The Issue This is a bid protest proceeding pursuant to Section 120.57(3), Florida Statutes, in which the primary issue raised by the Petitioner (who is the second-ranked proposer) is that the subject contract should be awarded to the Petitioner because the first-ranked proposer submitted a non-responsive proposal. The Petitioner's alternative arguments challenge the manner in which the proposals were evaluated and assert, alternatively, that, if properly evaluated, the Petitioner would be the first-ranked proposer, or that the evaluation was so flawed as to require that all bids be rejected and that the agency embark upon a new request for proposals. The first-ranked proposer intervened to protect its substantial interests. The primary issues raised by the first- ranked proposer are that its own proposal is responsive, that any flaws in the evaluation process are insufficient in nature and number to warrant embarking on a new request for proposals, and that the second-ranked proposer lacks standing to challenge the proposed agency action because the proposal of the second-ranked proposer is asserted to be non-responsive. The third-ranked proposer intervened primarily in a defensive posture to protect its interests from any adverse consequences that might flow from the issues raised by the other two proposers, as well as to benefit from any windfall that might result from the challenges to the sufficiency of the other two proposals.
Findings Of Fact Preparation and issuance of the subject RFP The state agency involved in this dispute is AHCA. AHCA's powers and duties include the administration of Florida's Medicaid program. The Medicaid program provides medical services to eligible Medicaid recipients under Chapter 409, Florida Statutes, the United States Code Title 19, which involves Medicaid, and to children from birth until five years of age under United States Code Title 21, State Children's Health Insurance Program of the Social Security Act, through enrolled providers. On or about March 3, 2005, AHCA issued the subject RFP, which solicited proposals to develop the MMIS/DSS and to provide fiscal agent operations. The RFP required proposers to separately submit a technical proposal and a cost proposal. The RFP also required implementation of the new MMIS/DSS technical systems by July 1, 2007. However, the RFP permitted the implementation of some non-critical business functions after July 1, 2007. The RFP incorporated several separate addenda, numbered one through seven. Addendum Six, also had a separately issued Clarification Notice. Each addendum also included a list of questions asked by potential proposers concerning the RFP, and AHCA's answers to those questions. The questions and answers were part of the addenda in which they appeared and, therefore, became part of the RFP. Each proposer was required to include with its proposal a signed acknowledgement certifying its receipt of each addendum. Section 20.2 of the RFP includes the following: The State has established certain requirements with respect to responses submitted to competitive solicitations. The use of "shall", "must", or "will" (except to indicate futurity) in this solicitation, indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with the solicitation requirements, provides an advantage to one respondent over another, or has a potentially significant effect on the quality of the response or on the cost to the State. Material deviations cannot be waived. The words "should" or "may" in this solicitation indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such desirable feature will not in itself cause rejection of a response. Sections 20.17 and 20.18 of the RFP read as follows: Correction of Proposal Errors If the Agency determines that a proposal contains a minor irregularity or an error, such as a transposition, extension or footing error in figures that are presented, the Agency may provide the Vendor an opportunity to correct the error. Information that is required to be included in the proposal and is inadvertently omitted shall not be accepted under this error correction provision. All information required to be included in a proposal must be received by the date and time that proposals are due to the Agency. The Agency reserves the right to seek clarification from a Vendor of any information contained in the proposal. Minor irregularities in proposals may be waived by the evaluators. A minor irregularity is a variation from the RFP terms and conditions that does not affect the price of the proposal or give one applicant an advantage or benefit not enjoyed by others or adversely affects the State's interest. Rejection of Proposals Proposals that do not conform to the mandatory requirements of this RFP shall be rejected by the Agency. Proposals may be rejected for reasons that are provided in Appendix M, Checklist of Mandatory Items; for failure to comply with any requirement of this RFP; when the proposal is conditional; or when in the Agency discretion, it is in the best interests of the Agency. The Agency reserves the right to reject any and all proposals. The three proposers ACS Parent, EDS Subsidiary, and Unisys each submitted a proposal in response to the subject RFP. EDS Parent did not submit a proposal in response to the RFP. A partnership or joint venture comprised of EDS Subsidiary and EDS Parent did not submit a proposal in response to the RFP. EDS Parent is not a party to this proceeding. A partnership or joint venture comprised of EDS Subsidiary and EDS Parent is not a party to this proceeding. In the MMIS area, EDS Parent and EDS Subsidiary frequently both sign the proposals and the contracts. EDS Parent and EDS Subsidiary as a matter of practice usually perform the EDS MMIS work together. As a general practice, EDS Parent stands behind the obligations of EDS Subsidiary as a guarantor of any unfulfilled liabilities of EDS Subsidiary, even when EDS Subsidiary is the only signer on a contract. And it may well be that EDS Parent and EDS Subsidiary intended to be co-proposers or joint adventurers on the subject RFP, but no such intention was set forth in the EDS Subsidiary proposal.2 EDS Parent and EDS Subsidiary are two separate legal entities. EDS Parent is a publicly traded Delaware corporation that was formed in the 1960s. EDS Subsidiary is a Delaware limited liability company that was formed in 1997. EDS Subsidiary is a wholly-owned subsidiary of EDS Parent. EDS Subsidiary was specifically established and has been operated as a separate business entity for the express purposes of obtaining the advantages of certain operational flexibilities, as well as certain tax advantages that may result from the operations of a separate business entity. During at least one period in its existence EDS Subsidiary owned assets valued at more than one billion dollars.3 Delivery of the proposals The RFP originally called for proposals to be submitted to AHCA's "Issuing Officer" at 2727 Mahan Drive, Tallahassee, FL 32308. Angela Smith was designated as the "Issuing Officer" of the RFP. Addendum Two to the RFP, which was issued on April 1, 2005, changed the delivery address for all proposals to: 2308 Killearn Center Boulevard, Tallahassee, Florida 32309. Proposals were required to be submitted at this new address by no later than 5:00 p.m. on June 2, 2005. EDS Subsidiary acknowledged receipt of Addendum Two. Section 20.08 of the RFP made it clear that it was each Proposer's responsibility "to obtain any issued addenda and to consider these materials in their response to the RFP." The RFP further expressly provided, "PROPOSALS RECEIVED AFTER THE SPECIFIED TIME AND DATE WILL NOT BE CONSIDERED AND RETURNED UNOPENED." In accordance with the requirements of the RFP, as amended by Addendum Two, ACS Parent and Unisys properly delivered their proposals to 2308 Killearn Center Boulevard, Tallahassee, Florida 32309. EDS Subsidiary's proposal consisted of 15 cartons. The proposal's cover letter and each carton were correctly addressed to 2308 Killearn Center Boulevard, Tallahassee, Florida 32309, but the proposal was never delivered to that address. Rather, EDS Subsidiary's proposal was delivered to AHCA's offices at 2727 Mahan Drive, Tallahassee, Florida 32308. Pat King, Marc Vandenbark, and Milt Ashford, employees of EDS Parent, delivered EDS Subsidiary's proposal to AHCA's 2727 Mahan Drive address at approximately 12:35 p.m. on June 2, 2005. Jason Kinchon, an AHCA employee, met Messers. King, Vandenbark, and Ashford outside of the AHCA office building and directed them to a second floor room in Building No. 2 where the EDS Subsidiary proposal was delivered. Mr. Kinchon brought a hand cart with him. Messrs. King, VanDenbark, Ashford, and Kinchon jointly loaded the proposal on a hand truck on multiple occasions near the rear entrance of the AHCA Contract Administration Office. It took three trips with the hand cart to move the proposal into AHCA Building Number 2 at 2727 Mahan Drive, Tallahassee, Florida. Messrs. Kinchon and King took the loaded hand cart into the AHCA Building Number 2 on the three trips into the building. Messrs. Kinchon and King placed the proposal in a room on the second floor of AHCA Building Number 2. Subsequent to delivery, AHCA secured the proposal to ensure that no unauthorized persons had access to the proposal. Messrs. King, VanDenbark, and Ashford attended the public proposal opening where they saw AHCA open the original proposal. At Mr. King's request, Mr. Kinchon provided a receipt for the EDS Subsidiary proposal bearing a date-time stamp and Mr. Kinchon's signature. After 5:00 p.m. on June 2, 2005, Angela Smith, AHCA's Issuing Officer for the RFP, called Mr. King to inquire about the status of EDS Subsidiary's proposal. Mr. King explained that he had delivered EDS Subsidiary's proposal to the incorrect Mahan Drive address and then faxed Ms. Smith a copy of Mr. Kinchon's receipt. After first conferring with legal counsel, Ms. Smith later informed Mr. King that AHCA would nevertheless accept the EDS Subsidiary proposal. The next day, at Ms. Smith's direction, other AHCA employees retrieved the EDS Subsidiary proposal from 2727 Mahan Drive, Tallahassee, Florida 32308, and delivered it to the AHCA office located at 1669 Mahan Center Boulevard, which was the address where AHCA planned to open, and in fact did open, all three of the proposals. On that same day, AHCA employees retrieved the ACS Parent proposal and the Unisys proposal from 2308 Killearn Center Boulevard and delivered those two proposals to the AHCA office located at 1669 Mahan Center Boulevard, at which address all three proposals were eventually opened. The delivery of the EDS Subsidiary proposal to an incorrect address did not confer any advantage to EDS Subsidiary, nor did it result in any detriment to either of the other proposers. EDS Subsidiary had no more time to prepare its proposal than its competitors and had no opportunity to see the bids of its competitors before submitting its own. The delivery to an incorrect address also did not result in any detriment to AHCA. On the day of the opening of the proposals, AHCA had to move each of the three proposals from the place where each proposal was received to the place where all of the proposals would be opened. It was no significant burden for AHCA to retrieve two proposals from one location and to retrieve the third from another location. The bid bond submitted by EDS Subsidiary On June 3, 2005, AHCA opened the technical proposals that were submitted by ACS Parent, EDS Subsidiary, and Unisys. Two AHCA employees, Angela Smith and Sally Morton-Crayton, presided over the opening. At the opening, Ms. Smith and Ms. Crayton reviewed each proposal to ensure the presence of those items required by the mandatory checklist located in Appendix M to the RFP. Section 70.4 of the RFP reads as follows: Each proposal will be reviewed for responsiveness to the mandatory requirements set forth in this RFP. This will be a yes/no evaluation. The purpose of this phase is to determine if the Technical Proposal is sufficiently responsive to the RFP to permit a complete evaluation. Mandatory requirements for the Technical Proposal are presented in a checklist in Appendix M. Failure to comply with the instructions or to submit a complete proposal will deem a proposal non-responsive, and will cause the proposal to be rejected with no further evaluation. The state reserves the right to waive minor irregularities. No points will be awarded for passing the mandatory requirements. As part of their review, Ms. Smith and Ms. Crayton did not actually read or analyze the mandatory items to determine whether the proposals complied with the RFP's requirements, but only looked to see if the items were present. The RFP required each proposer to submit a Proposal Guarantee with its proposal. In this regard, Section 20.12 of the RFP states: 20.12 Proposal Guarantee One proposal guarantee must be included in the sealed package with the original Technical Proposal. The original Technical Proposal shall be accompanied by a proposal guarantee payable to the State of Florida in the amount of $500,000.00. The form of the proposal guarantee shall be a bond, cashier's check, treasurer's check, bank draft, or certified check. If the proposal guarantee is a bond, the bond shall be written by a surety company authorized to do business in the State of Florida and signed by a Florida Licensed Agent. If a non-resident Florida Licensed Agent signs the bond, the bond shall be considered to have been made and executed in the State of Florida. All proposal guarantees shall be returned upon execution of a legal contract with the successful Vendor. If the successful Vendor fails to execute a contract within ten (10) consecutive calendar days after a contract has been presented to the Vendor for signature, the proposal guarantee shall be forfeited to the State. The proposal guarantee from the successful Vendor shall be returned only after the Agency has received the performance bond required under Section 30.24 of this RFP. The Proposal Guarantee submitted with the EDS Subsidiary proposal did not refer to any proposal submitted by EDS Subsidiary and did not name EDS Subsidiary as principal on the Proposal Guarantee. Fidelity and Deposit Company of Maryland is the surety that issued the Proposal Guarantee. The Proposal Guarantee named EDS Parent as the principal and the State of Florida as the obligee. On its face, the Proposal Guarantee provided security for a proposal submitted by EDS Parent (which proposal never existed), but not for a proposal submitted by EDS Subsidiary. The Proposal Guarantee does not indicate that EDS Parent, as the principal on the bond, is involved in a partnership or joint venture with any other entity, including EDS Subsidiary. Specifically, on its face, the Proposal Guarantee does not reference any entity, partnership, or venture other than EDS Parent as the principal. The Proposal Guarantee included in EDS Subsidiary's proposal does not guarantee EDS Subsidiary's proposal, but rather specifically references a proposal by EDS Parent; a proposal which never existed.4 Financial statements submitted by EDS Subsidiary Section 60.2.4(2) of the RFP required proposers to submit the following financial information: Corporate Financial Statements Audited financial statements for the legal contracting entity (and parent company if applicable) and subcontractors, sufficient to demonstrate the capability to perform this contract, shall be provided for each of the last three fiscal years. These shall include: Balance sheets; Statement of income; Statements of changes in financial position; Auditor's reports; Notes to financial statements; and Summary of significant accounting policies. If all of these are not provided, please explain why. The requirement quoted immediately above was amended by Addendum One, which included the following question and answer which became part of the RFP: Question: Audited financial statements are required in this section. However, many subcontracting firms may not be publicly held with the required forms available. What will the Agency accept for these financial requirements for non-public firms? Answer: If audited financial statements exist they are to be submitted. If audited financial statements do not exist, unaudited statements or financial information of the type that is contained in financial statements may be submitted with an appropriate explanation. (Emphasis added.) EDS Subsidiary's proposal did not include any financial information, audited or otherwise, from which the financial condition of EDS Subsidiary could be determined. Rather, the proposal only included consolidated audited financial statements for EDS Parent. In its proposal, under Tab 4, EDS Subsidiary explained: "EDS Information Systems (sic), L.L.C., will be the contract signing authority for the Florida Medicaid project. As a wholly owned subsidiary of EDS, EDS Information Systems (sic), L.L.C., is not a separate corporation and, as such, does not have separate financial statements. Throughout this RFP response, we will use the term ‘EDS’ to refer to this organization." While EDS Subsidiary may not have had audited separate financial statements, it certainly had "financial information of the type that is contained in financial statements." Without receiving any "financial information of the type that is contained in financial statements," AHCA has no information at all about the financial circumstances of EDS Subsidiary.5 In its proposal, on the title page under Tab 2, EDS Subsidiary stated that the vendor's name was "EDS Information Services, L.L.C." And in the transmittal letter under Tab 2 of the proposal, EDS Subsidiary states: "EDS Information Services, L.L.C., a subsidiary of the of Electronic Data Systems, (hereafter EDS), is pleased to submit our response to the Request for Proposal (RFP) 0514 issued by the Agency for Healthcare Administration." The transmittal letter also states: "EDS' federal tax identification number is 75-2714824." Tax identification number 75-2714824 is the tax identification number of EDS Subsidiary. The transmittal letter also lists "EDS Information Services, L.L.C." as the "Prime Contractor" and states that its "Corporate Charter Number" is M97000000533. That number is the document number assigned by the Florida Department of State to EDS Subsidiary. (The document number assigned by the Florida Department of State to EDS Parent is F96000001705.) The transmittal letter under Tab 2 of the EDS Subsidiary