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 The issues to be resolved in this proceeding concern whether the Petitioner was subjected to an act of employment discrimination based upon his termination from employment rather than allegedly having his disability (blindness) accommodated by the Respondent employer in such a way as to allow his continued employment.
Findings Of Fact The Petitioner, at times pertinent hereto, was an employee of the Respondent, City of Pensacola, (ESP). He had been employed by the Respondent since 1993. He was promoted to the position of field service technician in 1998. The Petitioner was assigned to ESP and had been working in that capacity sometime in 1998. When the Petitioner was promoted to the position of field service technician in 1998 he was required to obtain a commercial driver's license. Part of the qualifications for his position was that the holder have a commercial driver's license. In order to obtain a commercial driver's license, Mr. Avery was required to pass a visual acuity test and was required to have good vision in order to keep the license to drive. The requirement for having a commercial driver's license remained in force for the position of field service technician through the dates of Mr. Avery's employment in that position until his termination. There is no evidence that there was any field service technician employed by ESP who did not possess a commercial driver's license while working there. The Petitioner was assigned to work in the ESP gas meter shop, calibrating and repairing city gas meters. From time to time, however, he was required to work in the field in various capacities. Indeed, all field service technicians such as Mr. Avery, were always subject to being told to perform various duties at ESP, including duty in the field, depending upon where or the city needed the worker most at the time. When field service technicians were required to work outside the shop, the majority of time they worked alone and were therefore required to be able to and be licensed to operate various kinds of motor vehicles. They were required to operate trucks and other motor vehicles, as well as backhoes, ditching machines, and other equipment. Mr. Avery's job description as a field service technician required him to be able to safely operate backhoes and ditching machines. Because of his vision difficulty, Mr. Avery admitted that he could only operate a backhoe safely if no other persons were around. He also admitted that he was unable to perform any of the job duties required of a field service technician outside the meter shop because they all involved driving or operating vehicles which he became unable to do because of his vision problem. Mr. Avery was diagnosed with diabetes many years preceding his employment with ESP. Sometime in the year 2000 he sustained an injury, and when released to return to work full- time, in June of 2000, ESP allowed him to do so. In April 2001, he told his supervisor, Ms. Nickerson, that he was having trouble with his vision and thought it might be attributable to some medication that he was taking. In fact, the evidence indicates that it may have been attributable to his long-term diabetes condition. In any event, in July 2001, Mr. Avery was asked to take a company truck and go alone to spot the location of some city gas lines. During this assignment Mr. Avery ran a red light in a company truck. He received a traffic ticket for running the red light and told his supervisor afterward that he was not able to drive responsibly any longer until he found out what was occurring with his vision difficulty. Subsequent to this conversation with Ms. Nickerson, in July of 2001, Mr. Avery returned to work in the meter shop. A few days later he was required to go out on a "crew truck" for several days. While working on the crew truck, Mr. Avery sustained and orthopedic injury to his clavicle and was restricted from working, beginning sometime in late July of 2001. After the injury, in late July 2001, he never actually returned to work for ESP until the date of his termination. The Petitioner was not released to return to full duty at work from his orthopedic injury by his physician until December 2001. At that point the Respondent required that he pass a vision screening test in order to return to his position as a field service technician, because of his past driving difficulty related to his vision. The vision screening test was performed by Dr. Herron. Dr. Herron opined in December 2001, that Mr. Avery was legally blind and could not drive an automobile. The doctor measured the Petitioner's visual acuity as 20/200, the standard for legal blindness, and stated that his condition was not likely to improve. The Petitioner was terminated from his position on March 22, 2002, because he was unable to perform his job because he could not maintain the required driver's license due to his visual difficulty. The Petitioner maintains that he should have been "accommodated" regarding his inability to drive a vehicle, due to his visual handicap, by permanent assignment to the meter shop and thus never having to drive a motor vehicle or motor equipment. He contends that he would not need a commercial driver's license with such an assignment. However, the requirement to have a commercial driver's license and to operate various vehicles and equipment is a significant part of the requirements of the field service technician's position. Indeed, Mr. Lupton in his testimony, established that work outside the meter shop was a routine, regularly-requested job duty, for field service technicians such as the Petitioner. Field service technicians have to be able to drive vehicles and motor equipment in order to go out, pick-up, and deliver meter parts, spot gas lines, do excavations and other functions requiring the ability and the license to operate and drive equipment or vehicles. Indeed, Mr. Lupton's testimony establishes that no