relies upon the resources of its parent to carry out the terms of the contract with respect to experience, presence in the state, and personnel, EPSI demonstrated that this arrangement was common, and well understood by the Department. EPSI demonstrated that all required capabilities would be available to it through the resources of its parent and subcontractors at the time the contract was entered into, and that its reply was in conformance with the provisions of the ITN in all material respects. EPSI has the integrity and reliability to assure good faith performance of the contract. Call Recording Section 3.6 of the ITN, entitled “Inmate Telephone System Functionality (General),” provided in part: The system shall provide the capability to flag any individual telephone number in the inmate?s „Approved Number List? as „Do Not Record.? The default setting for each telephone number will be to record until flagged by Department personnel to the contrary. Securus alleges that section 3.6 of the ITN implements Department regulations2/ and that EPSI?s reply was non-responsive because it stated that recording of calls to specific telephone numbers would be deactivated regardless of who called that number. Securus alleges that this creates a security risk because other inmates calling the same number should still have their calls recorded. EPSI indicated in its reply to the ITN that it read, agreed, and would comply with section 3.6. While EPSI went on to say that this capability was not connected to an inmate?s PIN, the language of section 3.6 does not mention an inmate?s PIN either. Read literally, this section requires only the ability to “flag” any individual telephone number that appears in an inmate?s number list as “do not record” and requires that, by default, calls to a telephone number will be recorded until it is flagged. EPSI?s reply indicated it could meet this requirement. This provision says nothing about continuing to record calls to that same number from other inmates. Whether or not this creates a security risk or is what the Department actually desired are issues which might well be discussed as part of the negotiations, but this does not affect the responsiveness of EPSI?s reply to section 3.6. Furthermore, Mr. Cooper testified at hearing that EPSI does have the capability to mark a number as “do not record” only with respect to an individual inmate, at the option of the Department. EPSI?s reply conformed to the call-recording provisions of section 3.6 of the ITN in all material respects. Call Forwarding Section 3.6.8 of the ITN, entitled “System Restriction, Fraud Control and Notification Requirements,” provided that the provided inmate telephone services have the following security capability: Ability to immediately terminate a call if it detects that a called party?s telephone number is call forwarded to another telephone number. The system shall make a “notation” in the database on the inmate?s call. The system shall make this information available, in a report format, to designated department personnel. In response to an inquiry noting that, as worded, the ITN did not technically require a vendor to have the capability to detect call-forwarded calls in the first place, the Department responded that this functionality was required. Securus alleges that EPSI is unable to comply with this requirement, citing as evidence EPSI?s admission, made some months before in connection with an RFP being conducted by the Kansas Department of Corrections, that it did not yet have this capability. EPSI indicated in its reply to the ITN that it read, agreed, and would comply with this requirement. As for the Kansas solicitation, EPSI showed that it now possesses this capability, and has in fact installed it before. EPSI?s reply conformed to the call-forwarding provisions of section 3.6.8 of the ITN in all material respects. Keefe Commissary Network Section 5.2.1 of the ITN, entitled “Respondents? Business/Corporate Experience,” at paragraph e. directed each vendor to: [P]rovide and identify all entities of or related to the Respondent (including parent company and subsidiaries of the parent company; divisions or subdivisions of parent company or of Respondent), that have ever been convicted of fraud or of deceit or unlawful business dealings whether related to the services contemplated by this ITN or not, or entered into any type of settlement agreement concerning a business practice, including services contemplated by this ITN, in response to a civil or criminal action, or have been the subject of any complaint, action, investigation or suit involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. The Respondent shall identify the amount of any payments made as part of any settlement agreement, consent order or conviction. Attachment 6 to the ITN, setting forth Evaluation Criteria, similarly provided guidance regarding the assessment of points for Business/Corporate Experience. Paragraph 1.(f) provided: “If any entities of, or related to, the Respondent were convicted of fraud or of deceit or unlawful business dealings, what were the circumstances that led to the conviction and how was it resolved by the Respondent?” Addendum #2. to the ITN, which included questions and answers, also contained the following: Question 57: In Attachment 6, Article 1.f. regarding respondents “convicted of fraud, deceit, or unlawful business dealing . . .” does this include associated subcontractors proposed in this ITN? Answer 57: Yes, any subcontractors you intend to utilize on this project, would be considered an entity of and related to your firm. As a proposed subcontractor, ICS is an entity of, or related to, EPSI. There is no evidence to indicate that ICS has ever been convicted of fraud or of deceit or unlawful business dealings. There is no evidence to indicate that ICS has entered into any type of settlement agreement concerning a business practice in response to a civil or criminal action. There is no evidence to indicate that ICS has been the subject of any complaint, action, investigation, or suit involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. The only evidence at hearing as to convictions involved “two individuals from the Florida DOC” and “two individuals from a company called AIS, I think that?s American Institutional Services.” No evidence was presented that AIS was “an entity of or related to” EPSI. Conversely, there was no evidence that Keefe Commissary Network (KCN) or anyone employed by it was ever convicted of any crime. There was similarly no evidence that KCN entered into any type of settlement agreement concerning a business practice in response to civil or criminal action. It was shown that KCN “cooperated with the federal government in an investigation” that resulted in criminal convictions, and it is concluded that KCN was therefore itself a subject of an investigation involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. However, KCN is not an entity of, or related to, EPSI. KCN is not a parent company of EPSI, it is not a division, subdivision, or subsidiary of EPSI, and it is not a division, subdivision, or subsidiary of EPSI?s parent company, CenturyLink, Inc. EPSI?s reply conformed to the disclosure requirements of section 5.2.1, Attachment 6, and Addendum #2 of the ITN in all material respects. Phases of the ITN Section 6 describes nine phases of the ITN: Phase 1 – Public Opening and Review of Mandatory Responsiveness Requirements Phase 2 – Review of References and Other Bid Requirements Phase 3 – Evaluations of Statement of Qualifications, Technical Responses, and Managed Access Solutions3/ Phase 4 – CPA Review of Financial Documentation Phase 5 – Review of Initial Cost Sheets Phase 6 – Determination of Final Scores Phase 7 – Negotiations Phase 8 – Best and Final Offers from Respondents Phase 9 – Notice of Intended Decision Evaluation Criteria in the ITN As amended by Addendum #2, the ITN established scoring criteria to evaluate replies in three main categories: Statement of Qualifications (500 points); Technical Response (400 points); and Initial Cost Sheets (100 points). It also provided specific guidance for consideration of the commissions and rates shown on the Initial Cost Sheet that made up the pricing category. Section 6.1.5 of the ITN, entitled “Phase 5 – Review of Initial Cost Sheet,” provided in part: The Initial Cost Proposal with the highest commission (percentage of gross revenue) to be paid to the Department will be awarded 50 points. The price submitted in Table 1 for the Original Contract Term, and the subsequent renewal price pages for Table 1 will be averaged to determine the highest commission submitted. All other commission percentages will receive points according to the following formula: (X/N) x 50 = Z Where: X = Respondents proposed Commission Percentage to be Paid. N = highest Commission Percentage to be Paid of all responses submitted. Z = points awarded. * * * The Initial Cost Proposal with the lowest telephone rate charge will be awarded 50 points. The price submitted in Table 1 for the Original Contract Term, and the subsequent renewal price pages for Table 1 will be averaged to determine the highest commission submitted. All other cost responses will receive points according to the following formula: (N/X) x 50 = Z Where: N = lowest verified telephone rate charge of all responses submitted. X = Respondent?s proposed lowest telephone rate charge. Z = points awarded. The ITN as amended by Addendum #2 provided instructions that initial costs should be submitted with the most favorable terms the Respondent could offer and