proposal also states: The following table reflects the exact amount of work in percentages to be completed by the Prime Contractor and each subcontractor. Company Percent of Work EDS Information Services, L.L.C. 76.5% First Health Services Corporation 21.8% APS Healthcare, Inc. 1.3% ProviderLink, Inc. .4% Cost proposal submitted with EDS Subsidiary's proposal Section 60.3 of the RFP required proposers to include in their Cost Proposal "a firm fixed price for each of the requirements contained on the pricing schedules within this section." Additionally, the mandatory checklist contained in Appendix M of the RFP required proposers to submit a "firm, fixed price without any additional stipulations or limitations." ACS Parent's Cost Proposal was $38 million less than the next least expensive Cost Proposal. ACS Parent submitted the lowest Cost Proposal and was awarded 600 points, consistent with the language of the RFP. The Cost Proposals for EDS Subsidiary and Unisys were awarded scores of 508 and 523, respectively, based on the application of a specified formula in the RFP and the ratio their prices bore to ACS Parent's price. Ms. Smith and Ms. Crayton oversaw the review and scoring of the proposers' Cost Proposals. During their opening of the Cost Proposals, Ms. Smith and Ms. Crayton did not analyze the Cost Proposal submitted with EDS Subsidiary's proposal to determine if it was submitted by the same legal entity. Ms. Smith and Ms. Crayton did not analyze EDS Subsidiary's Cost Proposal to determine whether it proposed a firm fixed price without additional stipulations or limitations. The Cost Proposal submitted with the EDS Subsidiary proposal identified a different legal entity, Electronic Data Systems, LLC, as the proposer. The Cost Proposal submitted with EDS Subsidiary's proposal included a firm, fixed price. The language in that proposal that described the "Cost Assumptions" underlying the Cost Proposal did not change the character of the Cost Proposal; it remained firm and fixed. Proposed EDS Subsidiary local operations facility Section 50.3.2.1 of the RFP reads as follows: 50.3.2.1 Location of Operations Facilities The Contractor's local facility shall be located within a five (5) mile radius of the State offices located at 2727 Mahan Drive, Tallahassee, Florida. The Agency prefers a location convenient to the Agency and will consider the location in the evaluation process. Consideration of potential expansion of operations should be given in choosing a site for the facility. The language quoted immediately above is rather ambiguous as to what must be included in the proposal regarding the proposer's local facility. It does not clearly state that a specific location must be identified in the proposal. The specific instructions in the RFP about what must be included under each tab of the proposals do not clearly require the inclusion of a specific address for the proposer's local facility. Further, the instructions in the Evaluation Manual do not appear to require the inclusion of a specific address. ACS Parent's proposal included a specific facility and address for its proposed operations facility location in Tallahassee. Unisys' proposal included the addresses for two possible locations, but did not include a specific proposed facility in Tallahassee. EDS Subsidiary's proposal did not include a proposed facility or an address for its operations facility in Tallahassee. EDS Subsidiary simply agreed to meet AHCA's requirements for a local facility. At its oral presentation, which occurred approximately six weeks after submission of the proposals, EDS Subsidiary first provided AHCA with a possible address for its local operations facility, at 325 John Knox Road in Tallahassee. Staffing information submitted by EDS Subsidiary The RFP required proposers to identify within their proposals certain individuals to fill various Named Staff positions. The Named Staff positions carried certain educational qualification requirements based on the type of work expected from each position. The Named Staff positions were separately identified because they were important positions and AHCA considered them critical to the success of the project. Addendum One to the RFP contained the following question and answer which became part of the RFP: Question: Will the State allow equivalent work experience in lieu of a bachelor's degree? Answer: The State will allow equivalent work experience, non-degree training and alternate certification in lieu of a required bachelors degree, provided the Vendor clearly identifies and explains the equivalence. Qualifications of proposed staff are an important consideration in the scoring of proposals. Several of the individuals that EDS Subsidiary and Unisys proposed to fill the Named Staff positions did not facially meet the minimal educational requirements as stated in the RFP. However, from resumes and other information submitted with the EDS Subsidiary and the Unisys proposals, AHCA could determine that the proposed staff at issue possessed degrees in related fields and/or had sufficient qualifications through extensive experience in the areas in which they would be working. Technical solutions proposed by EDS Subsidiary At paragraph 24 of the ACS Parent's amended petition, it asserts that EDS Subsidiary "failed to meet many of the mandatory technical requirements concerning the new FMMIS/DSS. . . ." In seven following subparagraphs the petition asserts seven specific alleged technical deficiencies in the EDS Subsidiary proposal. In view of the disposition of certain other issues in this case, it seems neither useful nor necessary to make detailed findings of fact (or conclusions of law) regarding these alleged technical deficiencies in the EDS Subsidiary proposal. In this regard it is sufficient to find that the technical solutions proposed in the EDS Subsidiary proposal were in compliance with the technical requirements of the RFP in all material matters. There are perhaps a few minor irregularities in a few minor details, but there is nothing in the technical solution proposed by EDS Subsidiary that deviates materially from the requirements of the RFP.6 The evaluation of the proposals In paragraph 26 of ACS Parent's amended petition, it is asserted that there were numerous irregularities in the manner in which the proposals were evaluated. The following paragraphs contain findings of fact related to those assertions. Gartner Report and Presentation AHCA hired Gartner, Inc. ("Gartner"), a third party company with technology expertise, to analyze the risk found in each of the technical proposals, and then produce a written report. The evaluators received and read the Gartner report before completing their final scores. The RFP did not disclose, and the proposers were never informed until after the proposed award was announced, that Gartner would conduct an analysis of the Technical Proposals. Gartner's written report visually displayed its final analysis through color coded comments (green, yellow, and orange). Gartner created its own criteria and sub-criteria to evaluate the proposals. The evaluators attended a presentation where the Gartner report's results were presented by Mr. Flowerree. The evaluators discussed these results at the presentation. This presentation on the Gartner report was neither publicly noticed or recorded, nor were any minutes taken at the meeting. AHCA did not give the proposers an opportunity to address the concerns and comments contained in the Gartner report and/or discussed at the presentation with the evaluators. The evaluators had the benefit of Gartner's analysis and conclusions when completing their scoring of the proposals. The evidence in this case is insufficient to determine whether the information in the Gartner presentation and report had any significant effect on the scoring of any of the proposals.7 ACS Parent's Corporate References Donna Eldridge. an AHCA employee, provided a corporate reference for ACS Parent which contained some errors, primarily errors of omission about matters of which Ms. Eldridge had no personal knowledge. There was also a corporate reference form from a Georgia official which contained a number of responses that were remarkably similar to the responses provided by Ms. Eldridge. The evidence in this case does not explain why the two responses were so similar. The evidence in this case is also insufficient to show that the information in either of the corporate references mentioned above had any material adverse impact on the evaluation scores of ACS Parent.8 Evenhanded evaluations During the course of their evaluation, to the best of their ability the evaluators applied the evaluation criteria in the same manner to all proposers. There is no persuasive evidence that the evaluators applied different criteria or different standards to different proposers. With regard to a related issue, the RFP required a critical path diagram for each phase. The proposal submitted by EDS Subsidiary had a critical path diagram for each of the phases. Organizational Conflicts of Interest Unbeknownst to the proposers, AHCA engaged Gartner to conduct an analysis of the proposals submitted in response to the RFP. As part of an earlier proposal submitted to the State of Texas, EDS Subsidiary proposed to hire Gartner as an "optional" subcontractor for the purpose of [I]ndependent assessment of governance processes." In that proposal, EDS Subsidiary described Gartner as having "[t]otal independence and objectivity--no ties to any one vendor or technology solution." EDS Subsidiary was not awarded the Texas contract, so the proposed use of Gartner as a subcontractor never happened. Site Visit Debriefing During the evaluation period, the evaluators attended multiple presentations and debriefings that covered different topics. AHCA did not publicly notice any of these meetings, and only one type of presentation, the proposers' oral presentations, was recorded or had any minutes taken. During their oral presentations, each proposer discussed its proposed solution and then answered questions posed by the evaluators. Evaluators also attended a briefing where they were presented with information gathered during AHCA's site visits to the proposers' operations in other states. This information included a presentation and a written site visit report compiling all of the site visit information into one document. Mr. Jay Ter Louw, an AHCA consultant, prepared the final site visit report. However, none of the evaluators attended any of the site visits. The evaluators relied upon the information presented during the site visit presentation and information contained in the site visit report to complete their assigned evaluations. The manner in which the site visits were conducted and reported was consistent with the provisions of the RFP. AHCA's Score Debriefings Section 70.3 of the RFP reads as follows: Evaluators will conduct a strictly controlled evaluation of the Technical Proposals submitted in response to this RFP. The evaluators will use prescribed evaluation criteria to score each proposal on its own merit regarding the Vendor's response to the requirements and adherence to the instructions in this RFP. The evaluators will not discuss the contents of the proposals with each other or anyone else during the evaluation process. The evaluators will be closely proctored to ensure that they follow the established rules of the evaluation. The evaluators attended numerous debriefings concerning their preliminary scoring. The stated purpose behind these debriefings was to give the evaluators an opportunity to discuss the reasons for their scores and where relevant information was located in the various proposals. The debriefing sessions were neither publicly noticed, recorded, nor were any minutes taken of these numerous sessions. While the evaluators did not discuss their scores with each other, they did discuss their evaluations and the contents of the proposals. All evaluators had the opportunity to change their scores based upon these discussions. At least one evaluator changed her scores after a debriefing session because of information she learned from other evaluators. Scoring After AHCA opened the proposals, it assigned various individuals to evaluate specific portions of the proposals. Some of the evaluators read the RFP and each proposal in its entirety, while others did not. The evaluators also reviewed an Evaluation Manual, an instruction manual produced by AHCA to guide agency staff and the evaluators through the evaluation process. After reading a proposal, an evaluator would generally assign preliminary scores for each of his or her assigned sections. The evaluators' scores were numeric and ranged from zero (worst) to ten (best). AHCA never gave the evaluators any instruction authorizing them to reject a proposal if it did not comply with the RFP's requirements. Rather, they were instructed to "score every section." Concerning the scoring of the Technical Proposals, Section 70.5.14 of the RFP provided, "[a] maximum of one thousand four hundred (1,400) points will be assigned to the highest passing Technical Proposal." The quoted provision is followed by a formula to be used to determine the number of points to be assigned to the other proposers for their Technical Proposals. It is clear from the formula that the formula only works if the highest passing Technical Proposal is awarded the full 1,400 points. Financial statements submitted by ACS Parent EDS Subsidiary asserts that the financial statements submitted with the ACS Parent proposal are deficient. The transmittal letter in the ACS Parent proposal contains a table reflecting the amount of work to be performed by the prime contractor and each subcontractor, as follows: Company Percent of Work ACS 97% Deloitte Consulting, LLP 1% FourThought Group, Inc. 0.2% Sun Microsystems, Inc. 1% Florida Pharmacy Association 0.4% KePRO, Inc. 0.4% There is no dispute about the sufficiency of the financial information submitted regarding ACS Parent, Deloitte Consulting, LLP, and KePRO, Inc. At page 4.4-5 of the proposal submitted by ACS Parent, Sun Microsystems includes the following: Per RFP Reference 60.2.4.2, we include our FY2004 Annual Report. The FY2004 Annual Report contains audited financial statements for fiscal years 2002 through 2004. These financial statements include information on the financial strength and stability of Sun including: Balance sheets Statement of income Statements of Changes in Financial Position Auditor's Reports Notes to Financial Statements Summary of Significant Accounting Policies The proposal submitted by ACS Parent also included information about both company and government web sites where additional financial information about Sun Microsystems could be found. With regard to the financial statements of the Florida Pharmacy Association, the proposal submitted by ACS Parent included the following: The Florida Pharmacy Association has not provided the above items [financial documents requested in the RFP] for submission with this proposal. Being a not-for-profit corporation we file an annual report with the Secretary of State and have enclosed a copy of our 2005 report in this section. We would be pleased to discuss additional details regarding our status with the Agency. The annual report included with the proposal did not contain any financial information regarding the Florida Pharmacy Association. FourThought Group, Inc., is a privately held corporation organized as an "S-Corporation." With regard to the financial statements of FourThought Group, Inc., the proposal submitted by ACS Parent included the following: FourThought Group has not provided the above items [financial documents requested in the RFP] for submission with this proposal. Being a privately held corporation, we do not routinely disclose our financials. We would be pleased to provide an overview of FourThought Group's financials to the agency. The information regarding FourThought Group, Inc., did not include any financial information. The ACS Parent cost proposal forms With respect to the cost proposal forms, RFP Section 60.4.3 states that "[w]here a signature block is indicated, pricing schedules must be signed and dated by an authorized corporate official." The pricing forms included in the RFP further state in all capital letters: "AN AUTHORIZED CORPORATE OFFICIAL OF THE VENDOR MUST SIGN THIS FORM. THE OFFICIAL'S TITLE AND THE DATE THIS FORM WAS SIGNED MUST BE ENTERED." The ACS Parent pricing schedules were all signed by John Crysler, who indicated that he was signing under the title and in the capacity of "Managing Director." When John Crysler signed the pricing schedules he was, and still is, a Senior Vice President and Assistant Secretary of ACS Parent. As such, when he signed the pricing schedules, Mr. Crysler was "an authorized corporate official of the vendor." The Unisys proposal The proposal submitted by Unisys (which was ranked third by AHCA) was responsive to the RFP in all material ways. No specific challenge to the responsiveness of the Unisys proposal was raised as an issue in the pleadings filed by either of the other two proposers. Similarly, AHCA did not file any pleading challenging the responsiveness of the Unisys proposal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a Final Order in this case rejecting the proposal of EDS Information Services, L.L.C., as non-responsive, and awarding the contract at issue in this case to Affiliated Computer Services, Inc. DONE AND ENTERED this 17th day of January, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 17th day of January, 2006.
The Issue Whether a final order dismissing the Petitioner's rule challenge should be entered because Respondent, United Safety Council, Inc., doing business as Florida Safety Council (United Safety Council), is not an "agency" within the Florida Administrative Procedures Act (APA), and there is no claim challenging a rule enacted by Respondent, Department of Highway Safety and Motor Vehicles (Department). HOLDINGS United Safety Council is not an “agency” within the definition of section 120.52(1), Florida Statutes (2010); thus Project Refocus' rule challenge against United Safety Council is not subject to the APA. Consequently, United Safety Council's Motion for Summary Final Order is Granted. Project Refocus' petition in the instant case does not challenge a Department rule or action, and the Department was never added or served as a party. Therefore, the Department's motion to remove it as a party is Granted.
