The Issue Whether Petitioner is entitled to additional credit for his response to Question Number 146 of the Principles and Practice of Engineering examination administered on October 31 through November 1, 1997.
Findings Of Fact Petitioner took the professional engineering licensing examination with emphasis in mechanical engineering on October 31, 1997. Passing score on the examination was 70. Petitioner obtained a score of 65 and a raw score of 43. A score of 70 would have generated a raw score of 48. Petitioner needed at least 5 additional raw score points to achieve a passing grade and a converted score of 70. Out of a possible 10 points on Question Number 146, Petitioner received a score of 4 points. The National Council of Examiners for Engineering and Surveying (NCEES), the organization that produces the examination, provides a Solution and Scoring Plan outlining the scoring process for question 146. Further, NCEES rescored Petitioner’s test but found no basis to award additional points. There are 5 categories to question 146. All six elements of question 146 must be completely and correctly answered to receive full credit of 10 points for the question. Instructions for the question provide: A perfect solution is not required, as the examinee is allowed minor psychometric chart reading errors (two maximum) or minor math errors (two maximum). The total number of minor errors allowed is two. Errors in solution methodology are not allowed. Examinee handles all concepts (i.e., sensible and total heat, sensible heat ratio, coil ADP and BF, adiabatic mixing, and coil heat transfer) correctly. (emphasis supplied.) Testimony at the final hearing of Petitioner’s expert in mechanical engineering establishes that Petitioner did not qualify for additional points for answers provided for question 146. Petitioner failed to use the definition of bypass factor indicated in the problem. Instead, Petitioner used the Lindenburg method rather than the Carrier method to calculate the bypass factor. The Carrier Method was implied in the problem due to the way the problem was structured. The system outlined in question 146 did not have the special configuration that would be listed if the Lindenburg method were utilized. Petitioner also missed the total coil capacity due to misreading the psychometric chart. By his own admission at the final hearing, Petitioner misread the data provided because they were printed one right above the other in the question. Petitioner read the point on the psychometric chart for an outdoor dry bulb temperature at 95 degrees and a 78 percent relative humidity as the outdoor air. The question required a dry bulb temperature of 95 degrees and a wet bulb temperature of 78 degrees. Petitioner’s misreading constituted an error in methodology as opposed to a minor chart reading error. Question Number 146 on the examination was properly designed to test the candidate’s competency, provided enough information for a qualified candidate to supply the correct answer, and was graded correctly and in accord with the scoring plan.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a final order be entered confirming Petitioner’s score on the examination question which is at issue in this proceeding. DONE AND ENTERED this 25th day of August, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1998. COPIES FURNISHED: Natalie A. Lowe, Esquire Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Vadim J. Altshuler 9794 Sharing Cross Court Jacksonville, Florida 32257 Dennis Barton, Executive Director Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Did Petitioner pass the Mechanical Engineers Examination he took on April 24, 1998?
Findings Of Fact On April 24, 1998, Petitioner took the Mechanical Engineers Examination. He received a score of 69 for his effort. A passing score was 70. The Mechanical Engineers Examination was administered under Respondent's auspices. As alluded to in the preliminary statement, Petitioner challenged the score received on problem 146. The maximum score available for that problem was ten points. Petitioner received eight points. In accordance with the National Council of Examiners for Engineering and Surveying Principles in Practice of Engineering Examinations for spring 1998, score conversion table - discipline specific, Petitioner had a raw score of 47 which equated to a conversion of 69, to include the eight raw points received for problem 146. In addition, the examination provided a scoring plan for problem 146, which assigns scores in increments of two points from zero to ten. To pass, it would be necessary for Petitioner to receive an incremental increase of two points, raising his score from eight points to ten points. This would give him a raw score of 49 points. According to the score conversion table - discipline specific, that would give Petitioner 71 points. According to the scoring plan for problem 146 to receive the ten points, Petitioner would have to demonstrate: Exceptional competence (it is not necessary that the solution to the problem be perfect) generally complete, one math error. Shows in-depth understanding of cooling load calculation psychrometrics. Problem 146 required Petitioner to: Determine the required cooling coil supply air quantity (cfm) and the conditions (°F db and °F wb) of the air entering and leaving the coil." Petitioner was provided a psychrometric chart to assist in solving problem 146. The examination candidates were also allowed to bring reference sources to the examination to assist in solving the examination problems. Petitioner brought to the examination, the Air-Conditioning Systems Design Manual prepared by the ASHRAE 581-RP Project Team, Harold G. Lorsch, Principal Investigator. Petitioner used that manual to determine the wet-bulb temperature of the air entering the coil. In particular, he used an equation from the manual involving air mixtures. For that part of the solution he arrived at a temperature of 65.6°F wb. According to the problem solution by Respondent's affiliate testing agency, reference ASHRAE Fundamentals Chapter 26, the coil entering wet-bulb temperature taken from the psychrometric chart was 66.12°F wb. The scorer in grading Petitioner's solution for problem 146 placed an "x" by the answer provided 65.6°F wb and wrote the words "psychrometric chart." No other entry or comment was made by that scorer in initially reviewing the solution Petitioner provided for that problem. This led to the score of eight. The scoring plan for problem 146 for the April 1998 examination taken by Respondent equates the score of eight as: MORE THAN MINIMUM BUT LESS THAN EXCEPTIONAL COMPETENCE Either a) Provides correct solution to problem with two math errors or incorrect dry-bulb or wet-bulb for coil entering or leaving conditions or minor total cooling load error, or b) Provides correct solution to items c and d correctly and minor math errors in items a and b of Score 6 below. Petitioner was entitled to review the results of his examination. He exercised that opportunity on September 21, 1998, through a post-examination review session. Petitioner requested and was provided re-scoring of his solution to problem 146. According to correspondence from the National Council of Examiners for Engineering and Surveying to the Florida Member Board from Patricia M. Simpson, Assistant Supervisor of scoring services, the score did not change through re-scoring. In this instance, the October 14, 1998 correspondence on re-scoring states, in relation to problem 146: Incorrect methodology used in calculating coil entering wet-bulb temperature. Incorrect coil entering wet-bulb temperature provided. No calculation provided for coil leaving temperature conditions. The coil leaving wet-bulb temperature in Respondent's proposed solution was 53.22°F wb taken from the psychrometric chart. Petitioner's solution for the coil leaving wet-bulb temperature taken from the psychrometric chart was 53.3°F wb. At hearing Respondent did not provide an expert to establish the basis for point deduction in the original score and the re-scoring of Petitioner's solution for problem 146. Moreover, Respondent did not present expert witnesses to defend the commentary, the preferred written solution in its examination materials. Consequently, Respondent's preferred solution constitutes hearsay about which no facts may be found accepting the validity of Respondent's proposed solution, as opposed to merely reporting that information.1 By contrast, Petitioner provided direct evidence concerning the solution provided for problem 146 in response to the criticisms of his solution that were unsupported by competent evidence at hearing. More importantly the criticisms were responded to at hearing by Geoffrey Spencer, P.E., a mechanical engineer licensed to practice in Florida, who was accepted as an expert in that field for purposes of the hearing. As Petitioner explained at hearing, he used the Air- Conditioning Systems Design Manual equation to arrive at the coil entering wet-bulb temperature, which he believed would provide the answer as readily as the use of the psychrometric chart. (Although the psychrometric chart had been provided to Petitioner for solving problem 146, the instructions for that problem did not prohibit the use of the equation or formula.) Petitioner in his testimony pointed out the equivalency of the process of the use of the psychrometric chart and the equation. Petitioner deemed the equation to be more accurate than the psychrometric chart. Petitioner had a concern that if the answer on the coil entering wet-bulb temperature was inaccurate, this would present difficulty in solving the rest of problem 146 because the error would be carried forward. Petitioner pointed out in his testimony that the solution for determining the coil entering wet-bulb temperature was set out in his answer. The answer that was derived by use of the formula was more time consuming but less prone to error, according the Petitioner's testimony. Petitioner points out in his testimony that the answer he derived, 65.6°F wb, is not significantly different than Respondent's proposed solution of 66.12°F wb. (The instructions concerning problem 146 did not explain what decimal point of a degree the candidate had to respond to in order to get full credit for that portion of the solution to the problem.) Petitioner in his testimony concerning his solution for the coil leaving wet-bulb temperature indicated that the calculation for arriving at that temperature was taken from the psychrometric chart and is sufficiently detailed to be understood. Further, Petitioner testified that the degree of accuracy in which the answer was given as 53.3°F wb, as opposed to Respondent's proposed solution of 53.22°F wb, is in recognition of the use of the psychrometric chart. Petitioner questions whether the proposed solution by Respondent, two decimal points, could be arrived at by the use of the psychrometric chart. In relation to the calculation of the coil entering wet-bulb temperature, Mr. Spencer testified that the formula from the Air-Conditioning Systems Design Manual or the psychrometric chart could have been used. Moreover, Mr. Spencer stated his opinion that the solution for coil entering wet-bulb temperature of 65.6°F wb by Petitioner is sufficiently close to Respondent's proposed solution of 66.12°F wb to be acceptable. Mr. Spencer expressed the opinion that Petitioner had correctly used the formula from the manual in solving the coil entering wet-bulb temperature. Mr. Spencer expressed the opinion that the psychrometric chart is an easier source for obtaining the solution than the use of the formula from the manual. In Mr. Spencer's opinion, the formula shows a more basic knowledge of the physics involved than the use of the psychrometric chart would demonstrate. In relation to the coil leaving wet-bulb temperature, Mr. Spencer expressed the opinion that Petitioner had adequately explained the manner of deriving the answer. Further, Mr. Spencer expressed the opinion that the answer derived was sufficiently accurate. The testimony of Petitioner and opinion of Mr. Spencer is unrefuted and accepted.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which finds that Petitioner passed the Florida Board of Professional Engineers April 24, 1998, Mechanical Engineers Examination with a score of 71. DONE AND ENTERED this 22nd day of February, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1999.
The Issue Whether Respondent violated Section 112.313(6), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact From May 26, 1989 to September, 1994, the Respondent, Donald Jaeger (Jaeger), was employed as the Building Official for the City of Boynton Beach, Florida (City). As part of Jaeger's responsibilities he oversaw the zoning, construction, code enforcement and occupational licensing for the City. His job description stated that he would keep abreast of new changes in applicable laws and regulations and recommend changes to the laws and regulations for which the Building Official was responsible for enforcing. The City's building, licensing, and housing codes are elements which affect affordable housing in the City. In the fall semester of 1991, Jaeger enrolled in an academic program leading to a doctorate degree in public administration at Florida Atlantic University (FAU). He requested that the City pay for the course work. The City manager denied his request, stating that the pursuit of a doctorate degree in public administration was not applicable to being a building official. During the fall semester of 1991, Jaeger took a course entitled State Government and Public Policy at FAU taught by former Governor Reuben Askew. For his State Government and Public Policy Course, Jaeger wrote a research paper entitled "The Effect of Government Regulation on Affordable Housing -- Competing Public Policy Objectives." Jaeger dictated the original draft of his research paper to his administrative assistant, Fran Sceblo, who then typed it up, presented it to him for editing and retyped it whenever he made corrections. She worked for approximately two and half to three weeks on the report. During some of the time she shifted some her work to others in the office so that she could finish the report. Some of the dictation and typing of Jaeger's research paper was done during regular Monday-through-Friday work hours. All dictation and typing of the Respondent's research paper were done in City offices, on City equipment and using City paper. Jaeger provided the computer disk upon which the work in progress and final product of his research paper were stored. Before beginning dictation, Jaeger offered to pay Ms. Sceblo for working on his research paper, if she worked outside her normal working hours. On a few occasions, Ms. Sceblo stayed in the office past five o'clock to work on Jaeger's research paper. Jaeger never paid Ms. Sceblo for any of her work on his research paper. On February 20, 1992, Jaeger sent a letter to Samuel Gerace, along with a manuscript of his research paper, offering that research paper for publication in Southern Building Magazine. The paper was never published. Jaeger received a satisfactory grade in his State Government and Public Policy course, and that grade was based in part on his 16-page research paper. Jaeger did not submit copies of the paper to his colleagues on the City's staff, the City manager, or the City commissioners. Jaeger attended three conferences concerning affordable housing prior to the time the research paper was written. The cost for the conferences and the cost of attending were paid by the City. Jaeger had prepared other school related reports using City resources, during business hours, with the knowledge and permission of the City manager. These reports reflected activities that were directly related to his work with the City. The research paper did have some benefit to the City because the City did deal with issues dealing with affordable housing and the City had evidenced its intention to have some of its employees, including Jaeger, educated on the issues involving affordable housing. There was no city policy which would have prohibited Jaeger from researching the issue of affordable housing and making a report on his research. Jaeger's job description stated that the building official "has wide latitude for exercise of independent jugment and use of delegated authority, laws, regulations, codes, and ordinances applicable to Inspection Division operations." The cost of the time spent by Jaeger and Ms. Sceblo on the paper was approximately $1,745.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Donald Jaeger did not violate Section 112.313(6), Florida Statutes and dismissing the complaint against Donald Jaeger. DONE AND ENTERED this 30th day of January, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 30th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2502EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Stipulated Facts 1. Paragraphs 1-13: Accepted. Facts Based on Evidence Presented at Hearing Paragraph 1: Accepted to the extent that the City would not pay for the coursework because it was not considered applicable to a building official. Rejected to the extent that it implies that any project or report that Jaeger may do during the coursework would also not be applicable to the work of the building official. Paragraph 2: Accepted in substance. Paragraph 3: The first sentence is accepted in substance. The second sentence is rejected as irrelevant. Paragraphs 4-6: Accepted in substance. Paragraph 7: Rejected as subordinate to the facts actually found. Paragraph 8: Accepted in substance. Paragraphs 9: Rejected as subordinate to the facts actually found. Paragraph 10: The last sentence is accepted in substance. The remainder is rejected as subordinate to the facts actually found. Paragraphs 11-13: Rejected as constituting argument. Paragraph 14: The first sentence is rejected as subordinate to the facts actually found. The second sentence is accepted in substance. The third sentence is rejected as subordinate to the facts actually found. Paragraphs 15-16: Rejected as constituting argument. Paragraph 17: Accepted in substance. Paragraph 18: Rejected as unnecessary. Respondent's Proposed Findings of Fact. Stipulated Facts 1. Paragraphs 1-13: Accepted. Facts Based on Evidence Presented at Hearing Paragraph 1: Rejected as unnecessary. Paragraph 2: Accepted in substance. Paragraphs 3-4: Accepted in substance. Paragraph 5: Rejected as subordinate to the facts actually found. Paragraph 6: The first sentence is accepted in substance. The second sentence is rejected as irrelevant. Paragraph 7: Accepted in substance. Paragraph 8: Accepted in substance except as it relates to Civil Service Rules. There was no competent substantial evidence to support such a finding as it related to the Civil Service Rules. Paragraph 9: The portion relating to the job description is accepted in substance. The remaining is rejected as not supported by competent substantial evidence. Paragraph 10: Rejected as subordinate to the facts actually found. COPIES FURNISHED: Kerrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Marty Moore, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, Florida 32399-1050 Randall Henley, Esq. 328 Banyan Boulevard, Suite C West Palm Beach, Florida 33401 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue is whether Respondent Brenda Bohlinger’s conduct constitutes just cause for her dismissal from employment with Petitioner Polk County School Board (School Board).