that final percentages and rates would be determined through the negotiation process. It included the following chart:4/ COST PROPOSAL INITIAL Contract Term 5 years ONE Year Renewal TWO Year Renewal THREE Year Renewal FOUR Year Renewal FIVE Year Renewal Initial Department Commission % Rate Proposed Initial Blended Telephone Rate for All Calls* (inclusive of surcharges) The ITN, including its Addenda, did not specify selection criteria upon which the determination of best value to the state would be based. Allegation that EPSI Reply was Misleading On the Certification/Attestation Page, each vendor was required to certify that the information contained in its reply was true and sufficiently complete so as not to be misleading. While portions of its reply might have provided more detail, EPSI did not mislead the Department regarding its legal structure, affiliations, and subcontractors, or misrepresent what entity would be providing technology or services if EPSI was awarded the contract. EPSI?s reply explained that EPSI was a wholly owned corporate subsidiary of CenturyLink, Inc., and described many aspects of the contract that would be performed using resources of its parent, as well as aspects that would be performed through ICS as its subcontractor. Department Evaluation of Initial Replies The information on the Cost Proposal table was reviewed and scored by Ms. Hussey, who had been appointed as the procurement manager for the ITN. Attempting to follow the instructions provided in section 6.1.5, she added together the six numbers found in the boxes indicating commission percentages on the Cost Proposal sheets. One of these boxes contained the commission percentage for the original five-year contract term and each of the other five boxes contained the commission percentage for one of the five renewal years. She then divided this sum by six, the number of boxes in the computation chart (“divide by six”). In other words, she calculated the arithmetic mean of the six numbers provided in each proposal. The Department had not intended for the commission percentages to be averaged in this manner. Instead, they had intended that a weighted mean would be calculated. That is, they intended that five times the commission percentage shown for the initial contract term would be added to the commission percentages for the five renewal years, with that sum then being divided by ten, the total number of years (“divide by ten”). The Department did not clearly express this intent in section 6.1.5. Mr. Viefhaus testified that based upon the language, Securus believed that in Phase 5 the Department would compute the average commission rate the way that Ms. Hussey actually did it, taking the arithmetic mean of the six commission percentages provided by each vendor, and that therefore Securus prepared its submission with that calculation in mind.5/ Mr. Montanaro testified that based upon the language, GTL believed that in Phase 5 the Department would “divide by ten,” that is, compute the weighted mean covering the ten-year period of the contract, and that GTL filled out its Cost Proposal table based upon that understanding. The DOC posted a notice of its intent to negotiate with GTL, Securus, and EPSI on June 3, 2013. Telmate, LLC, was not chosen for negotiations.6/ Following the Notice of Intent to Negotiate was this statement in bold print: Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. On June 14, 2013, the DOC issued a Request for Best and Final Offers (RBAFO), directing that Best and Final Offers (BAFO) be provided to the DOC by June 18, 2013. Location-Based Services The RBAFO included location-based services of called cell phones as an additional negotiated service, requesting a narrative description of the service that could be provided. The capability to provide location-based services had not been part of the original ITN, but discussions took place as part of the negotiations. Securus contends that EPSI was not a responsible vendor because it misrepresented its ability to provide such location-based services through 3Cinteractive, Inc. (3Ci). EPSI demonstrated that it had indicated to the Department during negotiations that it did not have the capability at that time, but that the capability could easily be added. EPSI showed that due to an earlier call it received from 3Ci, it believed that 3Ci would be able to provide location- based services to it. EPSI was also talking at this time to another company, CTI, which could also provide it that capability. In its BAFO, EPSI indicated it could provide these services, explained that they would require payments to a third- party provider, and showed a corresponding financial change to their offer. No competent evidence showed whether or not 3Ci was actually able to provide that service on behalf of EPSI, either at the time the BAFO was submitted, or earlier. EPSI showed that it believed 3Ci was available to provide that service, however, and there is no basis to conclude that EPSI in any way misrepresented its ability to provide location-based services during negotiations or in its BAFO. Language of the RBAFO The RBAFO provided in part: This RBAFO contains Pricing, Additional Negotiated Services, and Value Added Services as discussed during negotiation and outlined below. The other specifications of the original ITN, unless modified in the RBAFO, remain in effect. Respondents are cautioned to clearly read the entire RBAFO for all revisions and changes to the original ITN and any addenda to specifications, which are incorporated herein and made a part of this RBAFO document. Unless otherwise modified in this Request for Best and Final Offer, the initial requirements as set forth in the Department?s Invitation to Negotiate document and any addenda issued thereto have not been revised and remain as previously indicated. Additionally, to the extent that portions of the ITN have not been revised or changed, the previous reply/initial reply provided to the Department will remain in effect. These two introductory paragraphs of the RBAFO were confusing. It was not clear on the face of the RBAFO whether “other specifications” excluded only the pricing information to be supplied or also the specifications indicating how that pricing information would be calculated or evaluated. It was not clear whether “other specifications” were the same thing as “initial requirements” which had not been revised. It was not clear whether scoring procedures constituted “specifications.” While it was clear that, to the extent not revised or changed by the RBAFO, initial replies that had been submitted -- including Statements of Qualifications, Technical Response, Financial Documentation, and Cost Proposals -- would “remain in effect,” it was not clear how, if at all, these would be considered in determining the best value to the State. In the RBAFO under the heading “PRICING,” vendors were instructed to provide their BAFO for rates on a provided Cost Proposal table which was virtually identical to the table that had been provided earlier in the ITN for the evaluation stage, including a single square within which to indicate a commission rate for the initial five-year contract term, and five squares within which to indicate commission rates for each of five renewal years. The RBAFO stated that the Department was seeking pricing that would provide the “best value to the state.” It included a list of 11 additional services that had been addressed in negotiations and stated that, “in order to provide the best value to the state,” the Department reserved the right to accept or reject any or all of these additional services. It provided that after BAFOs were received, the Negotiation Team would prepare a summary of the negotiations and make a recommendation as to which vendor would provide the “best value to the state.” The RBAFO did not specify selection criteria upon which the determination of best value to the State would be based. In considering commission percentages as part of their determination as to which vendor would receive the contract, the Negotiation Team decided not to consider commissions that had been listed by vendors for the renewal years, concluding that the original five-year contract term was all that was assured, since renewals might or might not occur. On June 25, 2013, the DOC posted its Notice of Agency Decision stating its intent to award a contract to EPSI. Protests and the Decision to Reject All Replies Subsequent to timely filing notices of intent to protest the intended award, Securus and GTL filed Formal Written Protests with the DOC on July 5 and 8, 2013, respectively. The Department considered and compared the protests. It determined that language in the ITN directing that in Phase 5 the highest commission would be determined by averaging the price for the original contract term with the prices for the renewal years was ambiguous and flawed. It determined that use of a table with six squares as the initial cost sheet was a mistake. The Department determined that the language and structure of the RBAFO could be read one way to say that the Department would use the same methodology to evaluate the pricing in the negotiation stage as had been used to evaluate the Initial Cost sheets in Phase 5, or could be read another way to mean that BAFO pricing would not be evaluated that way. It determined that the inclusion in the RBAFO of a table virtually identical to the one used as the initial cost sheet was a mistake. The Department determined that the language and the structure of the RBAFO could be read one way to require further consideration of such