one would be able to perform most of the many tasks of a field service technician at ESP if he permanently lost the ability to drive a vehicle. A non-driving employee could work in the meter shop only; however, a substantial portion of the duties of field service technicians do not involve work in the meter shop but rather in field duties. After his termination in 2002 Mr. Avery applied for and received Social Security Disability entitlement and benefits due to his blindness. In order to establish one's claim for Social Security Disability Benefits, one must prove to the Social Security Administration that the applicant is not able to perform in any employment. The Petitioner can perform most of the activities of daily living satisfactorily except those which depend upon his eyesight. His eyesight is sufficiently impaired to constitute a significant impairment to an activity of daily living (i.e. seeing). This is especially critical as to his inability to drive a vehicle, although his does have some vision. In fact, when his eyes are examined currently, he is able to read the first line of an eye chart, the second line and then a letter or two of the third line. The Petitioner admits that he is unable to obtain a driver's license because his eye sight is insufficient. He is not able to perform any job with the Respondent that requires a driver's license. If his employment with ESP were so protected as to be confined to the meter shop duties only he may be able to perform those functions. However, a major portion of the duties of the field service technician involve the requirement that he be able to drive and operate motor vehicles and equipment. This the Petitioner is unable to do. The Petitioner contends that his termination was actually due to reasons of personal dislike of him by his supervisors. He has applied for many other jobs unsuccessfully in the Pensacola area since his termination. He contends that this is due to an "unspoken law" in Pensacola that effectively "blacklists" former employees of the city, county or state governments who have been terminated from those positions. Other than his own opinion testimony, he offered no documentary evidence or testimony of other witnesses to corroborate this belief on his part. The Petitioner attempted to assert that another ESP employee, Mr. Myers, was a similarly-situated, exemplar employee who had not been terminated when he suffered a disability or handicap during his employment, but was rather retained in ESP's employment as a field service technician. However, as established by the testimony of Mr. Lupton, Mr. Myers suffered severe burns in an accident and was medically restricted from contact with direct sunlight. Mr. Myers, however, continued to be able to drive a car, a tractor, a dump truck, and other equipment to, from, and around work sites. He continued to qualify for and retain his commercial driver's license. His employer was able to accommodate his disability or medical restriction involving reduced contact with direct sunlight because even with that restriction he was still able to perform the duties of his job. Therefore, Mr. Myers was not terminated and was continued in his employment with the accommodation concerning the restriction from contact with direct sunlight. Thus, because of the differences in Mr. Myers situation and condition, particularly the fact that he could remain licensed to and could physically operate vehicles and equipment, he is not truly a similarly-situated employee who was disparately and more favorably treated than was the Petitioner.
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 Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 11th day of August, 2005, 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 11th day of August, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Debra Dawn Cooper, Esquire 1008 West Garden Street Pensacola, Florida 32501 Millard L. Fretland, Esquire Conroy, Simberg, Ganon, Krevans, & Apel, P.A. 125 West Romana Street, Suite 150 Pensacola, Florida 32521
The Issue Whether the Department of Management Services’ intended decision to award a contract to CR MSA, LLC, a subsidiary of Harris Corporation, under ITN number DMS-13/14-024 is contrary to the Department’s governing statutes, rules, policies, or the ITN specifications.
Findings Of Fact Background The Department manages and operates the SUNCOM Network, Florida’s state enterprise telecommunications system. § 282.703, Fla. Stat. (2014).2/ The Department’s existing network management contract with AT&T Services Inc., known as “MyFloridaNet” (MFN-1), expires in September 2016. The current ITN involves the Department’s efforts to procure a new telecommunications infrastructure to provide SUNCOM Network services. The ITN On June 6, 2014, the Department released the ITN for MFN-2. The ITN consists of a 30-page document and several attachments. The technical aspects of the ITN are included in the statement of work, which is attachment A to the ITN. Pursuant to section 287.057(1)(c), Florida Statutes, the Department specified objectives and goals for the MFN-2 ITN which include, without limitation, the goal of maintaining or reducing the total cost for each customer. Responsiveness of Replies The Department received replies to the ITN from two vendors: AT&T and Harris. Section 3.1 of the ITN, as noted below, identifies the process by which the responsiveness of the vendors’ initial responses (“Reply” or “Replies”) to the ITN would be determined: 3.1 Determination of Responsiveness Failure to comply with and acknowledge each of the requirements in the Qualification Questions will result in the Reply being deemed non-responsive. As indicated in Section 2.13, “Qualification Questions,” DMS will not evaluate replies from Respondents who answer “No” to any of the Qualification Questions listed in Attachment K. Failure to provide any other information required by this ITN may also result in a determination of