The Issue Is Respondent, Department of Corrections' (Department), Notice of Intent to Award DC RFP-13-031 for Statewide Inmate Telecommunication Services to Intervenor, Global Tel*Link Corporation (Global), contrary to the governing statutes, rules, or policies or to the Department's Request for Proposal solicitation specifications?
Findings Of Fact Background The Legislature charged the Department with protecting the public through the incarceration and supervision of offenders and rehabilitating offenders through work, programs, and services. The Department is required to provide telephone access to inmates in its custody. Inmate telecommunication services provide inmates the ability to stay in contact with friends and family. The services promote and support efforts to help inmates re-enter society by fostering communications with the community outside jail and prison. The Department does not pay for these services. The inmates and their designated family members and friends pay for the services. The contract to provide the telecommunications service generates revenue for the Department. The provider pays the Department for access to the consumers. The provider charges the inmates and their designees for the service. The provider pays the Department a commission calculated as a percentage of revenues received. The commission is calculated as part of the charge for the services and is included in it. The price competition portion of the RFP is based on the prices charged to the inmates and designees and the commissions paid to the Department. According to the RFP, the State of Florida presently has a total inmate population of approximately 102,000 people. In fiscal year 2010-2011, the inmate calling services generated total revenue of $14,180,345 from 9,587,040 calls. In fiscal year 2011-2012, the inmate calling services generated total revenue of $13,513,495 from 8,226,577 calls. And in 2012-2013, the inmate calling services generated total revenue of $14,749,021 from 8,853,316 calls. In 2012–2013, interstate calls generated 11.6 percent of calls and 12.9 percent of revenues from the contract. Securus holds the contract with the Department to provide inmate telephone services and has for over six years. Before February 11, 2014, Securus paid a 35 percent commission to the Department on all of its call revenue from the contract. That changed as of February 11, 2014, when the Department interpreted a stayed order of the Federal Communications Commission (FCC), discussed in more detail later, to prohibit collecting the commissions on interstate calls. The record does not reveal if Securus stopped collecting the commission portion of the rates charged to inmates and their designees. The Department does not collect commissions because it interprets the FCC order to say that it cannot receive commission revenue because it is a state agency. The Department also declines to accept commissions because it fears finding itself in a position where it may have to refund money which has already been transferred to the general fund, possibly an earlier year's general fund. During the RFP process, Securus was aware of the Department's interpretation of the FCC order, because it had negotiated the change to its existing contract to end commission payments. The changes did not affect Securus charging inmates the commission. The Department did not include its interpretation of the order in the RFP, as modified by the Addenda. Commissions on interstate calls are significant revenue for the Department. This case involves the Department's second attempt to award a new contract for inmate telecommunication services. Earlier, the Department issued an Invitation to Negotiate for these services. CenturyLink, Global, and Securus all responded. The Department negotiated with all three. The Department initially decided to award the contract to CenturyLink. Eventually, the Department rejected all bids after it determined that the scoring language and selection criteria were poorly worded. They were subject to different reasonable interpretations that made how the Department would select the winning vendor unclear and made the playing field for vendors unequal. The vendors protested the decision to reject all bids. In upholding the decision to reject all bids, Administrative Law Judge Scott Boyd found at paragraph 70: The Department concluded that the wording and structure of the ITN and RBAFO did not create a level playing field to evaluate replies because they were confusing and ambiguous and were not understood by everyone in the same way. Vendors naturally had structured their replies to maximize their chances of being awarded the contract based upon their understanding of how the replies would be evaluated. The Department concluded that vendor pricing might have been different but for the misleading language and structure of the ITN and RBAFO. Global Tel Link Corp. v. Dep't of Corr., Case No. 13-3041BID (Fla. DOAH Nov. 1, 2013), adopted in whole, except for correcting two scrivener's errors, FDOC Case No. 13-81 (Fla. DOC Nov. 25, 2013). The Request for Proposals The Department released the RFP seeking to establish a five-year contract with a vendor to provide inmate telecommunications services on March 7, 2014. The Department subsequently issued Addenda 1, 2, and 3 to the RFP. The Addenda included vendor questions and the Department's answers. No vendor protested any term, condition, or specification of the RFP or the Addenda. The RFP sought vendor proposals to provide an inmate telephone system, video visitation system, and other services for inmates housed in the Department's facilities. The requested services included the actual service, system design, equipment, installation, training, operation, repair, and maintenance at no cost to the Department. The RFP included security, reporting, auditing, and monitoring requirements. It also established the procurement process, including scoring criteria. Of the RFP's 66 pages, only the commissions' role in pricing, scoring procedure, the score given Securus for its response to RFP section 3.15, and treatment of refunds are the focus of the disputes in this proceeding at this point. Review and Scoring The RFP established proposal scoring based upon four categories. The chart below reflects the categories, the tab of the RFP in which the scored categories are described, and the maximum points allowed for category. Mandatory Responsiveness Requirements 0 points Executive Summary and Other Proposal Submissions 0 points Category 1--Business/Corporate Qualifications (Tab 3) 50 points Category 2--Project Staff (Tab 4) 200 points Category 3--Technical Response (Tab 6) 400 points Category 4--Price Proposal 350 points TOTAL POSSIBLE POINTS 1,000 points The RFP breaks each of the categories into components, each referencing and correlating to specific RFP sections. These are found at RFP "Attachment 4--Evaluation Criteria." For each component, the Evaluation Criteria posed a question. For example, in Category 3, a question asks "How adequately does the Respondent describe their overall capability and process for providing a video visitation system?" The RFP provides a maximum score for each scoring component, which range from 15 to 50 points depending on the relative importance of the particular component. Each proposal was graded on the following qualitative scale: Omitted, Poor, Adequate, Good, and Exceptional. The RFP associates a point value with each qualitative description for each particular scoring component. For instance, if a component had a maximum score of 25 points, the scoring framework was as follows: Omitted--0; Poor--6.25; Adequate--12.5; Good--18.75; and Exceptional--25. A score of zero meant that a vendor completely omitted any information for the item from which a qualitative assessment could be made. The RFP directed the vendors how to generally format and package their proposals. Specifically, RFP Section 5 (Proposal Submission Requirements) stated: All Project Proposals must contain the sections outlined below. Those sections are called "Tabs." A "Tab," as used here, is a section separator, offset and labeled, (Example: "Tab 1, Mandatory Responsiveness Requirements"), such that the Evaluation Committee can easily turn [t]o "Tabbed" sections during the evaluation process.Failure to have all copies properly "tabbed" makes it much more difficult for the Department to evaluate the proposal. Vendors were to include seven "tabs" within their proposals: Tab 1 Mandatory Responsiveness Requirements Tab 2 Transmittal Letter with Executive Summary Tab 3 Business/Corporate Qualifications Tab 4 Project Staff Tab 5 Respondent's Financial Documentation Tab 6 Technical Response Tab 7 Minority/Service Disabled Veteran Business Enterprise Certification The RFP gave further instructions about the contents within each tab. RFP Section 5.6 provided the requirements for Tab 6, Technical Responses. It required vendors to provide a narrative technical response identifying how vendors will meet the scope of services required by the RFP and, more specifically, the scope of services described in RFP Sections 2 (Statement of Need/Services Sought) and 3 (Scope of Services). The RFP did not mandate any other formatting requirements for the contents of Tab 6. This becomes significant in the analysis of Securus's response to section 3.15 of the RFP. The RFP advised that the Department would assign an evaluation committee to evaluate proposals. It did not state how many evaluators would be selected to score proposals or whether evaluators would be responsible for scoring proposals in their entirety or just specific portions. The Department appointed a team of six evaluators: Jon Creamer, Shane Phillips, Randy Agerton, Steve Wilson, Charles Lockwood, and Richard Law. Mr. Law, a certified public accountant, reviewed each vendor's financial submissions on a pass/fail basis. The other five evaluators scored the technical responses, categories one through three. Julyn Hussey, the procurement officer, trained the evaluators, except for Mr. Law. She provided the evaluators with a training manual, the RFP, the vendors' proposals, and scoring sheets. During training, Ms. Hussey instructed the evaluators to review proposals in their entirety to properly evaluate and score their various components. The Department gave the evaluators approximately eight days to evaluate and score the proposals. The evaluators did not consult with each other during their evaluation. Each evaluator turned his completed score sheet in to Ms. Hussey. She then compiled the technical response scores. Ms. Hussey also calculated the price scores by taking the prices from the vendors' price sheet submissions and applying the RFP price scoring formula. The Department combined the technical and price scores to calculate each vendor's total score. Global received the highest total score with 2,960.42 points. Securus was second with 2,911.04 points. CenturyLink was third with 2,727.94 points. Global outscored Securus by 49 points on a 3,600-point scale. Global outscored CenturyLink by 232.48 points. Securus outscored CenturyLink by 183.10 points. Commissions, Pricing, and an FCC Order The vendors' price proposal was a critical category of the RFP review and evaluation. It was worth 350 of the 1,000 points available. Only the technical response could score more points, 400. Of the 350 points, 300 points were directed toward the inmate telephone service price proposal and 50 points were for the video visitation service price proposal. The RFP subdivides the inmate telephone service points into 150 possible points for the provider offering the highest commission payments to the Department; 125 points for the lowest intralata, interlata, intrastate, and interstate per-minute rates; and 25 points for the lowest local and local extended area per-minute rates. The vendor with the most favorable numbers in each subcategory received the maximum points. The rest received a percentage of the maximum points based on a ratio between their bid and the most favorable bid RFP Section 3.8.3, "Rate and Call Charge Requirements"3/ provided: For the price sheet, the Respondent shall establish a separate single, blended rate per minute, inclusive of all surcharges and department commission rate on the price sheet (attachment 5) for the inmate telephone service and the video visitation service. Local and local extended area service calls shall be billed as local calls and shall not exceed $0.50 for a 15 minute phone call. For the price sheet, the Respondent shall establish a single, blended rate per minute, inclusive of all surcharges, for all calls on the North American Dialing Plan, including intralata, interlata, intrastate, and interstate calls which shall not exceed the maximum rate per minute allowed by the Federal Communications Commission (FCC) and appropriate regulatory authority during the time the call is placed. In addition to the FCC, vendors can contact the state consumer protection agency, Better Business Bureau, or State Attorney General's Office to obtain maximum rate per minute information. Note: In accordance with Federal Communications Commission 47 CFR Part 64[WC Docket No. 12-375; FCC 13-113]--Rates for Interstate Calling Services--effective February 11, 2014, no commission shall be paid on revenues earned through the completion of interstate calls of any type received from the Contract Call charges for international calls shall not exceed the maximum rate allowed by the appropriate regulatory authority during the time the call is placed. Local call charges for coin-operated telephone calls at the Work Release Centers shall not exceed thirty-five cents (.35) per local call plus the Local Exchange Carrier (LEC) charges, which vary between LEC's. Long distance call charges for coin-operated phones at the Work Release Centers shall be at the same rates for inmate telephone calls. The Contractor shall agree that charges for calls shall include only the time from the point at which the called party accepts the call and shall end when either party returns to an on-hook condition or until either party attempts a hook flash. There shall be no charges to the called party for any setup time. The Contractor shall not charge, pass on, or pass through to the customer paying for collect or prepaid calls any charges referred to as Local Exchange Carrier's (LEC's) or Competitive Local Exchange Carrier's (CLEC's) billing costs, or any bill rendering fee or billing recovery fee. The Contractor shall also ensure that LEC's and CLEC's do not charge or pass on to the customer any additional