The Issue The issue is whether the Department of Revenue (DOR) acted fraudulently, arbitrarily, illegally or dishonestly in the award of contracts for legal services regarding Child Support Enforcement (CSE) proceedings to R. Craig Hemphill, the Intervenor in this consolidated proceeding.
Findings Of Fact Stipulated Facts The following facts in paragraphs 1-8 were set forth by the parties in a prehearing stipulation. The Solicitation of Proposals was advertised in Duval, Clay and St. Johns counties in a timely manner. Each of the applicants that requested in writing Solicitation of Proposals packages timely received a complete package from DOR containing instructions and documents to be submitted for consideration. The completed proposals were required to be submitted by May 12, 1995, at 3:00 p.m. to: Jean B. Long Richard P. Daniel Building 111 Coastline Drive East Suite 508 Jacksonville, Florida 32202 The proposals were opened on May 12, 1995. A DOR committee, comprised of Clara Cross, Joan Zimmerman, and Richard Humphries, determined that Intervenor would be awarded the contract in all three county areas. DOR issued its Notice of Intent to award the contracts for CSE legal services for the three counties to Intervenor on June 12, 1995. By its terms, the CSE contract is for an annual period to begin July 1, 1995 and extend through June 30, 1996. Petitioner was an unsuccessful applicant for the CSE contract in each of the three county areas. Additional Facts Effective July 1, 1994, DOR became the agency responsible for administering the Child Support Enforcement Program of the State of Florida. On or about April 1, 1995, DOR advertised its intention to award a contract to provide legal services for Child Support Enforcement ("CSE"), in Duval, Clay and St. Johns Counties. Reference to Duval County includes the areas of Duval, Nassau, and Baker counties. On or about April 10, 1995, DOR issued to prospective legal service providers its Solicitation of Proposals for Legal Service Contract for Child Support Enforcement Program (Functional Cost Base), (Solicitation). The Solicitations for Duval, Clay and St. Johns counties were identical with exception of identification of the separate geographical areas to be served under the three respective contracts. The purpose of the Solicitations was to obtain legal services for the three separate geographic areas because the existing contract for these areas with the firm of Schulman, Howard and Hemphill was to expire June 30,1995. The Solicitation documents set forth a description of the CSE program; a statement of need describing the services to be provided; a notification of manner and method for making inquiries of DOR; a schedule of events; and the criteria to be used in evaluating proposals submitted in response to the Solicitation. Each Solicitation informed prospective legal service providers that their proposals would be evaluated according to the criteria contained in Section V, paragraphs A through G, pages 3-7 of the Solicitation documents. Each Solicitation further informed prospective providers that the ". . . proposers with the top three scores will be interviewed by the evaluation committee. Scores will be ranked from the highest to the lowest, and the rankings will be given to the Program Administrator who will award the contract." In the "Statement of Need" section of each Solicitation, DOR advised prospective providers: Through this solicitation for proposals to provide legal services, the Department seeks to obtain the highest possible level of legal representation at the lowest possible cost while insuring free and open competition among prospective proposers. To that end, the Department has departed from the hourly rate billing approach in favor of a fee for service approach in which the attorney will bill for services rendered at a specified rate per activity regardless of the amount of time actually spent. The Department has identified 22 separate functions which are more fully described in Attachment I in this package. The appropriations will place a cap on the amount the Department can pay for each of these functional classifications, and you are cautioned that any amount for which the proposal to perform services is made must not exceed that cap in any functional activity category. Any proposal in excess of any one of these caps will result in automatic rejection of the entire proposal. Each Solicitation contained a list of nine mandatory requirements in Attachment V. Those requirements were not awarded any points in the evaluation process. However, should a proposal fail to satisfy the mandatory requirements, it would be deemed unresponsive and would not be further considered. The Solicitation documents, under the criteria for "Technical Information and Cost," provided a form for the rating of proposals and the award of a maximum of 100 points in the following format: Provide a specific and detailed plan which clearly demonstrates the ability to handle the anticipated volume of cases and perform repetitive work. (0-10) Consideration as to Geographic Area (0-4) Firm Resources (0-15) Computer/Software to Manage High Volume Caseload (0-7) Forms (0-4) Telephone System/Fax/Courier (0-4) Time and Personnel to be Devoted to Child Support Work (0-40) Staffing Ratio (0-10) Attorney Staffing: Points assigned for each Attorney designated to do contract work (0-25) Experience in Child Support Practice (0-10) Family Law Practice (0-5) Enforcement and Collection Practice (0-5) Trial and/or Appellate Experience (0-5) Customer Services and Accessibility to CSE Staff (5) Minority Ownership (0-5) References (0-5) Evaluation of Cost (0-21) Formula X * A = Z _ N A = 21 (Total Possible Points) X = Lowest Proposal N = This Proposal Z = Points awarded * = multiplication The above formula will be used to calculate the total points for each proposal using the total proposed cost in Attachment VI of the solicitation packet. TOTAL POINTS Beside each section or subsection of the foregoing form, a blank space was provided for the rating individual to write the numerical value selected. A maximum of ten additional points could be awarded as the result of personal interviews of offerors. In this regard, each Solicitation provided that ". . . only the top three candidates will be selected for an interview." Under the terms of the Solicitation, prospective legal service providers were required to provide a detailed written plan demonstrating ability to process referrals or case establishment activities. Each Solicitation specifically provided that this ". . . detailed plan must identify existing resources and proposed resources." Id. This section of each Solicitation also required that proposals include resumes ". . . on all firm attorneys who will be assigned to the contract . . . ." Id. There was no requirement in any Solicitation or evaluation criteria that attorneys to be assigned to the contract actually be employed by a prospective legal service provider at the time of the submission of its offer. The portion of the evaluation criteria dealing with "Consideration as to Geographic Area" required an explanation of a prospective provider's ". . . present office location and/or proposed office locations. " There was no requirement that a prospective legal service provider have actually secured a specific office location at the time of submitting an offer. The Solicitation contained an evaluation category entitled "Firm Resources" which was allocated a total of 15 points in the evaluation process. A maximum of 7 points was allocated to the category "Computer/Software to Manage High Volume Caseload" which required prospective providers to include a description of ". . . any automation or special equipment which you will utilize or which you will secure for use under this contract if your proposal is accepted." Nothing in the Solicitation or the evaluation criteria required that a prospective legal service provider actually own any automation or special equipment described in its offer at the time the offer was submitted. The "Firm Resources" category also allocated 4 points for "legal forms," and the Solicitation in this regard provided as follows: Identify legal forms that are presently available to be used to perform child support work. Include family law legal forms or other legal forms that are presently computer generated. If you do not presently have computer generated capabilities, demonstrate your ability to obtain computer generated forms. Finally, the Firm Resources category accorded 4 points for "Telephone System /Fax /Courier" services. Prospective providers were requested to indicate the number of telephone lines available, and whether a prospective provider had the capability to provide fax and courier services for delivery of legal documents. The evaluation criteria provided a maximum of 40 points for "Time and Personnel to be Devoted to Child Support Work." Of this 40 points, a maximum of 10 points was awarded according to staffing ratio of attorneys to paraprofessionals. Twenty-five points was awarded based on the level of attorney experience in child support, family law, enforcement and collection and trial or appellate experience. A maximum of 5 points was also allowed for customer services and accessibility to child support staff. Nothing in the Solicitation or the evaluation criteria required that legal or nonlegal staff actually be employed by a prospective legal service provider at the time his offer was submitted. The evaluation of costs was governed by a specific formula set forth in the Solicitation. However, the Solicitations for Duval, St. Johns and Clay County areas each contained a total reimbursement cap which could not be exceeded by prospective legal services providers without having their proposals deemed nonresponsive. Under the heading "Copyright and Right to Data," the Solicitations provided as follows: Where activities supported by this contract produce writing, sound recordings, pictorial reproductions, drawing or other graphic representation and works of any similar nature, the department has the right to use, duplicate and disclose such materials in whole or in part, in any manner, for any purpose whatsoever and to have others acting on behalf of the department to do so. If the materials so developed are subject to copyright, trademark, or patent, [then] legal title and every right interest claim or demand of any kind in and to any patent trademark or copyright or application for the same will vest in the State of Florida Department of State for the exclusive use and benefit of the state . . . Each prospective legal services provider was required to sign a certification agreeing to "be available for consultation with the department and the current providers, as needed, for at least 30 days prior to the effective date of the contract in order to accomplish a smooth transfer of files and data." Under terms of each Solicitation, all proposals were to be evaluated by a "committee of qualified persons who are familiar with child support services." Further, the Solicitations directed that "[t]he committee will review, analyze and complete a rating sheet for each proposal." Both Petitioner and Intervenor timely submitted offers in response to the Solicitations for Duval, Clay and St. Johns Counties. In addition, the firm of Upchurch & Parsons and John Galleta, Jr. also submitted proposals for St. Johns County. In evaluating offers in response to the Solicitations, DOR developed a set of Evaluation Committee Procedures. These procedures established a protocol which dealt with appointment of evaluation committee members; election of a chairperson; distribution of proposals to evaluation committee members; review for compliance with mandatory requirements; meetings regarding compliance with mandatory requirements; independent evaluation of proposals; recording of evaluation proposals; references; overall scoring of proposals; interviews; points for interviews; and contract award. The Evaluation Committee Procedures, in the category of "overall scoring of proposals," provided that: After all members of the evaluation committee, including the chairperson, have independently completed their evaluations of the proposals, the chairperson will collect all the evaluations, calculate the average score for each proposal, and rank them in order from highest to lowest. Further, the Evaluation Committee Procedures provided, after fully evaluating proposals received in response to the Solicitations, that: [S]cores which result must be ranked from the highest to the lowest and the chairperson (if other than the Program Administrator) must then give the rankings to the Program Administrator who will issue the letter . . . giving notice of the decision to award the contract. The award shall be given to the highest ranked proposer . . . . DOR's Evaluation Committee reviewed, evaluated, scored and ranked the proposals received in response to the Solicitations for Duval as follows: RESPONDENT AVERAGE SCORE Craig Hemphill 103.67 Schulman, Howard 99.0 INDIVIDUAL SCORES TEAM MEMBERS R. CRAIG HEMPHILL SCHULMAN, HOWARD Clara Cross 105 99 Rick Humphries 104 98 Joan Zimmerman 102 100 Averages 103.67 99 DOR's Evaluation Committee reviewed, evaluated, scored and ranked the proposals received in response to the Solicitations for St. Johns County as follows: RESPONDENT AVERAGE SCORE Craig Hemphill 97.67 Schulman, Howard 93 John Galletta, Jr. 59 Upchurch & Parsons, P.A. 84 INDIVIDUAL SCORES TEAM MEMBERS R. CRAIG SCHULMAN JOHN UPCHURCH HEMPHILL HOWARD GALLETTA & PARSON Clara Cross 99 93 61 83 Rick Humphries 98 92 57 82 Joan Zimmerman 96 94 59 87 Averages 97.67 93 59 84 DOR's Evaluation Committee reviewed, evaluated, scored and ranked the proposals received in response to the Solicitations for Clay County as follows: RESPONDENT AVERAGE SCORE Craig Hemphill 99.67 Schulman, Howard 95.0 INDIVIDUAL SCORES TEAM MEMBERS R. CRAIG HEMPHILL SCHULMAN, HOWARD Clara Cross 101 95 Rick Humphries 100 94 Joan Zimmerman 98 96 Averages 99.67 95 By letter dated June 12, 1995, DOR furnished Petitioner and Intervenor with notice of its intent to award the legal services contract for Duval to Intervenor. By letter dated June 12, 1995, DOR furnished notice of its intent to award the legal services contract for St. Johns County to Intervenor. By letter dated June 12, 1995, DOR gave notice of its intent to award the legal services provider contract for Clay County to Intervenor. On or about June 13, 1995, Petitioner filed a civil action against Intervenor alleging breach by Intervenor of alleged common law fiduciary duties owed to Petitioner attendant upon Intervenor's response to the Solicitation. In that action, Petitioner seeks "compensatory damages" and other equitable relief. The law firm of Schulman, Howard and Hemphill, P.A. was formed in 1987. Since October 1, 1987, the firm has provided legal services for child support enforcement for Clay, St. Johns, Nassau, Baker and Duval Counties. The firm is currently providing services for this geographic area under contracts scheduled to expire June 30, 1995 but which, as a result of Petitioner's protest of the award to Intervenor, have been extended through August 31, 1995. Since 1987, the principals in the Petitioner law firm were Warren Schulman, Joseph W. Howard, and R. Craig Hemphill. In March, 1995, Warren Schulman became seriously ill with a brain tumor requiring surgery. Schulman's last day of work was March 29 1995, and he continues to be unable to work. As a result of Schulman's illness, serious doubts arose between Howard and Hemphill as to whether the firm would continue. Negotiations between Howard and Hemphill as to whether the firm would continue commenced in April and culminated in a letter of May 5, 1995 from Hemphill to counsel for Petitioner indicating Hemphill's intention to terminate his association with Petitioner on May 9, 1995. As early as April 14, 1995, Howard was aware that Hemphill might submit his own independent offer in response to the Solicitation. Consequently, Howard began preparation of an offer on behalf of Petitioner, and Hemphill began preparation of his own independent offer. On May 12, 1995, Howard submitted an offer in response to the Solicitations on behalf of Petitioner, and Intervenor submitted his independent offer in his own name. Prior to submission of the offers on May 12, 1995, Howard, on April 22, 1995, and again on May 10, 1995, submitted copies of Petitioner's draft offers to Hemphill. These drafts were voluntarily furnished to Hemphill by Howard, and were furnished notwithstanding Howard's perception that Hemphill would likely submit a separate proposal independent of Petitioner. Both draft proposals were incomplete, and only the draft of May 10, 1995, contained a copy of Petitioner's cost proposal. Both Petitioner and Hemphill bid the maximum allowable cost under the Solicitations, and Howard concedes that Hemphill obtained no competitive advantage as the result of having been furnished a copy of Petitioner's cost proposal prior to the offer submission date of May 12, 1995. Further, as evidenced by dissimilarities in the remaining portions of their offers and the virtually identical similarity of Petitioner's offers to the offers it submitted in 1992 (now a matter of public record subject to access by any prospective legal service provider), Hemphill did not obtain any competitive advantage by his receipt from Howard of copies of Petitioner's draft proposals prior to May 12, 1995. This finding is buttressed by Howard's concession that the low-cost portions of Intervenor's offer were "much more detailed" than those of Petitioner because Intervenor "had more knowledge about those areas, and there was a lack of information on my drafts." In his offers, Hemphill indicated that his office location would be 337-C East Bay Street, Jacksonville, Florida, or an "alternative location . . . across the street from the Duval County Courthouse in the event a new location becomes necessary." There was office space available for lease at 337 East Bay Street, Jacksonville, Florida, on May 12, 1995. As established at the time of final hearing in this cause, which by definition precedes the 30 day transition period provided for in the Solicitations, Intervenor had secured office space at 10 South Newnan Street, Jacksonville, Florida; a location which Petitioner concedes would serve as well to service the contracts as the location at 337-C East Bay Street. In his offer, Intervenor listed a variety of computer generated legal forms which he proposed to utilize in servicing the contracts. Petitioner concedes that all computer generated legal forms identified in Intervenor's offer are the property of the State of Florida and could have been obtained by Intervenor from public records. In response to the Solicitation request that offerors identify any automated or special equipment which would be utilized or which would be secured for use under the contract, Intervenor described a system which he had utilized over a number of years. As noted previously in these findings of fact, potential service providers were not required to own any computer or other special equipment at the time of the submission of an offer. Further, as conceded by Petitioner, Intervenor could easily purchase on the open market the equivalent of the computer equipment described in Intervenor's offer. In his offers, Intervenor listed the names of several paraprofessional and nonlegal staff and five attorneys whom he proposed to utilize in servicing the contracts. Specifically, this portion of Intervenor's offer provided that: Proposed staffing is based upon receiving contracts to perform child support enforcement legal services for the Department of Revenue in a five county area . . . In the event that fewer than all five counties are granted, fewer attorneys will be assigned to the contract, but the staff will essentially be the same, with fewer hours assigned to performing the contract. Although several of the nonlegal staff, and two attorneys listed in Intervenor's offer are currently employed by Petitioner, Petitioner has never had employment contracts with any of its legal or nonlegal personnel. As a result, there is no contractual bar to their employment by Intervenor. Two attorneys employed by Petitioner and listed by Intervenor in his offer, have indicated a willingness to work for Intervenor should he be awarded the contracts. Without consideration of these two attorneys, from the standpoint of scoring under the evaluation criteria, Intervenor still received the maximum number of points allowable for attorney experience. There was no evidence presented as to nonavailability of any of the legal and nonlegal staff identified in Intervenor's offers in the event of contract award to Intervenor. Intervenor's offer responded in all material respects to the Solicitation and DOR's proposed award of the contracts to Intervenor has not been shown to be inappropriate. Petitioner concedes, through deposition testimony of Howard, that it is unaware of any conduct by any member of the Department's Evaluation Committee in reviewing, evaluating, scoring and ranking the responses to the Solicitations that would constitute fraud, dishonesty or illegality.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that DOR enter a Final Order dismissing Petitioner's Formal Notice of Protest and awarding the CSE Legal Service Contracts for St. Johns County, Clay County and Duval/Nassau and Baker Counties to R. Craig Hemphill. DONE AND ENTERED this 11th day of September, 1995, in Tallahassee, Leon County, Florida. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made with regard to purposed findings of fact submitted by the parties. Petitioner's Proposed Findings: 1.-10. Accepted. 11.-12. Rejected, subordinate to HO findings. 13.-17. Rejected, relevance. Accepted as to first two sentences, remainder rejected as not relevant and speculative. Rejected, not supported by weight of the evidence, relevance and hearsay. Rejected, subordinate to HO findings. Rejected, relevance. Rejected, subordinate. Rejected, argument, relevance. Rejected, legal conclusion. Rejected, argumentative, legal conclusion. Respondent's Proposed Findings: 1.-11. Adopted, not verbatim. Rejected, subordinate to HO findings. Rejected, relevance. 14.-25. Accepted. Intervenor's Proposed Findings: 1.-46. Accepted, though not necessarily verbatim. COPIES FURNISHED: William G. Cooper, Esquire 6900 Southpoint Drive, North Suite 500 Jacksonville, FL 32216 Patrick Loebig, Esquire Brian McGrail, Esquire Gene Sellers, Esquire Office of the General Counsel Department of Revenue 204 Carlton Building 501 South Calhoun Street Tallahassee, FL 32301 William E. Williams Huey, Guilday, & Tucker, P.A. 106 East College Avenue, Suite 900 Tallahassee, FL 32301 H. Michael Madsen, Esquire Messer, Vickers, et al. 215 S. Monroe Street, Suite 701 Tallahassee, Florida 32302 Kenneth C. Pollock, Esquire 1401 Peachtree Street, Suite 500 Atlanta, GA 30309 Linda Lettera, Esquire Department of Revenue 204 Carlton Building 501 South Calhoun Street Tallahassee, FL 32399-0100 Larry Fuchs, Exec. Dir. Department of Revenue 104 Carlton Building 501 South Calhoun Street Tallahassee, FL 32399-0100
The Issue The issue to be determined is whether Respondent committed an unlawful employment practice against Petitioner by discriminating against him on the basis of disability and/or age.