non-responsiveness. The Department’s designated procurement officer, Mrs. Jesse Tillman, determined responsiveness of the Replies in accordance with the “pass/fail requirements” set forth on the responsiveness checklist attached to the ITN as attachment K. Mrs. Tillman reviewed relevant provisions of the Replies and determined that both AT&T and Harris met the responsiveness requirements. Evaluation Phase In accordance with section 2.1.2 of the ITN, the Department, after determining that the Replies submitted by AT&T and Harris were responsive, commenced the evaluation phase of the procurement process. The evaluation phase is described in the ITN as follows: 2.1.2 Evaluation Phase – All responsive Replies will be evaluated against the evaluation criteria set forth in this ITN to establish a competitive range of Replies reasonably susceptible of award. DMS may then select Respondents within the competitive range (pursuant to Section 3.4) with which to commence negotiations. The ITN requires the appointment of a five-member evaluation team to review and evaluate the vendors’ Replies. The evaluation team was composed of: Abdul Majid; Eric Larson; Adam Jones, the network and information security manager for the Florida Department of Environmental Protection; Bret Hart, the network services administrator for the Florida Department of Health; and Troy Berry, the data processing manager for the Florida Department of Law Enforcement. The Department provided the evaluators with detailed instructions for evaluating the ITN. The instructions given to the evaluators expressly provided that, “[t]he written information submitted will be the sole basis upon which Replies are evaluated and scored.” Evaluators were not responsible for determining responsiveness of Replies or conducting independent research to verify information provided by the proposers. The ITN directed the evaluation team to evaluate each Reply based on the following three categories: Category 1 – Statement of Work (Technical Solution) – 1,700 points Category 2 – Performance Measures (Service Level Agreements) – 250 points Category 3 – Migration and Transition Planning (Support Services) – 550 points Each of these categories contain a number of specific subjects which the evaluators were to score. These scoring questions correspond with subsections of the ITN, and were set forth in attachment C, the evaluator score sheet workbook. Evaluators were directed to score Replies on a defined scale ranging from “0” to “4” in accordance with the scoring guidelines set forth in the evaluator instructions. In addition, the ITN also provides that Replies are scored on pricing via an automated price workbook included with the ITN. Pricing scores were broken into the following categories, with the following number of points available: Category 4 – Price: E-rate Eligible Items – 1,750 points Category 5 – Price: Non E-rate Eligible Items – 250 points Category 6 – Price: Snapshot Comparison Items – 500 points The pricing scores were then added to the technical scores to reach a total score, with 5,000 being the maximum total number of obtainable points. The evaluators worked independently from one another in their review of the Replies and scored each section in accordance with the scoring guidelines. Based on the scoring of the Replies, including both technical scores and pricing scores, the Department determined both vendors to be reasonably susceptible of award. Posting the Notice of Intent to Negotiate On January 5, 2015, the Department posted a Notice of Intent to Negotiate which provides in relevant part as follows: The Department of Management Services hereby provides Notice of Intent to Negotiate with the following vendors: AT&T Corporation CR MSA, LLC. Failure to file a protest within the time prescribed in [s]ection 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under [c]hapter 120, Florida Statutes. Any protest must be timely filed with the Department of Management Services Agency Clerk listed at: Http://www.dms.myflorida.com/agencyadmini stration/generalcounsel No protests to the Department’s Notice of Intent to Negotiate with AT&T and Harris were filed. Erik Lindborg testified that the individuals responsible for managing AT&T’s Reply to the ITN conducted research into the corporate identity of CR MSA, LLC (CR MSA), at the time the Notice of Intent to Negotiate was released. Mr. Lindberg’s research revealed that CR MSA had been incorporated less than 5 years prior to the submission of Replies in response to the ITN. Negotiation Phase The ITN provides for negotiations using a four-member negotiation team. The negotiation team consisted of: Chuck Hartsfield, the bureau chief of engineering within the Department’s Division of Telecommunications; Mark Lovell, a contract manager within the Department’s Division of Telecommunications; Coleman Ayers, the systems project administrator for the Office of Agriculture Technology Services within the Florida Department of Agriculture and Consumer Services; and Kasey Bickley, the bureau chief of the Information Technology/Telecommunications Bureau within the Department’s Division of State Purchasing. Ms. Bickley left the negotiation team following the first negotiation session. The negotiation team was assisted by the Department’s purchasing officer, Jesse Tillman. The negotiators were also assisted by subject matter experts, including Abdul Majid, Amir Qureshi, Tammy Williams, Kevin Langston, Jonathan Rakestraw, and Tabitha Hunter. The negotiation team held a total of 22 negotiation sessions, 11 with each vendor. The negotiation team also held 50 strategy sessions where they discussed questions for the proposers, potential negotiation strategies, and options for achieving the best value for the State. During the negotiation sessions, the negotiation team reviewed each vendor’s technical proposals and sought innovative suggestions from the vendors as to how cost could be reduced. Because cost was a