Findings Of Fact The School Board is duly constituted and charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Bohlinger was employed by the School Board as a teacher pursuant to a professional services contract. She has been employed with the School Board for approximately 13 years. During the 2015-2016 school year, Ms. Bohlinger was an itinerant physical education (PE) teacher for the Reaching Every Adolescent Learner Academy (the REAL Academy). Ms. Bohlinger began her responsibilities as the itinerant PE teacher on October 16, 2015, and was relieved of her duties on March 7, 2016. The REAL Academy is a dropout prevention program created for students in fourth through 12th grades who are two or more years behind academically. The REAL Academy was started in and for the 2015-2016 school year and uses a modified educational curriculum which allows students to catch up academically and graduate on time. There are four separate locations in Polk County that house components of the REAL Academy: Auburndale High School (Auburndale), which is located in Auburndale, Florida; the Dwight Smith Center (Smith Center), which is located in Lakeland; the Gause Academy, which is located in Lakeland; and Boone Middle School (Boone), which is located in Haines City. Ms. Bohlinger’s school duty day began at Auburndale where she would teach two separate PE classes. Her first class started at 7:55 a.m. and her second class ended at 9:42 a.m. Ms. Bohlinger then left Auburndale and drove to the Smith Center where she taught two more PE classes. It took approximately 28 to 33 minutes to travel from Auburndale to the Smith Center. Ms. Bohlinger’s first class at the Smith Center started at 10:20 a.m. and her second class ended at 12:37 p.m. After the second class ended at the Smith Center, Ms. Bohlinger would drive to Boone where she taught two more PE classes. Ms. Bohlinger’s first class at Boone started at 1:53 p.m. and her last class of the day ended at 3:40 p.m. When Ms. Bohlinger had the Boone students at PE class, the Boone teachers would have their allocated planning period. In the event Ms. Bohlinger did not provide a PE class, the Boone teachers did not have a daily planning period. School employees who travel from one teaching location to another teaching location are compensated for their mileage at a specified rate.2/ Each traveling employee is responsible for completing a mileage reimbursement form (form). The completed form is submitted to the employee’s immediate supervisor, who reviews and approves it, and then submits it to the district for processing. When she was first hired for the REAL Academy, Ms. Bohlinger asked Robert Hartley, the initial REAL Academy principal/director for instructions on how to complete the form. Mr. Hartley was unable to provide that instruction and Ms. Bohlinger obtained the instructions on how to complete the form from School Board personnel. At the end of each calendar month, Ms. Bohlinger completed the mileage reimbursement form for her trips between Auburndale, the Smith Center, and Boone. The distance claimed between the three learning centers is 32 miles, which was not contested. It took approximately 30 minutes to travel from Auburndale to the Smith Center, and approximately 40 minutes for Ms. Bohlinger to travel from the Smith Center to Boone. The School Board’s reimbursement rate is $.575 per mile. During the 2015-2016 school year, Principal Wilson was a “resource teacher,” working mainly at Auburndale and Boone. He oversaw the REAL Academy programs at those locations, and reported to Mr. Hartley. At some time after the middle of the 2015-2016 school year, Principal Wilson researched information as to any dates that Ms. Bohlinger missed PE classes for all or part of a school day. Principal Wilson identified seven3/ dates that Ms. Bohlinger was not at Boone. They are: November 3, 2015 The first quarter grades were past due. Ms. Bohlinger had started late in the quarter; however, it was determined that she would assign first quarter PE grades to the REAL Academy PE students. Ms. Bohlinger was told she had to enter the grades for her students that day. Principal Wilson’s “understanding” was that Ms. Bohlinger’s grading “would be done in Lakeland at the Dwight Smith Center.” Principal Wilson did not see Ms. Bohlinger at the Smith Center, and did not know when or where she entered the grades. Principal Wilson maintained that Ms. Bohlinger did not go to Boone on November 3, because he had to calm Boone teachers that it was not Ms. Bohlinger’s choice to miss PE, but that she was required to enter grades.4/ Ms. Bohlinger was at the Smith Center (her second school), when she was told she had to assign PE grades to the students. Ms. Bohlinger had to wait for Gwen Porter, a guidance counselor, to assist her because Ms. Bohlinger did not have access to a computer. The two women started working on the grades after 1:00 p.m. and she completed entering the grades prior to 3:00 p.m. Ms. Bohlinger testified she traveled to Boone after she finished with the grading. However, with the allocated time to make the trip, approximately 40 minutes, there was not sufficient time to arrive at Boone to conduct the last PE class of that day. There was no testimony that Ms. Bohlinger actually conducted a PE class at Boone on that day. Ms. Bohlinger’s testimony is not credible. December 2, 2015 A district level/REAL Academy meeting (district meeting) was scheduled for two locations (Boone before school started and the Smith Center in the afternoon) in an effort to have as many participants as possible. Ms. Bohlinger learned of the district meeting either the Friday or Monday before the Wednesday district meeting. Ms. Bohlinger was to attend the meeting at the Smith Center in Lakeland. Ms. Bohlinger “forgot” about the district meeting and “out of habit,” she went from Auburndale to the Smith Center and then on to Boone. Only after she got to Boone did she “realize” there was a district meeting, and she then returned to the Smith Center. Ms. Bohlinger claimed she made a “mistake” in traveling to Boone on December 2, 2015. Ms. Bohlinger’s mileage claim was inappropriate because she did not fulfill any PE teaching responsibilities at Boone. January 4, 2016 Following the winter holiday, the first school day for students was January 4, 2016. Ms. Bohlinger worked at Auburndale, the Smith Center, and then traveled to Boone. After resting in her car at the Boone location, Ms. Bohlinger called Principal Wilson, told him she was ill, and would be going home. Principal Wilson recalled that Ms. Bohlinger called him, said she was ill and would not finish out the school day. Principal Wilson thought Ms. Bohlinger was calling from her car, but he was uncertain of where she was at the time. Ms. Bohlinger’s explanation is credible. January 5, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 5, 2016. January 6, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 6, 2016. February 1, 2016 Ms. Bohlinger traveled to her three assigned schools. However, she drove to Boone, the check engine light came on in her car. After she arrived at Boone, she contacted Principal Wilson and asked if he was on the Boone campus. Upon understanding that Principal Wilson was not on the Boone campus, Ms. Bohlinger proceeded to inform him of her car issue, and that she was leaving to attend to her car. Ms. Bohlinger may have driven to Boone, but she did not teach her classes on the Boon campus. Ms. Bohlinger should not have claimed mileage for February 1, 2016. Respondent’s Prior Discipline On May 3, 2013, Ms. Bohlinger had a conference with Faye Wilson, the principal at Jesse Keen Elementary School. As a result of that meeting, Ms. Bohlinger was issued a verbal warning with a written confirmation regarding several instances when Ms. Bohlinger left the school campus before the end of her contractual day. On October 12, 2015, Ms. Bohlinger was suspended without pay for two days (Friday, October 9, 2015, and Monday, October 12, 2015). This suspension was the result of an investigation, to which Ms. Bohlinger “admitted that [she] had ‘peeked in on and listened to’ mental health counseling sessions with students, in which a student’s private information was discussed.”5/ Following the discipline listed in paragraph 15 above, Ms. Bohlinger was assigned to be the physical education teacher for the REAL Academy effective October 13, 2015. The testimony and exhibits establish that on five days Ms. Bohlinger submitted requests for mileage reimbursements to which she was not entitled. Ms. Bohlinger’s explanation that she felt ill and had to leave after arriving at Boone on January 4, 2016, is found to be credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order terminating Ms. Bohlinger’s employment. DONE AND ENTERED this 28th day of November, 2016, 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 28th day of November, 2016.
The Issue The issue in this case is whether Respondent's intended contract award pursuant to Invitation to Bid No. SDOC-11-B-049- CJ for ready-mix concrete is contrary to Respondent's governing statutes, Respondent's rules or policies, or the solicitation specifications.