fee or surcharges for billing. The Contractor shall be responsible for any such LEC or CLEC surcharges incurred if billing through the LEC or CLEC. In addition, the Contractor shall not charge, pass on, or pass through to the customer paying for the collect, prepaid calls or video visitation visits any of the following charges and/or fees: Bill Statement Fee, Funding Fee, Mail-In Payment Fee, Western Union Payment Fee, Refund Fee, Regulatory Recovery Fee, Wireless Admin Fee, Single Bill Fee, Paper Statement Fee, Account Setup Fee, Account Maintenance Fee, Inactive Account Fee, Account Close-Out Fee, Non-Subscriber Line Charge, Inmate Station Service Charge, Third-Party Payment Processing Fee, State Regulatory Recovery Fee, Check/Money Order Processing Fee, Biometric Service Charges, JPay Payment Fee, Federal Regulatory Cost Recovery Fee, Regulatory and Carrier Cost Recovery Fee, Validation Surcharge or Wireless Termination Surcharge. The Contractor shall ensure, inmates' family and friends utilizing the Florida Relay Service to receive calls from inmates are charged the same rates as those family and friends receiving calls from inmates not utilizing this service. [emphasis added]. The Department intended for the boldface note to advise responding vendors that the vendor would not pay commissions on interstate call revenues. The language raised questions which the Department replied to in the Addenda issued after the RFP issued. None of the Addenda modified the plain statement in section 3.8.3 that "the Respondent shall establish a separate single, blended rate per minute, inclusive of all surcharges and department commission rate on the price sheet (attachment 5) for the inmate telephone service." Section 7.3.1 of the RFP established the requirements for commission and monthly payments. It states: The Contractor shall pay to the Department a monthly commission based on the percentage of gross revenues as determined through this RFP process. The Department will begin to receive payment for a facility on the date the Contractor assumes responsibility for the operation of that facility's inmate telecommunication service in accordance with the Final Transition and Implementation Plan. Sections 7.3.2 through 7.3.4 contain additional requirements for commission payments, supporting documentation for the commission calculation, and penalty, if the vendor does not timely make the final commission payment at the end of the contract. They make the importance of commission payments to the Department clear. Attachment 5 is a mandatory form for vendors to provide their proposed call and commission rates. It contains the same boldface note about the FCC order as section 3.8.3. The form solicited a blended rate and a single commission rate for telephone services. FCC, 47 C.F.R. Part 64 (WC Docket No. 12-375; FCC 13-113) (FCC order), referred to in RFP Section 3.8.3 and Attachment 5, is a commission decision and regulation, effective May 31, 2013, addressing a need for reform in what the FCC determined were "egregious interstate long distance rates and services" in the inmate telecommunications business. The FCC identified paying commissions to correctional institutions and including them in the rates charged inmates and their families and other designees as a significant factor contributing to unreasonably high rates for inmate telecommunications services. The decision also addressed surcharges and fees. The FCC determined that inmate telecommunications charges must be cost- based and that commission payments, among other things, could not be included in the costs. The FCC adopted subpart FF to 47 C.F.R. part 64 of its regulations to regulate inmate calling services. The FCC included in subpart FF, section 64.010, titled, cost-based rates for inmate calling services. It states: "All rates charged for Inmate Calling Services and all Ancillary Charges must be based only on costs that are reasonably and directly related to the provision of ICS [inmate calling services]." This is the rule implementing the FCC's decision that commission payments are not included in the reasonably and directly related costs. The FCC made clear that it was not prohibiting payment of or collection of commissions, only prohibiting including them in the costs determining the fee paid by inmates and their designees. The FCC addressed this in paragraph 56 of the order, which states: We also disagree with ICS providers' assertion that the Commission must defer to states on any decisions about site commission payments, their amount, and how such revenues are spent. We do not conclude that ICS providers and correctional facilities cannot have arrangements that include site commissions. We conclude only that, under the Act, such commission payments are not costs that can be recovered through interstate ICS rates. Our statutory obligations relate to the rates charged to end users—the inmates and the parties whom they call. We say nothing in this Order about how correctional facilities spend their funds or from where they derive. We state only that site commission payments as a category are not a compensable component of interstate ICS rates. We note that we would similarly treat "in-kind" payment requirements that replace site commission payments in ICS contracts. Providers of inmate calling services, including all three vendors in this proceeding, sought review of the decision and regulation by the United States Court of Appeals for the District of Columbia Circuit. The court stayed section 64.010, along with sections 64.6020, and 64.6060. Following release of the RFP, the Department received and answered inquiries from vendors. The inquiries, the Department's responses, and changes to the RFP are contained in Addenda 1, 2, and 3 to the RFP. Rates and commissions received a fair amount of attention in the process. In response to inquiries about section 3.8.3 and Attachment 5, the Department changed both with Addendum 2. The questions and Department responses follow. Question No. 4 states: Page 30: 3.8.3 - Rate and Call Charge Requirements and Attachment 5 – Blended Call Rates. Regarding the blended rate (inclusive of all surcharges) to be bid – the current wording could be opportunistically misinterpreted in a few different ways: First in the treatment of per-call versus per-minute fees, based on our understanding, one bidder could possibly offer a flat $1.80 per call fee for non-local inmate telephone calls and claim to have the same blended rate ($1.80/15 minutes = $0.12) as someone bidding $0.12 per minute with no per-call fee. This could occur even though calls average less than 15 minutes (and many calls are less than 10 minutes), meaning these two offers are not comparable in terms of overall cost to family members. Second, the RFP wording could also possibly be interpreted as allowing a Contractor to set different rates for different call types (collect/prepaid, intraLATA/interstate) and then averaging them using assumptions they define. Question 1: To minimize cost to family members and make offers comparable, would the Department please explicitly disallow per-call fees for the inmate telephone system (for example, per-call setup charges, per-call surcharges), allowing only a true per-minute rate? Question 2: If no to Question 1, would the Department require separate disclosure of per-call fees and per-minute rates? Question 3: Would the Department please verify that ALL non-local domestic calls-- intraLATA, interLATA, and interstate, for both collect and prepaid-–must be charged at an identical rate? Answer No. 4 states: Question 1: Per this Addendum #2, the following revisions will be made to Section 3.8.3: In 3rd paragraph after first sentence add: The Respondent shall establish a separate single, blended rate per minute inclusive of all surcharges for all local and local extended area calls. These per minute rates delete: which Delete 4th paragraph beginning with Note. In 6th paragraph first sentence revised to read: Local call charges for coin-operated telephone calls at the Work Release Centers shall not exceed forty-five cents (.45) per local call plus the Local Exchange Carrier (LEC) charges, which vary between LEC's. In 9th paragraph following In addition, the Contractor shall not charge, pass on, or pass through to the customer paying for the collect, prepaid calls or video visitation visits any of the following charges and/or fees: Add Pre-call setup charges, Pre-call surcharges, Delete last paragraph; Question 2: Not applicable, Question 3: Confirmed, per Section 3.8.3 all non-local and local extended area calls must be charged at an identical rate. Question No. 5 states: Attachment 5 - Price Sheet. Page 30--Section 3.8.3 states that on the price sheet, the Respondent will provide a "single, blended rate per minute, inclusive of all surcharges . . . ." Attachment 5 states "Blended Telephone Rate for All Calls . . ." To eliminate ambiguity, would the Department consider changing the language in Attachment 5 to read "Blended Telephone Rate Per Minute for All Calls . . . ?" [sic] Answer No. 5 states: Attachment 5 will be revised to include "Blended Telephone Rate Per Minute for All Calls". Question No. 6 states: Page 30: 3.8.3 - Rate and Call Charge Requirements. The fourth paragraph states that "In accordance with Federal Communications Commission 47 CFR Part 64 [WC Docket No. 12-375; FCC 13-113]--Rates for Interstate Calling Services--effective February 11, 2014, no commission shall be paid on revenues earned through the completion of interstate calls of any type received from the Contract." Respectfully, this interpretation of the FCC's Order is incorrect. The Order, without question, does not prohibit the payment of commissions on interstate calls. Also, rules regarding future cost-based regulation (including consideration of commissions in rate-setting) have been stayed by the D.C. Circuit Court of Appeals, and FL DOC interstate rates are well below the FCC rate caps that have been left in place by the Court. This is why most providers have continued to pay commissions on interstate calling, in compliance with their contracts. Q. Will the State consider removing this paragraph from the RFP in order to ensure revenue for the State and a level playing field across providers? Answer No. 6: Section 3.8.3 and Attachment 5--Price Sheet is amended, per this Addendum to remove the paragraph. In addition, Section 7.3.1 has also been amended, per this Addendum, to state that commissions will be paid in accordance with all Federal, State and Local regulations and guidelines. Further questions and clarifications followed. They are found in Addendum 3 to the RFP. Question No. 2 states: In Addendum No. 2; Answer #4 Revises Section3.8.3 by revising the 3rd paragraph Instructions are to add the following language: The Respondent shall establish a separate single, blended rate per minute inclusive of all surcharges for all local and local extended area calls. These per minute rates (delete: which) For the price sheet, the Respondent shall establish a single, blended rate per minute, inclusive of all surcharges, for all calls on the North American Dialing Plan, including intralata, interlata, intrastate, and interstate calls which shall not exceed the maximum rate per minute allowed by the Federal Communications Commission (FCC) and appropriate regulatory authority during the time the call is placed. The Respondent shall establish a separate single, blended rate per minute inclusive of all surcharges for all local and local extended area calls. These per minute rates (deIete [sic]: which). In addition to the FCC, vendors can contact the state consumer protection agency, Better Business Bureau, or State Attorney General's Office to obtain maximum rate per minute information. The instructions to add "These per minute rates (delete: which)" does not fit with the instructions. The word "which" is not included in this area of paragraph 3. Question #2: Can the Department please clarify? Answer No. 2 states: To further clarify 3.8.3, paragraph 3 is revised to read as follows: For the price sheet, the Respondent shall establish a single, blended rate per minute, inclusive of all surcharges, for all calls on the North American Dialing Plan, including intralata, interlata, intrastate, and interstate calls. The Respondent shall also establish a separate single, blended rate per minute inclusive of all surcharges for all local and local extended area calls. Both of these per minute rates shall not exceed the maximum rate per minute allowed by the Federal Communications Commission (FCC) and appropriate regulatory authority during the time the call is placed. In addition to the FCC, vendors can contact the state consumer protection agency, Better Business Bureau, or State Attorney General's Office to obtain maximum rate per minute information. Question No. 3 states: Question: Is the Department requiring the successful Respondent to pay commissions on revenues generated through the completion of interstate calls? Answer No. 3 states: The Department's position is that the collection of commission rates will be determined by the FCC ruling 47 CFR Part 64 [WC docket no. 12-375; FCC13-113]. For purposes of this solicitation the Department requests respondents submit a commission rate for interstate calls. The Department will comply with any future FCC ruling. Question No. 10 states: Section 7.3.1 was revised to include: "Commissions will be paid in accordance with all Federal, State and Local regulations and guidelines." There are no Federal, State, or Local regulations and guidelines which require phone vendors to pay commissions on interstate calling. Thus, in not paying commissions on interstate calling, there would be no violation of any Federal, State, or Local regulation or guideline. The requirement as to whether or not commissions will be paid on interstate calling must come from FL DOC and must be clearly indicated in the RFP. If not clearly indicated one way or another, we fear some vendors may have an unfair advantage as commissions are not currently being paid and there does not seem to be a compliance issue with the current contract which requires such commissions. Please, clearly specify whether or not commissions are required to be paid on interstate calls. Answer No. 10 states: Please see answer to question 3. The Department never definitively stated whether it would ultimately collect commissions on interstate revenues. Nor did it provide a means for vendors to propose rates or commissions based upon whatever the Department concluded were the most likely scenarios resulting