significant consideration, and the Replies indicated that costs would be higher than the Department expected, the negotiation team requested that each proposer submit a list of potential cost savings solutions that could be considered by the Department to reduce the cost for MFN-2. Each proposer submitted such a list proposing certain changes to the statement of work. Among the suggested cost savings suggestions was the possibility of reducing the minimum number of core facilities required by the ITN and the removal of “session initiation protocol core routing [(SCR)].” On May 11, 2015, following the completion of 10 negotiation sessions with each vendor, the Department issued a Request for Revised Replies to each vendor pursuant to its reserved right to do so under section 3.5(B) of the ITN. Section 3.5(B) provides that the Department reserves the right to “[r]equire any or all responsive vendors to provide additional, revised or final written replies addressing specified topics.”3/ The Department’s Request for Revised Replies made certain revisions to the statement of work in an effort to achieve cost savings and best value for the State, including reducing the minimum number of required core facilities from 10 to 5. Both vendors responded to the Request for Revised Replies. In its Revised Reply, Harris reduced the number of proposed core facilities from 11 to 6. AT&T revised certain aspects of its Reply and elected to maintain a 10-core facility proposal. On July 2, 2015, following the completion of all negotiation sessions with the vendors, and further consideration by the negotiation team of cost savings possibilities, the Department issued a RBAFO, pursuant to section 3.6(A) of the ITN. Section 3.6 authorizes the RBAFO, and subpart (A) of this section provides that a vendor’s BAFO must contain all negotiated terms and conditions that will be included in the final contract, as well as all revisions to the statement of work. The RBAFO includes a revised attachment A, statement of work, which reflects the negotiated changes from the original statement of work. The revised statement of work incorporates the changes that were discussed during negotiations, including specifically the removal of SCR and the reduction in the minimum number of core facilities from 10 to 5. Each vendor submitted its BAFO on July 10, 2015. Each vendor removed SCR in their BAFO. However, like with its Revised Reply, Harris, in its BAFO, reduced the number of core facilities it proposed from 11 to 6, while AT&T continued to propose a 10-core facility solution. The BAFOs were scored in accordance with section 3.7 of the ITN. AT&T received a total technical score of 42.9 from the negotiators, while Harris received a total technical score of 42.2 from the negotiators. BAFO pricing was scored using the Department’s automated price workbook scoring. AT&T received a price score of 34.8, while Harris received a price score of 41.9. The technical and price scores of each vendor were combined, with Harris receiving a total score of 84.1, and AT&T receiving a total score of 77.7. DMS then held a final public meeting on July 20, 2015, at which the negotiation team discussed its award recommendation and prepared its award memorandum. The memorandum provided a summary of the procurement and negotiation processes, recited the scoring of the Replies and BAFOs, and memorialized the negotiation team’s recommendation that, based on total BAFO scores, including both technical and price, the contract be awarded to Harris as the vendor representing the best value to the State. The Department accepted the negotiation team’s recommendation, and on August 11, 2015, posted the Notice of Intent to Award indicating its intent to award the contract to Harris. The Protest On August 24, 2015, AT&T filed its Formal Written Protest and Petition for Formal Administrative Hearing in this matter. On September 30, 2015, AT&T filed an Amended Formal Written Protest. Based upon the Amended Formal Written Protest and the issues preserved for hearing by AT&T in the Pre-Hearing Stipulation, the following four categories of issues are being determined in this proceeding: (1) whether Harris was responsive in light of the decision to submit the Harris Reply “by and through” its wholly-owned subsidiary, CR MSA, LLC; (2) whether the Harris Reply complied with the technical requirements of the statement of work; (3) whether the Department was permitted to negotiate changes to the statement of work during the negotiation phase of the ITN; and (4) whether the Harris’ BAFO complied with the revised statement of work included in the RBAFO. The undersigned finds that none of the four issues raised by AT&T presents a basis for overturning the Department’s intended award. Corporate Identity Issues AT&T alleges that the Harris Reply should have been evaluated for responsiveness based solely on the qualifications of its subsidiary, CR MSA, because the Harris bid was made “by and though CR MSA.” AT&T argues that if only CR MSA is considered as submitting the Reply, then it failed to satisfy the ITN’s requirements that vendors: (1) possess a minimum of 5 years of experience as either a prime contractor or subcontractor providing services on an MPLS enterprise services network with at least 800 sites (attachment K, qualification question 4); and (2) submit a letter from a surety or bonding agent documenting its ability to obtain a performance bond for the contract in an amount of at least $60 million. The evidence presented at the final hearing established that the Department’s responsiveness determinations, as to both Harris and AT&T, were based on a careful and even-handed review of the Reply documents and clarifications received from both vendors. Jesse Tillman, the Department’s procurement officer for the ITN, reviewed each vendor’s Reply for responsiveness and determined that both Harris and AT&T were responsive. The Department concluded, as to each vendor, that the