Findings Of Fact Petitioner worked for Respondent as a child protective investigator (CPI) in Key West, Florida, for just over eight months, from June 30, 2014, until March 2, 2015. Petitioner generally described his background prior to working for Respondent as including 30 years of work experience as a police officer, parole and probation officer, and insurance investigator. Petitioner began working for Respondent in a temporary part-time OPS position on June 30, 2014. Petitioner was required to complete a 10- to 12-week CPI training course and pass a test to attain provisional CPI certification in order to become eligible for a career service CPI position on a probationary basis. The probationary period for CPIs is one year from the effective date of employment in the career service position. The CPI training program for the DCF region that includes Key West was held on three days each week in Miami. Petitioner began the training program sometime in July 2014. Petitioner commuted from Key West to Miami for the training sessions, and spent the other two days each week working in his OPS position in Key West, shadowing and observing CPIs. During this time, he was not assigned cases or allowed to take responsibility in investigations, but may have performed minor tasks, such as making phone calls to assist the CPIs. CPI Essential Job Functions The official state of Florida position description for the CPI position provides the following overview of the job: “This is professional work protecting children, working with families and conducting investigations of alleged abused, abandoned, neglected or exploited children.” (R. Exh. 2). The job description sets forth a long list of CPI duties and responsibilities necessary to carry out that overall function, including the following (among others): Collects information through interviews with the children, parents, relatives, neighbors, and other parties associated with the case; Engages families, identifies needs and determines the level of intervention needed to include voluntary services or court ordered dependency services; Conducts initial/ongoing child Present and Impending Danger assessments; Develops with the family a signed Present Danger Plan and a signed safety plan for any identified threats and interventions; Arranges emergency placement for any child that cannot safely remain at home; Prepares appropriate reports/documentation in coordination with Children’s Legal Services and provides testimony in court; Maintains thorough documentation in client records/appropriate information system(s) and maintains organized client files. The official job description also identifies chapter 39, Florida Statutes, as the statutory chapter that establishes or defines the work performed in the CPI position. Statutes in this chapter, such as section 39.301, elaborate on the requirements for conducting child protective investigations when allegations of child abuse, neglect, abandonment, or exploitation are made to the central abuse hotline and referred to DCF. The statutes governing child protective investigations, along with DCF implementing rules and internal operating procedures, provide for strict time requirements for promptly initiating investigations when new cases are referred from the central abuse hotline, identifying and interviewing witnesses, assessing danger, developing plans to address dangerous situations and to ensure child safety, monitoring plans, marshalling community resources, and ultimately, completing and closing the investigation within an outside limit of 60 days in all cases. Only two exceptions are provided in the statute to the strict 60-day case closure deadline: when there is an active concurrent criminal investigation that would be compromised; or in child death cases when the medical examiner’s final report is necessary but not received within 60 days. See § 39.301(16), Fla. Stat. In short, as well described by Respondent’s witnesses, from Petitioner’s supervisor on up the chain of command through the DCF deputy regional managing director for Miami-Dade and Monroe Counties, timely and thorough performance and documentation of all of the critical steps of child protective investigations described above are essential to ensure the safety and well-being of Florida’s children. A misstep, a delayed step, or a step taken but not thoroughly documented could result in harm (or worse) perpetrated on a vulnerable child, which might otherwise have been prevented. The CPI job is not an easy one; it is a difficult, demanding job with no leeway for sliding on deadlines or cutting corners on job performance. The official CPI job description specifies that on-call duty is required. New case reports from the central abuse registry that require child protective investigations can arise at any time of the day or night. Depending on the nature of the case, the assigned CPI will be required to make first contact with the child either immediately or, at the outside, within 24 hours. Since the DCF offices are only open eight hours per day, five days per week, the rest of the hours--nights and weekends-- have to be covered by at least one on-call investigator and one on-call supervisor, so that cases can be opened and the investigation process started. On-call CPI duty is rotated; on average, a CPI is expected to take on-call duty one night of the week and one weekend per month. Another essential function of the CPI position is to become proficient using the Florida Safe Families Network (FSFN) computer system, which is a central system used by the central abuse registry to submit new case reports to the appropriate DCF office, and by DCF to document every aspect of an investigation, from inception to closure. Use of the FSFN system is specifically incorporated in the requirements for child protective investigations set forth in Florida Administrative Code Chapter 65C-29. See, e.g., Fla. Admin. Code R. 65C- 29.003(1)(a) (requiring documentation in FSFN of a CPI’s rationale for downgrading an “immediate response” case to a “24- hour response” case). Training in the use of the FSFN system begins in the 10- to 12-week CPI training course required to obtain provisional CPI certification. Thereafter, FSFN proficiency is gained through on-the-job use. New CPIs may initially need some assistance from more seasoned CPIs in their offices and/or from their supervisor until they learn all aspects of the system, but the FSFN system is not considered difficult to master and it should not take long for new CPIs to learn to the point of not requiring assistance. Another essential job requirement for the CPI position, according to the official position description, is a valid driver’s license. In conducting investigations, CPIs must be able to quickly and independently navigate from the DCF office to the homes of the subjects of an abuse report, to other homes and businesses to interview witnesses and conduct inspections, to schools where children to be interviewed might be found, to court when necessary to offer testimony, and other places. Petitioner’s Undisclosed Stroke Episode According to Petitioner, on July 31, 2014, while Petitioner was in Miami in the early weeks of his CPI training, he woke up feeling strange and stiff. However, he was able to go to his training course. When he arrived, a classmate allegedly asked Petitioner if he was feeling okay. Petitioner remained in class for the day’s training session. After class, the same classmate allegedly said that Petitioner should go to the hospital to get checked out. Petitioner said that after some resistance, he agreed and allowed the classmate to take him to an emergency room. The classmate did not testify at hearing. Petitioner testified that his classmate waited with him at the emergency room for a short time, then left. Petitioner remained alone at the emergency room for about six and one-half hours without being seen by a physician. At that point, Petitioner was feeling better and was unwilling to wait any longer, so he had his son take him to his brother’s home where Petitioner stayed when attending the Miami training sessions. The next day (Friday, August 1, 2014), Petitioner still felt stiff, but well enough to attend the day’s training session. After the training, he drove from Miami to Port Orange, where his wife lived. (He had only recently relocated to Key West to begin his new OPS job, and his wife had not yet joined him there.) Petitioner said that his wife wanted to take him to the hospital to be checked out upon his arrival Friday evening, because she did not think he looked good (after a day’s training followed by a long drive). Petitioner “dismissed her concerns” (Tr. 40), and stayed home that night. The next day--two full days after Petitioner woke up feeling strange and stiff--his wife repeated her request that he get checked, and this time he agreed. Petitioner went to an emergency room and was subsequently admitted to the hospital from Saturday afternoon to Monday afternoon for testing. Petitioner said that he was informed by the doctor that the test results indicated that he had had two strokes, one affecting each frontal lobe of his brain. No documentation of this hospital stay, the test results, or the diagnosis was offered in evidence. From the hospital, Petitioner called his direct supervisor, Karen Gibson, the child protective investigator supervisor (CPIS) for the Key West office. Petitioner told her that he was in the hospital because of diabetes, explaining that he had not been following his diet and had let himself get out of control. He did not ask for any accommodation for the diabetic condition (indeed, it is unknown whether Petitioner actually has or had diabetes, as no evidence was offered on that subject). Instead, Petitioner assured his supervisor he would be able to return to work and training right away. According to Petitioner, it was Ms. Gibson who told him to take some time off. She said that he should not return to Key West Monday or Tuesday, but rather, he should go straight to Miami on Wednesday to resume training. He did as she suggested.2/ Petitioner admits that he did not tell Ms. Gibson in the beginning of August 2014, or for many months thereafter, that he had been diagnosed with having had two strokes. Petitioner did not deny Ms. Gibson’s testimony that he had told her he was in the hospital due to diabetes. Petitioner acknowledges that it was his choice to not disclose the truth about the hospital stay. It was not until Petitioner had been counseled repeatedly by Ms. Gibson for not properly performing his CPI duties, and after he had been told that if he could not perform his duties he would not be able to keep the job, that Petitioner disclosed that he had had a stroke. No medical information was provided to Ms. Gibson, nor was any offered at hearing, to illuminate Petitioner’s condition in August 2014 or at any time thereafter while he was employed by Respondent. It is unknown whether Petitioner’s description of what he was told by a doctor in August 2014 is accurate.3/ Petitioner failed to prove, other than in the most general anecdotal way, the nature or extent of his condition in August 2014 or thereafter while employed by Respondent. It is unknown whether the strokes he said he was told about were considered minor, severe, or somewhere in between; what sort of medical professional(s) Petitioner saw and how frequently; what medication was prescribed for Petitioner for what purpose; what specific symptoms were attributed by such medical professional(s) to his July 31, 2014, episode; what sort of treatment or therapy may have been recommended by any such professional(s); and how the medical professional(s) have described Petitioner’s prognosis then or at any time since then.4/ What is known about Petitioner’s condition following the undisclosed stroke incident is that after Petitioner took the extra one or two days off as Ms. Gibson suggested, Petitioner was able to return to a full schedule of training in Miami, plus working two days per week in Key West, for the rest of August and September 2014. There is no evidence that Petitioner expressed any concerns about his physical or mental health, or experienced any health problems that interfered with his ability to work, to participate and learn in training sessions, and to frequently drive back and forth between Miami and Key West. Petitioner successfully completed his CPI training on September 26, 2014, and he took and passed the test to obtain provisional CPI certification. With the training and provisional CPI certification, Petitioner qualified for a career service CPI position with probationary status. He was offered that position and accepted. He was transferred into the position on October 3, 2014, marking the beginning of his one-year probation. Petitioner’s Job Performance Petitioner was eased into his new CPI position with a lot of direct supervision by CPIS Gibson and assistance from the other CPIs working in the Key West office. Although Petitioner was eligible to receive new case assignments upon obtaining his provisional CPI certification, as a matter of course with all new CPIs, Petitioner’s supervisor would assign fewer cases at first, direct the more difficult cases to other CPIs for at least the first month or two, and staff cases so that new CPIs would be working on their cases along with other CPIs to the extent possible. She did this for Petitioner, so that at first, he had a lower volume of easier cases on which other CPIs assisted him.5/ He was also not immediately put into the on-call rotation, taking his first on- call assignment on a weekend late in December 2014. Petitioner’s performance on individual cases was documented in FSFN entries in the individual case files. At defined stages of an investigation, the progress would be reviewed by the CPIS, who would discuss the case with the CPI and issue or revise supervisory directives to identify tasks that the CPI needed to accomplish in the investigation. These benchmark points included: initial intake assessment performed by the CPI within 48 hours of case assignment and submitted to the supervisor for the initial supervisory review; case update submitted by the CPI after 30 days for the supervisory 30-day review; and investigation completed by the CPI and submitted to the supervisor for closure after 45 days. These supervisory reviews were documented in the FSFN case file by the CPIS. As an example in evidence, an excerpt of the FSFN chronological notes report for one investigation assigned to Petitioner contains a summary entered by Petitioner’s supervisor on October 31, 2014, documenting the initial supervisory review. Supervisory directives to Petitioner were listed as items that “CPI needs to” do, including requesting law enforcement calls to the home and requesting medical records from the hospital where the 14-year-old child had been admitted under the Baker Act. In a follow-up note on review of the investigation submitted for 45-day closure, Ms. Gibson set forth a list of items that Petitioner still needed to do, including documenting the law enforcement calls to the home that he was to have requested as a result of the initial supervisory review. In another follow-up note on December 24, 2014, Ms. Gibson reported that she had to request the hospital records for the 14-year-old’s Baker Act stay, because “CPI Rosado had previously requested from incorrect hospital.” (R. Exh. 1 at 4). FSFN notes from other individual case files reflect other issues of concern with Petitioner’s performance as a CPI. In one investigation of a three-year old child with a burn mark, the initial supervisory review notes entered by Ms. Gibson on December 22, 2014, reported that the mother has two children, ages three and one, by two fathers, and that she recently separated from the youngest child’s father and began living with her current paramour. Supervisory directives to Petitioner included: requesting medical collateral documentation; interviewing the boyfriend separate from the mother; interviewing both fathers and, if the children go to their homes, visiting the fathers’ homes; and attempting a collateral interview with a maternal relative. On January 23, 2015, the 30-day supervisory review notes entered by Ms. Gibson reported that Petitioner still needed to interview both fathers, document observations of both fathers’ homes, request medical collateral documentation for the children and upload the records to FSFN, and attempt a collateral interview with a maternal relative. Pointing out that there was not much time to accomplish these directives (many of which remained undone for over 30 days), the entry noted that the investigation was due to be submitted for closure on February 6, 2015. On February 1, 2015, Ms. Gibson completed an entry reporting that Petitioner submitted the investigation for 45-day closure, but the investigation was incomplete and recalled, because “CPI has not completed prior supervisory directives in first and 30-day reviews.” (R. Exh. 1 at 18). Several other examples were shown in the FSFN notes of investigations submitted by Petitioner for closure, but which were incomplete and recalled. Petitioner admitted what is documented in the records of his investigations: that he had problems meeting the time frames imposed for completing the investigations, and that he had problems completing and documenting all of the supervisory directives. FSFN notes of other investigations show that Petitioner did not thoroughly document the investigative steps he did complete. Instead, in supervisory reviews, Petitioner frequently had to be asked to upload documents he had collected, to document that he accomplished certain supervisory directives, to clarify his interview summaries, and to clarify whether he had asked certain questions germane to the specific case. A particular problem in this regard was Petitioner’s inability to hone in on the critical information needed to assess the child’s safety, when conducting and summarizing interviews and providing back-up documentation in the FSFN case files. As Petitioner’s supervisor credibly described the problem, Petitioner would amass a lot of information in the course of his investigations, but not necessarily the information needed to assess the child’s safety in light of the allegations to be investigated. One FSFN note of particular concern documented a 30-day