Findings Of Fact In October 2010, the School District issued an invitation to bid for ready-mix concrete (the original ITB). The only bidder who submitted a bid in response to the original ITB was Bedrock. Bedrock had had the concrete contract with the School District for the prior three years and had used a front discharge delivery method. On December 7, 2010, Cindy Hartig (Ms. Hartig) and Michael Grego (Mr. Grego), who at the time was the superintendent of the School District, had a conversation concerning the award of the concrete contract to Bedrock pursuant to the original ITB. Mr. Grego testified that Ms. Hartig told him that the School Board would not support a recommendation to award the contract to Bedrock. Mr. Grego further testified that when he asked Ms. Hartig how she knew that the School Board would not support an award to Bedrock, she did not say how she knew. Ms. Hartig testified that Mr. Grego told her that he had polled the School Board members and that they advised they would not support an award of a contract to Bedrock. Having considered the testimony of Mr. Grego and Ms. Hartig, the testimony of Mr. Grego is more credible. On December 7, 2010, prior to the School Board meeting in which the School Board considered the original ITB, Ms. Hartig sent an email to Mr. Grego and Cheryl Olson (Ms. Olson), who was the director of purchasing for the School District. The email stated: Team, An ex board member works for bedrock An ex board member is building the house for the owner of bedrock Bedrock is only one of two companies that have front discharge trucks And reality is the front discharge is not needed, most CM's will not use them Please re look at the requirements for this bid prior to rebid Also make sure that each company is getting the vendor request and that it is not in their spam thank you cindy lou The former board member to whom Ms. Hartig was referring was John McKay (Mr. McKay). There had been friction between Ms. Hartig and Mr. McKay in the past. At the School Board meeting on December 7, 2010, the School Board voted to reject all bids for the original ITB. The reasoning for rejecting all bids was not apparent from the minutes of the School Board meeting. There was no evidence presented that the School Board, as a whole, was biased against Bedrock or that Ms. Hartig had influenced the School Board to reject all bids. On December 10, 2010, the School District issued the rebid ITB, which allowed the vendors to bid front and rear discharge methods of delivery. It was felt that having both front and rear delivery would give the maintenance staff an opportunity to choose the method they wanted to use on a job-by- job basis. The rebid ITB includes a bid submittal form on which the bidders are to submit their prices. There are 15 separate line items on which the bidders may submit a bid. Line items 1 and 2 are for delivery of ready-mix concrete using a front discharge cement truck. Line items 3 and 4 are for delivery of ready-mix concrete using a rear discharge cement truck. The rebid ITB did not specify whether the bidders had to submit a price for each line item in order to be deemed responsive. Paragraph 25, on page 2 of 29 of the rebid ITB states: AWARD: As the best interests of the School Board may require, the School Board reserves the right to make award(s) by individual item, group of items, all or none, or a combination thereof; on a geographical basis and/or on a district wide basis with one or more supplier(s) or provider(s); to reject any and all offers or waive any minor irregularity or technicality in offers received. Offerors are cautioned to make no assumptions unless their offer has been evaluated as being responsive. Any and all award(s) made as a result of this invitation shall conform to applicable School Board Rules, State Board Rules, and State of Florida Statutes. Page 3 of 39 of the rebid ITB provides: "THE SCHOOL BOARD RESERVES THE RIGHT TO REJECT ANY OR ALL OFFERS, TO WAIVE ANY INFORMALITIES, AND TO ACCEPT ALL OR ANY PART OF ANY OFFER AS MAY BE DEEMED TO BE IN THE BEST INTEREST OF THE SCHOOL BOARD." Section 2.09 of the rebid ITB provides: The School Board reserves the right to award the contract to the bidder(s) that the Board deems to offer the lowest responsive and responsible bid(s), as defined elsewhere in this solicitation. The Board is therefore not bound to accept a bid on the basis of lowest price. In addition, the Board has the sole discretion and reserves the right to cancel this Bid, to reject any and all bids to waive any and all information and/or irregularities, or to re-advertise with either the identical or revised specifications, if it is deemed to be in the best interest of the Board to do so. The Board also reserves the right to make multiple awards based on experience and qualifications or to award only a portion of the items and/or services specified, if it is deemed to be in the Board's best interest. Section 2.42 of the rebid ITB provides: "The School Board reserves the right to award one or more contracts to provide the required services as deemed to be in the best interest of the School Board." Section 2.11 of the rebid ITB defines "responsive and responsible" as follows: Each bid submittal shall be evaluated for conformance as responsive and responsible using the following criteria: Proper submittal of ALL documentation as required by this bid. (Responsive) The greatest benefits to the School District as it pertains to: (Responsible) Total Cost. Delivery. Past Performance. In order to evaluate past performance, all bidders are required to submit: A list of references with the bid and; A list of relevant projects completed within the last 3 years that are the same or similar to the magnitude of this ITB. All technical specifications associated with this bid. Financial Stability: Demonstrated ability, capacity and/or resources to acquire and maintain required staffing. Bidders are reminded that award may not necessarily be made to the lowest bid. Rather, award will be made to lowest responsive, responsible, bidder whose bid represents the best overall value to the School District when considering all evaluation factors. Two vendors, Bedrock and Prestige, submitted bids in response to the rebid ITB. Bedrock does not have the capability to provide concrete with rear delivery trucks. Therefore, Bedrock did not submit a bid for concrete delivered by rear discharge trucks. Bedrock submitted a bid for concrete delivered with front discharge trucks. Bedrock's total bid price was $74,887.50. Prestige's bid was for concrete delivered by rear discharge trucks. Prestige did not submit a price for concrete delivered by front discharge trucks. Prestige's total bid price was $70,300.00. The bid tabulation was posted on January 18, 2011. Staff of the School District made a recommendation to the School Board to award the front discharge portion of the rebid ITB to Bedrock and to award the rear discharge portion to Prestige. The recommendation was placed on the agenda for the School Board meeting scheduled for February 1, 2011. There was a discussion among the School Board members concerning notification to the vendors. Thomas Long (Mr. Long) became a School Board member in November 2010. He was concerned by the lack of response to the original ITB and, on January 27, 2011, requested Ms. Olson to send him a list of local vendors who did not respond to the rebid ITB. The purpose of the communication was to learn why vendors were not submitting bids. He contacted one vendor who did not submit a bid, but he did not contact either Bedrock or Prestige. The communication would have had to have been made after he received the list of vendors on January 28, 2011. Section 7.70 I. G. of the School Board Policy Manual provides: Vendors, contractors, consultants, or their representatives shall not meet with, speak individually with, or otherwise communicate with School Board members, the Superintendent, or School District Staff, other than the designated purchasing agent, and School Board members, the Superintendent, or School District staff, other than the designated purchasing agent shall not meet with, speak individually with, or otherwise communicate with vendors, contractors, consultants, or their representatives, about potential contracts with the School Board once an invitation to bid, request for quote, request for proposal, invitation to negotiate, or request for qualification has been issued. Any such communication shall disqualify the vendor, contractor, or consultant from responding to the subject invitation to bid, request for quote, request for proposal, invitation to negotiate, or request for qualifications. At the February 1, 2011, School Board meeting, the School Board voted to appoint Scott Stegall (Mr. Stegall) as the new chief facilities officer for the School District. The School Board also voted to table the issue of the concrete contract in order to give Mr. Stegall an opportunity to review the procurement. Mr. Stegall did review the procurement and recommended that the contract award be split between Bedrock and Prestige. There was no difference between the quality of the concrete whether it was delivery by a front discharge truck or a rear discharge truck. Whether it would be more efficient to use a front discharge versus a rear discharge method of delivery would depend on the job for which the concrete was ordered. The recommendation to split the award of the concrete contract was placed on the agenda for the School Board meeting scheduled for March 1, 2011. Five School Board members were present for the School Board meeting of March 1, 2011. Four School Board members voted to reject the staff recommendation and to award the contract to Prestige. One School Board member voted against awarding the contract to Prestige. Thus, the School Board's intended award of the contract was to Prestige.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the intended award to Prestige was not contrary to the School Board's governing statutes, the School Board's policies or rules, or the rebid ITB and that the intended award to Prestige was not clearly erroneous, arbitrary, capricious, or contrary to competition. DONE AND ENTERED this 16th day of August, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND 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 August, 2011.
The Issue The issue is whether the specifications in the request for architectural services first advertised by Respondent on November 12, 2002, are contrary to Respondent's governing statutes and adopted policies or are otherwise vague, arbitrary or contrary to competition.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is a consulting engineering firm. Its principal office is in Tampa, Florida. Petitioner is certified by and/or registered with the State of Florida and the School Board as a minority-owned business. Petitioner’s majority owner and president, Joe Robinson, is an African-American male. Petitioner employs several licensed professional engineers, including Mr. Robinson. Mr. Robinson serves as the "qualifier" for the firm, which enables the firm to provide engineering services in its corporate name. Petitioner does not employ any registered architects and, hence, does not have a "qualifier" which would enable the firm to provide architectural services in its corporate name. Respondent does not have a certificate of authorization from the Board of Architecture and Interior Design. Petitioner has an oral arrangement with Paul Jackson, a registered architect, which allows Petitioner to include Mr. Jackson's resume in its response to bid proposals and other competitive procurement solicitations. If Petitioner is awarded a contract using Mr. Jackson's resume, Mr. Jackson would become a "staff member" or "employee" of Petitioner. The specifics of such an arrangement are not entirely clear, however, because Petitioner has not been awarded a contract on a project where it submitted Mr. Jackson's resume. Respondent is a local school district of the State of Florida. Respondent is responsible for the construction, renovation, management, and operation of the public schools in Hillsborough County. To fulfill those responsibilities, Respondent is often required to obtain the services of architects, engineers, and other professionals through competitive procurement under Section 287.055, Florida Statutes, the Consultants’ Competitive Negotiation Act (CCNA). Relevant Background Recent Scrutiny of the School Board's Procurement Practices The School Board's process for procuring professional services has been the subject of considerable scrutiny over the past year. In May 2002, the Ernst & Young consulting firm completed a "forensic evaluation and analysis" of the School Board's procurement process. The Ernst & Young report identified a number of deficiencies in the process. In July 2002, the Gibson Consulting Group (Gibson), on behalf of the Legislature's Office of Program Policy Analysis and Governmental Accountability, completed a performance audit of the School Board. Gibson's assessment of the School Board's procurement process was generally favorable. The School Board's procurement process has also been the subject of several legal challenges brought by Petitioner. Indeed, this is the fourth case at the Division of Administrative Hearings between Petitioner and the School Board involving the School Board's procurement process under the CCNA. The first case, DOAH Case No. 02-2230BID, involved Petitioner's challenge to the specifications of a request for qualifications (RFQ) issued by the School Board in May 2002. The purpose of the RFQ was to implement the recommendation in the Ernst & Young report that the School Board supplement its in-house staff of architects and engineers in order to provide increased on-site supervision, management, and inspection of ongoing school construction projects. The Recommended Order in DOAH Case No. 02-2230BID concluded that the RFQ was arbitrary and contrary to competition because it did not inform potential Respondents in advance of the criteria or factors upon which the responses would be evaluated or the weight that would be given to each factor and because the selection committee members did not use a uniform method for evaluating the Respondents. The Recommended Order recommended that the School Board rescind the RFQ, which the School Board did. The second case, DOAH Case No. 02-3138RP, involved Petitioner's challenge to the new policies and summaries of procedures adopted as part of the School Board's Policy Manual in response to the Ernst & Young report and the deficiencies alleged (and ultimately proven) by Petitioner in DOAH Case No. 02-2230BID. The Final Order in DOAH Case No. 02-3138RP concluded that the new policies and summaries of procedures were not invalid exercises of delegated legislative authority, except for the provision which purported to make interviews optional for projects costing less than $1 million. The Final Order was not appealed. The third case, DOAH Case No. 02-3922F, involved Petitioner's request for attorney's fees and costs under Section 57.111, Florida Statutes, as the prevailing small business party in DOAH Case No. 02-2230BID. The Final Order in DOAH Case No. 02-3922F (issued in conjunction with this Recommended Order) concluded that Respondent was not substantially justified when it issued the RFQ and that no special circumstances exist which would make an award to Petitioner unjust. Accordingly, the Final Order awarded Petitioner $5,563.00 in attorney's fees and costs for DOAH Case No. 02-2230BID. As more fully detailed in the Recommended and Final Orders issued in those cases, the School Board's existing procurement process had its flaws, but the changes that were made to the process and the new policies which were adopted as a result of the recent scrutiny of the process adequately remedied those flaws. This case involves the application of those new policies for the first time. The School Board's Minority Business Enterprise Program The School Board created a Minority Business Enterprise Program (MBE Program) in June 1995 and, at the same time, the School Board established a "10 percent minority inclusion goal for all construction related services" (hereafter "10 percent MBE Goal" or "Goal"). The stated purpose of the MBE Program and the Goal was to "increase the opportunities for minority/women enterprises and individuals who participate in providing construction services as general contractors or subcontractors for Hillsborough County Schools." The Goal does not define the phrase "construction related services." Apparently, however, the Goal has never been construed by the School Board to apply to the procurement of professional services, such as architects or engineers. Instead, it has only been applied to vocational trades such as masonry, pluming, concrete, dry-walling, plastering, etc. This interpretation of the Goal -- which was confirmed by each of the School Board employees who testified at the hearing, including the manager of the MBE Program -- is consistent with the language in the document discussing the function and operation of the MBE Program. That document refers to "bids," "trades," "contractors," and "subcontractors" rather