information supplied in the respective Replies was sufficient, and any irregularity was minor. The Department’s responsiveness determination relied in part on responses provided by each vendor to a request for clarification regarding the role that affiliated companies would play in providing services to the Department. The Harris response explained that its Reply was submitted through its subsidiary, CR MSA, for business and accounting reasons, but that “Harris will ensure that all appropriate Harris entities and personnel are assigned to MFN-2.” Harris’ corporate representative at the final hearing also testified to these circumstances. Harris also provided an absolute guarantee to the Department confirming that Harris stood behind the proposal it had submitted through its wholly-owned subsidiary. The Department’s responsiveness determination as to Harris is also consistent with the documentary evidence admitted at hearing, including the cover letter on Harris letterhead with the subject line “Harris Reply to MFN-2 ITN”; the Harris narrative response to section 2.2 of the statement of work (referring to Harris as the prime contractor); the Harris response at page 4 through 7 (indicating Harris as the prime contractor); the business references set forth in section 2.2 (identifying Harris as the prime contractor for the business references); and the proof of credit letter (indicating that it concerns the bonding ability of Harris, by and through its subsidiary, CR MSA LLC). AT&T nonetheless argues that Harris’ submission in this manner was not permitted by the ITN. As support for its assertion, AT&T cites to the ITN definition for “respondent,” which is defined as “[a] vendor who submits a Reply to this ITN,” and to the definition of “vendor” as “an entity that is capable and in the business of providing a commodity or contractual service similar to those within the solicitation.” While AT&T accurately cites to the definitions, nothing in these definitions, nor anything contained elsewhere in the ITN, prohibits the submission of a reply in the manner that Harris elected (i.e., submission of a reply on behalf of the Harris by and through its wholly-owned subsidiary, CR MSA). The Department’s even-handed review of the vendors is reflected by the testimony and documentary evidence that AT&T’s Reply similarly referred to affiliated business entities and that the Department provided AT&T the same opportunity to provide clarification regarding the role affiliated companies would play. As to the corporate identity issues, the undersigned finds that the testimony and exhibits demonstrate that the Department complied with the terms of the ITN and Florida law in determining that both AT&T and Harris were responsive as to these issues. The Department treated both vendors equally in this regard. Finally, as discussed in the Conclusions of Law below, the undersigned concludes that AT&T has waived the issue of Harris’ responsiveness by failing to protest on these grounds at the point of entry accompanying the Notice of Intent to Negotiate. Section 2.5 of the ITN allowed AT&T to request the Harris Reply following the completion of the evaluation phase of the ITN, which would have revealed the issues of responsiveness that AT&T now complains about. Moreover, AT&T had actual knowledge, at or near the time the Notice of Intent to Negotiate was posted, of issues related to CR MSA’s corporate identity, yet AT&T failed to timely protest this issue, electing instead to take an impermissible “wait and see” approach. Statement of Work Issue Generally, AT&T argues that the initial Harris Reply to the ITN failed to comply with certain technical requirements of the ITN, and was therefore non-responsive. The statement of work, attachment A to the ITN, consists of 192 pages of technical details concerning MFN-2. The ITN clearly provides that statement of work requirements are not responsiveness requirements whose omission would render a vendor’s bid non- responsive. Instead, the ITN provides that statement of work requirements are to be scored by the evaluators and the negotiators as part of the ITN’s evaluation and selection process. Responsiveness was determined based upon the responsiveness requirements (attachment K) of the ITN, while the technical solutions were scored by the evaluators and the negotiators in both the ITN reply and BAFO stage. Each of the evaluators and negotiators who testified in this proceeding, as well as the Department’s procurement staff, uniformly stated that any deficiencies in a vendor’s response to a statement of work requirement was to be addressed in the scoring of the response, and was not a responsiveness issue. This point is underscored by the scoring guidelines themselves, which specifically contemplate that Replies might contain technical solutions that do not meet the technical requirements of the ITN, as the scoring guidelines provide for a possible score of 0, indicating that a response was “Inadequate” and demonstrated “Below minimum required functionality” or “Fail[ed] to demonstrate capability.” If, as AT&T argues, a reply was required to be judged non-responsive for failure to meet a statement of work requirement, there would be no need for the ITN to contemplate a score of “0,” because that failure would eliminate the vendor from further evaluation. Furthermore, if a failure to comply with the statement of work requirements is fatal to an entity’s proposal, AT&T’s Reply would itself have to be rejected as non-responsive. The record demonstrates that AT&T refused to provide a response, in either its Reply or BAFO, to the section 2.2.5 statement of work requirement that vendors disclose their dispute history. AT&T also failed to comply with the section 5.1 statement of work requirement for vendors to provide a proposed migration plan. AT&T left this part of its Reply intentionally blank, contending a migration plan was unnecessary. Harris Complied With Core Facilities