from the FCC order and appeal. But the Department's RFP persisted in the RFP requirement that the bidders must include the commission in the calculation of their blended rate for the price proposal. This stands in contrast to the RFP's lengthy list of items, such as bill statement fees, paper statement fees, and account setup fees, which could not be included in the rate. These are items, like the commissions, that the FCC order said could not be part of the fee base. A vendor, who did not calculate the commission in the blended rate, would have a significant price advantage over a vendor who included the commission in its blended rate. It could propose lower rates and/or higher commissions while maintaining its profit margin. That is because although the price sheet identifies a commission, the commission is not accounted for in the blended rate. CenturyLink included payment of a commission rate of 65.3 percent on interstate calls in the blended rate it provided on Attachment 5. This action is a reasonable application of the statements of the RFP and the Addenda about blended rates, commissions, and the cryptic statement about plans to follow the FCC order. CenturyLink proposed a blended rate that did "establish a separate single, blended rate per minute, inclusive of all surcharges and department commission rate." If CenturyLink had not included the commission payment on interstate calls in its blended rates, it could have bid higher commissions, lower rates, or a combination of both. Securus identified a commission percentage for all calls of 73 percent on its Attachment 5 price sheet. Securus did not include the cost of paying a commission on interstate calls in calculating the blended rate that it submitted. This allowed Securus to submit a lower blended rate than it would otherwise have had to submit to achieve the same revenue from the contract. The blended rate that Securus proposed did not "establish a separate single, blended rate per minute, inclusive of all surcharges and department commission rate." Global identified a commission percentage of 46 percent for all calls in its Attachment 5 price sheet. In determining the proposed rates for interstate calls, Global did not include or assume payment of the commission percentage rate. This allowed it to submit lower blended rates and/or a higher commission rate. Global did not intend to or think it would be required to pay commission rates on interstate calls. This was based on its evaluation of the FCC order, the appeal, and the Department's decision not to accept commission payments on interstate calls under its current contract with Securus. This is why it did not include the commission as a cost when calculating the blended rate. Global chose to take the business risk that its evaluation of the FCC order would be correct. If it was incorrect and a commission payment was required, Global was prepared to make the payment, even though it would not have been collected from inmates and their designees through the blended rate. The blended rate proposed by Global did not "establish a separate single, blended rate per minute, inclusive of all surcharges and department commission rate." Ms. Hussey applied the formula in the RFP to determine points awarded each vendor for its price proposal. This calculation was a ministerial function that did not call for any exercise of judgment or discretion. The overall cost ranking scores were: Global 280.42, Securus 276.04, and CenturyLink 232.94. The scores for the commissions were: Global 94.52, Securus 150, and CenturyLink 134.18. The scores for the blended rates for inmate telephone services that included interstate services were: Global 125, Securus 56.25, and CenturyLink 50.90. This difference reflects the vendors' differing treatment of commissions when proposing their blended rates. The Department did not know during the evaluation process that Global and Securus had not included or assumed payment of the commission in its proposed rates for interstate calls. The Department learned this during discovery in this proceeding. Not including commission payments on interstate calls in the proposed blended rate was contrary to the instructions of the RFP. Securus Response to RFP Section 3.15 The Department awarded Securus zero points for the question of "[h]ow adequate is the Respondent's plan to meet the performance measures outlined in section 3.15 of the RFP?" This criterion related to the performance measures of RFP Section 3.15, for which proposals could earn 125 total points. The difference between zero and the possible maximum points would have made a difference in winning and losing the contract award for Securus. The score of zero is a factual finding by the Department that Securus's 600-plus-page proposal had no information from which evaluators could qualitatively assess the proposal by that criterion. A score of zero is not a qualitative assessment, like a score of "poor" or "exceptional." A score of zero reflects a finding that information is completely absent. The evaluation criteria score sheet, RFP Attachment 4, provided factors to be considered in evaluating and scoring proposals. It presented the factors to evaluators in the form of questions to evaluators. For section 3.15, the question and accompanying scores allowed were: How adequate is the Respondent's plan to meet the performance measures outlined in section 3.15 of this RFP? (Omitted-0; Poor-6.25; Adequate-12.5; Good-18.75; and Exceptional-25.) Because the Department allowed each evaluator to score this factor, a total of 125 points was ultimately available to the vendors. RFP Section 3.15 provides: Performance Measures Upon execution of this contract, Contractor agrees to be held accountable for the achievement of certain performance measures in successfully delivering services under this Contract. The following Performance Measure categories shall be used to measure Contractor's performance and delivery of services. Note: the Contractor shall comply with all contract terms and conditions upon execution of contract and the Department may monitor each site upon implementation of services at that site to ensure that contract requirements are being met. The Department reserves the right to add/delete performance measures as needed to ensure the adequate delivery of services. Performance Outcomes and Standards; and Other Contract Requirements. A description of each of the Performance Measure categories is provided below: RFP Section 3.15 was divided into two components. Section 3.15.1 listed key "Performance Outcomes and Standards" deemed most critical to the success of the contract and required that "the contractor shall ensure that the stated performance outcomes and standards are met." The key elements were: (1) Completion of Routine Service, (2) Completion of Major Emergency Repair Service, and (3) Commission and Call/Video Visitation Detail Report (Invoice Documentation). The first is RFP Section 3.15.1. It provides: Performance Outcomes and Standards Listed below are the key Performance Outcomes and Standards deemed most crucial to the success of the overall desired inmate telecommunication service. The contractor shall ensure that the stated performance outcomes and standards (level of achievement) are met. Performance shall be measured as indicated, beginning the second month after which service has been fully implemented. Completion of Routine Services Outcome: All requests for routine service (as defined in Section 1.22) shall be completed within twenty-four (24) hours of request for service from the Department, unless otherwise instructed by the Department. Measure: Compare the date/time that service is completed to the date/time that the request for service was received from the Department by the Contractor. (Measure Monthly). Standard: Ninety percent (90%) of routine service requests shall be completed within twenty-four (24) hours of notice from the Department. Completion of Major Emergency Repair Service Outcome: All major emergency repair service (as outlined in Section 3.10.8) shall be completed within twelve (12) hours of request for repair from the Department, unless otherwise instructed by the Department. Measure: Compare the date/time that major emergency repair service is completed to the date/time that the request for major emergency repair service was received from the Department by the Contractor. (Measure Monthly). Standard: Ninety percent (90%) of routine service requests shall be completed within twelve (12) hours of notice from the Department. Commission and Call/Video Visitation Detail Report (Invoice Documentation): Outcome: The Contractor shall provide the Commission and Call/Video Visitation Detail Report to the Contract Manager or designee as specified in Section 7.3.3 within thirty (30) days of the last day of the Contractor's regular billing cycle. Measure: Compare the date the Commission and Call/Video Visitation Detail Report was received with the last day of the Contractor's regular billing cycle. (Measure Monthly). Standard: One hundred percent (100%) of Commission and Call Detail Reports shall be received within thirty (30) days of the last day of the Contractor's regular billing cycle. Upon execution of this Contract, the Contractor hereby acknowledges and agrees that its performance under the Contract shall meet the standards set forth above. Any failure by the Contractor to achieve any outcome and standard identified above may result in assessment of Liquidated Damages as provided in Section 3.17. Any such assessment and/or subsequent payment thereof shall not affect the Contractor's obligation to provide services as required by this Contract. Section 3.15.2 advised that the Department will monitor the contractor's performance to determine compliance with the contract. It states: Other Contract Requirements Standard: The Department will monitor the Contractor's performance to determine compliance with other contract requirements, including, but not limited to, the following: Video Visitation System (as outlined in Section 3.7) Inmate Telecommunication System Functionality (as outlined in Section 3.7) Transition/Implementation/Installation of System Bi-Annual Audit Timely Submittal of Corrective Action Plans (when applicable) Measure: Failure to meet the agreed-upon Final Transition/Implementation/Installation schedule or failure to meet (compliance with other terms and conditions of the contract or contract requirements listed above) may result in the imposition of liquidated damages Each of the three items in section 3.15.1 and the five items in section 3.15.2 relate directly to a particular provision within RFP Section 3 titled, "Scope of Services." Section 3.15.1 related to RFP Sections 1.22 and 3.10.7 (Routine Maintenance), 3.10.8 (Major Emergency Repair Service), and 7.3.3 (Detail Report). Section 3.15.1 specifically identifies the last two. Similarly, section 3.15.2 cross referenced section 3.7 (Telecommunications Services System Functionality) for the first two performance measure items. Two others items relate directly to sections 3.5 (Facility Implementation Plan and Transition of Service), 3.6 (Installation Requirements), and 3.11 (Bi-Annual Audit). This is significant because Sections 3.5, 3.6, and 3.11 were independently scored. In other words, the RFP required that the proposals contain a narrative explaining how vendors planned to provide the services required by each of those sections. The RFP did not require the proposals to contain a separately delineated section titled, "3.15." It only required that each proposal include, under "Tab 6," a narrative description of the vendor's solution and plan to meet the performance measures. Evaluation of Responses to Section 3.15 Global included a specifically labeled section 3.15 in its response. It essentially copied and pasted the RFP language for Sections 3.15, 3.15.1, and 3.15.2, and after each subsection, inserted the words "GTL [Global] Response: GTL understands and complies." Global did not provide a substantive narrative under the heading, section 3.15. CenturyLink's labeled response to section 3.15 was very similar. The evaluators reviewed the section of Global's proposal labeled as responsive to section 3.15. The maximum score the evaluators could award per evaluator was 25 points. Global earned scores of 25, 18.75, 12.5, 12.5, and 12.5 from Messrs. Lockwood, Agerton, Phillips, Creamer, and Wilson, respectively. The evaluators reviewed CenturyLink's proposal labeled as responsive to section 3.15. It also earned scores of 25, 18.75, 12.5, 12.5, and 12.5 from Messrs. Lockwood, Agerton, Phillips, Creamer, and Wilson, respectively. All five evaluators reviewed copies of the vendors' proposals. Some evaluators performed a section-by-section and some performed side-by-side evaluations of the proposals. Since Securus did not have a labeled section 3.15 and the other proposers did, the evaluators scored Securus's proposal as "Omitted-0" for section 3.15. After their initial review of Securus's proposal, three evaluators raised concerns with the Department's procurement officer, Ms. Hussey, over their inability to find a section in the Securus proposal specifically identified as a response to Section 3.15. Ms. Hussey reiterated the instruction given during evaluator training to review proposals in their entirety when scoring any component of the RFP. None of those evaluators changed their scores of "omitted" for section 3.15 of Securus's proposal after receiving Ms. Hussey's additional instruction and presumably performing a second review of Securus's proposal. RFP Section 3.15 included cross references to sections 3.7 and 3.10.8. Following these referenced sections to the matching section numbers in the Securus proposal reveals narratives addressing the section 3.15 requirements. In addition, these cross-referenced sections were separately scored by each evaluator during his review of each vendor's Telecommunications Service System Functionality and Telecommunication Service Equipment Requirements. Securus's proposal complied with the RFP specifications by affirming Securus's commitment to comply with section 3.15 throughout the proposal. Although Securus's proposal did not include a separate tabbed section addressing Securus's plan to meet the section 3.15 performance measures, Securus provided a narrative explaining how Securus would meet each performance measure required in section 3.15. Securus also provided narratives explaining how it would meet and provide the scope of service of each one of the performance measures of Section 3.15. The first performance measure