than the procurement of professional services. The School Board is expected to consider an expansion of the MBE Program and the Goal beyond its current scope to include the procurement of professional services as part of its 2003-04 agenda. The Request for Architectural Services and Petitioner's Protest As required by Section 7.30 of the School Board's Policy Manual, the RAS was published in the Tampa Tribune (on November 12, 2002), the Florida Sentinel Bulletin (on November 12, 2002), the Tampa Record (on November 14, 2002), and the La Gaceta (on November 15, 2002). The RAS announces the School Board's need for professional architectural services on six school projects, five involving new construction and one involving remodeling and renovation. The construction budgets for the projects range from $7.5 million to $13.6 million. The RAS states in pertinent part: Any applicant interested in providing architectural services shall make application by submission of the materials prescribed in the Project Information Packet. Required materials shall be separate and apart from any accompanying materials. Only applicants with offices in Hillsborough County will be considered. Professional liability insurance will be required for these commissions. The Project Information Packets, additional project information and the weights associated with each qualification and evaluation criteria can be obtained by contacting the Planning & Construction Office at (813) 272-4112 or via the Internet at http://apps.sdhc.k12.fl.us/sdhc2/planning/pa .htm. The RAS does not define the scope of the "architectural services" that are being sought. Apparently, however, the RAS is seeking "full architectural services," which means all of the design services for the project from the ground to the roof. In this regard, the selected architect or architects will be responsible for submitting to the School Board completed design plans which are consistent with the educational requirements established by the School Board and State law. To do so, it will be necessary for the architect(s) to engage engineers as consultants to design mechanical, electrical, plumbing, fire protection, and other engineered systems consistent with the architectural design. However, the selected architect(s) are ultimately responsible for ensuring that the design plans meet the specifications of the School Board. The selected architect(s) will remain involved in the project throughout the construction phase as well in an administrative capacity, e.g., administering progress payments, monitoring contract compliance by the builder. The Project Information Packet referenced in the legal advertisement announcing the RAS included the following materials: the policies and summaries of procedure governing the School Board's acquisition of professional services (i.e., Sections 7.29 through 7.33 of the Policy Manual) along with a document summarizing that process; documents describing the "District prototypes" for new elementary and middle schools; a map showing the location of the proposed school sites; a document titled "Standardized Submittal Requirements" (hereafter "Submittal Requirements"); and a document titled "Professional Services Selection Committee Evaluation Criteria" (hereafter "Evaluation Criteria"). In compliance with the requirements of Section 7.30 of the Policy Manual, all of those materials were available to potential applicants on November 12, 2002, in conjunction with the publication of the RAS. The Submittal Requirements set forth the information that the applicant must submit as well as the formatting requirements for paper and electronic submittals. The submittals were required to include a separate summary sheet for each of the evaluation criteria (described below) and all information related to a criterion was to be on the summary sheet or on supplemental sheets immediately following the summary sheet for that criterion. The submittal was also required to include a separate "SF 254" form, which is a standard form that provides general information about the firm. The factors which will be used to evaluate the responses to the RAS and the weights associated with each factor are set forth in the Evaluation Criteria as follows: WEIGHT TOPIC DESCRIPTION 25 Points Project/Application Correlation Correlation of applicant's experience and capabilities to the unique requirements of the project. 25 Points SDHC Track Record Applicant's performance on prior projects with the District, including ability to meet project schedule and budget. Greater consideration will be given to more recent projects and projects of similar scope. 20 Points Firm's Resume Demonstrated capabilities of the firm, with consideration given to corporate philosophy, community involvement, credentials of senior/professional staff 15 Points Firm's Current Workload An evaluation of the applicant's capacity to undertake additional work, in light of its current workload. 10 Points MBE Participation Whether the firm is a certified minority business enterprise,[1] and the applicant's demonstrated commitment to increasing the successful participation of minority and women owned businesses. 5 Points Prior/Current Volume with SDHC Volume of recent work awarded the applicant by the District. Score is inverse to volume. Applicants are presumed to start with a score equal to half of the available points for each category involving "experience related considerations." Because there are 100 total points available, each applicant will start with a total of 50 points. The Selection Committee will adjust the applicant's score above or below that number based upon its review of the materials submitted by the applicant. There are no schedules, "rating tables," or "tally sheets" to guide the Selection Committee in allocating points in each of the categories. Instead, the Committee will use a normative method of evaluating the responses in each category rather than a criterion reference. Under the normative methodology, the Committee will stratify or rank-order the responses in each category and then assign points to each response based upon where it falls within that stratification or ordering. It is not entirely clear how the Committee will translate the rank-ordering into point additions or subtractions to the presumed 50 points that each respondent starts with. That determination is left to the Committee, but it will be uniformly applied by the Committee members to all responses. That approach is markedly different from and seemingly more complex than the approach suggested by Petitioner through its sample forms in Exhibit P8. Under Petitioner's approach (which was characterized by Respondent's witnesses as the criterion methodology), the score for each category would be based upon a pre-established rating system applied by the members of the Committee (e.g., awarding +10 points if the evaluator considered the response to be "outstanding" in the category, 0 points for "average," -10 points for "poor") or a pre-determined table (e.g., awarding 5 points for prior work between $0 and $25,000; 4 points for prior work between $25,001 and $50,000, etc.). It is not entirely clear what benefit there would be to Petitioner or other applicants by knowing in advance the methodology that the Committee intends to use to translate the rank-ordering into scores for each category. In this regard, the Evaluation Criteria define the weights that are associated with each category and, where appropriate, explain generally how those points will be allocated within the categories (e.g., score for "prior/current volume of work with SDHC" is inverse to volume, meaning that the more work the firm has with the District, the fewer points it will get in that category). The information that is provided in the RAS contains sufficient guidance to enable applicants to prepare and submit a response. Indeed, it is significant that Mr. Jackson testified that his firm could prepare a response based upon the information that was made available to potential respondents in connection with the RAS. The deadline for submitting a response to the RAS was November 22, 2002, at 4:00 p.m. The School Board received responses from 27 firms prior to the deadline. Petitioner did not submit a response to the RAS. Instead, on November 14, 2002, Petitioner filed a notice of protest, and on November 19, 2002, Petitioner filed a formal written protest directed to the specifications in the RAS. As a result of Petitioner's protest, the RAS was put "on hold." The responses received prior to the submittal deadline have not been referred to the evaluation committee and no other action has been taken in connection with the solicitation or contract award process because of Petitioner's protest. The record does not reflect whether the School Board has sought to move forward with the evaluation and contract award process notwithstanding Petitioner's protest as it is authorized to do by Section 120.57(3)(c), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Hillsborough County School Board issue a final order which dismisses Petitioner's formal written protest. DONE AND ENTERED this 3rd day of February, 2003, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 3rd day of February, 2003.
The Issue The issue in this case, a bid protest, is whether the intended decision of Respondent, Orange County School Board (the "School Board"), to award a contract for interactive devices and associated equipment to Intervenor, SMART Technologies Corporation ("Smart"), instead of to Promethean, Inc. ("Promethean"), is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Promethean is a Delaware corporation. Its parent company, founded some 15 years ago in the United Kingdom, has operations throughout North America, Europe and elsewhere. The original reason for founding the company was to develop interactive whiteboard technology. Promethean is now one of the leaders in interactive technology and has prior experience with the School Board, with as many as 1,900 interactive whiteboards installed in Orange County schools. The School Board is the public entity responsible for investigating, purchasing, and implementing interactive technology into the classrooms of the Orange County public school system. The School Board is the tenth largest school district in the nation and the fourth largest in Florida. It is the second largest employer in Orange County, Florida, with over 21,000 full and part-time employees. The district consists of over 180 schools and has over 179,000 students. Smart is also a leader in the interactive technology field. Smart, a Delaware corporation, has offices in Arlington, Virginia and Calgary, Canada. Smart and Promethean, combined, have 80 to 90 percent of the K-12 market for interactive technology. On or about August 17, 2010, the School Board issued Request for Information No. 1008466RFI (the "RFI"), inviting manufacturers and retailers to demonstrate interactive devices to the School Board's Audio Visual Committee. Timely responses to the RFI were made by several entities, including both Promethean and Smart. On or about February 16, 2011, based on its review of information received, the School Board issued Interactive Devices and Associated Equipment ITN No. 1102044ITN. The submittal date for responses to the ITN was set for March 10, 2011. An ITN goes through a process whereby the School Board posts a solicitation and vendors submit their proposals. Then a committee is formed to evaluate the proposals. Based upon their review, a short list of responding firms is created, narrowing the number of proposals that will be further considered. The short list firms' proposals are then opened for further negotiation and discussion. At that point, the School Board's procurement experts take over the process for doing the negotiations with each vendor. After completion of the negotiations, a recommendation is made for approval of one vendor. The purpose of the ITN was to "request solicitations from manufacturers who can provide the interactive device solutions (with or without a board), portable stands or permanent wall installation throughout the school year in varying quantities from individual location sites within the District. These purchases will be made through the Procurement Services Department on an as requested basis. The purchases will not be made on any schedule[d] purchase plan." The ITN also stated that manufacturers must be able to provide a complete classroom solution including the following components and suggestions: A board or board-mounted solution; A tablet or slate type device that allows remote control; A document camera that can be controlled via the manufacturer's software; Student response systems that interface with the manufacturer's software; Multi-touch capability (two or more people interacting with the surface simultaneously) "would be desirable"; and Use of Bluetooth wireless connections is "discouraged." The ITN also describes the process that would be used in evaluating responses. Pertinent portions of the ITN are set forth below: Proposal Evaluation Committee A Proposal Evaluation Committee (PEC) consisting of District Staff will convene, review, evaluate and rank all valid responses submitted based on the evaluation criteria developed by the Committee. The Proposal Evaluation Committee reserves the right to interview any, all or none of the Manufacturers that responded to the ITN and to require formal presentations with the key personnel who will administer and be assigned to work on behalf of the contract before recommendation of the award. This interview is to be based upon the written proposal received. * * * Evaluation Criteria Only proposals that meet the minimum requirements will be scored. Proposal that meet the minimum Technical requirements will be evaluated based on the following criteria: Shortlist Evaluation Possible Maximum Criteria Points Weight Value Experience, Qualifications 150 30% Equipment Solution 250 70% Should the PEC members request presentation or interview from shortlisted Manufacturers, the following evaluation criteria will apply: Presentation/Interview Possible Maximum Evaluation Criteria Points Weight Value Education Impact & Operational Effectiveness 100 50% Experience 100 20% Price & Cost Containment Strategies 100 30% * * * The Procurement Representative shall calculate all scoring and determine a ranking of the short listed firms based on the presentation/interview evaluation criteria. * * * The District deserves the right to negotiate the price and contract terms and conditions with the most qualified firm(s) to provide the requested service. If a mutually beneficial agreement with the first selected Manufacturer [cannot be reached], the Committee reserves the right to enter into contract negotiations with the next highest ranked Manufacturer and continue the process until agreement is reached. * * * The District reserves the right to negotiate, either serially or concurrently, with any and all Manufacturers at any point in the solicitation process. The District reserves the right to finalize the negotiations at any point and post an "Intent to Award" notice. Manufacturers should recognize the District's right to finalize the negotiation process without the need to explicitly request an interim revised response or a best and final offer. The District reserves the right to award based on the offer that is deemed the best value to the State. . . . Timely responses to the ITN were submitted by six manufacturers: Promethean, Smart, Sanford Brands, QOMO Hite Vision, PolyVision, and AVerMedia. The responses were reviewed by the PEC which was composed of a diverse group of School Board officials with varying backgrounds in finance, academia, and school administration. The PEC ranked the proposals submitted by each manufacturer based upon the first two general criteria: I. Experience and qualifications; and II. Equipment solution. Price and cost containment strategies were not considered at that time. Promethean and Its Proposal Promethean initially began its business operations with a product called the ActivBoard 78, or AB78, a 78-inch (diagonally measured) board with certain desired functions. It was the first active board furnished to the School Board. In 2009, Promethean developed the AB164 and AB178, the next series in the development of active boards. The next series of active boards it developed was the 300 series. That series included the AB378 and an upgraded version, the AB378PRO. The latter version includes speakers and sound capability built into the board and has dual pen capability. That is, the AB378PRO allows the teacher to operate the board with one pen, while the student operates at the same time with a separate pen. The AB378 can have dual pen capability, but it must be added as an option, rather than being part of the board's basic functions. The two pens operate on different frequencies so that the student's interaction can be distinguished from the teacher's movements on the board. The AB378 or AB378PRO is used in most of Promethean's demonstrations to potential school customers. Of the 1,900 whiteboards installed by Promethean for the School Board, approximately 620 are AB378PROs, about 700 are AB378s, and the rest are primarily