supervisory review of an investigation assigned to Petitioner. The intake was received on January 4, 2015, for investigation of a child’s safety. Both the mother and stepfather were arrested for domestic violence. Petitioner had developed a safety plan, meaning that he determined that the plan was necessary to ensure the child’s safety. The safety plan, signed by the mother only, indicated that the stepfather would not return home. Petitioner discussed the safety plan with the stepfather, but did not ask him to sign it. Of greatest concern was the note that as of the 30-day review, Petitioner had not worked on the case since the initial supervisory review, had not monitored the safety plan, could not report as to the family’s circumstances or safety plan compliance, and had not been back to the home. Ms. Gibson noted that she counseled Petitioner regarding the importance of monitoring safety plans. She added that Petitioner still needed to complete the initial supervisory directives issued in January. Petitioner’s supervisor testified credibly that the foregoing example was symptomatic of Petitioner’s overall inability to effectively manage his cases. He did not demonstrate good choices in prioritizing his tasks within a case or among his cases. Examples such as the foregoing one in which a case that required a safety plan to ensure the child’s safety was left dormant by Petitioner for 30 days demonstrate that it is a matter of sheer fortuity that there were not dramatic, tragic consequences from Petitioner’s failure to properly perform his duties as a CPI. At hearing, Petitioner acknowledged his performance problems. He was well aware that when he was a CPI, he was having problems meeting case deadlines, completing the necessary tasks for each investigation by those case deadlines, and completing the supervisory directives in his cases. He was well aware that cases he submitted for closure were being recalled to him because they were not ready for closure. Indeed, all of these performance problems were repeatedly called to Petitioner’s attention in supervisory case reviews, as documented in the FSFN case files. In addition to these investigation-specific problems of not meeting the time frames necessary to complete investigations for timely closure, not completing specific supervisory directives, not documenting what was done, not uploading documentation collected, and not clearly summarizing interviews and information, Petitioner had trouble learning how to use FSFN. Some learning-curve time is to be expected to master all of the mechanics of logging in, checking for new cases referred by the central abuse hotline, creating a new case file, entering interview summaries, reviewing existing case files for information entered in supervisory reviews or by other CPIs working on the investigation, uploading documents such as medical records and signed safety plans, and similar tasks. However, Petitioner’s supervisor credibly testified that after allowing for reasonable learning-curve time, Petitioner was still not catching on and was not showing any signs of progress. Instead, he required constant help from her and from other CPIs to perform even the most basic steps. He repeated the same requests for help and received the same instructions multiple times. As another CPI who worked with Petitioner in the Key West office described Petitioner’s difficulties with basic, everyday FSFN tasks, “He would ask for assistance and you would explain it to him and then a short time later or the next day he would ask the same question . . . as if he couldn’t remember to--how it was done.” (Tr. 327). Petitioner admitted that he had to be given the same instructions over and over by his supervisors because he could not remember the instructions previously given to him. He admitted that he asked the same questions and asked for assistance with the same tasks because he had problems remembering that he had been given those instructions before. As an example, Petitioner was assigned to on-call duty on the weekend of February 28, 2015. Although it was Petitioner’s third on-call duty experience, and although Petitioner had been working in his career service CPI position for five months, he could not remember how to check the FSFN new case screen for referrals from the central abuse registry. He had to ask for help from another on-call CPI, who walked him through the process to check the new case screen, accept the new case that was waiting, and open a new investigation file. The other worker had to give Petitioner advice to review the new case with the on-call supervisor. Petitioner went in to see Ms. Gibson, and even though he had just been walked through the process, Petitioner had to ask Ms. Gibson to show him how to access the new case file. He told her he was embarrassed to have to ask again. At hearing, Petitioner admitted that he had to repeatedly ask for assistance when using FSFN because he had trouble remembering how to use the system. Petitioner’s Disclosure Even before the on-call problem on February 28, 2015, Petitioner’s supervisor had discussions with her supervisor, Program Administrator Amy Baldree, regarding dissatisfaction with Petitioner’s performance, despite the repeated counseling and directives evident from the FSFN case notes discussed above. Ms. Gibson candidly acknowledged that “at this point [mid-February 2015] we were trying to move towards termination with Mr. Rosado.” (Tr. 131). She was told that she needed to document her counseling of Petitioner. Although there was documentation of counseling in the FSFN notes for individual cases, Ms. Gibson admitted that she had not prepared any probationary progress reviews for Petitioner. According to Respondent’s employee relations coordinator, ideally supervisors complete probationary progress reviews monthly for CPIs during their one year on probation. Ms. Gibson proceeded to complete probationary progress review forms for Petitioner for the months of December 2014, January 2015, and February 2015. The completed evaluation forms were all presented to Petitioner and signed by Ms. Gibson and Petitioner on the same day, February 23, 2015.6/ Although it would have been better practice for each of these progress reviews to have been prepared and presented to Petitioner close to the time period addressed in each review, Ms. Gibson credibly explained that nothing written in the three months of progress reviews was new to Petitioner. Instead, the review forms contain samplings of the same types of performance problems that she had been discussing repeatedly with Petitioner in supervisory reviews of individual cases assigned to him. Her explanation is supported by the FSFN individual case notes.7/ According to Petitioner, he responded to the performance reviews by disclosing to Ms. Gibson on February 23, 2015, one week before he was terminated, that he had suffered two strokes, as if to explain his performance issues. He claims that Ms. Gibson’s comment was that he just needed to work faster if he wanted to keep his job. Ms. Gibson acknowledged that at some point close in time to the February 23, 2015, performance review discussion, and shortly before Petitioner was terminated, Petitioner disclosed to her that he had had a stroke (one, not two). However, she recalled the conversation differently. According to Ms. Gibson, she and Petitioner were having one of their periodic discussions about performance problems, such as missing deadlines or failing to complete supervisory directives, and he acknowledged that he was having difficulty remembering things. Her response was that he could not stay in the CPI position unless he could perform his duties and remember his directives and responsibilities. It was at that point that he said that he guessed he had to tell her that he had a stroke. Ms. Baldree was present when Ms. Gibson presented the performance reviews to Petitioner on February 23, 2015. She testified that Petitioner asked her whether Ms. Gibson had told her that he had had a stroke recently. She said yes, and Petitioner responded that he just wanted to make sure she was aware. She asked him how he was doing and he said, “Fine. I’m seeing a doctor.” That was the end of the conversation. Regardless of how or exactly when Petitioner finally disclosed to his supervisors the fact that he had had a stroke or two strokes (not so recently, but rather, nearly seven months before his disclosure), the evidence establishes that Petitioner was unable to perform the essential functions of his job. Petitioner admitted as much. Petitioner acknowledges that he never requested a specific accommodation to enable him to perform his job. Petitioner seemed to suggest that if only he had been told to take a leave of absence, he could have undergone rehabilitation and gotten better. However, he never asked for days off, much less any extended leave of absence, so that he could undergo rehabilitation. Petitioner testified that while he was employed with Respondent, he had an insurance policy that he had obtained through the state. Although the policy was not offered in evidence, it was described in terms that sounded like short-term disability insurance (which would have been made available for Petitioner to purchase, but was not a benefit actually provided by DCF). Petitioner contends that he should have been allowed to take time off using that insurance policy to receive income while not working. However, Petitioner admitted that he never asked to take time off. Moreover, he never submitted a claim under the short-term disability policy, because he said he did not know he could (and whether he could have or not is unknown, as there is no record evidence to answer that question). Petitioner testified that he never asked for any accommodation because he was afraid to ask for an accommodation while a probationary employee. Alternatively, and somewhat inconsistently, he also testified that he did not ask for a specific accommodation because he thought his supervisors would know what he needed and would refer him to the right place for assistance. At hearing, Petitioner was unable to identify any specific accommodation that would have enabled him to perform the essential functions of his CPI position. The best he could offer was that he should have been allowed to go slower, or should have been assigned a full-time mentor to work with him every day to slowly explain to him how to do his job, since he believes his main performance problem was that he could not complete investigations quickly enough. However, the fast time lines for moving forward on investigations, with the interim supervisory reviews and benchmarks, are essential to the job because of the statutorily-mandated investigation closure deadline. Petitioner’s Termination Ms. Gibson and Ms. Baldree discussed their concerns about Petitioner’s performance with the DCF employee relations coordinator, Ranjana Bhandari, and they offered their view that Petitioner’s employment should be terminated. Ms. Bhandari reviewed the three probationary progress reviews, and asked for additional documentation. Ms. Gibson and Ms. Baldree prepared a memorandum providing more detail regarding the history of performance problems since Petitioner was transferred into the career service CPI position, the additional instruction and oversight provided to Petitioner because of his inability to perform his duties without constant assistance, the lack of improvement, and the constant counseling that had been provided to him to impress upon him the importance of meeting the deadlines for investigations and carrying out supervisory directives. Additional specific examples of performance problems were provided in the memo. One such example was a recent investigation involving three children, with allegations of sexual abuse. The case was initially assigned to Petitioner on January 30, 2015. Ms. Gibson asked another CPI, Mr. Quinones, to go with Petitioner to interview the children, and they did so on a Friday at the children’s school. The next Monday, Ms. Gibson asked Petitioner about the case, which she identified by name. Petitioner did not recognize the name. Ms. Gibson added details: “You know--the sexual abuse case with the three African American children you interviewed at [name of school] on Friday?” Petitioner responded with a blank look; he had no recollection of the case. Ms. Gibson reassigned the case to another CPI. Another more recent example was provided, in which Petitioner was assigned a new case on February 18, 2015, and he told Ms. Gibson he planned to see the children at school the next day. The next day, after the 24-hour response deadline had passed, Ms. Gibson asked him about the case, and he responded that he had not yet seen the children because he had gone out on another investigation that Ms. Gibson determined was not as high a priority as meeting the 24-hour deadline in the new case. Not only was he late seeing the children for the first time in the new case, but he was also late finishing the child safety assessment for those same children. Bringing the performance report completely current, among other examples detailed in the memo, Ms. Gibson and Ms. Baldree recounted Petitioner’s continued FSFN failures that hampered his performance of his on-call duty over the weekend of February 28, 2015. Ms. Bhandari reviewed the memorandum and determined that the documentation was sufficient and supported the recommendation that Petitioner be terminated because of his demonstrated inability to perform the duties of a CPI. Ms. Bhandari did not know about Petitioner’s recent disclosure of his stroke episode seven months earlier. Ms. Bhandari did not know Petitioner’s age. Rosa Baez also reviewed the documentation supporting the proposed termination of Petitioner’s employment. At the time, Ms. Baez was a family and community services director who oversaw DCF programs, including child protective investigations. Her role was to review the reasons why the program administrator and the employee’s supervisor were recommending termination, and unless she disagreed with the recommendation, she would let the process go forward. After reviewing the documentation regarding Petitioner’s performance provided by Ms. Bhandari, she did not disagree with the proposed termination, since child safety was an issue. Ms. Baez did not know about Petitioner’s recent disclosure of a stroke episode seven months earlier, nor did she know Petitioner’s age; there was nothing in the memo or progress reviews regarding either subject. The documentation and recommendations were provided to Gilda Ferradaz, the deputy regional managing director, who made decisions on proposed dismissals of probationary employees. She reviewed the material and made the decision to terminate Petitioner’s employment, signing the letter informing Petitioner of that decision. She explained the basis for her decision: [T]his was a probationary employee in a child protective investigation role. This work is very critical work; it is very detail- oriented. We have to make sure that the staff we have working have--are fully grasping all of the responsibilities of this position, making sure all of the assessments are fully done, all of the appropriate people are interviewed, and that decisions are made based on all of the information available to make sure that children aren’t at risk. And it seemed that this employee was not able to grasp the scope of responsibility for this critical position. (Tr. 305). Ms. Gibson and Ms. Baldree met with Petitioner on March 2, 2015, to deliver the termination letter signed by Ms. Ferradaz. Petitioner signed the letter to acknowledge that he received it. Petitioner testified that when he was presented with the termination letter on March 2, 2015, he asked Ms. Gibson and Ms. Baldree whether they could extend the same courtesy that they provided to former CPI Jeffrey Qualls, by demoting him to another position instead of terminating him. Contrary to Petitioner’s testimony, both Ms. Gibson and Ms. Baldree denied that Petitioner made any such request. There is nothing in writing to substantiate Petitioner’s claim that he asked to be treated the same as Mr. Qualls.8/ Even if Petitioner had requested a demotion, Petitioner offered no proof that there was a vacant position available for him at the time. Instead, Petitioner admitted that he does not know if there was any position available at the time to which he could have been demoted. The only evidence on the subject was Ms. Baldree’s testimony that, in fact, there was no open position at the time to which Petitioner could have been demoted. As program administrator, she would be in a position to know or to research that question when Petitioner’s claim was made known during this proceeding (such as in his deposition). Even if Petitioner had proven that there was an available lower-level position at the time of his termination, Petitioner’s own testimony raises considerable doubt as to whether Petitioner was capable of working at all in any kind of DCF position had one been available. Petitioner was asked about the efforts he made to find another job after he was fired. Petitioner responded: “I was not able to make--have any efforts to look for other employment because of my mental health status. . . . I didn’t feel I was able to perform a job with the residual effects from the two strokes I was having.” (Tr. 64). Petitioner added that although he was not looking for work, during the spring of 2015 after he moved to Tarpon Springs, he agreed to work part-time at Old McMicky’s Farm, a children’s farm in Odessa. His job was to lead groups of children on a walking tour of six or seven stations. Multiple tours would be conducted at the same time, with other groups led by other employees. To evenly distribute the tour groups among the stations, each tour leader was required to lead his or her group through the stations in a certain order, and the assigned order would change depending on the number of tour groups. Petitioner was terminated from the job after a few weeks, because he could not remember the order of the stations to which he was supposed to lead his group, and he would sometimes skip a station or two. Petitioner explained that the reason he took the job at Old McMicky’s Farm was: “I wanted to get my feet wet and see if I could do a job. It turned out that even though [the job