factors as the Statement of Qualifications and Technical Response in determining best value to the State, or could be read another way to require no further consideration of these factors. The Department prepared some spreadsheets demonstrating the varying results that would be obtained using “divide by six” and “divide by ten” and also considered a spreadsheet that had been prepared by Securus. The Department considered that its own Contract Manager had interpreted the Phase 5 instructions to mean “divide by six,” while the Department had actually intended the instructions to mean “divide by ten.” The Department had intended that the Negotiation Team give some weight to the renewal-year pricing, and had included the pricing table in the RBAFO for that reason, not simply to comply with statutory requirements regarding renewal pricing. The Department determined that the way the RBAFO was written and the inclusion of the chart required at least some consideration of ten-year pricing, and that vendors had therefore been misled when the Negotiation Team gave no consideration to the commission percentages for the renewal years. Specifically, based upon the Securus protest, the Department determined that the RBAFO language had been interpreted by Securus to require that the Phase 5 calculation of average commission percentage be carried over to evaluation of the pricing in the BAFOs, which Securus had concluded meant “divide by six.” The Department further determined that based upon the GTL protest, the RBAFO language had been interpreted by GTL to require the Department to consider the renewal years in pricing, as well as such things as the Statement of Qualifications and Technical Response in the BAFO stage. The Department determined that had “divide by six” been used in evaluating the BAFOs, Securus would have a computed percentage of 70 percent, higher than any other vendor. The Department concluded that the wording and structure of the ITN and RBAFO did not create a level playing field to evaluate replies because they were confusing and ambiguous and were not understood by everyone in the same way. Vendors naturally had structured their replies to maximize their chances of being awarded the contract based upon their understanding of how the replies would be evaluated. The Department concluded that vendor pricing might have been different but for the misleading language and structure of the ITN and RBAFO. The Department did not compute what the final award would have been had it applied the scoring procedures for the initial cost sheets set forth in section 6.1.5 to the cost elements of the BAFOs. The Department did not compute what the final award would have been had it applied the scoring procedures for the Statement of Qualifications and Technical Response set forth in section 6.1.3 to the BAFOs. Ms. Bailey testified that while she had originally approved the ITN, she was unaware of any problems, and that it was only later, after the protests to the Notice of Intended Award had been filed and she had reviewed the specifications again, that she had come to the conclusion that the ITN and RBAFO were flawed. Following the protests of the intended award by GTL and Securus, on July 23, 2013, the DOC posted to the Vendor Bid System a Notice of Revised Agency Decision stating the DOC?s intent to reject all replies and reissue the ITN. On August 5, 2013, EPSI, GTL, and Securus filed formal written protests challenging DOC?s intended decision to reject all replies. Securus subsequently withdrew its protest to DOC?s rejection of all replies. As the vendor initially notified that it would receive the contract, EPSI?s substantial interests were affected by the Department's subsequent decision to reject all replies. GTL alleged the contract had wrongly been awarded to EPSI and that it should have received the award, and its substantial interests were affected by the Department's subsequent decision to reject all replies. The Department did not act arbitrarily in its decision to reject all replies. The Department did not act illegally, dishonestly, or fraudulently in its decision to reject all replies. EPSI would likely be harmed in any re-solicitation of bids relative to its position in the first ITN, because potential competitors would have detailed information about EPSI?s earlier reply that was unavailable to them during the first ITN. An ITN requires a great deal of work by the Department and creates a big demand on Department resources. The decision to reject all replies was not undertaken lightly. The State of Florida would likely benefit in any new competitive solicitation7/ because all vendors would be aware of the replies that had been submitted earlier in response to the ITN, and bidders would likely try to improve upon those proposals to improve their chances of being awarded the contract.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Corrections issue a final order finding that the rejection of all replies submitted in response to ITN 12-DC-8396 was not illegal, arbitrary, dishonest, or fraudulent, and dismissing all four protests. DONE AND ENTERED this 1st day of November, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 1st day of November, 2013.
The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (Department), is the state agency charged with the duty and responsibility of regulating the practice of contracting and electrical contracting pursuant to Chapters 20, 455, and 489, Florida Statutes. At all times material to the allegations of the Administrative Complaints, Lamar "Marty" Campbell was not licensed nor had he ever been licensed to engage in contracting as a State Registered or State Certified Contractor in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. Mr. Campbell readily acknowledges that he has not had training or education in construction or contracting and has never held any licenses related to any type of construction or contracting. At all times material to the allegations of the Administrative Complaints, Johnston Handyman Services did not hold a Certificate of Authority as a Contractor Qualified Business in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. Respondent, Lamar Campbell, resides in Gulf Breeze, Florida. After Hurricane Ivan, he and his roommate took in Jeff Johnston, who then resided in Mr. Campbell's home at all times material to this case. Mr. Johnston performed some handywork in Respondent's home. Mr. Johnston did not have a car, a bank account, or an ID. Mr. Campbell drove Mr. Johnston wherever he needed to go. At some point in time, Mr. Campbell drove Mr. Johnston to obtain a handyman's license in Santa Rosa County. Mr. Campbell did not apply for the license with Mr. Johnston and Mr. Campbell's name does not appear on this license. The license is in the name of Johnston's Handyman Services. Mr. Campbell is a neighbor of Kenneth and Tracy Cauley. In the summer of 2005, which was during the period of time when Mr. Johnston resided in Mr. Campbell's home, the Cauleys desired to have repairs done on their home to their hall bathroom, master bathroom, kitchen and laundry room. With the help of Mr. Campbell and others, Mr. Johnston prepared various lists of repairs that the Cauleys wanted performed on their home. In August 2005, Mr. Johnson and Mr. Campbell went to the Cauley's home and the proposed repairs were discussed with the Cauleys. There are documents in evidence dated August and October, 2005, which the Cauleys perceive to be contracts for the repairs to be done in their home. However, these documents are not contracts but are estimates, itemizing both materials and labor. The documents have the word "Estimate" in large bold type at the top and "Johnston Handyman Services" also at the top of the pages. The list of itemized materials includes electrical items, e.g., light fixtures and wiring. Also in evidence are documents dated August and October, 2005, with the word "Invoice" in large bold letters and "Johnston Handyman Services" at the top of the pages. Both Mr. and Mrs. Cauley acknowledge that Mr. Johnston performed the vast majority of the work on their home. However, at Mr. Johnston's request, Mr. Campbell did assist Mr. Johnston in working on the Cauley residence. Between August 5, 2005, and October 11, 2005, Mrs. Cauley wrote several checks totaling $24,861.53. Each check was written out to Marty Campbell or Lamar Campbell.1/ Mr. Campbell acknowledges endorsing these checks but asserts that he cashed them on behalf of Mr. Johnston, who did not have a bank account or identification, and turned the cash proceeds over to Mr. Johnston. Further, Mr. Campbell insists that he did not keep any of these proceeds. The undersigned finds Mr. Campbell's testimony in this regard to be credible. Work on the project ceased before it was finished and Mr. Johnston left the area. Apparently, he cannot be located. The total investigative costs, excluding costs associated with any attorney's time, was $419.55 regarding the allegations relating to Case No. 06-2764, and $151.25 regarding the allegations relating to case No. 06-3171, for a total of $570.80.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Business and Professional Regulation enter a final order imposing a fine of $1,000 for a violation of Section 489.127(1), Florida Statutes; imposing a fine of $500 for a violation of Section 489.531(1), Florida Statutes, and requiring Respondent, Lamar Campbell, to pay $570.80 in costs of investigation and prosecution. DONE AND ENTERED this 9th day of March, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 9th day of March, 2006.