the AB78s, predecessor to the AB178s. As part of its response to the ITN, Promethean also included a slate, basically a small whiteboard held by students at their desks. Promethean also offered the ActivExpression device, referred to in the industry as a student response system or learner response system. Using ActivExpression, a teacher could pose questions to students who would respond on their slate. The responses would then be tallied into the ActivExpression device, telling the teacher whether the students were keeping up or needed more instruction on a particular area of instruction. The Promethean proposal included an ActivHub, a device which plugs into a USB port on the whiteboard or a computer and allows wireless access to other products offered by Promethean, such as the slate. The proposal also included a document camera called an ActivView. Students use it to display copies of documents on the whiteboard and then annotate the document using the pens. Software on the various versions of Promethean's whiteboards can be different. The AB178, for example, includes their ActivInspire basic edition. The AB378 and AB378PRO come with ActivInspire Professional Edition. The ActivExpression learner response systems come with ActivInspire Professional. That software is available on the AB178, but it must be added. With ActivInspire Professional Edition, Promethean makes the site license available to the schools. The site license was offered as part of Promethean's proposal to the School Board in its ITN response. Promethean also offered the School Board the right to use AtivInspire Professional Edition on their existing whiteboards provided by the competitor, Smart. However, that offer was contingent upon Promethean being the sole provider of whiteboards for future purchases. Smart and Its Proposal Smart proposed a whiteboard from its D680 series. That whiteboard also had dual touch capability. Smart's boards had a different design than Promethean's boards and provided a touch screen that could be operated by the touch of a person's finger, rather than using a pen. Smart uses a resistive technology as opposed to Promethean's electromagnetic technology. Smart's product included a math package as part of the offered software. That software was extremely attractive to the School Board due to the manner in which it might assist teachers. Smart offered a volume discount for purchases if the School Board would make Smart the sole provider for equipment during the two-year contract period. There is no evidence that the School Board accepted that offer. Smart also proposed its SRP-XE-24 high-end learner response system. A $30,000 credit was offered to the School Board on this system, but only if the School Board purchased 60 of the units at a cost of $106,000. Again, there is no evidence that the School Board availed itself of that credit offer. There was no testimony or evidence presented as to the elements of any other entity involved in the negotiations. The School Board appears to have given both Smart and Promethean's proposals full consideration. The School Board's Review Upon receipt of the responses to the ITN, on March 15, 2011, the School Board issued an Evaluation Ranking based upon the general review criteria. Promethean achieved the top rank with a total of 220 points; Smart was second with 197.10 points, and Sanford Brands was third with 142.50 points. Each of the other applicants received less than 100 points. The PEC agreed by consensus to invite the three top ranked firms for interviews and presentations. Notice was posted on March 15, 2011, identifying the three selected applicants. The interviews and presentations were scheduled as follows: Sanford Brands--March 21, 2011, at 11:00 a.m.; Promethean--March 21, 2011, at 2:45 p.m.; and Smart--March 22, 2011, at 1:00 p.m. As directed by the ITN, the PEC scored each manufacturer on the basis of the Educational Impact/Operational Effectiveness criteria and the Experience criteria. It did not, however, assign any scores for the Price and Cost Containment criterion. On March 31, 2011, the School Board issued another evaluation ranking based on the PEC's scoring of the first two evaluation criteria. This time, Smart was ranked first with 63 points; Promethean was second with 61.50 points; and Sanford Brands was third with 42.50 points. The PEC agreed by consensus to invite the top two firms to enter into negotiations with the School Board. Representatives of Promethean and Smart met with the School Board's procurement staff in separate negotiation sessions on May 4, 2011. Both Promethean and Smart then entered into an exchange of documents and information with the School Board, including final specifications for relevant models, final pricing lists, and various other data. Promethean initially asked for additional time to submit its documentation and information, but that request was denied by the School Board. Promethean then provided its first updated data on the afternoon of May 5, 2011, the day after meeting with the procurement staff. At that time, Promethean provided the School Board with its "lowest and best offer" for its proposal. The offer included "value added" items, such as spare parts and software licensing, a rebate arrangement, training, and professional development, all at no cost to the School Board. Promethean, thereafter, provided corrections to its pricing list and an updated equipment list to a procurement representative via a telephone call on May 12, 2011, followed up by an email. Smart submitted its first updates just after midnight, i.e., technically on May 6, 2011. Smart, thereafter, on May 10 and 12, 2011, submitted updates further reducing the prices for its proposal. There is no evidence in the record as to why Smart submitted further updates to the School Board, but there is no direct prohibition in the ITN against doing so. Based upon the information provided, the live presentations, and a review of the School Board's needs, the School Board posted its Notice of Intent awarding the contract to Smart on May 24, 2011. The notice was based on a price comparison between Smart's D680 model and Promethean's AB378PRO. The School Board did not consider Promethean's AB178 model because, although it can be upgraded to comply with the requirements in the ITN, it was not an acceptable system without the updates. The cost comparisons forming the final decision by the School Board are as follows: Slate/Tablet $ 272.00 $ 351.02 Response System $1,088.00 $1,544.49 Document Camera $ 692.00 $ 486.62 TOTAL $3,249.00 $3,641.70 The comparison was based on prices submitted by Promethean on Component Smart Promethean Interactive Board $1,197.00 $1,259.57 May 5, 2011, and on prices submitted by Smart on May 5, 2011, as revised on May 10 and 12, 2011. Promethean also made suggested changes to its prices on May 24, 2011, but the School Board's decision had already been made by that time. It was later determined that one of the added costs anticipated by the School Board for Promethean's proposal would not be necessary if the AB378PRO model was considered. Also, the price for Promethean's slate should have been $265.12, rather than as stated. The combination of those two changes could reduce Promethean's total price to $3,406.80, but that would still be higher than Smart's price. The Warranty Issue The ITN called for a minimum 5-year replacement or repair warranty, postage paid--advanced replacement or on-site support, with a maximum 48-hour response time. The standard warranty on Promethean's AB178 is one year, plus one additional year at registration. On the AB378 and AB378PRO, the standard warranty is three years plus two additional years at registration. Neither of the warranties is an advanced replacement warranty; they are only standard warranties. None of the other components of Promethean's proposal normally comes with a standard five-year warranty. In fact, Promethean does not even offer those warranties for purchase for the various components. In order to obtain five-year warranties for the whiteboard component, a customer would have to purchase them at an additional cost. However, as part of its pricing component for the ITN response, Promethean added in a five-year advanced replacement warranty for both the whiteboard and the other components of its proposal. Smart's interactive boards have five-year warranties, but they are not specifically advance replacement warranties. They would constitute repair warranties, however. The Final Decision The School Board's review of the two proposals considered Smart's D680 series to be most similar to Promethean's AB378 or AB378PRO whiteboard. Its review of the proposals presumed the inclusion of dual pen or dual touch technology. The ability to add that technology to a whiteboard not equipped with it as a standard feature was not acceptable to the School Board. If the School Board had compared Smart's D680 series to Promethean's AB178, it is likely Promethean's proposal could have come in at a lower overall cost. However, there is insufficient evidence to suggest that Promethean intended its AB178 to be considered or that the School Board would be satisfied with the AB178 series interactive boards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Orange County Public Schools upholding its Notice of Intent to award the contract to Smart Technologies Corporation and denying the Petition filed by Promethean, Inc. DONE AND ENTERED this 23rd day of September, 2011, in Tallahassee, Leon County, Florida. 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 23rd day of September, 2011. COPIES FURNISHED: Ronald (Ron) Blocker, Superintendent Orange County School Board 445 West Amelia Street Orlando, Florida 32801-0271 Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Martha Harrell Chumbler, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 Diego Rodriguez, Esquire Orange County School Board 445 West Amelia Street Orlando, Florida 32801-1129 Susan L. St. John, Esquire Ruden McClosky 215 South Monroe Street, Suite 815 Post Office Drawer 1759 Tallahassee, Florida 32301
The Issue The issue for determination is whether Respondent's employment with Petitioner should be terminated.
Findings Of Fact At all times material hereto, Miami-Dade County School Board (Petitioner) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within Petitioner's district, pursuant to Article IX, Florida Constitution, and Section 230.03, Florida Statutes. At all times material hereto, Raynard W. Pasteur (Respondent) was employed by Petitioner as a school security monitor at Frank C. Martin Elementary School (Martin Elementary). Respondent began his employment with Petitioner on August 31, 1990, at Palmetto Middle School (Palmetto) as a school security monitor and remained at Palmetto until September 29, 1991. On January 27, 1994, Respondent began working as a school security monitor at Martin Elementary. At all times material hereto, Respondent was a member of the United Teachers of Dade (UTD). As a member of the UTD, Respondent was subject to the collective bargaining agreement (UTD Contract) between Petitioner and the UTD, as well as any Memorandum of Understanding between Petitioner and UTD. On February 2, 1998, a conference-for-the-record (CFR) was held with Respondent. In attendance at the CFR were Respondent; two of his union representatives; Isaac Rodriguez, Director of Petitioner's Office of Professional Standards (OPS); Dr. Jose Carbia, Petitioner's Director of Region V; and Pamela Siplin, Principal at Martin Elementary. The purpose of the CFR was to address Respondent's medical fitness to perform his assigned duties, to review Respondent's records, and to address Respondent's future employment status with Petitioner. Prior to the CFR, Jose Garcia, a clinical coordinator with Petitioner's Employee Assistance Program (EAP), performed an assessment of Respondent. After performing the assessment, Mr. Garcia determined that he had a duty-to-warn situation. The circumstances of a duty-to-warn situation demonstrate that serious bodily harm or injury may result or that there is a threat of serious bodily harm or injury. Having made such a determination, Mr. Garcia contacted his supervisor and discussed the duty-to-warn situation involving Respondent. Afterwards, Mr. Garcia contacted OPS. Mr. Garcia, his supervisor, and OPS subsequently contacted Dr. Carbia. Mr. Garcia informed Dr. Carbia that his (Mr. Garcia's) assessment of Respondent presented a duty-to-warn situation and that potentially bodily harm or injury could be inflicted against certain employees of Region V. Mr. Garcia did not discuss any details with OPS or with Dr. Carbia. An employee's participation in the EAP program is confidential and voluntary. Breach of the confidentiality by a clinical coordinator is permitted when a duty-to-warn situation presents itself in order to warn the affected persons of the threat of serious bodily harm or injury without discussing details of the situation. Under the circumstances, Mr. Garcia was permitted to breach the confidentiality afforded Respondent. A written statement dated February 2, 1998, explaining Petitioner's justification for requiring Respondent to submit to a medical examination, was presented to Respondent. The written statement stated, among other things, the following: This employer [Petitioner] has need to determine your fitness to carry out your assigned duties. Because of your exhibited behavior at the worksite as well as your self reported medical condition, this employer has reason to seek an immediate medical examination which will be considered relative to your future and continued employment with Miami-Dade County Public Schools. According to Ms. Siplin, the principal at Martin Elementary, Respondent's attendance was good and, in most instances, he was cooperative. She never reported any erratic or unusual behavior exhibited by Respondent. As observed by Ms. Siplin, Respondent's behavior at the worksite was acceptable and satisfactory. However, the behavior complained of referred to the Respondent's behavior at the work site as assessed by Mr. Garcia. A finding of fact is made that the written statement dated February 2, 1998, is a sufficient written statement justifying Petitioner's requirement for Respondent to submit to a medical examination regarding his fitness to carry out his assigned duties. At the CFR, a determination was made, among other things, that a medical fitness evaluation, i.e., a fitness-for- duty evaluation, was required. During the CFR, a representation was made to Respondent that Mr. Garcia had spoken to Respondent's psychiatrist because of Mr. Garcia's concern for Respondent and the staff at Martin Elementary; however, Mr. Garcia did not reveal any details of Respondent's assessment to OPS or the Director of Region V. The representation has no effect on the determination that a fitness-for-duty evaluation was required. A finding of fact is made that, regardless of the representation, a sufficient basis existed for such a determination and that it was reasonable and appropriate to require a fitness-for-duty evaluation of Respondent. A fitness-for-duty evaluation is an assessment by a psychologist or psychiatrist to determine whether an employee is psychologically competent to perform his or her job and whether that employee could potentially be a danger to himself or herself, co-workers, or students. The fitness-for-duty evaluation is designed to identify what it would take to get the employee back to work. The employee chooses the medical practitioner to perform the fitness-for-duty evaluation. According to the UTD Contract, when there has been a written statement of the need for an examination, the employee is to choose the medical practitioner from Petitioner's list of State-licensed physicians, psychologists, and psychiatrists. Respondent and his union representatives were provided a list of Petitioner approved psychiatrists and psychologists from which Dr. Larry Harmon, Ph.D., was chosen by Respondent. An appointment was made by OPS for Respondent with Dr. Harmon and was scheduled for February 6, 1998, at 9:00 a.m. At the CFR, Respondent was also placed in an alternative assignment at home during the process of the fitness-for-duty evaluation. Certain directives were given to Respondent during the CFR. The directives were as follows: Keep your scheduled appointment with Larry Harmon, Ph.D. Call Ms. Pamela Siplin at 238-3688, each work day between 7:30-7:40 a.m. and 3:50- 4:00 p.m. Be available at home during work hours for phone calls from your work site. Notify the work site of any appointments that would necessitate your absence from your alternative assignment (home) during work hours. Respondent was advised that failure to comply with the directives would necessitate a review by OPS for the imposition of disciplinary measures, including suspension, demotion or dismissal. At the CFR, Respondent was also provided a copy of Petitioner's Rule 6Gx13-4A-1.21, Employee Conduct and Rule 6Gx13-4C-1.02, Non-Instructional Personnel. Dr. Larry Harmon, Ph.D., conducted the fitness-for- duty evaluation which was administered for approximately nine hours over a three-day period, beginning on February 6, 1998. The evaluation