involved] most[ly] menial tasks, I was failing at it.” (Tr. 90). Petitioner has not attempted work since then. For purposes of pursuing his charge of discrimination on the basis of a disability, Petitioner was required to submit to FCHR either medical records to prove a disability or a completed medical certification form. After receiving an extension of the deadline, Petitioner submitted a medical certification form completed on July 5, 2016, by a doctor identifying himself or herself as having a specialty in the area of neurology. The doctor checked the “yes” box in answer to the question asking whether he/she is the complainant’s treating medical professional with knowledge of the complainant’s medical condition and history. No details were provided. Also answered yes was the question asking whether the complainant has a physical or mental impairment that substantially limits one or more major life activities. On the following pages, the doctor identified those life activities as seeing (sufficiently to perform daily functions/general hygiene), learning (“has a hard time learning new things, memory affects this”), performing manual tasks (“drops things with right hand”), speaking (“when tired has slurred speech”), and walking (“loses balance easily, stumbles, falls”). (R. Exh. 7). This form was accepted by FCHR. Although for purposes of this hearing, the completed form is hearsay, it does lend some credence to the notion that Petitioner has a disabling condition (at least as of July 2016). Petitioner said that over time, he has gotten worse. He testified that he is hardly able to drive now, and his memory is worse--he is not able to remember his street address. Claimed Damages Petitioner did not prove the existence or amount of damages caused by the claimed unlawful employment practice. Petitioner testified that he was seeking one year’s salary and benefits as back pay. However, Petitioner’s own testimony establishes that he was unable to perform the CPI duties, or any job duties, in the year after he was terminated. If Petitioner had been able to work but simply chose not to, then he would have failed to mitigate damages by not looking for another job--but he said that he was completely unable to work. Petitioner’s inability to work in even a less demanding job with menial duties is demonstrated by his failed experience working at Old McMicky’s Farm only a month or so after he was terminated. Petitioner cannot claim compensatory damages for income lost by reason of having been terminated when he admits that he was unable to do any kind of work. Petitioner alluded to other damages, such as moving expenses, but he offered no evidence to prove what his actual expenses were in any of these areas of claimed loss. Ultimate Facts Accepting Petitioner’s marginal showing that he was, at the relevant time, a person with a disability, Petitioner failed to prove that he was qualified to perform the essential functions of the CPI position, with or without accommodation. Instead, the evidence established that Petitioner was unable to perform the essential functions of a CPI, with or without accommodation. Petitioner never requested a specific accommodation to enable him to perform his duties as a CPI. Petitioner failed to prove that there was any reasonable accommodation he could have requested that would have enabled him to perform the essential functions of his job. Respondent offered a legitimate non-discriminatory reason for terminating Petitioner’s employment. Beyond just articulating a reason, Respondent proved that Petitioner’s employment was terminated based on well-documented performance problems in virtually all essential areas of the CPI position, and not as a pretext for unlawful discrimination. Petitioner failed to prove that Respondent intentionally discriminated against Petitioner because of his disability. Petitioner did not prove that there was any similarly situated person who was not disabled and who was treated more favorably than Petitioner. Petitioner failed to prove that Respondent intentionally discriminated against Petitioner because of his age. Indeed, the record is devoid of any evidence, circumstantial or otherwise, directed to Petitioner’s charge of age discrimination. Petitioner did not prove that there was any similarly situated person of a different age than Petitioner and who was treated more favorably than Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief filed by Petitioner, Luis Rosado, III, be DISMISSED. DONE AND ENTERED this 15th day of March, 2017, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 2017.
The Issue Whether respondent should be required to repay $16,808 in CETA funds allegedly expended for unallowable purposes.
Findings Of Fact From October 1, 1978, to September 30, 1980, the audit period, the County implemented CETA grants of approximately $5,421,000. The Department's Division of Employment and Training, which serves as the state's prime sponsor under CETA, audited the County's records and disallowed certain expenditures. Those which remain in dispute are addressed below. (Testimony of Jessup, Flowers.) Wage and Fringe Benefits Paid to Kathryn Mabery. (CETA Subgrant Nos. 79MP-26-06-45-01 and 80ET-86-45-01-016, Title II-D) The Department contends that wage and fringe benefits, totaling $9,258, paid to participant Kathryn Mabery should be disallowed because she was not unemployed 15 out of the 20 weeks prior to her application, the Title II-D eligibility criteria of 20 CFR 675.5-5. On her August 13, 1979, application, Ms. Mabery indicated that she was last employed by Maryland Fried Chicken on May 13, 1979 2/ On August 15, 1979, the County correctly found her eligible for Title VI funding, which requires that an applicant be unemployed for at least ten out of 12 weeks prior to application. The County enrolled her as a clerical aide, with a starting date of August 20, 1979. But this was a CETA Title II-D position, not a Title VI position. She was thus paid, out of Title II-D funds, wages and fringe benefits totaling $9,258. In effect, on August 20, 1979, the County transferred Kathryn Mabery from the Title VI CETA program, for which she was eligible, to a Title II program, a program for which she was not eligible on August 15, 1979. (Testimony of Jessup, Flowers; P-1.) Wages and Fringe Benefits Paid to Edward Jackson. (CETA Subgrant No. 79MP-3C-06-45-01, Title IV) The Department contends that wages ($789) and fringe benefits ($44) totaling $833 paid to participant Edward Jackson should be disallowed because he was 13 years old at the time of enrollment. Participants in CETA Title IV programs must be between 14 and 21 years old at the time of enrollment. 20 CFR 676.6-10(b). The County, however, did not know he was 13--and thereby ineligible-- because both Edward Jackson and his mother signed eligibility applications which incorrectly stated he was 14 years old. He was subsequently enrolled in the CETA program, employed in the Mount Dora public works department, and paid a total of $833. The Department replies that Edward Jackson subsequently submitted to the County a student work permit (required for minors 12 through 15 years old) indicating his true age to be 13, and that the County failed to detect the discrepancy. Work permits, however, are a state requirement; they are not used to determine CETA eligibility. They were, in fact, issued after eligibility certification. When the County received them, they were routinely filed by clerical workers. The Department showed no duty on the part of the County to examine post-eligibility certification documents to confirm the initial eligibility determination. If the County had been aware of Jackson's true age, it would have immediately terminated him from the CETA program. His enrollment was not the result of a staff error or a failure to follow CETA eligibility procedures. It was attributable to falsification of eligibility certification documents by Edward Jackson and his mother. (Testimony of Jessup, Flowers; R-1.) Wages and Fringe Benefits Paid to Iola Bing. (CETA Subgrant Nos. 80ET-86-06-45-01-016 and 79MP-2U-06-45-01, Title II-D) The Department contends that wages ($5,196) and fringe benefits ($1,485) totaling $6,681 paid to participant Iola Bing should be disallowed because she did not meet the "Economically Disadvantaged" eligibility requirement of 20 CFR 675.5. Under that requirement, an applicant who receives "public assistance" is eligible. The County's intake staff determined that, since Ms. Bing was receiving Food Stamps, she satisfied the "public assistance" requirement. Federal and state CETA officials subsequently determined that Food Stamps were not "public assistance" within the meaning of CETA regulations. The Department seeks to retroactively apply that interpretation here. But the Department has not shown why Food Stamps should not, and cannot reasonably be considered "public assistance within the meaning of 20 CFR 675.5-5 and 676. No federal or state regulation has been cited which explicitly, or implicitly, disqualifies Food Stamps as public assistance." Neither has the Department shown that the County knew, or should have know, that Food Stamps were not "public assistance." Further, it appears that state officials may have advised County CETA workers that Food Stamps were a form of "public assistance." The Department has not shown, or even asserted, that any of the County's alleged errors were fraudulent; that the County, once it became aware of an ineligible participant or questioned activity, failed to take immediate corrective action; or that the County's eligibility determination procedures were inadequate or CETA management systems were not followed.
Recommendation Based on the foregoing, it is RECOMMENDED: That the County be required to repay the Department $9,258. DONE and RECOMMENDED this 23rd day of December, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1982.
The Issue Pursuant to Section 120.57(3)(f), Florida Statutes (2009), the issue is whether Respondent Agency for Health Care Administration (AHCA) properly determined that Petitioner Maximus Health Services, Inc.'s (Maximus) reply to Invitation to Negotiate 0904 (ITN 0904) was non-responsive for failure to meet mandatory criteria.
Findings Of Fact Beginning in 2006, the Florida Legislature required the AHCA to implement Medicaid Reform. Medicaid Reform was intended to empower consumers to take an active role in their health care decisions. To serve that purpose, the Legislature required the AHCA to contract with a choice counseling/enrollment broker to provide Medicaid services in Broward, Duval, Nassau, Clay, and Baker counties. ITN 0904 sought to procure an enrollment broker for a three-year contract. It was released on March 9, 2009. The resulting contract is worth in excess of $30 million dollars from June 1, 2009, through June 30, 2011. ITN 0904 consisted of a series of attachments, including the following in relevant part: (a) Attachment C contained “Special Conditions"; (b) Attachment E provided “Evaluation Criteria”; and (c) Attachment G set forth "Required Certifications." The mandatory requirements of ITN 0904 were announced at Section C.7 of ITN 0904 as follows: C.7 Mandatory Requirements: The State has established certain requirements with respect to responses submitted to competitive solicitations. The use of "shall", "must", or "will" (except to indicate futurity) in this solicitation, indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with the solicitation requirement, provides an advantage to one respondent over another, or has a potentially significant affect of the quality of the response or on the cost to the state. Material deviations cannot be waived. The words "should" or "may" in this solicitation, indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such desirable feature (sic) will not in itself cause rejection of a response. Section C.13 set forth the required certifications as follows in pertinent part: Required Certifications: The following certifications, contained in Attachment G, are required and must be submitted with the response: * * * Certification Regarding Terminated Contracts - certifying the vendor (including its subsidiaries and affiliates) has not unilaterally and willfully terminated any previous state or federal contracts for cause within the past five (5) years. FAILURE TO SUBMIT ATTACHMENT G, REQUIRED CERTIFICATIONS, SIGNED BY AN AUTHORIZED OFFICIAL WITHOUT EXCEPTIONS OR CAVEATS, WILL RESULT IN THE REJECTION OF A PROSPECTIVE VENDOR'S RESPONSE. Section C.14 described the proposal guarantee as follows in relevant part: Proposal Guarantee: The original technical response must be accompanied by a proposal guarantee payable to the State of Florida in the amount of $260,000. The respondent must be the guarantor. Section C.38 contains general instructions for response preparation and submission as follows in pertinent part: The solicitation response shall consist of the following parts: A. Transmittal Letter This letter is mandatory . . . . The following documentation shall also be included with the transmittal letter: Proposal Guarantee, as required in Section C.14. Signed Attachment G, Required Certifications, as required in Section C.13. Signed Attachment L, Attestation of No Conflict, attesting that the vendor has no conflict of interest as described in Section C.31. FAILURE TO SUBMIT THE MANDATORY TRANSMITAL LETTER, INCLUDING ITEMS 1-3 ABOVE, WILL RESULT IN REJECTION OF THE PROPOSAL. In Attachment E of ITN 0904, AHCA set forth the evaluation criteria it would use to assess the merits of responses. In Section E.1, the Agency announced that it would review mandatory criteria as follows: E.1 Review of Mandatory Criteria The Procurement Office will evaluate responses to this solicitation against the mandatory criteria found in Part I, Mandatory Criteria. Responses failing to comply with all mandatory criteria will not be considered for further evaluation. Part I is entitled Technical Response Mandatory Criteria. It is a checklist of some of the mandatory requirements of ITN 0904 and states as follows in relevant part: This evaluation sheet will be used by the Agency for Health Care Administration to designate proposals as "responsive" or "non- responsive". If the answer to any of the questions in the table below falls in to the "No" column, the proposal will be designated as "non-responsive" and will not be considered for further evaluation. QUESTIONS YES NO A. Does the response include a transmittal letter, signed by an individual having authority to bind the vendor, containing the following information, as outlined in Section C.38.A? The proposal guarantee, as specified in Section C.15 (sic)of this solicitation; ? A signed Attachment G, Required Certifications, as specified in Section C.13 of this solicitation; ? Attachment G is a form for all required certifications, including but not limited to the following: Certification Regarding Terminated Contracts I hereby certify that my company (including its subsidiaries and affiliates) has not unilaterally or willfully terminated any previous contract prior to the end of the contract with a state or the federal government and has not had a contract terminated by a state or the federal government for cause, prior to the end of the contract, within the past five years. Signature of Authorized Official Date On July 30, 2008, after receiving questions from interested vendors, AHCA issued an Addendum No. 1 to ITN 0904. The purpose of the addendum was to provide clarification and additional information, to make changes to certain attachments, and provide AHCA's response to questions received from prospective vendors. The addendum included the following statement: To the extent this Addendum gives rise to a protest, failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes. The following pertinent questions and answers were included in Addendum No. 1: Question 1: Pursuant to Attachment A.9 and Attachment C.13, please clarify whether the certification relates to the vendor terminated a contract or the government agency terminated a contract, or two different certifications. Answer: Please see Attachment G, Required Certifications, as referenced in Attachment C.13. This certification relates to the vendor (including its subsidiaries and affiliates) unilaterally or willfully terminating any previous contract prior to the end of the contract with a state or the federal government, and to the vendor having a contract terminated by a state or the federal government for cause prior to the end of the contract, within the past five years. * * * Question 8: Attachment C.13 - Please clarify whether the bidder will be disqualified if there is even one instance where a government contract was terminated for cause in the past 3 years. Answer: Respondents must submit a signed certification (Attachment G) in order to be considered responsive. Maximus admits that it asked Question 8 and received the answer set forth above. Maximus did not challenge any of the specifications in ITN 0904 after issuance of Addendum No. 1. Bruce Caswell, the President and Chief Executive Officer of Maximus, signed the required certifications on Attachment G on August 24, 2009. On the following page, Mr. Caswell included information about a terminated contract involving its parent company, Maximus, Inc., as set forth below. AHS, Maximus, and Policy Studies, Inc. (PSI) submitted replies to ITN 0904 on or about August 24, 2009. AHCA opened the replies that same day and forwarded them to AHCA's Procurement Officer, Barbara Vaughan. Ms. Vaughan had the responsibility to determine compliance with ITN 0904's "Technical Response Mandatory Criteria," using the checklist set forth above. Ms. Vaughan has been AHCA's Procurement Administrator since April 2009. She does not have knowledge and experience in all the technical areas for which AHCA may procure services. During the hearing, Ms. Vaughan did not know what an enrollment broker service is. She did not read the technical responses to ITN 0904. She only examined whether the responses included the mandatory items on the checklist. Sometime in September 2009, Ms. Vaughan determined that Maximus had submitted a non-responsive proposal because it included information regarding a contract that the State of Connecticut terminated with Maximus, Inc. Specifically, Maximus included the following additional