The Issue The issues presented for decision in this case are: 1) whether DEM’s proposed award of the contract pursuant to Request for Proposals, DEM 06/07-10 “Emergency Notification System Pilot Program” (RFP) to NTI is contrary to DEM’s governing statutes, rules, policies or the solicitation specifications; 2) whether DEM’s failure to reject Roam’s proposal as non-responsive is contrary to DEM’s governing statutes, rules, policies or the solicitation specifications; 3) whether DEM’s failure to disqualify Roam from consideration of a contract award because of Roam’s contact with DEM during the no contact period is contrary to DEM’s governing statutes, rules, policies or the solicitation specifications; 4) whether DEM’s failure to reject NTI’s proposal as non-responsive for failure to include pricing information beyond the seven month pilot period is contrary to DEM’s governing statutes, rules, policies or the solicitation specifications; 5) whether NTI has violated Section 287.075, Florida Statutes, and is ineligible for an award of the contract; and 6) whether pursuant to Section 120.57(3), Florida Statutes, a de novo proceeding to determine whether DEM’s action deeming Roam’s proposal responsive to the RFP by virtue of scoring that RFP is contrary to DEM’s governing statutes, its rules or policies or the solicitation specifications.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of the proceeding, including the Joint Pre-Hearing Stipulation of the parties, the following findings of fact are made: DEM issued a Request for Proposals, entitled DEM 06/07- 10 “Emergency Notification System Pilot Program” (“RFP”) on September 18, 2007, for the purpose of implementing an emergency notification pilot program in Brevard, Pasco, Polk and Orange counties which would deploy unlimited complete, time-sensitive notices to warn citizens, local emergency management entities and state and regional entities against disasters. The deployed system was required to send voice calls to landlines and cell phones; text to cell phones and email accounts; and messages to TTY/TDD receiving devices for the hearing impaired. The pilot program was to be funded through “Specific Appropriation 1621W” for two million dollars in non-recurring funds from the Emergency Management Preparedness and Assistance Trust Fund. The pilot program was to last seven months beginning on December 1, 2007, and ending June 30, 2008. The RFP did not request pricing for the pilot program to extend beyond June 30, 2008. The RFP set forth certain mandatory requirements that could not be waived as minor irregularities by DEM. Specifically, the Evaluation Criteria section of the RFP stated in pertinent part: “A non-responsive proposal shall include, but not be limited to, those that: i) are irregular or are not in conformance with the requirements and instructions contained herein . . .; iii) fail to utilize or complete prescribed forms; iv) are conditional proposals . . .; vi) propose a project that . . . will require additional funding to implement . . .” The RFP further stated with emphasis: “THE RESPONSIVENESS OF A PROPOSAL SHALL BE DETERMINED BASED UPON THE DOCUMENTS SUBMITTED WITH THE PROPOSAL. A NON-RESPONSIVE PROPOSAL WILL NOT BE CONSIDERED.” The RFP further explained: DEM may waive minor irregularities in the proposals received where such are merely a matter of form and not substance, and the corrections of such ARE NOT PREJUDICIAL to other respondents. Variations which are not minor shall not be waived. (Emphasis in original.) The RFP mandated that all proposals comply with the language in the legislative appropriation for the project, which stated as follows: From the funds in Specific Appropriation 1621W, $2,000,000 in non-recurring funds in the Emergency Management Preparedness and Assistance Trust Fund shall be used to implement a pilot program in Brevard, Pasco, Polk and Orange counties for the purpose of deploying unlimited complete, time-sensitive notices quickly and easily to citizens, local emergency management entities, and state and regional entities to warn against disasters and provide community outreach and education notifications. The deployed service should be able to send voice calls to landlines and cell phones; text to cell phones and email accounts; and TTY/TDD receiving devices for the hearing impaired. The RFP further stated in the Scope of Work section: This Pilot Program is subject to Legislative appropriation and as such, all annual subscriber costs and maintenance fees for the life of the project must be anticipated by the responsive bidder when calculating proposal, and will not be billable upon implementation as a separate charge to the State, Counties, or individuals participating in this program. Id. at 25. (Underlining in original.) RFP. DEM proposed to award a “fixed fee contract” under the Respondents were allowed to submit written questions regarding the RFP to DEM in letter or email form on or before October 1, 2007. According to the RFP, Respondents were not permitted to contact DEM between the advertisement of the RFP on September 18, 2007, until the end of the 72-hour period following the agency posting of the notice of the intent to award, except to submit questions regarding the RFP in written form on or before October 1, 2007. The closing date for submission of proposals in response to the RFP was October 9, 2007. Eleven proposals were submitted, with two being rejected upon opening as non- responsive for failure to meet form requirements. Each of the nine remaining proposals was reviewed by the evaluation committee. Of the nine proposals scored, only the proposal submitted by NTI offered unlimited voice and text messages at a fixed price.1 Although the RFP required an unlimited, fixed- price system, and the evaluation committee could not determine what would be the ultimate price to the state for proposals that did not offer a fixed price, the evaluation committee scored all nine proposals, regardless of whether they offered unlimited messages for a fixed price. The evaluation committee did not make a determination of whether the nine remaining proposals were responsive to the RFP, but rather chose to evaluate all proposals, regardless of whether the vendor offered unlimited minutes for a fixed price, so that they “could evaluate all potential technologies” in making a recommendation of what system would be of most benefit to the state. The evaluation committee, however, was unable to perform an “apples-to-apples” comparison of the proposals because they did not all offer unlimited voice and text minutes for a fixed price. Many proposals such as the one submitted by Roam, offered a set number of voice and text minutes at a fixed price, and then offered additional voice and text minutes at a per minute rate above the base price. Although the Roam system had the ability to provide unlimited voice and text messages, Roam did not give the state a firm price for such unlimited usage. Thus, there was no way DEM could determine the ultimate cost to the state of Roam’s system. Since the evaluation committee could not compare pricing proposals among vendors simply by looking at the proposals, the committee decided to compare systems by applying a minimum level of usage to all proposals that did not offer unlimited voice and text minutes to arrive at an estimate of what DEM might spend on testing any given system. This usage assumption by DEM regarding a number of voice minutes and text messages for testing the system is because many vendors, including Roam, did not follow the instructions of the RFP and failed to submit a fixed price for unlimited messages. Had all vendors submitted fixed price unlimited proposals, as required under the RFP, DEM would not have had to engage in estimating how many voice and text minutes it would use to test the system under the pilot program and would not have adjusted vendors’ proposed prices. DEM made a minimum estimate of three million messages to be sent via voice and three million messages to be sent via text over the course of the pilot period simply to test the system. This figure was based on three messages being sent to an estimated one million households in the pilot area. DEM evaluators admitted, however, that there was really no way to tell how many messages would be used in the pilot program and that the actual number could easily exceed the three million message estimate. DEM tests each of its systems at least monthly. Notably, DEM’s estimates did not take into account actual