in RFP Section 3.15.1 required that 90 percent of all routine service be completed within 24 hours of the Department giving notice to the vendor. The routine service requirement was located at section 3.10.7. In its proposal, behind Tab 6 and labeled "3.10.7 Routine Service," on page 388, Securus's response stated: All routine service shall be completed within twenty-four (24) hours of the initial system failure notice, service request for service or equipment failure or liquidated damages may be imposed as stated in Section 3.17. Securus has read, understands, and complies. Securus Field Repair staff is strategically located throughout the state to be able to respond to all repair service needs in order to meet all repair service needs. Securus will continue to complete all routine service, as we do under the existing contract, within twenty-four (24) hours if the initial system failure notice, service request for service or equipment failure or liquidated damages may be imposed as stated in Section 3.17. This response complied with the RFP requirement. It could not rationally be deemed omitted. The second performance measure in RFP Section 3.15.1 required that 90 percent of all major emergency repair services (as outlined in section 3.10.8) be completed within 12 hours of the Department giving notice to the vendor. This performance measure cross-referenced section 3.10.8. Securus's proposal behind Tab 6 and labeled "3.10.8 Major Emergency Repair Service," addressed the emergency repairs stating: All major emergency service shall be completed within twelve (12) hours of the initial system failure notice request or liquidated damages may be imposed as stated in Section 3.17. Securus has read, understands, and complies. Securus Field Repair staff is strategically located throughout the state to be able to respond to all repair service needs in order to meet all repair service needs. Securus will continue to complete all major emergency service, as we do under the existing contract, within twelve (12) hours if the initial system failure notice, service request for service or equipment failure or liquidated damages may be imposed as stated in Section 3.17. Securus's response complied with the RFP requirement. It could not rationally be deemed omitted. The third performance measure in RFP Section 3.15.1 required that the Commission and Call/Video Visitation Detail Report (Invoice Documentation) be provided to the contract manager or designee, as specified in section 7.3.3 at the end of every month with the contractor's regular billing cycle. Securus addressed this requirement behind Tab 6 in a section labeled "2.4 Revenue to be Paid the Department," on page 107. Securus's response stated: This RFP will result in a Revenue Generating Contract. The Contractor shall pay the Department a commission based on a percentage of gross revenue. The Contractor shall be responsible for collections and fraud, and shall not make any deductions from gross revenue for uncollectible accounts, billing fees or other administrative costs prior to applying the commission percentage. Notwithstanding the above, gross revenue shall not include taxes charged by an appropriate governmental entity. The monthly commission amount is obtained by multiplying the commission percentage times each month's total charges. The successful contractor shall submit a Commission and Call/Video Visitation Detail Documentation for Monthly Payment report as indicated in Section 7.3.3 with the monthly commission payment. Securus has read, understands and complies. Securus will provide the monthly payment report as required and will provide all appropriate auditing detail required upon request from the Department. This response complies with the RFP requirement and cannot rationally be deemed omitted. Some evaluators acknowledged that they did not factor Section 3.15.2 into their scoring of Securus's proposal. The terms of the RFP require considering section 3.15.2 during the scoring of section 3.15. It is part of that section. Failing to consider Securus's narrative related to section 3.15.2 is not rational. As with section 3.15.1, Securus's proposal complied with the RFP Section 3.15.2. Securus committed to complying with the requirements of section 3.15.2 throughout its proposal. The record does not prove whether each evaluator re-reviewed the cross-referenced sections identified in Section 3.15. But Mr. Phillips did. Despite seeing the exact language in those sections as required in the "Outcome" portion of Section 3.15, Mr. Phillips awarded Securus a score of zero because, in his mind, "key parts of 3.15" were not addressed. The conclusion that Securus entirely omitted a plan to address Section 3.15's requirements is irrational and clearly erroneous. Something was there. A score of omitted is not supported. Mr. Phillips also did not score section 3.15 consistently with the way he scored another section of Securus's proposal. He originally gave Securus a score of zero for section 3.14 entitled, Training, because he did not find a specifically delineated section titled section 3.14 in Securus's response. But Mr. Phillips changed his score before submitting it to Ms. Hussey because upon further review of Securus's proposal, he found some aspects that addressed the training requirements of section 3.14. He scored that section accordingly. This highlights the error in evaluators not doing the same with section 3.15. The evaluators irrationally concluded that Securus failed to include in its technical proposal any information explaining how it would meet the performance standards and outcomes of section 3.15. Some evaluators relied on the theory that Securus did not "acknowledge" the outcomes and standards. As established above, Securus acknowledged that "the Performance Outcomes and Standards are crucial to the success of the overall inmate telephone service," and throughout its technical response, Securus addressed all the required outcomes and standards. Securus mentioned and acknowledged the performance outcomes and standards a total of six times in its proposal: twice on page 42 and once on each of pages 100, 138, 160, and 392. Three of those pages were narrative responses to sections 3.7 and 3.11, which are specifically included as part of section 3.15. Some evaluators also claimed that Securus never expressly agreed to be bound by the performance measures of section 3.15. That may theoretically affect the qualitative evaluation of the response, but it does not support a finding that the information was omitted. Also, the RFP did not require a vendor to specifically delineate each of the 18 subsections of section 3 in its response. To comply with the Technical Response section of the RFP, a vendor needed to address, in narrative form, its plan to provide the scope of services outlined in section 3. This was not disputed. Several Department employees testified and agreed that a response to the RFP did not require specifically delineated sections of the response that mirrored the delineation of the RFP. Inclusion of Prohibited Fees In Addendum 2, the Department asked the vendors to provide a sample refund policy. The policies were not described as or intended to be final refund policies that would be used in administration of the contract. The terms of a refund policy, if any, would be negotiated with the winning vendor, subject to the requirements of the RFP, including the prohibition against including fees in the blended rate. The sample policies of Securus and Global included some costs or forfeitures for obtaining a refund depending on how and when the inmate sought the refund. These are not prohibited fees or even items agreed to in the RFP. They are only samples. The evidence does not prove that the sample refund policies violate the requirement of section 3.8.3. Scoring The review and evaluation process described in section 6 of the RFP identified the maximum number of points that could be awarded for each part of the inmate calling services project. The total number of possible points was 1,000. The sections and points allotted to them were as follows: Mandatory Responsiveness Requirements--0, Executive Summary and Other Proposal Submissions--0, Business/Corporate Qualification--50, Project Staff--200, Technical Response--400, and Price Proposal--350. This allowed 350 points for the pricing section and 650 for the remaining technical sections. Because each evaluator scored the technical sections, the cumulative totals of their scores exceed 1,000. Securus maintains that this scoring is inconsistent with the process described in the RFP. But each evaluator scored the technical portion of the proposals within the maximum 650 total points available to each vendor. And the procurement staff scored the price proposals within the maximum 350 points available for price to each vendor. Applying the RFP's mathematical scoring methodology to the price proposals, the procurement staff scored the pricing as follows: Global 280.42, Securus 276.04, and CenturyLink 232.94. The scoring for each was within the RFP's 350-point maximum. The scores given by each evaluator for the technical portion of the vendors' proposals are as follows: EVALUATORS: Shane Phillips Steve Wilson Jon Creamer Charles Lockwood Randy Agerton CenturyLink 722.94 857.94 707.94 776.69 734.19 Securus 749.79 808.54 702.29 834.79 779.79 Global 782.92 880.42 751.67 859.17 802.92 Each evaluator's technical score when combined with the pricing score was within the RFP's 1,000-point maximum. Ms. Hussey totaled all the evaluator's technical scores for each vendor with the pricing score for that vendor. The resulting number exceeded 1,000. The award memorandum presented the totals, as follows: Ranking = Cost + Total Evaluator Scores (As Posted) Commission + Rates Evaluation Scores Total Ranking Global 280.42 2,680.00 2,960.42 1 CenturyLink 232.94 2,495.00 2,727.94 3 Securus 276.04 2,635.00 2,911.04 2 This method of compilation did not affect the relative ranking of the vendors. If the technical scores awarded by the five evaluators are averaged and added to the pricing scores, the points total for each vendor is under 1,000. And the ranking of the vendors does not change. Ranking = Cost + Evaluator Scores (Evaluator Scores Averaged) Commission + Rates Evaluation Scores Total Ranking Global 280.42 535.00 815.42 1 CenturyLink 232.94 499.00 731.94 3 Securus 276.04 527.00 803.04 2 Averaging in this fashion is consistent with the RFP. The evidence does not prove the Department erred in scoring the proposals.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a final order rejecting all proposals for Request for Proposal DC RFP-13-031. DONE AND ENTERED this 4th day of September, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 4th day of September, 2014.
The Issue The issue is whether two persons were employees or independent contractors of Respondent, pursuant to Chapter 440, Florida Statutes, and, if employees, an additional issue is the penalty that Petitioner should impose against Respondent for his failure to obtain workers’ compensation coverage for the two employees.
Findings Of Fact At the time in question, Respondent was in the business of erecting enclosures for swimming pools. On most of these jobs, Respondent served as a subcontractor of Commercial Residential Construction. On April 7, 1998, Respondent was providing labor and materials, as a subcontractor to Commercial Residential Construction, on a screened-enclosure job located at 2242 Otter Creek Lane in Sarasota. Commercial Residential Construction supplied the aluminum and screen used for this job. For this job, Respondent hired two individuals who had worked for Commercial Residential Construction or other independent contractors in the construction business. Respondent did not have workers’ compensation coverage for the two individuals working with him on this job. Respondent’s agreement with these two persons was to pay them, on a weekly basis, a specified percentage of the total price that Respondent was to receive for the work. If the contractor refused to pay Respondent due to unsatisfactory work, then Respondent would not pay the two individuals. The two individuals had to supply their own tools. Sometimes they transported themselves to the job site; sometimes, as a matter of convenience, Tom Dybalski, the owner of Respondent, transported them or was transported by them. The two individuals did not testify. Petitioner called Mr. Dybalski as a witness; otherwise, Petitioner’s witnesses consisted exclusively of staff and investigators. However, these witnesses were unable to establish the statements of the two putative employees because of hearsay. The findings of fact contained in this recommended order are derived from Mr. Dybalski’s testimony or admissions made to one of Petitioner’s investigators. However, the administrative law judge has not relied on hearsay testimony, which is admissible under the exception for admissions against interest, that Mr. Dyblaski admitted that the two individuals were employees. Mr. Dyblaski is an aluminum contractor, not an attorney, and his “concession” concerning a complex matter, especially given his obvious ignorance of the applicable legal criteria, is not entitled to any weight. Admissible evidence does not establish whether the two individuals had exemptions from workers’ compensation. Mr. Dybalski testified that he did not know whether they did. The two individuals did not testify, so it is impossible to determine from this source whether they had exemptions. The record is similarly devoid of competent evidence establishing Respondent’s contention that the two individuals were employees of Commercial Residential Construction while working on the subject job.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation enter a final order finding Respondent guilty of failing to obtain workers’ compensation coverage to two employees and imposing a penalty in the amount of $1000. DONE AND ENTERED this 9th day of September, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1998. COPIES FURNISHED: Louise T. Sadler Senior Attorney Division of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 A. Brent McPeek Attorney 3986 South Tamiami Trail Venice, Florida 34293 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
The Issue Whether proposed rules 25-4.300 ("Scope and Definition"); 25-4.301 ("Applicability of Fresh Look"); and 25-4.302, ("Termination of Local Exchange Contracts"), Florida Administrative Code, known as "The Fresh Look Provision," constitute an "invalid exercise of delegated legislative authority".