information following its certification on Attachment G: ADDITIONAL INFORMATION FOR ITN ATTACHMENT G As noted in the form on the previous page, we certify that MAXIMUS Health Services has not terminated any contract or been terminated prior to the end of the contract term during the past five years. Since, MAXIMUS Health Services is a subsidiary of MAXIMUS, Inc. we offer information about the parent company with respect to this certification. Of the thousands of contracts held by MAXIMUS, Inc. during the past five years, there is one incident of relevance. In this situation, in 2007, a MAXIMUS, Inc. contract to provide an updated criminal justice information system was terminated by the State of Connecticut prior to the end of the contract term after the primary subcontractor of MAXIMUS, Inc. abandoned the project. MAXIMUS, Inc. is disputing the State's termination and has sued its primary subcontractor. Mr. Caswell decided to include the forgoing exception or caveat following his certification because he understood that Maximus, Inc., as Maximus' parent company, was an affiliate and he did not want any misunderstanding. Mr. Caswell's interpretation of the word "affiliate" is consistent with the definition applied by AHCA in its review of the Technical Response Mandatory Criteria. At the hearing, Mr. Caswell, testified regarding the Connecticut contract. According to Mr. Caswell, Maximus, Inc., found itself in a position where it was unable to deliver on a contract for an integrated criminal justice solution with the State of Connecticut due to the mal-performance of its subcontractor. Mr. Caswell stated that Maximus, Inc., then moved to terminate the contract for convenience pursuant to the contract's terms; however, the State of Connecticut rejected Maximus' termination for convenience. Mr. Caswell admitted that the State of Connecticut then terminated the contract for cause and filed suit against Maximus, Inc., in approximately November 2007. Maximus is defending itself and suing its former sub-contractor in that on-going litigation. The State of Connecticut has alleged damages of $6.5 million dollars in their claim against Maximus, Inc. As a company listed on the New York Stock Exchange, Maximus, Inc., had annual revenues of approximately $717 million during the most recent fiscal year. The company has no debt and $87 million of cash on hand. The Connecticut dispute is less than one percent of the company's annual revenues. The following facts are undisputed: (a) Maximus has performed thousands of contracts without cancellation; Maximus is a wholly-owned subsidiary of Maximus, Inc.; Maximus, Inc., is a leading provider of health and human services and consulting and program management services primarily to state governments; (d) Maximus, Inc., offers Medicaid-managed care enrollment brokerage services for thirteen states around the country, serving nearly 15 million Medicaid beneficiaries; and (e) Maximus performs enrollment broker contracts for several states. These facts do not make the Connecticut litigation immaterial considering AHCA's clear intent in drafting ITN 0904 relative to terminated contracts. The mandatory requirement for a certification regarding terminated contracts, without exceptions or caveats, was a reasonable specification because, as Mr. Caswell testified, disputes like the one between Connecticut and Maximus, Inc., are common in the industry. Ms. Vaughan correctly interpreted the language of ITN 0904 when she concluded that no explanation of a terminated contract involving a vender or its affiliates was allowed by the solicitation. Therefore, Ms. Vaughan did not forward Maximus' proposal for scoring by the evaluation team. In comparing Maximus' submission to the mandatory requirement for a proposal guarantee to the checklist included in Attachment E, Ms. Vaughan determined that Maximus' submission was responsive. She reached this conclusion even though Maximus' proposal guarantee was not in its own name as required by Section C.14. Instead, Maximus included a "Bid Bond" guaranteed by Maximus, Inc. The bond identifies Maximus, Inc., as Principal, Travelers Casualty and Surety Company of America, as Surety, and AHCA, as Obligee. The bond erroneously states that Maximus, Inc., has submitted a bid for Solicitation Number AHCA ITN 0904, Florida Medicaid Enrollment Broker Services. The bond then goes on to describe its terms and conditions. There is no mention of the Surety guaranteeing performance by any subsidiary or affiliate of Maximus, Inc., or specifically by Maximus. Ms. Vaughan made her decision to reject Maximus’ bid just a week or two after bid openings, sometime in September 2009. However, AHCA did not announce its bid decision as it related to Maximus at that time. Instead, AHCA announced the rejection of Maximus after it announced the intended award of contract to AHS. The notice of Maximus' rejection followed an evaluation of responses by AHS and PSI, a negotiation session with AHS and PSI, and a subsequent negotiation session with AHS, who then provided the best and final offer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the protest. DONE AND ENTERED this 26th day of January, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 26th day of January, 2010. COPIES FURNISHED: Seann M. Frazier, Esquire Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32302-7742 Rachic Avanni Wilson, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 David W. Nam, Esquire Agency for Health Care Administration Fort Knox Building III, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 William E. Williams, Esquire Gray Robinson, P.A. 301 South Bronough Street, Suite 600 Tallahassee, Florida 32301 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Thomas W. Arnold, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308
The Issue The Department adopts and incorporates in this Final Order the Statement of the Issues in the Recommended Order.
Findings Of Fact Each counsel presented a stipulation of facts signed by both counsel. While the facts to which the stipulations relate appear to be fundamentally the same, the approach to each fact agreed to is different to some degree and based upon the relative position of the parties. The parties agreed that CCS is a not-for-profit corporation organized under the laws of the State of Florida, with its principal business located in Tampa, though it operates offices in Hillsborough, Hernando, Manatee, Sarasota and Lee counties. It is qualified as a non-profit corporation pursuant to Section 501(c)(3) of the United States Internal Revenue Code. Its primary purpose is to provide education and counseling services to individuals and families who lack the basic knowledge of budgeting and financial management in order to render them self-sufficient. It is an organization recognized by the United Way and currently receives funding through that organization in Hillsborough, Hernando and Lee counties. All such funding received from the United Way is utilized exclusively for educational purposes. It is also a member of the National Foundation for Consumer Credit Counseling. The functions of CCS consist primarily of four types of services. These include educational programs, individual budget counseling, debt management, and referral services to agencies that provide other services or benefits such as food, clothing, shelter, mental health services, marital and parenting counseling and drug and alcohol abuse counseling to needy individuals. None of the clients are charged for any of the services provided by CCS. Until January 1, 1995, CCS held consumer sales tax exemption number, 39-22-124883-56C. Its prior number was 06-0138-00-39. The prior exemption was granted to CCS in January, 1975. On November 8, 1994, Diane L. Trithart, then President and CEO of CCS, submitted an application for renewal of CCS' certificate of exemption. Included with the application was a background history of the organization containing the charter, by-laws, certificates of incorporation and registration with the state, financial statements and statements of agencies to which CCS refers clients and from which clients are referred to CCS. After the submittal of that application package, on March 16, 1995, the Department issued an Administrative Complaint seeking to revoke CCS' certificate of exemption on the basis that the organization was not a charitable organization with a sole or primary purpose which fulfilled one of the seven criteria outlined in Section 212.08(7)(O)2.b., Florida Statutes. By letter dated January 13, 1995, prior to the preparation of the Administrative Complaint ultimately filed herein, Patricia M. Chin, Chief of the Department's Bureau of Registration and Records in the Division of Tax Processing, conveyed to Ms. Trithart the Department's position that CCS no longer qualified for its exemption. This opinion was based upon the provisions of Section 212.08(7)(o)2.b., Florida Statutes, which defines the requirements which an organization must satisfy in order to be deemed a "charitable institution" exempt from sale and use tax. It was the Department's position that the primary purpose of CCS was to provide credit counseling which was not one of the statutorily defined services, and on that basis, the exemption could not be renewed. The functions of CCS in detail are varied and extensive. The parties agreed and stipulated that in 1995, CCS expended approximately twenty-one percent of its budget in direct educational programs which were offered through a number of other agencies such as Head Start, Salvation Army, Lighthouse for the Blind, AARP and other similar organizations. The relationship between CCS and these agencies is a collaborative effort in which all agencies seek to meet the needs of the client. In 1995, of the target audience for the educational programs which were conducted by CCS, seventy-two percent fell below federal poverty guidelines, and in addition, in 1995, CCS conducted sixty-six programs for in excess of twenty-eight hundred school age children in Hillsborough County which focused on basic money management and budgeting. Another thirty-seven percent of CCS' expenditures was devoted to budget counseling for clients in individual counseling sessions, each lasting between one and a half to two hours, and in which individuals and families are taught the basic skills of prioritizing needs so that they can be self-sufficient and provide for their basic needs in the area of food, clothing and shelter. In this category, 5489 various counseling appointments were met, and of the individuals and families who received this budget counseling, ninety-five percent were also referred to another agency or source for food assistance; sixty-one percent were referred to other agencies for additional help and services; seventy-one percent were either unemployed or on reduced income; fifty-three percent constituted separated, divorced or single individuals, many with minor children; and many were in need of other services for the prevention of or the rehabilitation of alcoholism, drug abuse, suicide prevention or the alleviation or mental, physical or sensory health problems. Many of these individuals faced the immediate prospect of losing their homes or having utility service disconnected, and their financial difficulties were having severe, adverse effects on their marital and family relationships. In 1994, forty-eight percent of the individuals or families who received budget counseling fell below the federal poverty guideline. In 1995, thirty-nine percent fell within that category. Of those individuals who received budget counseling, only twenty percent went on a debt management plan pursuant to which CCS acted as an intermediary between the client and the creditor and assisted the individual in paying off the outstanding debt. In 1995, approximately twenty-four percent of CCS' expenditures were devoted to service debt management plans, and eighteen percent of those expenditures were for administrative purposes. Less than one half of one percent of CCS' income was derived from interest on money deposited by clients into trust accounts and which was thereafter distributed by CCS to the clients' creditors. In addition, in 1995, CCS assisted 708 families in retaining their homes and avoiding foreclosure, with a success rate of ninety-eight percent. The most common cause of the family financial problems in those cases was loss of employment or reduced income. In that regard, CCS participates in the Florida Department of Labor's Rapid Response Program which provides counseling and educational services to employees who are losing their jobs as a result of corporate lay-offs or down-sizing. It is not, however, the primary purpose of CCS to assist individuals in establishing or re-establishing credit. As was stated previously, CCS operates educational programs in conjunction with other service organizations. One of these is The Women's Resource Center of Sarasota, a Section 501(c)(3) organization which serves women of a certain age who are seeking to enter the job market as a result of divorce, widowhood or other non-self-caused conditions. The majority of these clients find themselves unable to provide their own basic necessities and facing an uncertain future. They are lacking in the financial skills to manage their limited resources and many are facing the loss of their home. A large percentage have minor children, and the Center helps these women provide for themselves and their children by giving them the basic skills they need to survive. As a part of this program, CCS teaches classes in basic budgeting skills, money management, credit and spending, and provides assistance in avoiding foreclosure. CCS also instructs these clients on accessing other community resources which might help, but the fundamental goal of both agencies is to teach the clients to handle their finances and to be able to provide for themselves. These consumer credit services are provided at no cost to the client, and though no direct aid, such as food, clothing or shelter is provided by CCS, the education assists the client in learning to provide for herself. Similarly, CCS operates a collaborative educational program with The Spring of Tampa Bay, also an exempt organization. The Spring is a domestic violence center which provides comprehensive services to violent families, the majority of whom are brought in by law enforcement agencies. These clients are almost uniformly poor who come to The Spring with nothing but their immediate belongings in a garbage bag. Approximately one third of the clients are victims of aggravated battery and all are in immediate danger and have no place else to go. CCS offers a series of monthly programs to clients of The Spring. These programs are designed to assist the women in becoming functional so that they can get back on their feet and move toward leading normal lives. The courses are designed to teach the women how take care of themselves, and CCS educates the women in the management of their personal finances. The emphasis is decidedly not on reestablishing credit. Any client who can establish credit is not a suitable candidate for The Spring or, thereby, CCS. Neither The Spring nor the client pays CCS anything for its services. A third collaborative effort of CCS is that with The West Tampa Neighborhood Service Center, operated by Hillsborough County's Department of Social Services. This is a multipurpose human service facility that provides help to low income families including direct assistance in medical treatment, utility and rent payments and emergency assistance in the form of blankets, heaters, fans and food. All of the clients of West Tampa fall within the federal poverty guidelines. West Tampa has identified core agencies which it wants housed in its facility to promote a team approach to addressing the needs and services required by its low income clients. CCS workshops are a part of this team effort made up of other agencies providing such things as indigent care, medical assistance and the like. The concept of the West Tampa program is to develop the individual to allow that person to help himself, and CCS provides basic budget instruction to the individuals who seek assistance from West Tampa. These individuals are experiencing severe financial problems as a result of poor money management or poor budgeting skills, and need basic information in budgeting, in financial planning, in establishing a bank account and in avoiding the stigma of being characterized as a low income individual who lives off the system. CCS has also collaborated with the Family Services Association of Greater Tampa which provides counseling and psychotherapy to individuals, couples or families suffering from alcoholism, drug abuse or other difficulties. This organization also addresses marital and parent/child issues and unemployment/financial issues, and it is in that latter area that CCS participates. The individuals at risk have problems with daily living because of an inability to find or keep a job as a result of lack of skill, insufficient technology and inability to cope. Approximately fifty percent of the individuals in this category serviced by this agency fall below the federal poverty guidelines. The services provided by CCS, in conjunction with the agencies listed above, are comparable with similar programs in which it participates with several other agencies in the geographical area serviced and described previously herein. In all of its efforts and in the programs it presents CCS does not, as its sole or primary function, provide or raise funds for organizations which provide medical aid for the relief of disease, injury or disability. It does not, as its sole or primary function, provide or raise funds for organizations which provide regular physical necessities such as food, clothing or shelter. On the other hand, CCS does provide education and counseling services to individuals who lack the basic knowledge of budgeting and personal financial management so that they can provide for their own food, clothing and shelter, and it constantly acts as a referring agency to other agencies that do provide food, clothing and shelter. CCS does not, as its sole or primary function, provide or raise funds for organizations which provide medical research for the relief of disease, disability or injury, and it does not, as its sole or primary function, provide or raise funds for organizations which provide legal services. By the same token, it does not, as its sole or primary function, provide or raise funds for organizations which provide food, shelter or medical care for animals, or adoption services, cruelty investigations or education programs concerning animals. It also does not, as its primary function, provide or raise funds for organizations which provide adoption, placement, child care or community care for the elderly. Article II of CCS' By-Laws, as approved in October 1994, defines its community service as, "delivering professional consumer credit education, confidential counseling and debt reduction programs," such services rendered to "all segments of the community regardless of ability to pay." While CCS has no income guidelines for its clients, consistent with the terms of its by-laws, it will counsel anyone, regardless of ability to pay. The funds which CCS receives from that small percentage of clients who are eligible for debt management plan participation, (only twenty percent of those seen in 1995), are deposited in an interest-bearing account. Distributions to creditors are made from this account twice a month, timed to coincide with receipt of the bulk of client funds. Any interest earned on the deposited funds is used by CCS to offset the cost of providing services. This earned interest amounts to less than one half of one percent of CCS' revenue. Though CCS provides its services without charge, some clients voluntarily donate funds as able. These donations, along with the interest earned on client deposits, are also used to offset the costs of the debt management programs and the educational and counseling programs made available without charge to all segments of the community. By far the greatest amount of revenue received by CCS in 1992 and 1993 came from contributions from business creditors of CCS' clients. Business creditors are presented with an invoice with payment, but the creditor is under no obligation to contribute. Nonetheless, during those years, that income constituted eighty-five percent of revenue while client contributions constituted only nine percent one year, and slightly more than ten percent the next.