usage of the system apart from testing. As established by testimony at the final hearing, during just one weather event, it is possible that the number of messages offered in Roam’s base proposal would be exceeded and the state would incur additional costs. Roam’s proposal offered 300,000 voice minutes included in its base price. Based on DEM’s minimum usage estimate, the Evaluation Committee added $135,000 to Roam’s proposal for the additional 2,700,000 minutes at five cents per minute to reach an estimated price for voice minutes. Roam admits that DEM has the right to project any number of voice minutes for use in the pilot program and does not contest that DEM could use the three million estimate if applied evenly to all proposals. Roam’s proposal also offered 300,000 “Enhanced SMS” text messages as included in its base price, and indicated that additional messages were available at a rate of five cents per message, “if necessary.” Although Roam’s proposal stated that DEM would only be charged for additional messages over the base 300,000 if the messages did not go through Roam’s free gateway and an aggregator were used, the necessity for usage of such an aggregator is unclear. The evaluation committee could not determine from Roam’s proposal how many messages would go through the free gateway and how many would be charged at five cents per message. DEM was under no obligation to seek clarification from Roam regarding its proposal, and was not allowed to consider any additional information outside of Roam’s proposal in making its award decision. NTI met the RFP’s requirements for unlimited minutes for unlimited voice and text messages at a fixed price. Because NTI’s proposal provided for unlimited voice and text messages, DEM did not add any additional amounts to NTI’s cost proposal. In addition to cost adjustments for voice and text messages, DEM also added an additional $100,000 to the price of Roam’s proposal for implementation of a system in Orange County. Roam asserts in its formal written protest that the reason it did not allocate funds for deployment in Orange County was because “Orange County is an existing fully deployed customer, and that, as a result, implementation of the pilot project in that county presents an opportunity for cost savings.” Although Roam’s proposal stated that there was an existing system in Orange County, this system is owned by Orange County, not by Roam. Roam’s proposal gave no indication whether Orange County had given approval for use of its system in the pilot program. Additionally, DEM could not determine from Roam’s proposal whether the state would incur additional charges for use of Orange County’s system. Roam has nothing in writing from Orange County confirming that the state could use that system in the pilot program without charge. Roam further admits that the Orange County system is currently only set up to provide text notifications. As a result of the cost adjustments made to Roam’s base proposal of $300,000.00 for additional voice and text messages and for deployment of the system in Orange County, DEM assigned Roam’s proposal a cost of $670,000.00. Since NTI had offered unlimited voice and text messages at a fixed price in its proposal, DEM did not need to make any adjustments to its cost proposal of $583,333.00. The RFP required that vendors provide a cost for implementing and operating the proposed system for the seven- month pilot period and that vendors supply a cost analysis referring to cost categories as set forth on page 27 of the RFP. NTI’s proposal provided all cost information required by the RFP. There is no indication that vendors were to provide cost information for any period beyond the seven-month pilot period. Evaluation committee members testified that they only evaluated cost effectiveness of a proposal for the pilot period as was required under the RFP. Roam’s proposal also did not offer pricing beyond the pilot period. Roam’s representative, Richard Tiene, violated the requirement that a vendor not contact the agency during the period of “no contact” as set forth in the RFP. The general prohibition on contact between vendors and the agency issuing a procurement is stated in Section 287.057(24), Florida Statutes, and set forth in the RFP is as follows: No Contact Period: Respondents to this solicitation or persons acting on their behalf may not contact, between the release of the solicitation and the end of the 72- hour period following the agency posting the notice of intended award, excluding Saturdays, Sundays, and state holidays, any employee or officer of the executive or legislative branch concerning any aspect of this solicitation, except in writing to the procurement officer or as provided in the solicitation documents. Violation of this provision may be grounds for rejecting a response. Since the RFP was released on September 18, 2007, and the notice of intended award posted on October 17, 2007, the period of no contact between vendors and the agency began on September 18, 2007, and extended through October 20, 2007. The only exception to the general prohibition on contact with the agency during the “no contact” period was that vendors were permitted to send questions in writing to the chair of the evaluation committee, Charles Hagan, relating to the procurement through October 1, 2007. Specifically, vendors were instructed by the RFP as follows: No verbal inquiries will be accepted. Written questions from prospective contractors will be accepted in letter form or by email by the contact person through the date specified above under Proposal Solicitation Schedule/Timetable (refer to Deadline for Submission of Written Inquiries). Responses to written questions timely received by the contact person will be posted as an Addendum to this RFP on the DMS Vendor Bid System website on or before the date specified above under Proposal Solicitation Schedule/Timetable (refer to Deadline for Posting an Addendum on the DMS Vendor Bid System). (Underlining in original.) On October 17, 2007, Roam’s representative, Richard Tiene, telephoned evaluation committee chair, Charles Hagan, on his cell phone after business hours to make inquiries regarding the RFP. Mr. Hagan advised Mr. Tiene that he could not speak with him and advised him to put anything he had to say in writing. On October 18, 2007, Mr. Tiene again contacted Mr. Hagan by sending him an email attempting to persuade the evaluation committee to select Roam’s proposal over NTI’s. The phone call and email to Mr. Hagan were both within 72 hours of DEM's posting its notice of intent to award the contract under the RFP to NTI on October 17, 2007. Roam asserts that NTI should be disqualified for bid award because NTI participated in the drafting of the RFP through involvement in creating the language for Specific Appropriation 1621W that was incorporated by DEM in the RFP. No proof establishes any request by NTI that the appropriations language be included in the RFP, and this assertion by Roam is not credited. The only recorded evidence regards NTI’s participation in the appropriations process and establishes that NTI’s representative simply requested to review the appropriations language prior to submission to the Legislature and Governor for approval. NTI’s substantial interests are affected by Roam’s attempt to overturn DEM’s intended award of the contract under the RFP to NTI.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended the Division of Emergency Management award the contract under Request for Proposals, DEM 06/07-10 “Emergency Notification System Pilot Program” to the NTI Group, Inc. DONE AND ENTERED this 23rd day of April, 2008, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 2008.
The Issue The primary issue for determination is whether the bid of Intervenor, in response to Respondent's invitation to bid, is non-responsive. Secondary issues to be resolved include Petitioner's legal standing to protest all recommended awards to Intervenor in all the bid's categories where intervenor was deemed the successful bidder; whether Intervenor is an operational division of a corporation authorized to conduct business within the State of Florida; whether Intervenor satisfied bid requirements for submission of a valid manufacturer's certificate; and whether intervenor satisfied bid requirements involving identification of a service coordinator and provision of a list of service representatives in the State of Florida for the computer equipment which is the subject of the bid.