consisted of Dr. Harmon reviewing background information provided by Mr. Rodriguez of OPS and background memoranda concerning Respondent's prior criminal activity; reviewing Respondent's job description; conducting a clinical interview with Respondent; performing psychological testing of Respondent; consulting with Mr. Garcia of EAP; and conferring with Respondent's parents. Dr. Harmon was unable to consult with Respondent's treating psychiatrist and psychologist. Routinely, Dr. Harmon requests that his patients sign a release and consent for the fitness-for-duty evaluation. The release and consent provides for the exchange and release of information and discussion with OPS, as well as EAP. Respondent signed Dr. Harmon's release and consent and, as a result, Dr. Harmon was able to consult with Mr. Garcia of EAP. Dr. Harmon also attempted to obtain a release from Respondent regarding the exchange of information with Respondent's treating psychologist, Dr. Eve McNanamy, Ph.D., and treating psychiatrist, Dr. Edgar Patino, M.D. In Dr. Harmon's opinion, the outside information from Respondent's treating psychologist and psychiatrist was essential to corroborate Respondent's self-report. However, Respondent refused to sign the release. Respondent did not "like" some of Dr. Harmon's methods or the way Dr. Harmon kept his office. Moreover, Respondent's psychiatrist, Dr. Patino, advised Respondent that he (Respondent) was not required to sign the release and that his (Respondent's) failure to sign could not be held against him. Having reviewed background information provided by Mr. Rodriguez of OPS and background memoranda concerning Respondent's prior criminal activity; having reviewed Respondent's job description; having conducted a clinical interview with Respondent; having performed psychological testing; having consulted with Mr. Garcia of EAP; and having conferred with Respondent's parents, Dr. Harmon formed an opinion as to Respondent's psychological condition. In his report dated March 1, 1998, (Report), Dr. Harmon made the following observations in his "Summary and Recommendations": With respect to diagnosis -- based on clinical interview, mental status examination, psychological test results, collaborative consultation, and review of related written records -- he [Respondent] presents, according to the Diagnostic and Statistical Manual, Fourth Edition (DSM IV), with a probable as follows: Axis I: Clinical Disorders and Conditions Delusional Disorder (297.1), Persecutory Type [emphasis in original] Axis II: Personality Disorders Deferred. [emphasis in original] Axis III: Physical Disorders and Conditions Deferred. [emphasis in original] Given the information with which this psychologist was able to utilize, there is no clear evidence of any severe cognitive or affective disorder which would absolutely prevent him form currently performing any kind of work at all. However, because he was highly guarded and reluctant to share his current life circumstances, history, and current treatment recommendations, it is difficult to rule out the probability of a potential direct threat, especially to coworkers. With respect to his current position as a School Security Monitor II, the job requirements include, but are not limited to, both physical and interpersonal tasks . . . He appears to be capable of performing the physical requirements of the job . . . In addition, he is probably able to perform the non-interpersonal responsibilities of his job description . . . However, individuals with Delusional Disorder may have significant difficulties effectively and objectively performing complex interpersonal job tasks . . . His current symptoms -- clearly consistent with Delusional Disorder -- are likely to cause his thinking to be suspicious and potentially impair his judgement. In fact the DSM IV states that "People with persecutory delusions are often resentful and angry, and may resort to violence against those they believe are hurting them." Based on the above information, there appears to be a potentially significant risk of substantial harm to coworkers based on the following factors: The results of this individualized Fitness for Duty assessment . . . The results of objective psychological assessment, based on current psychological knowledge and assessment tools and techniques, suggest a potential for unpredictable and highly aggressive behavior. A review of prior history [criminal history]. . . A review of current information that suggests he is a current risk based in part on this evaluation as well as upon Jose Garcia's (of the M-D.C.P.S. E.A.P.) report that Mr. Pasteur recently called him and stated, among other comments, that "I am going to stop them." And "I'm just telling you that in case I have to do something." Finally, Mr. Pasteur reports that his psychiatrist's efforts to treat him with medication are obstructed by his unwillingness to follow his psychiatrist's recommendations and so it appears that efforts to reduce or eliminate his delusional thinking are not fruitful which, therefore, maintain the current level potential of significant risk of substantial harm to others. Therefore, because he is considered a potential direct threat and, thus, a significant risk of substantial harm to others, there is insufficient supporting information based on this assessment to clear him to return to work. Therefore, he is considered as the present time not fit for duty. [emphasis in original] His Delusional Disorder appears to seriously impair major life functions such as his social judgement, an essential requirement for his job which requires significant skills to interact effectively in interpersonal interactions. In his Report, Dr. Harmon continued with the following recommendations in his "Summary and Recommendations": In order for Mr. Pasteur [Petitioner] to be eventually cleared to return to work, it is recommended that M-D.C.P.S. support Mr. Pasteur's efforts to reduce and, hopefully, eliminate the probability that he will be a potentially direct threat to others. The following accommodations are recommended in order to assist him to get appropriate and effective treatment so that he may return to work: Provide Mr. Pasteur with at least one month of medical leave, consistent with medical leave benefits and policies for all other employees in his category, so that he may receive appropriate mental health treatment. It is recommended that he follow all of his psychiatrist's recommendations which are designed to reduce the symptoms of his Delusional Disorder to a sufficient extent that he is fit for duty. Participate in psychotherapeutic treatment with Eve McNanamy, Ph.D., his treating psychologist, and follow all recommendations designed to reduce the symptoms of his Delusional Disorder and improve his social judgement and interpersonal functioning to the extent that he is no longer a potentially direct threat and is able to function adequately in the School Security Monitor II position. In order to provide assurance that he is no longer a potentially direct threat and that he is fit for duty, that Mr. Pasteur provide me with a limited Release of Information for all of his mental health professionals which restricts the release of information to those symptoms, behavioral patterns, and treatment compliance issues directly relevant to his Fitness for Duty determination. . . . Because of his likely resistance [to take prescribed antipsychotic medication], and in order to support that his continuation and increased frequency of psychotherapeutic and psychiatric treatment render him fit for duty, it is recommended that Mr. Pasteur sign a Release of Information which enables the Employee Assistance Program to communicate directly with his psychologist and psychiatrist to assist him in getting additional treatment sessions approved, etc. It is recommended that he be re- evaluated for fitness for duty after at least one month to determine the extent to which he is adhering to treatment recommendations, responding to treatment as evidenced by reduced symptoms, displaying symptomoloty which could impair his job performance, and free of symptoms which render him a potentially direct threat to others. Dr. Harmon's fitness-for-duty evaluation was forwarded to Petitioner. On March 3, 1998, a CFR was conducted to address Respondent's medical fitness for continued employment, to review the record, and to address Respondent's future employment status. In attendance at the CFR was Respondent and his UTD representative; Mr. Rodriguez; a representative for Dr. Carbia; and Ms. Siplin. Respondent's father was allowed to attend but only as an observer. Prior to the CFR, Respondent was provided a copy of Dr. Harmon's Report and read it. After reading the Report, Respondent requested, and Mr. Rodriguez complied with the request, that no one at the CFR be allowed to review the Report. Respondent was advised that the focus of the CFR was Dr. Harmon's recommendations contained in the Report. During the CFR held on March 3, 1998, Respondent's father interrupted the CFR several times. Finally, Respondent's father was asked to leave the CFR and, unfortunately, the last interruption by Respondent's father caused the CFR to end. A Summary of the CFR dated April 30, 1998, was sent to Respondent. The Summary included, among other things, directives from Mr. Rodriguez which were that Respondent was required to comply with Dr. Harmon's recommendations and to comply within five (5) days of receipt of the Summary. The Summary also advised Respondent, among other things, that Mr. Rodriguez would verify his (Respondent's) compliance with the directives; that, as of March 16, 1998, Respondent's status on Petitioner's payroll record was on leave-without-pay authorized; that Respondent had applied for a medical leave of absence retroactive from March 17, 1998, through May 17, 1998, which complies with one of Dr. Harmon's recommendations; and that Respondent's failure to comply with the directives could lead to suspension or dismissal. By memorandum dated May 20, 1998, Respondent was notified by the executive director of OPS that clearance from OPS was required in order for his return to work. Respondent was further advised that a clearance conference was a requirement for his return to work; that he must schedule a clearance conference before May 27, 1998; and that failure to schedule and/or attend the clearance conference would result in disciplinary action. Respondent failed to comply with the directives given him in the Summary of the CFR dated April 30, 1998. As a result, a CFR was held on June 4, 1998, essentially to address his noncompliance with the directives. The attendees of the CFR on June 4, 1998, were Respondent and his UTD representative; Mr. Rodriguez; Ms. Siplin; and a representative for Dr. Carbia. One of the directives was for Respondent to comply with Dr. Harmon's recommendations; Respondent had complied with only one of the recommendations which was to obtain extended medical leave. At the CFR, among other things, Respondent was directed to make an appointment with Dr. Harmon by a date certain and to obtain a medical leave extension to cover his present absence and future absence to be recommended by Dr. Harmon. By memorandum dated August 4, 1998, from Mr. Rodriguez, Respondent was provided with a written Summary of the CFR held on June 4, 1998. The Summary also contained events that had occurred since the CFR. Mr. Rodriguez indicated in the Summary, among other things, that Respondent had provided notification that he (Respondent) was currently being treated by Dr. Patino; that Dr. Harmon's office had notified OPS that Respondent had scheduled an appointment and had later cancelled the appointment, but had not rescheduled the appointment; that Respondent failed to obtain approved leave and was on non- approved leave status; and that Respondent continued to be in noncompliance with the directives. Mr. Rodriguez again gave Respondent directives in the memorandum of August 4, 1998. The directives were as follows: You [Respondent] are advised of the availability of services from the District's [Petitioner's] support referral service. You must comply with Dr. Harmon's recommendations as stated in his report. You must schedule an appointment with Dr. Harmon by contacting his office no later than 24 hours from receipt of this letter. You must immediately obtain a Board [Petitioner] approved medical leave of absence to cover the period from 5/19/98 through the necessary recommended time by Dr. Harmon. Mr. Rodriguez further advised Respondent in the memorandum that failure to comply with the directives would compel Petitioner to take further disciplinary action including dismissal. Respondent continued to fail to comply with the directives. As a result, a CFR was held on September 21, 1998. In attendance at the CFR was Respondent and his UTD representative; Mr. Rodriguez; Ms. Siplin; and the personnel director for Petitioner's Region V, Clarence Jones. At the CFR on September 21, 1998, among other things, Respondent indicated that he had not complied with Dr. Harmon's recommendations and had not applied for and obtained an approved medical leave of absence. However, Respondent indicated that he had obtained an appointment with Dr. Harmon which was scheduled for September 25, 1998. Consequently, Respondent requested that he be allowed to keep his appointment with Dr. Harmon, obtain an approved medical leave of absence, and again attempt to resolve the matter after the appointment and a review of his medical evaluation report. Mr. Rodriguez did not agree to Respondent's request, but advised Respondent that his (Respondent's) matter would be forwarded for legal review and possible disciplinary action including suspension or dismissal. Even after the CFR of September 21, 1998, OPS attempted to give Respondent another opportunity to comply with the directives. By letter dated November 9, 1998, the senior executive director of OPS, Dr. Joyce Annunziata, notified Respondent that he was again being provided an opportunity to comply with the directives. The directives in the letter were as follows: You [Respondent] must comply with all of Dr. Harmon's initial recommendations as stated in his March 1, 1998, medical fitness for duty [sic] report. You must schedule an appointment with Dr. Harmon by contacting his office no later than 24 hours from receipt of this letter. You must immediately obtain a Board [Petitioner] approved medical leaves [sic] of absence to cover absences starting May 19, 1998 through the present. (Leave application attached.) Dr. Annunziata further directed Respondent to comply with the above directives within three (3) working days of receipt of the letter. She advised and notified Respondent that his continued failure to comply would be considered gross insubordination and would lead to disciplinary action including dismissal. Respondent failed to comply with the directives given him by Dr. Annunziata. Because Respondent failed to schedule another appointment with Dr. Harmon to provide Dr. Harmon an opportunity to re-evaluate Respondent, Dr. Harmon's initial evaluation remained valid. Respondent remained unfit to return to work. Respondent had a right not to execute a consent and release of information for Dr. Harmon to contact and exchange information with his (Respondent's) treating psychiatrist and psychologist. Such an exchange of information would have immensely assisted Dr. Harmon, and in his Report, Dr. Harmon referred to such exchange of information as essential. Respondent had no understanding that his refusal to sign a consent and release would have such serious ramifications, i.e., dismissal proceedings. Even though lack of information from Respondent's treating psychiatrist and psychologist warrant finding Respondent unfit to return to work, Respondent cannot be disciplined for exercising his right to not execute a consent and release of information. Moreover, this Administrative Law Judge is persuaded that Respondent continued to believe that, as long as he was not refusing to be seen by Dr. Harmon and as long as he was being continually treated by his psychiatrist and psychologist, he (Respondent) could and would be permitted to reschedule his appointment with Dr. Harmon. Respondent did not appreciate the serious ramifications, i.e., dismissal proceedings, of not keeping his appointments with Dr. Harmon. Even at the hearing before this Administrative Law Judge, Respondent continued with his disbelief that failure to reschedule and keep the appointment with Dr. Harmon was such a serious course of action on his part. Respondent presented no medical evidence at hearing to contradict Petitioner's medical evidence and to demonstrate that he is medically fit to return to work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order sustaining the suspension of Raynard W. Pasteur without pay, but not dismissing him from employment, and reinstating Raynard W. Pasteur under the terms and conditions deemed appropriate. DONE AND ENTERED this 23rd day of July, 1999, in Tallahassee, Leon County, Florida. Hearings Hearings ERROL H. POWELL Administrative Law Judge Division of Administrative 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 this 23rd day of July, 1999.