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue enter a final order dismissing the Administrative complaint filed herein and approving the application for consumer sales tax exemption submitted by Consumer Credit counseling Service of the Florida Gulf Coast, Inc. as a charitable institution. DONE and ENTERED this 4th day of June, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 4th day of June, 1996. COPIES FURNISHED: Kent L. Weissinger, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Leslie E. Joughin, III, Esquire Post Office Box 3273 Tampa, Florida 33601-3273 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100
The Issue Are the intended contract awards by the Department of Juvenile Justice (Department) to Intervenor, Ramsay Youth Services, Inc. (Ramsay) under Request for Proposal (RFP) Numbers J5G01 and J5G02 contrary to the Department's governing statutes, applicable rules or policies, or the specifications of the RFPs?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Background On March 29, 2002, the Department issued RFP No. J5G01 for the operation of a 350-bed residential commitment program for high-risk males in Polk City, Florida (Polk Program). On April 5, 2002, the Department issued RFP No. J5G02 for the operation of a 74-bed, multi-level residential commitment program in Homeland, Florida (Bartow Program). CSC is the incumbent provider for both the Polk and Bartow Programs. On or about April 25, 2002, two proposals were submitted in response to the RFP for the Polk Program, one from CSC and one from Ramsay. On or about May 3, 2002, four separate proposals were submitted by CSC, Ramsay, Sescuricor New Century (Securicor), and Lighthouse Care Center (Lighthouse) in response to the RFP for the Bartow Program. On June 25, 2002, the Department posted separate notices of its intent to award contracts for the Polk and Bartow Programs to Ramsay. The Notice of Intended Contract Award for the Polk Program (RFP No. J5G01) lists Ramsay as the highest-ranked bidder with 655.3 average points, and CSC as the second-ranked bidder with 537 average points. The Notice of Intended Contract Award for the Bartow Program (RFP No. J5G02) lists Ramsay as the highest-ranked bidder with 590.3 points, followed by Securicor with 542.7 average points, CSC with 535.7 points, and Lighthouse with 233.3 points. All parties stipulated to the Department's scoring of the past performance portion of both CSC proposals. With the exception of Item C-3.7, all parties stipulated to the Department's scoring of the past performance portion of both Ramsay proposals. With regard to Item C-3.7, the parties stipulated the Department's scoring for Ramsay should have reflected 60 additional points because Ramsay's Manatee Adolescent Treatment Services program (Department's Contract No. F7027) met or exceeded the approved Performance Based Budgeting performance measure for recidivism for the past two years. In light of the corrections for Item C-3.7, Ramsay's total average score for the Polk Program should have been 715.3 (i.e., 655.3+60), compared to CSC's score of 537. Likewise, for the Bartow Program, Ramsay's total average score should have been 650.3 (i.e., 590.3 + 60), compared to CSC's score of 535.7. The Process Since at least the end of 2001, the Department has utilized two procurement methods: one provides for the scoring of costs; the other does not because the RFP specifies a fixed maximum contract price. When the fixed price method is used and costs are not scored the Department conducts a so- called "negotiation phase" after issuing notice of intent to award the contract. During the so-called "negotiation phase," the Department and offeror determine such things as the unfilled bed rate and maintenance rate, but the Department does not negotiate material terms of the technical proposal or allow the selected offeror to modify its proposal. The Department does not allow the selected offeror to increase the cost or price included in its proposal. However, if an error is discovered in the selected offeror's budget, the budget can be adjusted to redistribute expenses from one line item to another, so long as the proposed services are provided and the proposed cost or price is not exceeded. If the Department is unable to complete execution of the contract because the selected offeror is unable to provide the program services within the contract set forth in its proposal, the Department moves on to negotiate with the next offeror. Use of the "fixed price" procurement method has enabled the Department to reduce procurement process from 180 to less than 120 days on average, and often as low as 60 days. Speeding up the procurement process helps to ensure that services will continue to be provided and that legislatively appropriated funds do not go unused and, as a result, become subject to forfeiture. This is important because the State has a "waiting list" of committed youth who require program services. The "fixed price" method also allows the Department to place its principal emphasis on the quality of programs offered. In this case, the RFPs for both programs contemplate fixed priced contracts. Each RFP specifies a maximum contract dollar amount that the Department will award for each contract. The dollar amount is a "fatal criterion," meaning that any proposal with a cost exceeding that amount would be rejected. Both RFPs required each offer to submit a technical proposal (Volume I) setting forth an introductory statement and specific sections describing the offeror's management capability, the offeror's past performance, and the program services being offered. Both RFP's required offerors to submit financial data (Volume II) including, among other things, a total cost or price for the program and an itemized budget. The total costs submitted by Ramsay and CSC did not differ significantly; the difference was less than one dollar for the Polk Program and only two dollars for the Bartow Program. Both RFP's provided that zero points would be assigned for costs or price, indicating that costs or price would not be scored. Instead, the primary scoring criteria are "program services" and "past performance." Together, these criteria reflect 700 out of the 1000s total points available. Nothing in the RFPs requires the Department to evaluate budget details in conjunction with its review of the technical proposals prior to the notice of intended award. The Department uses the budget information primarily as a baseline to assist it in moving through the "negotiation phase." It enables the Department to determine if specific costs would not be incurred or not allowable. It enables the Department to negotiate the unfilled bed rate, which allows the Department to reduce the contract rate to account for costs that would not be incurred for beds that are not occupied. It also forces offerors to determine whether they can provide the required services within the maximum price before they submit proposals. Based on a Department document entitled "Briefing for SSET Team Members and Advisors," CSC claims that the "RFP Process" requires the Department to evaluate proposed costs for realism, reasonableness, and completeness. The "Briefing" document does state that "the contract administrator is responsible for evaluating the cost proposals of each offeror for completeness, reasonableness, and reality using the COST [PRICE] PROPOSAL EVALUATING form. However, the "Briefing" document is not a part of the RFP's and does not reflect official Department policy. The "Briefing" document is merely a guideline. In this case, the Contract Administrator, Marvin Floyd, did not sign the "Briefing" document and did not score or perform an extensive analysis of the specifics of the proposed budgets for realism, reasonableness, and completeness. However, Marvin Floyd did review each cost proposal to determine whether it included a total cost or price and whether the budget information in Attachment H was filled out. In that sense, Marvin Floyd did review the cost proposal for completeness. Similarly, Marvin Floyd also reviewed the proposed costs and price to determine whether it exceeded maximum contract dollar amount, which the Department had previously determined to be realistic and reasonable. In that sense, Marvin Floyd did review the costs or price for realisms and reasonableness. CSC failed to demonstrate that the evaluation process utilized by the Department provided a competitive advantage to Ramsay. To the contrary, the same evaluation process and guidelines were used for both CSC and Ramsay. Ramsay's Proposed Budget Based on isolated statements made in Ramsay's technical proposal and a review of Ramsay's budget, CSC's senior Vice President, Paul Donnelly, opined that Ramsay's proposal was somewhat "naïve" and a "virtual primer . . . for a novice[.]" However, Donnelly opinions must be weighed in light of the fact that CSC received "minimal performance" and "noncompliance" ratings for both the Polk and Bartow Programs in the latest Department Quality Assurance reviews. Furthermore, Donnelly himself testified in deposition that Ramsay submitted an "impressive technical proposal." The record demonstrated that Ramsay is an experienced provider that currently operates nine programs for the Department, including the Department's only contracted maximum-risk program. CSC contends that the budget included in Volume II of Ramsay's proposal for the Polk Program is not realistic, reasonable, or complete because it did not include specific line items for certain direct expenses, including start-up costs, overtime, employee expenses, and taxes, as well as certain indirect expenses, such as insurance and corporate overhead. CSC failed to demonstrate that the RFP specifications or the Department policy requires such budgetary detail. Moreover, Ramsay's Chief Operating Office, Jorge Rico, explained that Ramsay's budget did address most of the costs identified by CSC in other, more general line items. Whereas CSC's budget was more specific as to some items, Ramsay's budget was more specific as to others. For example, Ramsay included a specific line item for recruiting, but CSC addressed this expense in the general category of corporate overhead. Similarly, Ramsay included specific line items for nursing staff, whereas CSC addressed nursing staff in the general category of medical services. CSC also faulted Ramsay for not including start-up or "transition" costs in its budget for the Polk Program. But had such a line item been included, it would have been eliminated during the so-called "negotiation phase" because the Department does not allow start-up costs for existing programs. CSC's argument that Ramsay should have budgeted these costs amounts to a claim that CSC should be given a competitive advantage because, as the incumbent provider, CSC would not incur transitional costs and, therefore, would have no reason to budget them. Such an advantage would be contrary to competitive principles by favoring the incumbent provider over other offerors. The primary indirect expense that CSC criticized Ramsay for not including in its budget is corporate overhead. As Rico explained, however, corporate overhead is a fixed cost that will not increase with the addition of a new program. Ramsay made a business decision to put whatever funds that might be allocated as corporate overhead into the program itself. CSC claims that Ramsay cannot provide the services outlined in its proposal without incurring a loss. Rico acknowledged that Ramsay likely would incur losses for at least the first year of the programs, as is common when a new provider takes over an existing program. However, whether or not a provider makes a profit on a program is not the Department's concern and is not an award criterion. In fact, when corporate overhead is allocated as CSC suggests Ramsay should have in its budget, CSC itself incurred losses on both Polk and Bartow Programs over the twelve-month period ending July 2002. In its totality, the evidence indicates that the budgets submitted by Ramsay and CSC differ due to differences in management styles. Those differences do not render Ramsay's budget unrealistic, unreasonable, or incomplete. The differences in total costs proposed by CSC and Ramsay were negligible. In any event, budgets are estimates, actual expenses never match budget line items. The evidence does not support CSC's claim that Ramsay will need to make material changes to its budget in order to provide the program services at the cost or price set forth in its proposal. Ramsay is committed to providing the services described in its technical proposal at the cost set forth in its cost proposal. Staffing Ratio Based on a statement in Ramsay's technical proposal, CSC suggests that Ramsay would not meet the staffing ratios required for the Polk Program. However, Ramsay's technical proposal clearly states in bold lettering that Ramsay "will meet staffing requirements documented in the RFP (1:8 days and evening; 1:12 nights)." Moreover, Ramsay's budget includes enough positions and dollars to meet the required staffing ratios. In fact, with regard to "youth workers," who provide the core of the program staff, Ramsay's budget includes considerably more positions (186 full time equivalent or "FTEs"), than does CSC's budget (120.9 FTEs). Instructions to Evaluators CSC failed to demonstrate that the Department failed to provide its evaluators with specific and legally sufficient instructions regarding the scoring of proposals. To the contrary, the scoring sheets provided to the evaluators contain specific and detailed instructions on how each scoring criterion was to be evaluated. For example, in evaluating "Programs Services," the scoring sheets advise the evaluators to assess "soundness of approach" and "compliance with requirements" as follows: SOUNDNESS OF APPROACH: (Does the proposal reasonably and logically identify the proposed approach to perform the services as specified and required by the RFP, Attachment G, Exhibit 1, Scope of Services?) COMPLIANCE WITH REQUIREMENTS: (The degree to which the proposal complies with the requirement specified and required by the RFP, Attachment G, Exhibit 1, Scope of Services)(Does the proposal comply with all requirements for all service components, as identified in Attachment G, Exhibit 1, Scope of services, of the RFP?) The evaluators were then required to provide a numeric score ranging from 5 to zero. The scoring sheets provide specific criteria for determining the appropriate numeric score. For example, an "excellent" score of 5 would be appropriate if "[t]he proposal exceeds all technical specifications and requirements for all program components (and it) is innovative, comprehensive, and complete in every detail." Other Issues CSC failed to prove its allegations that the Departments' scorers evaluated and scored the proposals inconsistently or incorrectly or that the Department deviated from the RFP criteria in evaluating and scoring the proposals. CSC also failed to demonstrate that the Department's reduction in the number of beds for the Bartow Program from 74 to 50 beds after issuance of the RFP provided an unfair advantage to Ramsay or was otherwise contrary to competition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing CSC's protests and awarding the contracts to Ramsay pursuant to RFP Nos. J5G01 and J5G01 as originally proposed. DONE AND ENTERED this 29th day of October, 2002. Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2002. COPIES FURNISHED: Brian Berkowitz, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 James C. Hauser, Esquire Warren Husband, Esquire Metz, Hauser and Husband, P.A. Post Office Box 10909 Tallahassee, Florida 32302-2909 Gary V. Perko, Esquire Hopping, Green, Sams & Smith 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 R. Terry Rigsby, Esquire Law Offices of R. Terry Rigsby, P.A. 215 South Monroe Street, Suite 505 Tallahassee, Florida 32301 Gary P. Sams, Esquire Hopping, Green, Sams & Smith Post Office Box 6526 Tallahassee, Florida 32314 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechern, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