Findings Of Fact Telecommunications carriers/providers may "wear different hats," dependent upon what function they are performing at a given time. Local exchange carriers are abbreviated "LECs" in the proposed rules. For purposes of this case only, Time Warner is an Alternative Local Exchange Carrier ("ALEC") and GTE and BST are Incumbent Local Exchange Carriers ("ILECs"). Both types of companies provide local telephone service over the public switch network. On February 17, 1998, Time Warner filed a Petition to Initiate Rulemaking. Time Warner's Petition requested that the Commission adopt what it described as a "Fresh Look" rule, under which a customer a/k/a "patron" a/k/a "end user" of an ILEC who had agreed to a long-term, discounted contract would have an opportunity to abrogate that ILEC contract without incurring the liability to the ILEC which the customer had agreed to, so that the customer could then enter a new contract with an ALEC. On at least one prior occasion, the Commission had elected to reach a similar result by a Final Order, rather than by enacting a rule. This time, the Commission granted Time Warner's Petition, and the Commission began the rulemaking process. Other states have adopted "Fresh Look" rules or statutes with varying degrees of success. The legislative, administrative, or litigation histories of these extraterritorial matters are immaterial to the rule validity issues herein, which are governed by Chapter 120, Florida Statutes. Those histories are likewise non-binding on this forum. The Commission has no way of identifying, let alone notifying, ILEC contract customers as a separate class of the public or as a separate class of potentially interested parties. However, the public, including customers and carriers, received the required statutory notice(s) at each stage of the rulemaking process, and only the following dates and occurrences have significance within the rulemaking process for purposes of the issues herein. A Notice of Rulemaking Development was published in the Florida Administrative Weekly on April 3, 1998. Commission staff held a Rule Development Workshop on April 22, 1998. Based on information received from carriers in response to staff data requests, the rules as proposed April 3, 1998, were revised by staff. On March 4, 1999, staff recommended that the revised rules be adopted by the Commission. At its Agenda Conference on March 19, 1999, the Commission set the rulemaking for hearing. On March 24, 1999, the Commission issued a Notice of Rulemaking, which included further revisions to the proposed rules. The Commission received a letter from JAPC dated April 28, 1999 ("the JAPC letter") which stated, in pertinent part: Article 1, Section 10 of the Florida Constitution prohibits the passage of laws impairing the obligation of contracts. Inasmuch as the rules effectively amend the terms of existing contracts, please reconcile the rules with the Constitution. The JAPC letter was not placed into the rulemaking record, responded-to by the Commission, or specifically addressed on its merits by any interested parties. Interested parties did not find out about it until many months later. A rulemaking hearing on the proposed rules was held before the Commission on May 12, 1999. Interested persons submitted written and oral testimony and comments at the hearing. No customer with a contract that would be affected by these rules participated in the rulemaking proceedings, including the hearing, before the Commission. At no time did anyone formally submit a lower cost regulatory alternative, but it was clear throughout the rulemaking process that Petitioners herein opposed the adoption of the proposed rules. Two Statements of Estimated Regulatory Cost ("SERCs") were prepared by Commission staff. The proposed rules were further revised after the May 12, 1999, hearing. On November 4, 1999, Commission staff issued a recommendation that the Commission adopt the latest rules draft, in part on the basis that the proposed rules will implement the "regulatory mandates" of Section 364.01, Florida Statutes, that the Commission should "promote competition by encouraging new entrants" and "encourage competition through flexible regulatory treatment among providers of telecommunication services." Attached to this recommendation was a revised SERC, dated September 13, 1999. The September 13, 1999, SERC addressed the alternative of not adopting the proposed rules, and found such an alternative was not viable because it would not foster competition. In preparing both SERCs, Commission staff relied solely on market share data for analyzing competition and did not fully account for revenues to which ILECs were contractually entitled, but which potentially could be unilaterally cancelled by the ILEC customer as a result of the proposed rules. Staff did not ask for such data for estimating cost of the proposed rules to the ILECs. At its November 16, 1999, Agenda Conference, the participation of interested parties was limited to addressing the new SERC. During this Agenda Conference, the Commission revised the rules further, limiting the contracts affected by them to contracts entered into before July 1, 1999, and voted to approve the proposed rules as revised. The exact language of the proposed rules under challenge, as published in the December 3, 1999, Florida Administrative Weekly, pursuant to Section 120.54(3)(d), Florida Statutes, is as follows: PART XII - FRESH LOOK: 25-4.300 Scope and Definitions. Scope. For the purposes of this Part, all contracts that include local telecommunications services offered over the public switched network, between LECs and end users, which were entered into prior to June 30, 1999, that are in effect as of the effective date of this rule, and are scheduled to remain in effect for a least one year after the effective date of this rule will be contracts eligible for Fresh Look. Local telecommunications services offered over the public switched network are defined as those services which include provision of dial tone and flat-rated or message-rated usage. If an end user exercises an option to renew or a provision for automatic renewal, this constitutes a new contract for purposes of this Part, unless penalties apply if the end user elects not to exercise such option or provision. This Part does not apply to LECs which had fewer than 100,000 access lines as of July 1, 1995, and have not elected price-cap regulation. Eligible contracts include, but are not limited to, Contract Service Arrangements (CSAs) and tariffed term plans in which the rate varies according to the end user's term commitment. The end user may exercise this provision solely for the purpose of obtaining a new contract. For the purposes of this Part, the definitions to the following terms apply: "Fresh Look Window" - The period of time during which LEC end users may terminate eligible contracts under the limited liability provision specified in Rule 25- 4.302(3). "Notice of Intent to Terminate" - The written notice by an end user of the end user's intent to terminate an eligible contract pursuant to this rule. "Notice of Termination" - The written notice by an end user to terminate an eligible contract pursuant to this rule. "Statement of Termination Liability" - The written statement by a LEC detailing the liability pursuant to 25-4.302(3), if any, for an end user to terminate an eligible contract. 25-4.301 Applicability of Fresh Look. The Fresh Look Window shall apply to all eligible contracts. The Fresh Look Window shall begin 60 days after the effective date of this rule. The Fresh Look Window shall remain open for one year from the starting date of the Fresh Look Window. An end user may only issue one Notice of Intent to Terminate during the Fresh Look Window for each eligible contract. 25-4.302 Termination of LEC Contracts. Each LEC shall respond to all Fresh Look inquiries and shall designate a contact within its company to which all Fresh Look inquiries and requests should be directed. An end user may provide a written Notice of Intent to Terminate an eligible contract to the LEC during the Fresh Look Window. Within ten business days of receiving the Notice of Intent to Terminate, the LEC shall provide a written Statement of Termination Liability. The termination liability shall be limited to any unrecovered, contract specific nonrecurring costs, in an amount not to exceed the termination liability specified in the terms of the contract. The termination liability shall be calculated as follows: For tariffed term plans, the payments shall be recalculated based on the amount that would have been paid under a tariffed term plan that corresponds to the actual time the service has been subscribed to. For CSAs, the termination liability shall be limited to any unrecovered, contract specific nonrecurring costs, in an amount not to exceed the termination liability specified in the terms of the contract. The termination liability shall be calculated from the information contained in the contract or the workpapers supporting the contract. If a discrepancy arises between the contract and the workpapers, the contract shall be controlling. In the Statement of Termination Liability, the LEC shall specify if and how the termination liability will vary depending on the date services are disconnected pursuant to subsections (4) and (6). From the date the end user receives the Statement of Termination Liability from the LEC, the end user shall have 30 days to provide a Notice of Termination. If the end user does not provide a Notice of Termination within 30 days, the eligible contract shall remain in effect. If the end user provides the Notice of Termination, the end user will pay any termination liability in a one-time payment. The LEC shall have 30 days to terminate the subject services from the date the LEC receives the Notice of Termination. (Emphasis provided only to facilitate the following discussion of "timed" provisions) "Tariff term plans" or "tariffed term plans" are telecommunication service plans in which the rate the customer pays depends on the length of the service commitment. The longer the service commitment the customer makes with the company, the lower the monthly rate will be. Ninety-eight percent of the contracts affected by the proposed rules are tariff term plans filed with the Commission. Contract service arrangements (CSAs) have many functions. By tariff term plans and CSAs, carriers and their customers formalize a negotiation whereby the customer signs-on for service for an extended period, in exchange for lower rates than he would get if he committed to shorter periods or under the regular tariff. Both tariff term plans and CSAs are subject to the Commission's regulatory oversight. No reason was given for use of the "included but not limited to" language added in the rules' current draft. The Commission has published that the "specific authority" for the proposed rules is Sections 350.127(2) and 364.19, Florida Statutes. The Commission has published that the "law implemented" by the proposed rules is Sections 364.19 and 364.01, Florida Statutes. The proposed rules would allow customers of ILECs, including Petitioners GTE and BST, to terminate their contracts and tariffed term plans for local exchange services without paying the termination liability stated in those contracts and tariffs. Instead, customers would only be required to pay the ILEC "any unrecovered, contract specific nonrecurring costs" associated with the contracts. (Proposed rule 25-4.302(3)(b)). For tariffed term plans (but not contracts), termination liability would be recalculated as the difference, if any, between the amount the customer paid and the amount he would have paid under a plan corresponding to the period during which he actually subscribed to the service. (Proposed rule 25- 4.302(3)(a)). The "Fresh Look" rule applies to agreements entered into before June 30, 1999, and that remain in effect for at least one year after the date the rule takes effect. (Proposed rule 25-4.300(1)). The window for contract termination starts 60 days after the rules' effective date and lasts for one year thereafter. (Proposed rule 25-4.301). In the case of ILEC customers who may exercise the "opt-out early" (termination) provisions of the proposed rules, the proposed rules would provide the ILECs with the compensation they would have received if the contracts had been made for a shorter period than for the period of time for which the parties had actually negotiated. The proposed rules clearly modify existing contracts. Indeed, they retroactively impair existing contracts. It may reasonably be inferred that the retroactive elimination of the respective durations of the existing contracts would work to the detriment of any ILECs which have waived "start up costs" on individual contracts or which planned or invested in any technological upgrades or committed to any other business components (labor, training, material, development, expansion, etc.) in anticipation of fulfilling the contracts and profiting over the longer contract terms legally entered-into prior to the proposed rules. The purpose of the proposed rules, as reflected in the Commission's rulemaking notices, is to "enable ALECs to compete for existing ILEC customer contracts covering local exchange telecommunications services offered over the public switched network, which were entered into prior to switch-based substitutes for local exchange telecommunications services." However, the Commission now concedes that switch-based substitutes for the ILECs' local exchange services were widely available to consumers prior to June 30, 1999, the date provided in the proposed rule. At hearing, the Commission asserted that it is also the purpose of the proposed rules to actively encourage competition, and that by proposing these rules, the Commission deemed competition to be meaningful or sufficient enough to warrant a "fresh look" at the ILECs' contracts, but not so widespread that the rules would not be necessary. In effect, the Commission made a "judgment call" concerning the existence of "meaningful or sufficient" competition, but has not defined "sufficient" or "meaningful" competition for purposes of the proposed rules. The Commission's selection of June 30, 1999, as the cut-off date for contract eligibility was motivated primarily by a concept that using that date would render approximately 40 percent of existing ILEC contracts eligible for termination. The rulemaking process revealed that the terms of so- called "long-term" agreements range from six months to four years in duration. The Commission selected a one-year term for eligible contracts subject to the proposed rules as a compromise based on this spread of actual contract durations. The one-year window of opportunity in which a customer will be permitted to terminate a contract was selected by the Commission as a compromise among presenters' views expressed during the rulemaking process. The one-year window is to be implemented 60 days after the effective date of the rule to avoid the type of problems incurred when a "fresh look" was previously accomplished by a Commission Order and to allow the ILECs and ALECs time to prepare. Tariffed term plans were developed as a response to competition and have been used at least since 1973. As early as 1984, the Commission had, by Order, given ILECs authority to use CSAs for certain services, upon the condition that there was a competitive alternative available. The Commission has long been aware of the ILECs' use of termination liability provisions in CSAs and tariff term plans, including provisions for customer premises equipment (CPE), and has not affirmatively determined that their use is anticompetitive, discriminatory, or otherwise impermissible. Private branch exchanges (PBXs), which are switches, competed with the ILECs' Centrex systems for medium- to large- size business customers and key telephone systems for smaller businesses, from the early 1980's, as recognized by a Commission Order in 1994. Commission Order No. PSC-94-0285-FOF-TP, dated March 3, 1994, in Docket No. 921074-TP, permitted a "fresh look" for customers of LEC private line and special access services with terms equal to, or greater than, three years. Customers were permitted a limited time to terminate their existing contracts with LECs to take advantage of emerging competitive alternatives, such as alternative access vendors' (AAVs') ability to interconnect with LECs' facilities. Termination liability of the customer to the ILEC was limited to the amount the customer would have paid for the services actually used. Prior to 1996, only ILECs could offer dial tone service, which enables end users to communicate with anyone else who has a telephone. Chapter 364, Florida Statutes, Florida's telecommunication statute, was amended effective January 1, 1996, to allow ALECs to operate in Florida. ILECs had offered tariffed term plans and CSAs for certain services before the 1996 revision of Chapter 364, Florida Statutes, but effective 1996, substantial amendments allowed the entry of ALECs into ILECs' markets. The new amendments codified and expanded the ILECs' ability to use CSAs and term and volume discount contracts in exchange for ILECs losing their exclusive local franchises and deleted statutory language requiring the Commission to determine that there was effective competition for a particular service before an ILEC could be granted pricing flexibility for that service. Tariff filings before the amendments had required Commission approval. The federal Telecommunications Act of 1996 also opened the ILECs' local exchange markets to full competition and imposed upon the ILECs a number of obligations designed to encourage competitive entry by ALECs into the market, including allowing ALECs to interconnect their networks with those of ILECs; "unbundling" ILEC networks to sell the unbundled elements to competitors; and reselling ILEC telecommunications services to ALECs at a wholesale discount. See 47 U.S.C. Section 51 et seq. "Resale" means taking an existing service provided by a LEC and repackaging or remarketing it. The requirement that ILECs resell their services, including contracts and tariffed term plans, to competitors at a wholesale discount, has been very effective in stimulating resale competition, but to resell or not is purely an internal business decision of each ALEC. For instance, Time Warner has elected not to be involved in "resales," and is entirely "facility based." Since 1996, competing carriers could and do sell additional (other) services to customers already committed to long-term ILEC contracts. They may also purchase ILEC CSAs wholesale at discount and resell such agreements to customers. Market share data demonstrates that there has been greater ALEC competition in Florida since the 1996 amendments, but typically, ALECs target big cities with denser populations and denser business concentrations. There is no persuasive evidence that any of the affected ILEC contracts (those post-June 30, 1999) were entered into by customers who did not have competing alternatives from which to choose. In fact, testimony by Commission staff supports a finding that since LECs' CSAs are subject to Commission review and their service tariffs are filed with the Commission, the Commission has not authorized CSAs unless there was an "uneconomic bypass" or competition. "Uneconomic bypass" occurs where a competitor can offer service at a price below the LEC's tariffed rate but above the LEC's cost. The Commission presented an ILEC customer, Mr. Eric Larsen of Tallahassee, who testified that he had had the benefit of competition, not necessarily from an ALEC, when he had entertained a bid from a carrier different from his then-current ILEC in 1999. However, at that time, he renegotiated an expiring contract with his then-current ILEC instead of with the competitor. This renewal contract with an ILEC would not be affected by the proposed rules. Business customers, such as Mr. Larsen, may reasonably perceive business trends. They could reasonably be expected to have factored into their negotiations with competing carriers at the time the contracts were formed that a potential for greater choices would occur in the future, even within the life of their long-term contracts with an ILEC. As of 1999, 80 ALECs were serving Florida customers, 100 more had expressed their intention of serving Florida before the end of the year 2000, and ALECs had obtained some share of the business lines in many exchanges. While this does not mean that every area of Florida has every service, it is indicative of a spread of competition. Petitioner GTE is anchored in the Tampa Bay area. By June 30, 1999, the date expressed in the proposed rules, nine facilities-based competitors were in the same geographic area. One ALEC (MCI) was serving 10,000 lines. Competitors operated 20 switches and 83 percent of the buildings in GTE's franchise area were within 18,000 feet of a competitor's switch. However, in most cases, GTE's CSA or tariff term agreements had been successful against specific competing bids for the respective services. Market share data showed that by June 30, 1999, Petitioner GTE had executed 101 agreements allowing ALECs to provide service by inter-connecting their networks with GTE's networks, reselling GTE's services, and/or taking "unbundled" parts of GTE's network. While market share data is not conclusive, in the absence of any better economic analysis by the Commission or other evidence of existing ALEC presence or of a different prognosis for ALEC penetration, market share is at least one indicator of the state of competition when the contracts addressed by the proposed rules were entered into. The Commission has no data about how many customers currently opt-out of their ILEC contracts prior to natural expiration and pay the termination liability to which those ILEC agreements bind them in order to accept a competing offer from another carrier, but clearly, some do. This evidences current competition. Competing carriers can and do sell to ILEC customers at the natural expiration of their long-term agreements. This evidences current competition. The Commission has no data predicting how many more customers would opt-out if the proposed rules are validated. Therefore, the presumption that "if we publish a rule they will come" is speculative. Likewise the Commission's presumption that customers regard termination liability provisions in ILEC contracts as a barrier to their choices and a bar to competition was not proven. Some of the factors that went into that presumption were speculative because the Commission has not reviewed the termination liability provisions of Petitioners' contracts and has offered no evidence of formal complaints to the Commission by customers who want to opt-out of ILEC contracts. "Informal communication" with Commission staff by customers was undocumented and unquantified. The Commission did present the testimony of Mr. Larsen who explained that because he needs to keep the same business telephone number, he feels that it is not economically feasible for him to opt-out of his several overlapping ILEC contracts unless he can synchronize all his existing contract termination dates and that the proposed "fresh look" rules would permit him to do that. However, his testimony provided no valid predictor that even if the termination of all his existing ILEC contracts were enabled by the proposed rules he would, in fact, be able to find a competitor in his area whose contract(s) were more to his liking. The proposed rules, with their arbitrary date of June 30, 1999, would not allow Mr. Larsen to terminate, without liability, the one ILEC contract he entered into after that date. (See Finding of Fact No. 47). Based on his sincere but unfocused testimony, it remains speculation to presume that Mr. Larsen would be willing to incur contractual liability by early termination of his single non-qualifying ILEC contract just because the proposed rules would let him "opt-out" of the several qualifying ILEC contracts. It is indicative of the proposed rules' possible effect on future competition that Mr. Larsen speculated that if he could terminate all his qualifying ILEC contracts simultaneously under the proposed rules, he might be able to persuade a competitor, perhaps an ALEC, to pay his termination costs on his single non- qualifying ILEC contract if he renegotiated all his business away from his ILEC and to that competitor. The introduction of the proposed rules into the market place could create a "competitive edge" not anticipated by the Commission. Other carriers, including ALECs competing with ILECs, can and do enter into contracts with their customers which, like the contracts which would be affected by the proposed rules, are long-term contracts subject to termination liability, but the long-term contracts of carriers other than ILECs would not be affected by the proposed rules. The proposed rules pertain only to ILECs and their business customers. In effect, the proposed rules apply predominantly to ILECs' large business customers. Under the proposed rules, competitors which had originally bid against the ILECs for an affected contract at the time it was entered-into could get "a second bite at the apple" occasioned solely by the application of the proposed rules.