Findings Of Fact Leo Willie Johnson commenced work as a custodian at Citizens Field on September 23, 1985, under inauspicious circumstances. For reasons not germane to this proceeding he had been discharged as a school bus driver and was reinstated by the Superintendent. As part of the reinstatement he was transferred from the Transportation Department to a custodial position. Since he didn't want a full-time position and the Citizen's Field assignment was part- time, he was assigned to that site. (tr-16, 127, Exhibit #R-2) Citizen's Field is a football stadium owned by the City of Gainesville and leased by the Alachua County School Board (SBAC). There are two concrete bleachers, an east side and a west side, accommodating a total of 6500 persons. The fall months are extremely busy with frequent football games and some use of the field by the City of Gainesville. (tr-16, 39, 70, 73) On Mr. Johnson's first day of work he was given a brief orientation to the job by his immediate supervisor, Dave Waters, who has been in charge of maintenance of Citizens Field for 26 years. He was also given a "pep" talk by Kirby Stewart, who is Mr. Waters' supervisor and the individual in charge of health education, drivers education and athletics for the SBAC. Mr. Stewart told Willie Johnson the work would be hard but rewarding, since parents, students and administrators are quick to acknowledge how great the field looks. (tr-16, 17, 69, 70) Mr. Johnson's assigned work day was from 8:00 a.m. until 1:00 p.m. Monday through Friday, with a 10-minute break at 10:00 a.m. His duties included general cleaning and field maintenance: using a blower to remove papers and trash from the bleachers, sweeping the restrooms and walks, removing paper from the ground, raking, and similar functions. None of the duties required training or preparation on the part of the worker. (tr- 17, 38, 48) From the first day on the job, Leo Johnson's performance was substandard, and by his words and actions he made it clear that he was not remotely interested in fulfilling his duties. On September 23, 1986, he spent his entire work day using the blower to clean the east bleachers. He accomplished in five hours what an experienced worker could do in forty-five minutes and an inexperienced worker could do in two hours. (tr- 17-18, 71, Exhibit #P-1) On September 24, 1986, he spent five hours cleaning the restrooms, a concession stand and one locker room. In Dave Waters' opinion, based upon twenty-six years experience and the supervision of many different workers, these tasks should take a new man approximately two hours. (tr-18) On the third day, Leo Johnson spent four hours washing out two bathrooms and one locker room. He then sprayed out one restroom with a waterhose. At 12:30 Dave Waters gave him a short, fifteen minute assignment, but he laid down his tools and walked away. He returned after about fifteen minutes and Dave Waters told him that he must keep working until his work time was up. Mr. Johnson responded that there was too much work to do, that he didn't think the job would work out for him and that he would talk to Mr. Griffin in personnel about another assignment. He then left the work site. (tr-18-20, Exhibit #P-1) Tile next two days, Mr. Johnson was cut on sick leave. He came to work on Monday, September 30th, but left after two hours. He was out then until Monday, October 14th and worked four full days Friday, the 18th was a Homecoming holiday. He was not very productive that week as he had a portable radio plugged into his ears. Dave Waters asked him to remove the earphone so that he could give him instructions, but he replaced it later. (tr-21-23) Because of the concerns expressed by both Dave Waters and the employee, Wilfred Griffin (Career Service Specialist, and the School Board Superintendent met with Mr. Johnson on October 2, 1985. Mr. Johnson was told again the duties of his job and was told that he was expected to carry out those duties. Mr. Johnson complained about having problems with his feet due to having to stand in water. Later, when Mr. Griffin had the safety officer investigate to see if boots should be purchased, the report back to him was that the field had good drainage and there was no standing water. In addition, boots had already been made available to the workers. (tr-l28-129) At Mr. Griffin's direction, On October 7, 1985, Kirby Stewart asked Mr. Johnson to bring in a note from his doctor. Mr. Johnson replied that it would be "no problem". Thereafter, Kirby Stewart repeated the request on several occasions. The only thing he received was a note from the A.C.O.R.N. Clinic secretary that Leo Johnson was examined on October 8, 1985. (tr-74, Exhibit #P-7, and #P-17) On Monday, October 21, 1985, Mr. Johnson worked four and a half hours. He left the work site without permission for 30 minutes. When he returned and was told by Dave Waters that he was not to leave without permission, he replied that he would leave and sign out whenever he wanted and would not change his work pace for anyone. Later that same day, Kirby Stewart came to the work site since Dave Waters had called to tell him that Leo Johnson left. Mr. Stewart reminded Mr. Johnson about the doctor's note and he wanted to leave immediately to go get it. He and Mr. Stewart walked the grounds while Mr. Stewart pointed out areas where his work was not satisfactory. Leo Johnson replied in a loud and abusive manner that "I beat the transportation department, and now ... [he didn't finish the sentence]" (tr-25,26,27, 113-115, 118, Exhibits #P-7 and P-13) Mr. Johnson did not return to work until December 12, 1985. In the meantime he called in sick every day. He was reminded several times that a doctor's note was required and he responded that the doctor would call. The doctor did not call. He complained of headaches, backaches and swollen feet. Yet on payday, November 27th, he was observed by Mr. Stewart jogging into the Administration building to get his paycheck. (tr-27, 28, 82, Exhibits #P-7, P- 15) When Mr. Johnson appeared for work on December 12, 1985, Mr. Waters gave him the message that he must go see Kirby Stewart. He called Kirby Stewart instead, and was told that since he missed so many days Kirby Stewart needed to talk with him about whether he was physically able to work. Leo Johnson did not go to see Kirby Stewart. Mr. Stewart wrote a memo to Wilfred Griffin detailing the call from Leo Johnson and expressing his need for a resolution of the problems. (Exhibit #P-9) By January 6, 1986, after the holiday break, Mr. Johnson had the impression that he was dismissed. While the record is not at all clear who told him that, Kirby Stewart also thought that Leo Johnson was dismissed as of December 20, 1985 (tr.100, Exhibit #R-6(e)) On January 6, 1986, Leo Johnson called School Board member, Charles Chestnut III, to complain that he was discharged. Charles Chestnut called the School superintendent, Dr. MaGann, who said that It must be a mistake because he didn't know anything about it. Charles Chestnut had been involved in the earlier disciplinary action that the superintendent corrected regarding Leo Johnson. Mr. Chestnut had no personal knowledge regarding Leo Johnson's performance. (tr-174-177) Leo Johnson returned to work at Citizen's Field on January 13, 1986. He took numerous breaks and left in his car at one point during the work day. He was absent for approximately 20 minutes. When he was told to hoe the grass under the bleachers he dragged an iron rake around the area with the teeth up. He put away his tools early and left before 1:00 p.m.. (tr. 30-34) On Tuesday, January 14, 1986, Leo Johnson was also at work but took breaks frequently all day. (tr.34-36) On Wednesday, January 15, 1986, Leo Johnson came to work at 8:00 a.m. Between 8:00 and 10:27, he worked 92 minutes and took breaks totaling 55 minutes. He left at 10:27 after telling Dave Waters that he had a headache. (tr-37) Kirby Stewart saw him at the County Office around 11:00 a.m. and asked why he was there. He replied that the had come to see Wil Griffin because his feet were too swollen to work. (tr.89) On January 17th, Kirby Stewart wrote a memo to his supervisor, Jack Christian reiterating the numerous problems with Leo Johnson and stating that had Mr. Johnson returned to work that morning, he would have officially reprimanded him. (Exhibit #R-10) Leo Johnson never returned to Citizens Field, and on January 21, 1986 he was suspended pending a hearing on his termination. (Exhibit #P-14) Between September 23, 1985 and January 21, 1986, there were a total of 73 school board work days. Leo Johnson was at work for 8 full days, was present for 4 partial days and was absent for 61 full days. (tr. 90-91, Exhibit #P-15) Mr. Johnson was a regular, part-time career service employee of SBAC while he was assigned to citizen's Field. Wilfred Griffin, a Career Service Specialist had the authority to interview, recruit, hire, fire and counsel career service employees. While Dave Waters was responsible for directing Johnson's work in the field and Kirby Stewart was Mr. Johnson's supervisor for administrative purposes, Wilfred: Griffin had the most substantial authority over this employee. As revealed by the record, both Superintendent MaGann and a school board member, Charles Chestnut III, had hand in dealing with Leo Johnson. This complicated hierarchy contributed to confusion and delays but did not prejudice or result in detriment to Mr. Johnson. He used the 57 sick days he transferred from the Department of Transportation, plus the days he earned on the payroll for his time assigned at Citizen's Field and ended with a full paycheck for the month of January. Despite repeated requests by Kirby Stewart and Wilford Griffin, Leo Johnson never produced a doctor's statement explaining his protracted absences. At the hearing he produced a photocopy of an "Illness-in-line-of-duty-leave" form with two lines completed by a Dr. Guido, whom Mr. Johnson contended was a foot doctor. The form is dated and signed by Leo Johnson on January 15, 1986, but the form is incomplete and there is no evidence that anyone at the school board has ever seen it. (tr- 212, 213) Further, the almost illegible statement by the doctor appears to be a diagnosis with nothing about Mr. Johnson's ability to work. (Exhibit #R-9) The verification of his visits to A.C.O.R.N. Clinic provide no information about his ability to work. By letter dated February 25, 1986, Bonnie Coats, RN, the clinic coordinator, responded to Mr. Johnson's request for the dates and reasons for his clinic visits. They are as follows: 08/23/83 Physical Exam for Work 08/07/84 Physical Exam for Work 10/08/85 1. Dizziness Calluses of feet Muscle Spasm 08/22/85 Blood Pressure evaluation 11/19/85 Blood Pressure evaluation 11/26/85 Blood Pressure evaluation 12/10/85 Blood Pressure evaluation (Exhibit #R-5(b)) Leo Johnson had ample notice of his deficient performance, although none in the supervisory chain wrote up a Job Performance Warning Record. Dave Waters did not because Mr. Johnson simply was not on the job enough. (tr-58) Kirby Stewart intended to formalize his complaints in an official reprimand, but Mr. Johnson failed to return to work again. (Exhibit #P-13) Wilfred Griffin orally warned Mr. Johnson about his job performance, leaving the job, excessive breaks and absenteeism. He met with Mr. Johnson on six or seven occasions and shared with him the detailed written memos about his work from Dave Waters and Kirby Stewart. (tr-129, 130, 154, 155) As a career service employee Leo Johnson was subject to the rights and responsibilities found in the SBAC Career Service Employee Handbook. (Exhibit #P-18) Leo Johnson was thoroughly familiar with the provisions of the handbook.
The Issue The issue in this case is whether Respondent's intended award of a contract to Intervenor pursuant to Invitation to Negotiate No. 2011-18 is contrary to Respondent's governing statutes, Respondent's rules and policies, and the specification of the solicitation.