Requirements Specifically, as to Harris’ initial Reply to the statement of work, AT&T argues that Harris failed to satisfy the requirements of section 2.7.12, which require a minimum of 10 geographically dispersed core facilities throughout the state. This requirement provides: “The Respondent may propose changes to the selected cities in the diagram section 2.7, but the number of core facilities shall not be altered unless the Respondent includes more core facilities than those provided in MFN.” The Harris Reply complied with this requirement, providing for 11 core facilities. The narrative text of the Harris Reply provides that: “Our proposed MFN-2 design places core nodes in the following cities: Pensacola, Panama City, two core nodes in Tallahassee, Jacksonville, Gainesville, Daytona, Tampa, Orlando, Ft. Myers, and Miami,” thus providing for a total of 11 core facilities. AT&T argues that Harris’ Reply failed to meet the requirements of 2.7.12 because of the labeling used by Harris to describe the routing equipment in its proposed facilities, identifying some of the facilities as “aggregation nodes,” and others as “core nodes.” According to AT&T, Harris’ proposed “aggregation nodes” do not meet the requirements of a “core facility,” and that Harris’ Reply, therefore, did not propose at least 10 core facilities. All witnesses testified, however, that the ITN does not define what constitutes a “core facility,” a “core node,” or an “aggregation node.” The witnesses likewise agreed that there is no consensus industry definition for these terms. Abdul Majid credibly testified that each of the facilities proposed by Harris--whether labeled by Harris as a “core node” or an “aggregation node”--satisfies the core facility requirements of the ITN. Mr. Nick Platt, a former Department employee who helped draft the ITN statement of work, testified that his intention was to have dual routers at each core facility, and for the nodes to be able to inter-operate with one another and transfer inter-LATA traffic. The routers proposed by Harris in its Reply, whether identified as "aggregation nodes" or "core nodes," satisfy these requirements. Harris Complied With IDS Requirements AT&T contends that the Harris Reply failed to comply with the intrusion detection system (IDS) requirements set forth in section 2.7.7 of the ITN. This argument, however, is based upon AT&T’s mistaken contention that the ITN required IDS equipment to be located at each core facility. Section 2.7.7 does not require IDS equipment to be included at each core facility, but instead requires only that all traffic be IDS-monitored. Mr. Majid specifically confirmed this fact. Indeed, the statement of work contemplates flexibility in the monitoring solutions proposed by vendors, as illustrated in section 2.7.7(d), which directs that vendors “[i]nclude a discussion of how and where backbone traffic is captured, plus how and where local traffic is captured.” Both Scott Morris, AT&T’s expert, and Mr. Sullivan, its lead MFN engineer, agree that section 2.7.7 does not require IDS hardware to be located at each core facility, but only that all traffic be IDS-monitored. Further, both of AT&T’s experts agree that Harris’ design would result in all traffic being IDS-monitored. Harris Complied With Access Requirements AT&T argues that the Harris Reply does not satisfy section 2.7(o) of the statement of work because the Reply does not provide frame relay access at all core facilities. Section 2.7(o) requires that the proposed network provide access to all forms of technology that might be used by the State’s agencies and departments, which could include frame relay access. Frame relay access is, as even AT&T’s experts acknowledge, an older technology that is being phased out and replaced by newer access technologies, such as Ethernet. Harris’ Reply specifically addresses frame relay access, and states that all traffic using frame relay access is to be routed to either a core node or the Orlando aggregation node, which would have the capability to provide such access. To avoid the cost of providing access for this legacy technology that is being phased out, Harris expressly states that access will not be provided at its other aggregation nodes. However, because Harris’ design provides access to the network for frame relay technology, Harris’ Reply satisfies the section 2.7(o) requirement. Long Haul Circuits AT&T argues that the State would be harmed by the inclusion of long haul circuits in Harris’ six-facility architecture. The evidence does not support this argument. Mr. Graham testified that because pricing is not based on distance (such that longer distance access costs the same as shorter distance access), the inclusion of long haul circuits would not impact price. Additionally, because optical signals travel at nearly the speed of light, the distance of such circuits would be covered faster than the blink of an eye and would not impact network speed. While the evidence establishes that the Department initially wanted to avoid long haul circuits because of previous experience with outages, the Department softened its position regarding this issue when Harris presented a solution that both allayed the Department’s concerns and reduced costs. AT&T enjoyed the same opportunities as Harris, but decided to stay tethered to a solution that more closely resembles the existing MFN product. Unavailability of Harris’ Network Mr. Turner expressed concern that Harris’ proposed network may be unavailable while updates are being applied to IDS software. The suggestion is that any such system unavailability would negatively impact the functionality of MFN-2. This concern is not supported by the evidence. Mr. Graham noted in his testimony that Harris specifically addressed this issue in its BAFO, and its design includes bypass switches to re-route traffic if IDS equipment were to fail or go offline during any software updates. Changes to the Statement of Work