The Issue The issue to be determined in this case is whether Petitioner's application for licensure as a Resident Customer Representative insurance agent should be granted.
Findings Of Fact The Petitioner is a receptionist for an insurance agency and is seeking licensure as a Florida Resident Customer Representative from the Department of Financial Services. The Department is an agency of the State of Florida responsible for the licensing of insurance agents and customer representatives in the State of Florida, in accordance with the provisions of Chapter 626, Florida Statutes. On October 22, 2003, the Petitioner filed a license application (electronically) with the Department seeking licensure as a Resident Customer Representative insurance agent. On her application for licensure, the Petitioner answered the following question in the negative: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a crime punishable by imprisonment of one year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? When the Petitioner signed her application for licensure she signed an "Applicant Affirmation Statement" and mailed it to the Department. In that statement, she swore that all the answers on the questions on the application were true and correct to the best of her knowledge and belief. She knew of the requirement to be truthful and honest on the application and that had been stressed to her by her instructor for the insurance pre-licensing course which she attended. On March 16, 1995, the Petitioner entered a plea of nolo contendere to one count of forgery and one count of uttering a forged instrument, both felonies. The related arrest had occurred on November 10, 1994. The Petitioner was sentenced to three years probation, required to make restitution, pay court fines and costs and to perform fifty hours of community service. She was to write a letter of apology to the victim and to have no contact with the victim. Adjudication of guilt was withheld. She performed all of the requirements of her sentence. She was excused by the court from providing the fifty hours of community service because she was pregnant at the time. The Petitioner acknowledges that she answered the question incorrectly and had made a mistake, because she felt the phrase "punishable by one year or more" meant that she had been imprisoned for one year or more, which she had not. She testified that she intentionally answered the question in the negative because she was not aware that her felony crimes were potentially punishable by one year or more. She signed the 1995 plea agreement, which indicated that it was then her understanding that the offenses could carry a maximum sentence of ten years imprisonment. At the time she answered the relevant question on her application, however, she did not have a present understanding or recollection that that would be the case. The point is, she answered in good faith. She did not intentionally answer the question untruthfully but rather due to a mistaken impression, after some nine or so years had elapsed, concerning the nature and effect of the punishment or potential punishment her crimes carried. The Petitioner has not had a criminal history since her 1995 plea, with the exception of a June 7, 2000 arrest in Hernando County, Florida, after her return to Florida from Tennessee, for purported violation of probation with regard to the 1995 felony case. The Petitioner's testimony demonstrates in a credible way that indeed she had fulfilled the requirements of her probation. The judge had released her from her community service requirement and the reason for the arrest, because she was believed to have failed to pay relevant costs and restitution, apparently was a mistake. She established that at or around the time of her moving to Tennessee she had paid the relevant monetary sums required with two cashiers checks. The court terminated her probation. It is found that this arrest was based upon a mistake. The Petitioner's supervisor corroborated the testimony of the Petitioner and established that the circumstances and mental impression leading to the Petitioner's negative answer show no intent to be untruthful or to defraud. The Petitioner and her witnesses (her supervisors) established that she has been fit and trustworthy in her work with the insurance agency. Petitioner has routinely handled sums of money for the agency and for insurance clients, always with proper accounting and never with any funds being missing or mis-appropriated. The Petitioner's employment provides her family's only livelihood for her and her child. Her employment is dependent on her being granted licensure as a Customer Representative. Denial of the license application will create a hardship for her. She was nineteen years of age at the time of the arrest and plea, made full restitution and complied with the terms of her probation.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department granting the licensure applied; or granting it for a probationary period of two years under reasonable terms and conditions specified by the Department in that final order. DONE AND ENTERED this 2nd day of December, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 2nd day of December, 2004. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Tanya C. Lollie 4732 Elwood Road Spring Hill, Florida 34608 Elizabeth Penny, Certified Legal Intern Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333
The Issue Whether the Respondent committed an unlawful employment practice by terminating the Petitioner’s employment on the basis of handicap.
Findings Of Fact The Petitioner, John Tadlock, (Tadlock) is a white male, age 46, and a resident of Panama City, Bay County, Florida. The Respondent, Westinghouse Electric Company, d/b/a Bay County Energy Systems, Inc. (Energy Systems), was and is a corporation organized and existing under the laws of the State of Florida. Energy Systems maintains a facility that collects garbage and burns it as fuel. The operation serves two basic functions. First, it disposes of unwanted garbage. Second, it produces energy by creating steam that in turn drives a turbine and produces electricity. From January, 1987, until September, 1993, Tadlock was employed by Energy Systems. Tadlock began as a B-class maintenance mechanic and advanced to the position of A-class maintenance mechanic. Subsequently, Tadlock moved to the operations portion of the company where he worked on boilers. Tadlock testified that he suffered injuries while at work during the years 1987, 1991, and 1993. Tadlock further testified that after each injury he recovered fully and resumed work at Energy Systems. As a result of the injuries sustained in his accidents at Energy System, Tadlock never testified that he was informed by any physician that he would have any permanent restrictions. In addition, at no time did Tadlock inform his employer, Energy Systems, that he suffered from any disability or restrictions relating to his ability to perform his job. During the period from October, 1991 through September, 1993, Tadlock had been cited for numerous violations of company policy and provided written warnings or reprimands. The first such violation occurred on October 24, 1991, when Tadlock was cited for violating company policy by failing to wear appropriate safety gear. Specifically, Tadlock failed to wear his indirect venting goggles. The memorandum memorializing the complaint noted that just two days prior to the complaint, Tadlock had received emergency training and, in response to a direct question raised by Tadlock, was informed that he must wear venting goggles. On September 17, 1992, Tadlock was cited for a safety violation for failing to wear appropriate hearing protection devices. As a result of this violation, Tadlock was given an oral warning. On June 3, 1993, Tadlock was cited for failing to wear gloves while on the floor of the facility. As a result of this violation of safety procedure, Tadlock was orally counseled on the correct policy and informed that such departure from set safety procedures would not be acceptable. On June 14, 1993, Tadlock was cited for failing to wear a personal respirator while in specific areas of the facility in violation of published safety procedures. On June 25, 1993, Tadlock received a written warning regarding his “unsatisfactory” safety record. Specifically, Tadlock was informed that he had a total of eleven accidents since his employment and that five of them were reportable to OSHA. The memorandum warned Tadlock that if he failed to show “immediate and sustained” improvement in his accident rate that he would be subject to disciplinary action. On July 30, 1993, Tadlock was verbally warned for failing to properly replace “pig pans” under an air dryer that resulted in oil running into a water drain. On August 31, 1993, Tadlock was verbally warned for failing perform his duties as an outside operator by failing to properly read his turnover log. As a result of his lack of action, Tadlock placed 55 gallons of bleach into a drainage basin. On September 19, 1993, Tadlock was informed, for a second time, that his safety record continued to be unsatisfactory. The letter referenced two accidents that occurred in August, 1993, that could have been avoided by practicing proper safety measures. As a result of those accidents and for his many past safety violations, Tadlock was suspended for three working days. Tadlock was offered employee assistance to help him perform his work in a more satisfactory and safe manner. On September 28, 1993, Tadlock was cited for a safety violation for failing to wear the appropriate shields on his prescription glasses. On October 10, 1993, Tadlock was cited for failing to properly maintain a boiler operator sheet log. This was the second time that Tadlock had been cited for improper maintenance of a log. Tadlock was also informed that if this type of action happened again, it would result in discipline. On October 15, 1993, Tadlock was observed urinating on the Boiler Room floor of the facility. Tadlock was cited for violating several rules of company conduct. A result of violating this company policy, coupled with the countless verbal and written warnings he had received, Tadlock was dismissed for cause. At the hearing, Tadlock admitted that he urinated on the floor of the facility but countered that he had no choice because Energy Systems failed to properly maintain its restroom. Tadlock was unable to support his assertion that there were no operating restroom facilities. First, in spite of every witness called by Tadlock, there was no testimony, even from Tadlock himself, that any of the bathrooms were not in working order.4 Energy Systems maintained that it had operational restroom facilities throughout its facilities. In addition, no competent evidence was presented that indicated that any of the restroom facilities were inoperable thus requiring someone to urinate in the middle of the facility. After being fired for the numerous safety violations and for violating company policy, Tadlock filed a complaint with the Commission on Human Relations alleging that he was discriminated against because of his handicap. Specifically, Tadlock asserted that he had suffered several on-the-job injuries that rendered him disabled and that he was discriminated because of the type injury or the lack of adequate medical treatment that he received. Such allegations were never proven and appear irrelevant to these proceedings. Specifically, any issues relating to his medical treatment and his injuries are more appropriately resolved in a worker’s compensation forum. At no time during his employment with Energy Systems did Tadlock inform his employer that he suffered from a handicap. Furthermore, there is no evidence that Energy Systems was aware that Tadlock suffered a disability or handicap. For example, Mr. James M. Leddy, the plant manager for Energy Systems testified that he was not aware of any condition which prevented Tadlock from functioning in a normal manner. The record is void of any evidence by a physician to indicate that Tadlock was considered disabled or handicapped. Mr. Dale J. McKeand, Manager of Plant Operations for Energy Systems, stated that Tadlock was not disabled and never asked for any accommodation for his “condition.” In addition, Mr. Richard S. Brookins, an industrial hygiene, safety and environmental coordinator for Energy Systems, stated that Tadlock worked full-time with no medical or duty restrictions and that he was terminated for his safety violations including urinating on the boiler room floor. Assuming that Tadlock could prove that he was handicapped, his actions after he was dismissed do not indicate a person with a handicap. Specifically, immediately after Tadlock’s dismissal, Tadlock opened a skinning shop for the purpose of skinning wild game (alligators, etc.). Skinning is a very physical job and it requires an individual to handle large game animals for the purpose of skinning hides from the carcasses of the animals. For the reasons stated above, there is no evidence to support that Tadlock was dismissed for any reason other than cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that this matter be dismissed with prejudice. DONE and ORDERED this 27th day of March, 1997, at Tallahassee, Florida. ` WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1997.