Findings Of Fact Respondent issued an Invitation To Bid (ITB) for microcomputers, Bid No. 129-250-040-B, on February 19, 1990. The ITB was revised by a March 22, 1990 addendum which established April 9, 1990, as the date for opening bid responses with bid tabulations to be posted on May 7, 1990. The purpose of the ITB was to establish a twenty-four (24) month contract for the purchase of microcomputers and equipment by all State of Florida agencies and other eligible users. Political subdivisions of the State of Florida, as well as state universities, could exercise the option of purchasing from the contract, if they so desired. The ITB invited bids in several categories of microcomputer equipment. Petitioner's timely filed written protestaddresses 17 of those categories where Intervenor was determined by Respondent to be the successful bidder. Those categories are numbered 255, 256, 257, 258, 259, 260, 266, 267, 268, 269, 271, 272, 273, 275, 276, 277, and 278. However, the bid tabulation posted by Respondent on May 7, 1990, establishes that Petitioner was the next lowest bidder in only four of the 17 categories. Those four categories are 266, 267, 268, and 269. In accordance with Paragraph 13 of the ITB general conditions, all corporations responding to the ITB were required to be registered with the Florida Department of State and authorized to transact business in the state in accordance with requirements of Chapter 607, Florida Statutes. Further, such bidders were required to insert their corporate charter number, resulting from that registration, in the appropriate space in the bidder acknowledgement form provided by Respondent for inclusion in responses to the ITB. Intervenor provided the Department of State Corporate Charter No. 822327 in the bidder acknowledgement form submitted with its response to the ITB. That charter number is assigned by the Department of State to VGC Corporation d/b/a VGC Corporation of Delaware, a corporation organized under laws of Delaware and authorized to transact business in the State of Florida since 1969. Intervenor mistakenly listed, in its bid, the federal employment identification (FEID) number of another subsidiary corporation of VGC Corporation (VGC). The FEID number submitted by intervenor was that of Graphic Arts Supply, Inc., (GAS), acquired by VGC in December of 1986. GAS became a wholly owned subsidiary of VGC at that time and remains such at the present time. At the time of its acquisition, there existed within GAS a particular segment of that business which dealt primarily with computer products. This computer segment of GAS was set up by VGC as a separate division of the parent corporation in November, 1988. The formation of the new division within VGC was announced at that time by the VGC president in an interoffice memorandum which stated in pertinent part: The Computer Products Group of Graphic Arts Supply has grown significantly in the last several years, accounting for approximately 10% of the total corporation's sales. The growth opportunities in this area are enormous and our long term goal is to become one of the major material distributors of computer products in the United States. Accordingly, I am pleased to announce that we will make this operation a separate division, reporting to Tom Mclaughlin. At the time of the issuance of the November 1988 interoffice memorandum, Tom Mclaughlin was a vice-president and subsidiary manager of VGC corporation. Another individual, Pat Mclaughlin, was a VGC vice-president and general manager of the new division, the intervenor in this cause. Another memorandum issued by the VGC president on September 14, 1989, further emphasized that VGC's Business Systems Division, which is also intervenor, was an operating division of VGC. That memorandum stated that the company comprising the Business Systems Division was known as "GA Computer Systems" and further provided in pertinent part that: The Business System Division is an operating unit and not a subsidiary. The Business Systems Division relies on VGC-Rochester for financial and administrative support, and VGC-Florida for all other support and reporting. On the date of Intervenor's response to the ITB, GAS and Intervenor continued to maintain a business relationship. Pursuant to that relationship, GAS provides certain administrative services to Intervenor in the form of certain record keeping and payment of various taxes in the state of New York. Intervenor pays a fee to GAS for these services. Other administrative functions, such as federal and state tax return preparation, are performed by VGC-Rochester and VGC-Florida, other components of VGC. Intervenor's response to the ITB was submitted and signed by John J. Piseck, an employee of VGC who serves as the eastern regional sales manager for Intervenor's computer products. Another of the ITB's general conditions requires that bids from non manufacturers to provide microcomputers must be accompanied by a certification from the manufacturer that the bidder is an authorized representative of the manufacturer. The certification submitted by Intervenor with its bid response was executed by a representative of Hewlett-Packard Corporation, the computer manufacturer, certifying that GA Computer Products is an authorized dealer/representative. On the date of Intervenor's response to the ITB, adealer/representative contract existed between Intervenor and Hewelett-Packard. The agreement was signed on Intervenor's behalf by Patrick Mclaughlin, VGC vice- president and general manager of Intervenor. Page 12 of the ITB special conditions provides in pertinent part that: The bidder shall name a service coordinator and provide a complete list of in-state representatives, and manufacturer's authorized service repair centers on page 19 as part of the bid response. In the course of fulfilling its responsibility to evaluate each vendor's response to the ITB, Respondent accepted either a list of the bidders' own in-state representatives or a list of the manufacturer's in-state representatives as meeting this service requirement of the ITB. Respondent does not, and is not required to, verify information supplied by vendors relating to service locations. Intervenor has fully complied with the ITB requirement relating to naming a service coordinator and providing a list of service representatives and repair centers. Specifically, Intervenor named one of its employees as the service coordinator, provided a toll-free telephone number for communication with the coordinator, and listed five Hewlett-Packard service locations within the State of Florida. These service locations honor the warranties of the manufacturer, Hewlett-Packard, without regard to which Hewlett-Packard dealer sold the product. Intervenor was responsive in all material respects to Respondent's ITB No. 129-250-040-B.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that upon Intervenor's submission of a corrected FEID number, a Final Order be entered denying Petitioner's claims and confirming the award of the contested 17 categories of Respondent's ITB No. 129-250-040-B to GA Computer Products, a division of VGC Corporation. DONE AND ENTERED this 23rd day of July, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1990. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. Petitioner's proposed findings consisted of 32 pages encompassing unnumbered paragraphs dealing with an intertwined mixture of legal conclusions, argument and proposed factual findings. Therefore, Petitioner's submission cannot be treated by the Hearing Officer in this appendix on an individualized basis for each proposed finding. However, Petitioner's submission has been reviewed and addressed, where possible, by the findings of fact set forth in this recommended order. Otherwise, all disputed issues of material fact have been addressed by the evidence adduced at the hearing held in this cause. Intervenor's Proposed Findings. 1.-32. Adopted in substance. Respondent's Proposed Findings. 1.-2. Adopted in substance. 3.-4. Rejected, unnecessary. 5.-24. Adopted in substance. 25.-27. Rejected, unnecessary. 28. Adopted in substance. COPIES FURNISHED: Thomas F. Morante, Esq. One Biscayne Tower Suite 3750 Two S. Biscayne Boulevard Miami, FL 33131 Susan Kirkland, Esq. Jim Bennett, Esq. Office of General Counsel Department of General Services Suite 309 Knight Building 2737 Centerview Drive Koger Executive Center Tallahassee, FL 32399-0950 Lowell L. Garrett, Esq. 5300 Southeast Financial Center 200 S. Biscayne Boulevard Miami, FL 33131 Ronald W. Thomas Executive Director Knight Building Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950
The Issue The issue is whether Respondent is entitled to additional credit for correctly answering certain questions on the unlimited electrical contractor examination administered on January 19, 1996.
Findings Of Fact Petitioner began working for an electrical contractor in Tallahassee, Florida in 1959. He served three years as an apprentice under a journeyman electrician. After working in the trade for three and one-half years, Petitioner passed a test and became a journeyman electrician. Since 1972, Petitioner has been the owner of an electrical contracting business in Tallahassee, Florida. His company employs two master electricians, several journeymen electricians, and one electrical contractor. Petitioner took the examination for licensure as an unlimited electrical contractor for the third time on January 19, 1996. A minimum passing score on that examination is seventy- five (75.00) total points. On or about June 20, 1996, Respondent sent Petitioner an amended grade report indicating that Petitioner’s examination score was 73.30 and that he had failed the test. Block and Associates, an independent testing service, prepared the examination at issue for Respondent. The examination consist of multiple-choice questions which are machine graded. The morning session includes 100 technical questions. In order to answer some of the technical questions, an applicant must be able to read and interpret a power and lighting floor plan together with specifications. The afternoon session includes fifty (50) questions involving general principles of law and business. The subject examination is an open book test. Candidates may take certain designated reference material into the test area. The candidate’s information booklet advises that “these references should be brought to the examination site as questions will be asked that are based upon obtaining data from these references before answering.” The candidate’s information booklet directs the candidate to select the best answer to each question. The candidate is then advised that “[e]ach question has one answer, which will be graded as the correct answer to the question.” In other words, of the four answer choices for each question, Respondent considers only the best answer to be the “correct” answer. Respondent considers the other three answer choices to be “distractors” or incorrect answers for which the candidate will receive no credit. A distractor tests a candidate’s overall knowledge, skills and ability by being plausible but nonetheless wrong. In this case, Petitioner is challenging Respondent’s failure to give him credit for a “correct” answer in relation to six different questions - i.e., question numbers 20, 29, 51, and 90 from the morning session and question numbers 13 and 33 from the afternoon session. Question number 20, AM Session, states: All machines used for external or internal grinding shall be . provided with safety switches provided with permanently attached eye protection shields supplied with sufficient power to maintain the spindle speed at safe