AT&T asserts that it was improper for the Department to negotiate changes to the statement of work during the negotiation phase of the ITN. These arguments do not present a basis for overturning the Department’s intended award. The ITN process was specifically designed to provide agencies with the flexibility to negotiate requirements in order to receive the best value for the State under circumstances where there are multiple methods available for meeting a specified goal of the agency. The process recognizes that negotiation on terms that differ from those of the procurement, or the initial written response, may be necessary. The plain language of the ITN statute supports this understanding, noting that the ITN: “is intended to determine the best method for achieving a specific goal or solving a particular problem and identifies one or more responsive vendors with which the agency may negotiate in order to receive the best value.” § 287.057(1)(c), Fla. Stat. Thus, State agencies are specifically authorized by statute to negotiate the requirements and contractual terms in ITN procurements to identify and obtain the best method for achieving the procurement goal at the best value for the State. Changes to requirements during the negotiation process are an integral and necessary part of the ITN procurement process, as the agency gains more information from vendors regarding the alternatives available to meet its goals. Consistent with the statutory purposes of the ITN procurement, the ITN at issue in this dispute provides, in a multitude of places, that changes to the statement of work could occur during the negotiation phase of the ITN. For example, section 3.4 of the ITN provides: Negotiations will include discussions of the Statement of Work and related services to be provided by the Respondent until acceptable terms are agreed upon, or it is determined that an acceptable agreement cannot be reached. The negotiation process will also include negotiation of the terms and conditions of the Contract. As this is an ITN, the Department reserves the right to negotiate the terms and conditions determined to be in the best interest of the State. The ITN further provides in section 2.4 that: The awarded contract will consist of Attachment A (Statement of Work) as modified through negotiations, Attachment B (Contract), Attachment H, Special Conditions, and the revised Attachment E (Price Workbook) submitted with the Best and Final Offer. Moreover, the Department, in section 3.5(B) of the ITN, expressly reserves the right at any time during the negotiation process to “[r]equire any or all responsive vendors to provide additional, revised or final written replies addressing specified topics.” Furthermore, section 3.5(B) of the ITN also reserves to the Department the right to award a contract for all, or part, of the work contemplated by the ITN. Additionally, the evidence does not establish that the revisions to the statement of work constitute a material change to the procurement. The goals and questions being explored by the ITN remained unchanged, as did the selection criteria upon which the best value decision was determined. Simply put, the ITN sought a network to process the State’s telecommunications traffic while meeting certain high-availability and high- reliability requirements.4/ Neither the reduction in the number of core facilities included within the network, nor the removal of the SCR functionality, affected the fundamental nature of what was being procured. BAFO and Revised Statement of Work AT&T argues that Harris’ BAFO design fails to satisfy the requirements of the RBAFO statement of work with regards to the high-availability (HA) and high-reliability (HR) requirement. The evidence establishes that the Department acted rationally and reasonably in negotiating revisions to the statement of work. Because the negotiation team was concerned with the costs of the initial proposals, the team explored potential cost-saving ideas with both Harris and AT&T. The suggestion to reduce the number of required core facilities made financial sense, as long as the HA/HR requirements of the ITN could still be met. Indeed, the ITN business case, attachment G to the ITN, recognizes that “[r]equiring high numbers of nodes in the procurement specification should be avoided as this could inadvertently inject higher cost structures from the prospective vendor to recover the cost of deployment of necessary infrastructure to support the core routing design.” There is no record evidence suggesting that this language was inserted in the business case study in order to provide a competitive advantage to Harris. To address the ITN’s HA/HR requirements with a design involving fewer core facilities, Harris performed extensive modeling and analyzed several designs potentially using 5 to 10 core facilities. Based on this extensive analysis, which Harris shared with the negotiation team as it was considering a revision to the required number of core facilities, Harris ultimately concluded that a six-core facility design was optimal. Harris’ analysis was thoroughly considered and reviewed by the negotiation team, and through this process, the Department decided to reduce the number of core facilities required by the statement of work. The negotiation team’s decision to revise the statement of work in this regard was well-considered, rational, and reasonable. Also, the process utilized by the Department in reaching its decision to reduce the number of core facilities afforded both vendors the same opportunity to propose a design with fewer core facilities, and therefore, provided no competitive advantage to either vendor.5/ Indeed, by not allowing vendors the flexibility to consider and propose alternate designs that could accomplish the same goals, and instead requiring all vendors to mirror the design chosen by the incumbent vendor, this likely would have hindered competition and certainly would not have served