Findings Of Fact The Department issued the ITN, Revised Standards Tutorial, on December 17, 2010. The purpose of the ITN was to contract with one or more vendors "to provide assistance with the state's need to support teachers in the implementation, and students in the mastery of the English Language Arts and Mathematics Common Core State Standards (CCSS) and the Next Generation Sunshine State Science and Civics Standards." The Department sought to purchase, among other things, the following: [T]he development of a new robust web-based system that includes but is not limited to interactive adaptive student practice lessons for each of the Common Core State Standards and Next Generation Sunshine State Science and Social Studies Standards (Science grades 5, 8, Biology 1 and Civics) to address individual student needs and provide a means of individual progress monitoring for students, parents, and teachers; secure mini-interim assessment checks for students; student performance reports for teachers on the mini-interim assessment checks; and programming for parent, student, and teacher log-ins that provide different levels of access to support materials. The ITN required that the system developed would be the property of the Department during and after the contract and stated: All equipment, software and licenses, programming code and language, documentation and content (both instructional and informative) that is developed as part of this project will be the property of the Department during and after the grant period. All such items must be completely transferred to the Department prior to the end of the contract period, including any licenses to the extent that they have not expired. Any proprietary products owned by the Contractor must provide for a perpetual royalty free and non-exclusive license for use by the Department. Vendors were given the opportunity to ask technical questions about the ITN, and the Department posted the questions and the Department's responses on the vendor bid system on December 29, 2010. One vendor submitted the following question: "Will the DOE require a perpetual license to continued use of any content (assessments or lessons) after the end of the four- year contract if those materials are the vendor's proprietary, pre-existing materials that are provided for use in the Standards Tutorial?" The Department gave the following written response, which was included in Addendum No. 1 to the ITN. "All content and applications developed will be the property of the Department. All content, application code and documentation must be turned over to the Department upon deliverable completion." It is clear from the ITN and the first addendum that the Department required the materials developed pursuant to the contract to be the property of the Department. One of the main goals of the Department in issuing the ITN was to have a product that could be sustained after the contract period. When the ITN was developed, the Department was not aware of the variety of arrangements that might be possible in order to meet all of the Department's goals. However, the Department made the choice to go with ownership of the products developed for the contract and a perpetual, royalty-free non- exclusive license for products that were owned by the contractor and provided pursuant to the contract, but were not developed as a result of the contract. The Department could have worded the ITN so that the vendors would provide a solution for the sustainability component of the contract, but it did not do so. The method chosen by the Department to meet its sustainability needs became a requirement of the ITN. Sustainability was a material aspect of the contract, and, because the Department had specified the method to achieve sustainability in the ITN with no leeway for the vendors to propose a different methodology, the ownership of products developed pursuant to the contract became a material requirement of the ITN. Nothing prevented the Department from negotiating different methods of sustainability during negotiation, but in order to determine whether a vendor was responsive, the Department was bound by the ITN, no matter whether it inadequately reflected what the Department was seeking. The remedy to the flawed ITN would have been to change the specifications prior to the replies being submitted. The Department argues in its Proposed Recommended Order that the ITN did not call for ownership of the content or the software. This argument is disingenuous in light of the testimony of the Department's representative that the ITN contemplated complete ownership of the products developed pursuant to the contract. Section 7.1 of the ITN required that the vendor include completion dates for deliverables in its Reply and provided a list of deliverables for each year of the contract. The ITN stated that the Deliverable Completion date contained in the ITN was for "informational purposes only." The actual completion dates were to be negotiated. Section 3 of the ITN provides: "Award will be made to the responsible and responsive vendor that the Department determines will provide the best value to the state." Section 3.3. of the ITN defines a responsive bid as "a Reply submitted by a responsive and responsible vendor which conforms in all material respects to the solicitation." The term "Reply" is defined by the ITN as "the complete response of the Respondent[1/] to the ITN, including properly completed forms and supporting documentation." Section 4.11 of the ITN provides: As in the best interest of the state, the right is reserved to award based on all or none thereof, to a responsive, responsible Respondent. As in the best interest of the state, the right is reserved to reject any and/or all Replies or to waive any minor irregularity in replies received. Conditions which may cause rejection of Replies include, without limitation, evidence of collusion among Respondents, obvious lack of experience or expertise to perform the required work, failure to perform, or meet financial obligations on previous contracts. Section 5.2.2 of the ITN is entitled Mandatory Submittal Documents and requires that the vendors submit, among other things, a transmittal with their replies which contains the following: a statement certifying that the person signing the Reply is authorized to represent the Respondent and bind the Respondent relative to all matters contained in the Respondent's Reply the company's federal tax identification number a statement certifying that the Respondent has read, understands, comply [sic] and agrees to all provision of this ITN a statement that the Respondent is authorized to conduct business in Florida in accordance with the provisions of Chapter 607, F.S. In lieu of such statement, the Respondent alternatively must certify that authorization to do business in Florida will be secured prior to the award of the contract a statement certifying that the Respondent is registered on the MyFloridaMarketPlace website in accordance with the provisions by the state of Florida. In lieu of such statement, the Respondent must alternatively certify that registration authorization will be completed prior to the award of the contract. Once the replies were submitted, the ITN required that the replies be reviewed to determine if they met the mandatory submittal requirements. If it was determined that a reply met the mandatory submittal requirements, the reply would be evaluated by an evaluation committee. Section 8 of the ITN sets out the evaluation and negotiation process and provides: 8.1 REPLY EVALUATION AND NEGOTIATION PROCESS Using the evaluation criteria specified below, in accordance with Section 287.057, F.S., the Department shall evaluate and rank responsive Replies and, at the Department's sole discretion, proceed to negotiate with one or more Respondent(s) . . . : Section 8.2 of the ITN provides: The ITN is designed to assess the most points to the Respondent presenting the best solution for the required services. The Evaluation Committee will consider only those Replies, which are determined to meet the mandatory requirement review (See SECTION 5.2.2) first completed by the Department's Bureau of Contracts, Grants and Procurement Management Services. Each member of the Evaluation Committee will be provided a copy of each Technical Reply. Replies will be evaluated on the criteria established in the section above entitled "Criteria for Evaluation" in order to assure that Replies are uniformly rated. The Evaluation Committee will assign points, utilizing the technical evaluation criteria identified herein and the Procurement Office will complete a technical summary. Oral presentations (or seeking clarification) will be evaluated by the committee based on the criteria established in SECTION 5.2.1 above. During this stage Respondents will be asked to provide any clarifications needed by the evaluation committee to assist in evaluating their Reply. Information received in this stage will be added to the Respondent's Reply and evaluated as a part of the appropriate section above. Section 8.1 of the ITN provides that the evaluation of the prices would be done through a comparison of the prices submitted in the replies: "The maximum points will be awarded to the lowest acceptable Price Reply. Replies with higher costs will receive the fraction of the maximum points proportional to the ratio of the lowest Price Reply to the higher Price Reply." Section 8.1(E) of the ITN provides: In submitting a Reply Respondent agrees to be bound to the terms of this ITN, however, the Department reserves the right to negotiate different terms and related price adjustments if the Department determines that it is in the state's best interest to do so. Four vendors, including Infinity and Microsoft, submitted replies to the ITN by the deadline of January 10, 2011. Microsoft's Reply stated: The information contained in this document [the reply] (a) represents Microsoft's current statement of the features, functions, and capabilities of the products and services described herein, which is subject to change at any time without notice to you, (b) is for your internal evaluation purposes only and should not be interpreted as a binding offer or commitment on the part of Microsoft to provide any product or service described herein; and (c) constitutes Microsoft trade secret information and may not be disclosed to any third party. Any procurement that may result from this information is subject to negotiation and execution of a definitive agreement between [sic] and its chosen authorized Microsoft reseller incorporating applicable Microsoft commercial terms. Microsoft does not guarantee the accuracy of any information presented and assumes no liability arising from your use of the information. MICROSOFT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN THIS DOCUMENT. The transmittal letter submitted by Microsoft stated: "[T]his letter certifies that Microsoft has read and understands the provisions of the ITN." The transmittal letter did not meet the requirements of the ITN that Microsoft certify that it complies and agrees with all provisions of the ITN. The reply submitted by Microsoft did not provide that all materials developed as a result of the contract would become the property of the Department. Microsoft intended to subcontract with Houghton-Mifflin-Harcourt (HMH) to develop the content, which includes the practice lesson plans for the students. Microsoft stated in its Reply: "The Department of Education will have a perpetual license to use these lessons; HMH will retain copyright and ownership of all lessons provided." Microsoft intentionally did not agree to provide complete ownership of the project deliverables to the Department when it submitted its reply. David Gallagher, Microsoft's representative and the person who submitted the reply on behalf of Microsoft, admitted at the final hearing that he did not have authorization to give the Department ownership of the project deliverables when he submitted Microsoft's reply. Section 5.2.3 of the ITN provided that prices were to be submitted on a form that was provided in the ITN. The price form contains the following language: We propose to provide the services being solicited within the specifications of ITN 2011-18. All work shall be performed in accordance with this ITN, which has been reviewed and understood. The below prices are all inclusive. There shall be no additional costs charged for work performed under this ITN. The price form submitted by Microsoft did not contain this language. Taking the evidence as a whole, it is clear that Microsoft did not intend to be bound by its reply and thought that anything that was contrary to the ITN would be worked out in negotiations. The Department appointed an evaluation team that met on January 18, 2011, to score each reply. Some of the evaluators made note in their evaluations that Microsoft's reply did not meet the requirements of the ITN relating to ownership of the project deliverables. The evaluation committee awarded the maximum number of points for price to Microsoft. The two top-scoring vendors, Infinity and Microsoft, were invited into negotiations. The Department submitted questions to both Infinity and Microsoft before the negotiations, and both vendors submitted written responses to those questions. The Department submitted the following question to Microsoft: Your proposal states "HMH will retain copyright and ownership of all lessons provided" (pp.3-25, 3-33). How does this meet the ITN requirement that "All equipment, software and licenses, programming code and language documentation and content (both instructional and informative) that is developed as part of this project will be the property of the Department during and after the grant period. All such items must be completely transferred to the Department prior to the end of the contract period, including any licenses to the extent they have not expired. Any proprietary products owned by the Contractor must provide for a perpetual royalty free and non-exclusive license for use by the Department." (p. 6)? Microsoft responded to the question of ownership, in part, as follows: Developments. Upon payment in full, we assign you joint ownership in all rights in any custom computer code or materials (other than products, fixes or pre-existing work) developed by us (or in collaboration with you) and provided to you in the course of performance of this contract ("developments"). "Joint ownership" means each party has the right to independently exercise any and all rights of ownership now known or hereafter created or recognized, including without limitation the rights to use, reproduce, modify and distribute the developments for any purpose whatsoever, without the need for further authorization to exercise any such rights or any obligation of accounting or payment of royalties, except you agree you will exercise your rights for your internal business operations only, and you will not resell or distribute the developments to any un-affiliated third party. These use restrictions shall survive termination or expiration of this contract. Each party shall be the sole owner of any modifications that it makes based upon the developments. * * * Educational-Digital Content & Assessments. We will grant a perpetual, royalty-free and non-exclusive license (except as set forth below) for all of the content and lesson instruction and assessments created as part of this project to the State of Florida. As such, we will retain copyright and ownership of this created material, while the State of Florida may leverage the material on an exclusive basis in the State of Florida anywhere within its offices, school facilities, and education programs, including use extended to staff, administration, teachers, students and parents. Much of the content, particularly in the Reading, Language Arts/Literature and Civics disciplines is integrated into the lessons from third-party sources. The ownership of material permissioned from outside our team is unavailable to be granted or transferred to the State of Florida. However as part of the sustainability plan for the Student Standards Tutorial, we will ensure that mechanisms are in place to allow for permission renewals as required by contract with third-party content owners for a period encompassing four years from the final delivery of the contract period. Although Microsoft was given an opportunity to clarify its position on ownership of the product deliverables developed for the contract, Microsoft's response was still not responsive to the requirements of the ITN. The Department appointed a negotiation team that met separately with Infinity and Microsoft on February 3, 2011. During the negotiation session, a Microsoft representative stated that it would be "impossible" for Microsoft to provide complete ownership of equipment and software, that there was no way that Microsoft could put in its best and final offer that the Department would have complete ownership, and that Microsoft did not want to be non-responsive but it did not know how to fix the problem. After the negotiation session with Microsoft, Regina Johnson (Ms. Johnson) and Mary Jane Tappen, who were members of the negotiation team, engaged in email communications regarding whether the Department could change the language of the ITN to allow the Department to accept the licensing proposal offered by Microsoft. Ms. Johnson noted that if the ITN language were not changed, Microsoft could be rejected for non-compliance. On February 7, 2011, after the negotiation sessions, Ms. Johnson sent an email to Infinity notifying Infinity that the Department would accept a license or co-ownership proposal, reflecting a change in the ITN specifications. Following negotiations, each vendor was given the opportunity to submit a Best and Final Offer (BAFO) by February 11, 2011. Both vendors submitted BAFOs. On February 16, 2011, the negotiators held an Intent to Award meeting. Following discussion, two negotiators voted for Microsoft, and one voted for Infinity. On March 1, 2011, Chancellor Frances Haithcock sent an Intent to Award memorandum to Commissioner Eric Smith (Commissioner Smith), explaining why Microsoft provides the best value to the state. Commissioner Smith signed that memorandum on March 4, 2011. On March 7, 2011, the Department posted the Intent to Award to Microsoft.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the intended decision to award a contract to Microsoft pursuant to ITN 2011-18 is contrary to section 287.057 and the ITN. DONE AND ENTERED this 7th day of June, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 7th day of June, 2011.