levels under all conditions of normal operation provided with safety flanges Respondent claims that answer C is the best answer. Petitioner chose answer D as the correct answer. Candidates may refer to the regulations of the Occupational Safety and Health Administration (OSHA), United States Department of Labor, found in 29 C.F.R. §1926 (1993) during the exam. 29 C.F.R. §1926.303 (1993) provides in pertinent part: §1926.303 Abrasive wheels and tools. Power. All grinding machines shall be supplied with sufficient power to maintain the spindle speed at safe levels under all conditions of normal operation. Guarding. (1) Grinding machines shall be equipped with safety guards in conformance with the requirements of American National Standards Institute, B7.1-1970, Safety Code of the Use, Care and Protection of Abrasive Wheels, and paragraph (d) of this section. . . . Use of abrasive wheels. . . . (6) When safety flanges are required, they shall be used only with wheels designed to fit the flanges. Only safety flanges, of a type and design and properly assembled so as to ensure that the pieces of wheel will be retained in case of accidental breakage, shall be used. . . . . The focus of question number 20 is on safety in the use of power tools as regulated by OSHA. The concept that machines used for grinding shall be provided with safety guards and safety flanges is clearly articulated in the OSHA standards. In this case, the authoritative references and other competent evidence support answers C and D as correct answers for question number 20. However, the greater weight of the evidence indicates that answer D is the better answer. Therefore, Respondent should have given Petitioner credit for correctly answering question number 20, AM Session. Question number 29, AM Session, states: A digital fire alarm communicator transmitter shall be connected only to a telephone circuit. “loop start” “ground start” party line single line Respondent maintains that answer A is the best answer. Petitioner answered D. The National Fire Protection Association (NFPA) publishes the National Fire Alarm Code in conjunction with the American National Standard Institute (ANSI). NFPA 72, National Fire Alarm Code (1993), is an approved reference for the subject examination. NFPA 72, §§ 4-2.3.2.1.1 and 4-2.3.2.1.3 (1993) provide as follows: 4-2.3.2.1.1 A DACT [Digital Alarm Communicator Transmitter] shall be connected to the public switched telephone network upstream of any private telephone system at the protected premises. In addition, special attention is required to ensure that this connection shall be made only to a loop start telephone circuit and not to a ground start telephone circuit. * * * 4-2.3.2.1.3 A DACT shall be capable of seizing the telephone line (going off-hook) at the protected premises, disconnecting an outgoing or incoming telephone call, and preventing its use for outgoing telephone calls until signal transmission has been completed. A DACT shall not be connected to a party line telephone facility. Answers A and D are both correct answers to question number 29. However the greater weight of the evidence indicates that answer A is the better answer because a single line can be loop started or ground started. Therefore, Respondent properly determined that Petitioner should receive no credit for question number 29, AM Session. Question number 51, AM Session, states: If the building lost normal power for a period of time in excess of 1-1/2 hours, how many lights would be required to remain functional? 0 2 4 7 Respondent claims that answer A is the best answer. Petitioner chose answer B as the correct answer. Question number 51 requires the candidate to review plans, drawings, and electrical schematics in order to select the correct answer. The plans reveal the existence of two battery powered emergency lights. The electrical legend states that the emergency lights are “[f]lourescent with emergency battery pack to provide 90 minutes of illumination on normal power failure.” Although it is not apparent on the face of the question or the electrical legend, the emergency battery pack would automatically recharge upon the restoration of normal power to the building. Respondent used the word “functional” in question number 51 to test the candidate’s knowledge that emergency light battery life, absent power, was 1-1/2 hours. Respondent’s answer of “zero” reflected that the emergency light battery pack would be completely discharged leaving the emergency lights without the capacity to illuminate after 1-1/2 hours of an on-going power failure. Petitioner, recognizing the recharge capability of the emergency lights, considered the word “functional” to include the proposition that the battery recharging process would occur upon restoration of normal power. This interpretation requires the candidate to assume that normal power will be restored and the battery pack recharged. Depending on the interpretation that a candidate places on the word “functional” in question number 51, either answer A or B could be considered correct. However, the greater weight of the evidence indicates that answer A is more correct than answer B. Answer A, unlike answer B, does not require the test taker make assumptions not apparent on the face of the question. Therefore, Respondent properly determined that Petitioner should not be given credit for correctly answering question number 51, AM Session. Question 90, AM Session, states: The required size of an electrical conductor is determined by all but which of the following? either stranded or solid length material amps Respondent asserts that answer A is the correct answer. Petitioner chose answer B. There is no correct or “best” answer for question number 90. All four choices are useful to some degree in determining the size of an electrical conductor. The NFPA publishes NFPA 70, National Electrical Code (1993), which is an approved reference for the subject test. In that code Table 8, Conductor Properties, clearly shows that the difference between stranded or solid wire has an objective, quantifiable effect on the required size of an electrical conductor. The selection of solid versus stranded wire produces a different result for ohms, i.e. resistance. Resistance is part of the consideration to determine the correct size of the wire. Petitioner’s answer to question number 90 was incorrect because the required size of an electrical conductor is determined in part by its length. Respondent’s answer to question number 90 was also incorrect because the size of an electrical conductor depends in part on whether the wire is solid or stranded. Respondent’s question failed to give sufficient information for Petitioner to select “stranded or solid” as the correct or best answer because the question did not request the candidate to choose the least important factor in determining the size of an electrical conductor. As the question was written, Petitioner’s answer was no more incorrect than Respondent’s. Under these circumstances, Petitioner should receive credit for answering question number 90, AM Session, correctly. Question number 13, PM Session, states: A “credit memo” from your bank could indicate . a charge for preprinted checks a check you deposited has been returned a check you wrote for $100.00 was cleared at $1,100.00 interest given to you Respondent claims that answer D is the best answer. Petitioner chose answer C. The 1987 edition of Builder’s Guide to Accounting, by Michael C. Thomsett, is an approved reference for the subject test. That text states in pertinent part: Error adjustments Your bank notifies you about error they find. For example, if you have a math error on a deposit, the bank will send you either a debit memo (advising you to decrease your balance) or a credit memo (advising you to increase your balance). . . Banking terminology can be confusing. Charges, debits and debit memos are all ways of reducing your balance. Credits and credit memos increase your balance. Thomsett, Michael C., Builder’s Guide to Accounting, Craftsman Book Company (1987) p.80. Respondent’s answer choice of “interest given to you” is correct if the account in question is an interest bearing account. Interest paid on such an account would increase the account balance. However, corporate checking accounts do not pay interest in the state of Florida. Likewise, Petitioner’s answer choice of “a check you wrote for $100.00 was cleared for $1,100.00” would result in a credit memo when the bank realized its error and adjusted the account to reflect the increased balance regardless of whether the account was personal or corporate. Petitioner’s answer is just as correct as Respondent’s because there was not enough information given in the question to allow Petitioner to select answer D as the correct answer or to determine that answer C was an incorrect answer. Accordingly, Petitioner should be given credit for correctly answering question number 13, PM Session. Question number 33, PM Session, states: Bonding capacity is . the maximum value of uncompleted work a bonding company will allow a contractor to default on at any one given time The maximum value of work a bonding company will allow a contractor to bid at any one given time the maximum value of uncompleted work a bonding company will allow a contractor to have on hand at any one given time the maximum value of work a bonding company will allow a contractor to bid in any one year Respondent claims that answer C is the correct answer. Petitioner chose answer B as the correct answer. One of the approved references for the subject test is the 6th edition of Construction Contracting by Richard H. Clough. Section 7.13 of that text states as follows in pertinent part: 7.13 Bonding Capacity A useful concept widely used by the construction industry is that of ’bonding capacity’ or ’bonding line.’ These terms have no precise definition but refer to the maximum value of uncompleted work the surety will allow the contractor to have on hand at any one time. . . . Clough, Richard H., Construction Contracting, 6th edition, John Wiley & Sons (1994) p.188. Answers B and C are both correct in part. Uncompleted work is one of many factors used by sureties to determine bonding capacity. Sureties also consider the applicant’s background, experience, ability, equipment, type of personnel and financial performance. However, the greater weight of the evidence indicates that answer C is the best answer. Therefore, Respondent properly determined that Petitioner should not receive credit for correctly answering question number 33, PM Session.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth above, it is recommended that Respondent enter a Final Order finding that Petitioner is entitled to additional credit for correctly answering question numbers 20 and 90 in the AM Session and question number 13 in the PM Session and adjusting his score accordingly on the May 19, 1996 unlimited electrical contractor examination. DONE AND ORDERED this 16th day of April, 1997, in Tallahassee, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1997. COPIES FURNISHED: Michael F. Coppins, Esquire Cooper, Coppins and Monroe, P.A. Post Office Drawer 14447 Tallahassee, FL 32317-4447 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0750 Ila Jones, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue is whether Respondent may be dismissed from employment for excessive absences and gross insubordination, pursuant to School Board Policies 1.013(1), 3.02(4)(a), (f), and (j), 3.10(6), 3.27, 3.80(1), articles 17, sections 5 and 7, and 22 of the collective bargaining agreement, and sections 1012.22(1)(f), 1012.27(5), and 1012.76, Florida Statutes.