The Issue Whether Petitioner was eligible for membership in the Florida Retirement System (FRS) during the effective dates of the Client Service Agreement (Agreement) between Petitioner and ADP TotalSource Services, Inc. (TotalSource).1 Whether Respondent is estopped to deny Petitioner’s request to purchase retirement credit for the subject employees during the seven-month period during which the Agreement was in effect.
Findings Of Fact TCT is an independent special taxing district of local government established pursuant to Section 1.01(A)(11) of the Miami-Dade County Home Rule Charter; Ordinance No. 02-247, Sections 1-11 (adopted December 3, 2002); and Section 125.901, Florida Statutes, et. seq., for the provision of children’s services. TCT is devoted to funding “improvements for the children of Miami-Dade County in the areas of health, safety, parental responsibility, community responsibility and other necessary and important services.” Miami-Dade County Code Art. CIII, §§ 2-1521-2-1531. Other special taxing districts for services in the State of Florida participate in the FRS. On July 23, 2003, officials from TCT contacted DOR to communicate TCT’s desire to participate in FRS and request instructions on how to enroll its employees for FRS retirement benefits. On July 24, 2003, Ms. Smith, acting in her capacity as a benefits administrator employed by Respondent, forwarded to TCT an FRS membership package which included a Resolution relating to FRS membership to be approved by TCT’s Board and two accompanying FRS Agreements. On July 30, 2003, Resolution #2003-01, Resolution Relating to Membership into the FRS, was adopted by TCT’s Board. On September 1, 2003, after receiving TCT’s Notice of Employer Identification Number from the Internal Revenue Service on August 27, 2003, Mr. Abety, in his capacity as the president and CEO of TCT, signed the two FRS Agreements. On September 9, 2003, Mr. Abety sent a letter to Ms. Smith enclosing the two FRS Agreements, TCT’s Resolution Relating to Membership into the FRS, and the IRS Notice of Employer Identification Number, fully expecting that FRS coverage would be initiated on October 1, 2003. Mr. Abety again corresponded with Ms. Smith on September 17, 2003, to advise that TCT would make its retirement contributions to FRS by check and asked if FRS preferred bi- weekly or monthly payments. On September 5, TCT entered into the Agreement with TotalSource to provide TCT with payroll, health insurance, life insurance, short and long-term disability insurance, and dental and vision coverage. TotalSource did not provide TCT employees with any retirement benefits. After reviewing TCT’s Agreement with TotalSource, FRS advised TCT on September 23, 2003, that because it appeared the employees covered under the Agreement would be under the control and direction of TotalSource, they were employees of a private company and thus ineligible for FRS benefits. Following Respondent’s denial of participation in FRS, TCT began the process of entering into a new agreement for the provision of personnel services with a vendor other than TotalSource. On February 18, 2004, TCT emailed DOR a new proposed agreement between TCT and AlphaStaff for the provision of payroll, insurance and other human resources services in order to determine if the agreement would permit FRS benefits to begin for TCT employees. On April 20, 2004, FRS determined that the agreement between TCT and AlphaStaff would not bar the workforce of TCT from participating in FRS because AlphaStaff provided only “routine personnel services” to TCT.3 After approving the agreement between TCT and AlphaStaff, DOR accepted TCT as an FRS member effective May 1, 2004. On April 22, 2004, TCT transmitted to DOR the County Ordinance creating TCT, two FRS Agreements, a Resolution Relating to Membership in FRS, TCT’s federal employer tax identification number, and a notification that a fully executed agreement between TCT and AlphaStaff would be forwarded on April 26, 2004. The two FRS Agreements, the Resolution, and the employer tax identification number were identical to those sent to FRS in September 2003. The agreement between TCT and AlphaStaff that had been approved by FRS was fully executed on April 26, 2004. On April 29, 2004, DOR signed and approved the FRS Agreement to commence FRS benefits effective May 1, 2004. Per letter dated May 7, 2004, DOR advised TCT that “since your agency did not qualify for FRS membership until May 1, 2004, past service cannot be purchased prior to the amendment date.” Per letter dated May 27, 2004, Mr. Abety requested the FRS effective date be changed to October 1, 2003. Throughout the period TCT attempted to secure FRS membership. TCT did not participate in any other retirement plan. After being informed in September 2003 that its contract with TotalSource precluded participation in FRS, TCT was engaged in the process of entering into an agreement for personnel services that DOR would find acceptable. On June 23, 2004, TCT received notice of a final agency action from DOR in which DOR rejected TCT’s request to purchase past service and advised TCT of its appeal rights. TCT filed its Petition to review final agency action requesting an evidentiary proceeding on July 15, 2004. Past FRS benefits are being requested for the seven- month period beginning October 1, 2003 and ending May 1, 2004. The 18 TCT employees affected are:4 Modesto E. Abety Lilia R. Abril Emily Cardenas Dwight Danie Robin J. Douglas David C. Freeman Lisete Fuertes K. Lori Hanson Andrea Harris Chareka Hawes Christine Muriel Jeanty Jolie C. Jerry Jean S. Logan Susan B. Marian Eric R. Pinzon Diana Ragbeer Deborah Robinson Margaret L. Santiago The six employees who are vested in the FRS are: Modesto E. Abety Dwight Danie Andrea Harris Jolie C. Jerry Diana Ragbeer Deborah Robinson. TotalSource is a licensed employee leasing company under Part XI of Chapter 468, Florida Statutes. “Employee leasing” is defined by Section 468.520(4), Florida Statutes, as being “. . . an arrangement whereby a leasing company assigns its employees to a client and allocates the direction and control over the leased employees between the leasing company and the client ”5 TCT is referred to as the “client” in the Agreement between TotalSource and TCT. Section (1) of the Agreement, styled “The Parties Relationship,” provides as follows: The parties intend to create an arrangement so that TotalSource, as the Professional Employer Organization (PEO), can provide human resource services to Client. As provided by the Florida legislature, TotalSource shall have sufficient authority so as to maintain a right of direction and control over Worksite Employees (defined in Section 2) assigned to Client’s location, and shall retain the authority to hire, terminate, discipline, and reassign Worksite Employees. Client shall, however, retain sufficient direction and control over the Worksite Employees as is necessary to conduct Client’s business and without which Client would be unable to conduct its business, discharge any fiduciary responsibility that it may have, or comply with an applicable licensure, regulatory, or statutory requirement of Client. Such authority maintained by Client shall include the right to accept or cancel the assignment of any Worksite Employee. Additionally, Client shall have sole and exclusive control over the day to day job duties of Worksite Employees and over the job site at which, or from which, Worksite Employees perform their services. Client expressly absolves TotalSource of liability which results from control over the Worksite Employee’s day-to-day job duties and the job site at which, or from which, Worksite Employees perform their services. Further, Client retains full responsibility for its business products and services, worksite premises, property, and any actions by an third party, contractor, independent contractor or non-Worksite Employee. Client acknowledges that TotalSource has the right to retain and reassign a Worksite Employee who has been terminated by Client. Section 2 of the Agreement, styled “TotalSource Relationship to the Worksite Employees,” provides as follows: The term “Worksite Employees” means individuals hired by TotalSource, assigned to Client’s worksite, after the individuals [have] satisfactorily completed TotalSource pre-employment paperwork [and] background screens as necessary. Client agrees to submit to TotalSource the completed TotalSource pre-employment paperwork no later than two (2) business days after the Client selects the person for employment. The term excludes 1) those employees hired by TotalSource to perform services for TotalSource and not assigned to any Client Worksite (i.e., TotalSource Corporate Employees), and 2) Independent contractors or individuals who may be providing services to Client through any other arrangement entered into solely by Client. TotalSource will notify all Worksite Employees in writing about the PEO arrangement at the beginning and end of this Agreement. During the Agreement, both Client and TotalSource will employ each Worksite Employee. This Agreement does not change the underlying employment relationship between any Worksite Employee and Client that existed prior to or may be created after the Effective Date. Further, this Agreement does not create any rights for any Worksite Employee that did not previously exist (e.g., creating an employment contract with the Worksite Employee). In Section 5(F) of the Agreement, the parties acknowledge that the Client exercises control over the primary terms and conditions of employment for the subject employees. Miguel Masedo was the General Manager for the Southeastern operations for TotalSource when it entered into the Agreement with TCT. Mr. Masedo did not negotiate the Agreement between his company and TCT, but he did sign the Agreement, and he testified as to the manner in which his company operated with TCT. Mr. Masedo’s deposition was admitted as Joint Exhibit 17. On page 22, beginning at line 12, the following Questions from Ms. Arista-Volsky and Answers from Mr. Masedo appear: Q. Okay. Earlier you told me and we discussed that The Trust employees in fact were hired by The Trust before they contracted with your services, correct? A. Yes. Q. So basically when they entered into this contract and were put on the payroll for the purposes of payroll processing, that’s when you make the determination, or you’re saying that they became . . . [sic] A. We actually hired them into ADP TotalSource, they signed new documentation, I-9s, W-4s, they gave us their employment information, so we literally hired them on to ADP TotalSource.[6] On page 23, beginning at line 13, the following Questions from Ms. Arista-Volsky and Answers from Mr. Masedo appear: Q. And the Client Services Agreement did not change the underlying employment relationship between The Trust and its employees; correct? A. What the Client Services Agreement did was it defined us as another employer for these employees, so we are under a co- employment relationship, so certain employment responsibilities would have been the responsibilities of The Trust and would have remained, and other employment responsibilities would have transferred over to ADP TotalSource. TotalSource was the named employer on each employee’s W-2 forms. For each subject employee, TotalSource also paid social security taxes and provided workers’ compensation coverage. TotalSource issued salary warrants to each employee. These payments were to be from funds TCT was required by the Agreement to pay to TotalSource. TotalSource was, by the terms of the Agreement, responsible for the payment of the subject employees even if TCT failed to make its required payments to TotalSource. Although by the terms of the Agreement, TotalSource had legal authority to hire, supervise, and discipline the subject employees, TotalSource rarely exercised those rights in dealing with a client and it did not do so in its dealings with TCT. TotalSource never attempted to control or run the affairs of TCT. It never attempted to exercise any direction or control over Mr. Abety or any other subject employee. TCT initially recruited and hired all of the subject employees. At no time during the period at issue did a TotalSource corporate employee come to the TCT worksite for the purposes of supervising or monitoring the activities of the subject employees. TCT controlled the daily activities of the subject employees at all times relevant to this proceeding. At all times relevant to this proceeding, Mr. Abety and his staff set the terms and conditions of employment for the subject employees and supervised the day-to-day operations of TCT. At no time relevant to this proceeding did Mr. Abety, acting on behalf of TCT, intend for TotalSource to exercise any control over the subject employees. Mr. Abety intended only that TotalSource provide human resources services in the forms of payroll services, worker’s compensation coverage, and a benefits package (excluding a retirement plan). Mr. Abety testified that he did not construe the Agreement as being a contract to lease the subject employees from TotalSource. Based on the findings that follow, it is found that Mr. Abety knew or should have known that he was entering into an employee leasing agreement with TotalSource. As set forth above, in the Agreement, TotalSource refers to itself as a Professional Employer Organization, which is a term for an employee leasing company. The Agreement provides that TotalSource shall have “. . . sufficient authority so as to maintain a right of direction and control over Worksite Employees . . . and shall retain the authority to hire, terminate, discipline, and reassign Worksite Employees. ” Moreover, in the final paragraph of the Agreement, under the heading of “Additional Client Representation” the following appears: “Client understands that, pursuant to Florida law, it may not enter into a PEO (sometimes referred to as an employee leasing) agreement with TotalSource if Client owes a current or prior PEO any money pursuant to any service agreement which existed between that current or prior PEO and Client, or if Client owes a current or prior insurer any premium payments. . . . DOR denied TCT’s request for past service because, under the terms of the Agreement, and Part XI of Chapter 468, Florida Statutes, the subject employees appeared to be employees of TotalSource. In its letter dated June 23, 2004, with the style of “Final Agency Action”, DOR advised Mr. Abety that TCT “. . . joined the FRS effective May 1, 2004 and is ineligible to purchase past service since prior to that date the employees were employed by ADP TotalSource Services, Inc., a private company.” While the Agreement was in effect, the subject employees were employees of both TCT and TotalSource for certain purposes. Under the Agreement between TotalSource and TCT, TotalSource and TCT were dual or joint employers. There was a co-employment relationship. DOR agrees that TCT and TotalSource were co-employers or joint employers. In paragraph 25 of its Proposed Recommended Order, DOR submitted the proposed finding of fact that during the effective dates of the Agreement, the subject employees were “. . . dual or joint employers. There [was] a co-employment arrangement.” In paragraph 53 of its Proposed Recommended Order, DOR proposed the following conclusion of law: 53. However, the totality of the evidence establishes that TotalSource and Children’s Trust are, as Mr. Masedo testified, ‘under a co-employment relationship.’ Children’s Trust and TotalSource were inextricably linked as co-employers, or joint or dual employers. They both shared attributes of being an ‘employer.’ Prior to entering into the Agreement, staff of TCT contacted staff of DOR to inquire what needed to be done for TCT employees to become members of the FRS. DOR staff advised that a membership package would be mailed and that the TCT employees would become part of the FRS after the membership package was processed. For service performed by TCT employees prior to the date TCT became part of the FRS, DOR staff advised that TCT employees could purchase credit for that prior service period if TCT did not participate in another retirement plan. TCT maintains that the information provided by DOR staff that TCT could participate in FRS as long as TCT did not participate in another retirement plan was misleading. TCT further maintains that it detrimentally relied on that misleading information from DOR and that DOR should be estopped to deny the right to purchase credit for the seven-month period at issue in this proceeding. TCT did not disclose to DOR that they were contemplating entering into the Agreement with TotalSource prior to doing so. Consequently, DOR had no reason to discuss with TCT its position that the Agreement would preclude TCT’s membership in FRS. DOR staff gave TCT staff accurate advice based on the information provided to DOR by TCT. TCT would not have executed the Agreement had it known that the terms of the Agreement would disqualify it from membership in FRS. Most of the subject employees were initially recruited by TCT because they were experienced government employees. It was important to TCT from its inception that its employees continue to be eligible for FRS benefits. TCT made diligent efforts to locate a suitable human resources provider to replace TotalSource after it learned from DOR that the terms of the Agreement disqualified the subject employees from membership in FRS. It took TCT almost the entire seven-month period at issue in this proceeding to locate the replacement provider (AlphaStaff).