Findings Of Fact Respondent has been employed with Petitioner for ten years. At all times, he has been employed as a noninstructional employee. After he had been employed with Petitioner for one year, Respondent began to miss work. Eventually, because he had exhausted his sick leave, Respondent was required to produce a physician's letter whenever he missed work. On December 17, 2007, Petitioner issued Respondent a written reprimand for falsification of a physician's letter. Nine months later, on September 29, 2008, Respondent submitted to Petitioner another falsified physician's letter to justify an absence on medical grounds. On August 10, 2010, Petitioner issued a Final Order suspending Respondent for 15 days for this second falsification of a physician's letter. By the time of the August 10, 2010, Final Order, Respondent had already served his suspension and was reinstated effective August 5, 2010. However, he still failed to report to work as required. By September 27, 2010, he had missed 11 days of work--including every Monday and Friday in September. Respondent also used sick leave prior to earning it and took some days off without pay. On September 27, 2010, Petitioner's Chief of Human Resources issued a Memorandum of Specific Incident, which details the information set forth in the preceding paragraph. This memorandum notes that Respondent's absences negatively impact the work of the other employees by causing workload to be shifted to them. The memorandum requires Respondent to call a named contact person 15 minutes prior to the start of his duty day, if he is going to be late or absent from work, complete and submit a form for sick leave within two days of returning to work, and submit a physician's note for all future absences, if for medical reasons. The memorandum concludes that the failure to follow any of the directives will be considered insubordination and may result in termination. Confirming receipt, Respondent signed the memorandum on September 29, 2010. In cross-examination, Respondent raised a novel defense to his employer's claim that his excessive absences shifted work to other employees: because Respondent, as an apprentice, performed no useful work, his nonappearance was harmless to his coworkers. When reinstated in August 2010, Petitioner maintained Respondent's classification as a Technician Systems II, but reassigned him to the intercom shop as a trades helper. Although the pay for a trades helper is less than a Technician Systems II, Petitioner continued to pay Respondent the higher pay of a Technician Systems II. Because Respondent was a mere helper, he argued, the actual intercom technician could perform the critical communications work without Respondent. Respondent's claim that his work is nonessential is not supported by a closer examination of the responsibilities of the intercom shop. The responsibilities of the intercom shop include the maintenance of intercom communications systems at 187 schools comprising over 200 buildings. The intercom shop employs five journeymen technicians whose territorial responsibilities are coextensive with the 45 square miles of the school district. Intercoms are the spine of the communications systems of Petitioner's schools. The announcement of critical life- safety issues, such as lockdowns or bomb threats at a school, depend on an intercom system that is in good working order. An inoperative intercom system may leave innocent bystanders wandering the halls in danger because they have not heard the lockdown announcement. Although it is true that Petitioner always had to assign Respondent as part of a two-man team because Respondent did not know how to repair intercom systems, it does not follow that Respondent's absence from work was inconsequential. The critical work of a helper in the intercom shop is to assist the journeyman, who, after repairing the intercom system, must perform an all-call through the school and classrooms to ensure that the intercom system has been restored to operational status. The journeyman assigns the helper to remote locations, such as hallways and classrooms, to confirm that the repaired intercom system is working throughout the building. When Respondent failed to report to work, no intercom-shop representative was available to perform these duties, and the intercom-shop supervisor sometimes had to reschedule critical repair work. This is the very definition of a negative impact on coworkers. Respondent also failed to comply with other attendance policies and procedures. For instance, on November 1, 2010, Respondent called the named contact person to advise that he was taking a personal day, even though Respondent's policies and procedures require at least 24 hours' notice. Fluctuating in and out of paid status, Respondent continued to resist reporting to work on the duty days--Mondays and Fridays--that defined the start and end of the work week. When at work, Respondent took excessive breaks, such as at a "local business" located at the corner of Melaleuca and Military Trail between 8:00 a.m. and 9:00 a.m. On November 4, 2010, Petitioner issued another memorandum confirming the directives contained in the September 27, 2010, memorandum, detailed above. Confirming receipt, Respondent signed a copy of the memorandum on the same date. But attendance problems continued. In general, since his reinstatement on August 5, 2010, through November 19, 2010, Respondent missed 23% of his duty days. Ignoring the requirement to call at least one hour prior to the start of the duty day, Respondent called one-half hour or less on January 5, 6, 12, and 13. On March 1, 2011, ignoring the requirement of 24 hours' notice, Respondent called in about 75 minutes prior to the start of the duty day to say he was taking a personal day. And on January 6, 7, 12, and 13, Respondent used sick leave that had not yet been earned and credited. A memorandum dated March 15, 2011, concludes that Respondent's continued failure to follow previously issued directives constitutes gross insubordination and warns that any future failure to follow directives will result in disciplinary action, including termination. Respondent refused to sign this memorandum to evidence receipt. And, one week later, Respondent again called in, 11 minutes short of the one hour in advance of the start of the duty day, to report that he would not be at work. This failure--innocuous, perhaps, in isolation, but grave, to be sure, in context--drove Petitioner to start the process that resulted in the recommendation of the superintendent, by notices dated August 30 and September 20, 2011, first to suspend and then terminate Respondent, and the School Board to approve and adopt this recommendation at its special meeting of October 5, 2011. In sum, for the 14-month period from August 5, 2010, through October 5, 2011, Respondent reported for duty on about 42% of his duty days. Of the 58% of the duty days that Respondent missed, 89% resulted in unpaid leave. Article 17.1 of the collective bargaining agreement that applies to Respondent provides for disciplinary action based on clear and convincing evidence. Article 17.5 allows for consideration of prior discipline, if it is "reasonably related" to the subject charge. Article 17.6 provides for a range of discipline: in ascending order, verbal reprimand, suspension without pay, and dismissal. Article 17.7 requires progressive discipline, which suggests that a dismissal be preceded by a suspension without pay and a suspension without pay be preceded by a reprimand.
Recommendation It is RECOMMENDED that the School Board enter a final order dismissing Respondent from employment. DONE AND ENTERED this 15th day of March, 2012, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 15th day of March, 2012. COPIES FURNISHED: A. Denise Sagerholm, Esquire Palm Beach County School Board Suite C-323 3300 Forest Hill Boulevard West Palm Beach, Florida 33416-9239 adenise.sagerholm@palmbeachschools.org Augustus Keith Chappelle 3249 C Gardens East Drive Palm Beach Gardens, Florida 33410 Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244 325 W. Gaines Street Tallahassee, Florida 32399-0400 Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514 325 W. Gaines Street Tallahassee, Florida 32399-0400 E. Wayne Gent, Superintendent Palm Beach County Schools 3300 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