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order providing that TCT be granted membership in FRS effective October 1, 2003, and that it be permitted to purchase retirement credit for the subject employees for the seven-month period beginning October 1, 2003, and ending April 30, 2004. DONE AND ENTERED this 28th day of April, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2006.
The Issue This matter is a bid protest filed by STATEWIDE challenging the DEPARTMENT's decision to award a contract for service of process services to All American Legal Service, Inc., (herein after All American). The DEPARTMENT's position was chat a company could meet the two years of experience in serving legal process requirement if key personnel had at least two years of experience. All American was the lowest bidder on ITB-DOT-95/96-9003. STATEWIDE was the second-lowest bidder. STATEWIDE protested, claiming the DEPARTMENT should have rejected All American's bid on the grounds that All American did not have two years of experience and had not identified its key personnel or provided the DEPARTMENT with copies of circuit court issued certifications to serve process. During the formal hearing on October 23, 1995, testimony was received that All American is the corporate successor of a firm that was formed approximately 23 months prior to the bid being submitted and had as part of its organization an independent contractor, Robert Simmons, who was a licensed process server and who lacked two years of experience in serving process at the time the bid was submitted. All American also retained the services of the founder and former owner, Jon C. Martin, to act as an advisor. Mr. Martin lacked two years of experience in serving civil process at the time the bid was submitted. The DEPARTMENT offered testimony that it did not require the bidding entity to have been in existence for more than two years so long as the company had employees (either direct employees or independent contractors) with the requisite experience. DEPARTMENT officials also testified that no personnel were considered key personnel by the DEPARTMENT. DEPARTMENT'S EXCEPTIONS TO RECOMMENDED ORDER The DEPARTMENT's first exception is rejected as irrelevant. The DEPARTMENT's remaining exceptions are rejected and need not be individually reached inasmuch as the conclusion of this Order is chat a decision to waive the two years of experience requirement in the bid documents would be an abuse of discretion. To describe a requirement as so essential as to require no consideration of the bid when it is not met, and later construe the bid documents as allowing waiver of the requirement is, by definition, without reason and arbitrary
Findings Of Fact The DOT issued ITB-DOT-95/96-9003 (the ITB) soliciting bids from contractors to provide for one year on an as-needed-basis to its General Counsel all services necessary to effectuate service of process, service of subpoenas, and service of other papers statewide in accordance with the applicable laws to be submitted on August 16, 1995. AALSI submitted the lowest bid for the ITB. Statewide submitted the second lowest bid for the ITB. Section 1.5 of the ITB, Joint Exhibit 1, stated as follows: GENERAL Bidders should meet the following minimum qualifications. Have been actively engaged in the type of business being requested for a minimum of two years. When submitting the bid, each bidder shall submit a written statement, (FORM D), detailing their qualifications which demonstrate they meet the minimum qualifications contained in Subparagraph 1.5.1.1. Bidders' failure to prove the above item(s) will constitute a non-responsive determination. Bids found to be non-responsive shall not be considered. (Emphasis in original.) A representative of the DOT testified and both parties agree that the word "should" in the provision above is mandatory and in context means "shall." It was important to DOT that bidders have at least two years experience in the business of serving process, and DOT intended to reject any bids which did meet this requirement. Exhibit "A" to the ITB, "Scope of Services," Section B.1, "Services Required," and B.5, "Who Shall Provide Services," provided respectively that: B.1 Services Required The contractor shall provide all services necessary to effectuate service of process, subpoenas and other papers throughout the state of Florida, and shall provide such services in accordance with the laws of the state of Florida. . . B.5 Who Shall Provide Services Services shall be provided by individuals in compliance with Chapter 48, Florida Statutes, and other applicable law. Section 48.29, Florida Statutes, requires that persons serving process be certified by the chief judge of each judicial circuit. The business being requested, as the term is used in the ITB, is all services necessary to effectuate service of process, subpoenas, and other papers throughout the State of Florida for civil actions in accordance with the laws of the State of Florida. No evidence was received that the DOT is involved with the service of arrest or search warrants. Paragraph 1.5.2, "Qualifications of Key Personnel," provides that: Those individuals who will be directly involved in the project should have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Department's Project Manager. Where State of Florida registration or certification is deemed appropriate, a copy of the registration of certificate should be included in the bid package. The ITB required that a bidder demonstrate that its key personnel had experience in providing all services necessary to effectuate service of process, subpoenas, and other papers throughout the State of Florida in accordance with the law. Form D asked bidders to answer the following questions: How many years has your business been serving process? In what counties are your currently serving process? Describe your current capabilities to serve process in the State. If you do not have the current capability to serve process in all counties of the State of Florida, describe the changes that you will make in order to be able to serve process in all counties. Describe the means by which your business would accomplish routine services of process on a statewide basis under the Scope of Services of the Invitation to Bid. Describe the means by which your business would accomplish priority service of process on a statewide basis under the Scope of Services of the Invitation to Bid. The ITB contained a provision which permitted it to waive minor informalities or irregularities in bids received which were a matter of form and not substance. The requirement that the bidder have two years experience is not, under the terms of the ITB, a waivable provision, but was part of the essential minimal requirements which the bidder must have. In response to the first question on Form D, AALSI responded: All American Legal Service, Inc. and its predecessor firm, Jon C. Martin & Associates, have been in business over two years and provides nationwide service for its existing clients. DOT accepted the representation of AALSI in evaluating whether it possessed the required two years of experience, and concluded AALSI was qualified. DOT also evaluated the other responses by AALSI to Form D to assess its approach to providing the scope of work required by the ITB, and concluded it was qualified. Evidence presented at hearing revealed that Jon C. Martin, a former law enforcement officer, had begun a private investigation business as a sole proprietorship in September, 1993. Mr. Martin, who testified at hearing, found that it was more profitable to serve process than to conduct investigations, and changed the emphasis of the business; however, Mr. Martin was not personally authorized to serve process nor did he serve any process until May, 1994, although he had served arrest warrants as a law enforcement officer. Mr. Martin used the services of qualified process servers to serve process in the central Florida region; however, these personnel were not employees of Martin. Mr. Martin was a member of the National Association of Professional Process Servers (NAPPS), whose members are qualified to serve process; and Mr. Martin used this service to find the names of persons qualified to serve process in those counties and jurisdictions in which he did not have employees or contract personnel. Mr. Martin changed the name of his business to All American Process, and ultimately incorporated under that name. Mr. Martin sold All American Process in May, 1995 to Andrew Forness and Forness' father, who changed the name of the corporation to All American Legal Service, Inc. Mr. Martin agreed to be an unpaid advisor/consultant to Mr. Forness after the sale. Mr. Forness has virtually no experience as a process server, and had never been qualified to serve process or served process until after May, 1995. Mr. Forness is dependent upon Robert Simmons, an independent contract process server, for daily advice on service of process. Mr. Forness has continued to use the network of personnel used by Mr. Martin, who are not employees of the business, and NAPPS to serve process. The business does employ two full-time, paid certified process servers, who reside and work in central Florida area. One of these employees, Noah Medeiros, was first authorized to serve process in Orange County in September 1995, and is not authorized to serve process in any other county in Florida. No information was provided on the other employee. Mr. Forness did not identify anyone as a key individual in the bid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That DOT not award the bid to AALSI which was determined to have been a nonresponsive bidder, and that it consider awarding the bid to the next lowest, responsive bidder, Statewide. DONE and ENTERED this 18th day of December, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 18th day of December, 1995. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-5035BID Both parties submitted proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraphs 1,2 Paragraph 1 Paragraph 3 Paragraph 2 Paragraph 4 Paragraph 3 Paragraph 5 Paragraph 4 Paragraphs 6,7 Paragraph 5 Paragraph 8 Paragraph 6 Paragraph 9 Paragraph 8 Paragraph 10 Paragraph 9 Paragraph 11 Paragraph 6 Paragraph 12 Conclusion of Law Paragraphs 13,14 Subsumed in Paragraph 13 Paragraphs 15-20 Subsumed in Paragraphs 16-18 Paragraphs 21-26 Subsumed in Paragraphs 18-19 Paragraph 27 Subsumed in Paragraphs 7,8 Paragraph 29 Ultimate finding Paragraph 30 Paragraph 14 Paragraph 31 Irrelevant Paragraph 32 Ultimate finding Respondent's Recommended Order Findings Paragraph 1,2 Subsumed in Paragraph 1 Paragraph 3 Paragraph 4 Paragraph 4 Paragraph 5 Paragraph 5 Paragraph 11 Paragraph 6 Subsumed in Paragraph 5 Paragraph 7 Subsumed in Paragraph 12 Paragraph 8 Not necessary Paragraph 9 Paragraph 13 Paragraph 10,11 Subsumed in Paragraph 14 Paragraph 12-16 Irrelevant or argument Paragraph 17 Paragraph 9 Paragraph 18-25 Irrelevant or argument Paragraph 26,27 Subsumed in Paragraphs 2,3 Paragraph 28-33 Subsumed in Paragraph 16 Paragraph 34-41 Subsumed in Paragraph 19 COPIES FURNISHED: J. Layne Smith, Esquire 2804 Remington Green Circle, Suite 4 Tallahassee, FL 32308 Thomas H. Duffy, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