the State’s interests. Further, the evidence demonstrates that Harris’ six-core facility BAFO design met, and in fact exceeded, the statement of work HA/HR requirement. Harris conducted a statistical availability analysis, and detailed this analysis and the results in presentations to the negotiation team during negotiations, and later in its BAFO. Harris’ expert, Dr. Rupe, confirmed that Harris’ assumptions and information were reasonable. Dr. Rupe conducted his own statistical analysis of Harris’ BAFO core design and independently verified the results reached by Harris. The Department’s decision to remove SCR functionality from the statement of work was likewise not improper. SCR was merely an add-on to the network and the negotiation team, after due consideration, made the decision to delete this requirement. As testified to by Mr. Ayers, a number of factors played into the negotiators’ decision to remove SCR functionality, including the fact that: (1) the technology is fairly expensive today; (2) technology changes could result in lower prices in the future; (3) the Department was not capable of adequately defining their parameters and/or what SCR functionality it required; (4) the functionality would be paid for from the time the contract was signed, notwithstanding that it was not required to be in place for three years; and (5) the State could easily obtain SCR functionality through another procurement if it ultimately determined that the functionality was needed. This analysis, and the negotiation team’s decision to remove this requirement, was rational, reasonable, and did not create any competitive advantage to either vendor, both of whom did not include this functionality in their BAFOs. Ultimate Findings of Fact Based on the foregoing, the undersigned finds that Harris was a responsive and responsible vendor who submitted a fully responsive reply to the ITN. The undersigned further finds that the Department’s negotiations and negotiation phase revisions to the statement of work were consistent with Florida law and the rights reserved to the Department by the ITN. Finally, the undersigned finds that the BAFO submitted by Harris was fully responsive to the RBAFO and, pursuant to the selection criteria set forth in the ITN, the solution proposed by Harris represented the best value to the State of Florida. Simply stated, the record evidence failed to expose the existence of any shenanigans in the instant procurement. Based on the above, the Department’s decision to award a contract to Harris fully complied with applicable law, rules, and terms and conditions of the ITN and was not arbitrary, capricious, clearly erroneous, or contrary to competition.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is recommended that Petitioner’s protest be dismissed. DONE AND ENTERED this 25th day of November, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2015.
The Issue Whether the Department of Corrections? action to withdraw its Intent to Award and to reject all replies to ITN 12-DC-8396 is illegal, arbitrary, dishonest, or fraudulent, and if so, whether its Intent to Award is contrary to governing statutes, rules, policies, or the solicitation specifications.
Findings Of Fact The DOC is an agency of the State of Florida that is responsible for the supervisory and protective care, custody, and control of Florida?s inmate population. In carrying out this statutory responsibility, the Department provides access to inmate telephone services. On April 15, 2013, the DOC issued the ITN, entitled “Statewide Inmate Telephone Services, ITN 12-DC-8396,” seeking vendors to provide managed-access inmate telephone service to the DOC. Responses to the ITN were due to be opened on May 21, 2013. The DOC issued Addendum #1 to the ITN on April 23, 2013, revising one page of the ITN. The DOC issued Addendum #2 to the ITN on May 14, 2013, revising a number of pages of the ITN, and including answers to a number of vendor questions. EPSI, GTL, and Securus are providers of inmate telephone systems and services. Securus is the incumbent contractor, and has been providing the Department with services substantially similar to those solicited for over five years. No party filed a notice of protest to the terms, conditions, or specifications contained in the ITN or the Addenda within 72 hours of their posting or a formal written protest within 10 days thereafter. Replies to the ITN were received from EPSI, GTL, Securus, and Telmate, LLC. Telmate?s reply was determined to be not responsive to the ITN. Two-Part ITN As amended by Addendum #2, section 2.4 of the ITN, entitled “ITN Process,” provided that the Invitation to Negotiate process to select qualified vendors would consist of two distinct parts. In Part 1, an interested vendor was to submit a response that described certain Mandatory Responsiveness Requirement elements, as well as a Statement of Qualifications, Technical Response, and Financial Documentation. These responses would then be scored using established evaluation criteria and the scores would be combined with cost points assigned from submitted Cost Proposals. In Part 2, the Department was to select one or more qualified vendors for negotiations. After negotiations, the Department would request a Best and Final Offer from each vendor for final consideration prior to final award decision. The ITN provided that the Department could reject any and all responses at any time. High Commissions and Low Rates Section 2.5 of the ITN, entitled “Initial Cost Response,” provided in part: It is the Department?s intention, through the ITN process, to generate the highest percentage of revenue for the State, while ensuring a quality telephone service with reasonable and justifiable telephone call rate charges for inmate?s family and friends similar to those available to the public-at- large. Section 2.6 of the ITN, entitled “Revenue to be Paid to the Department,” provided in part that the Department intended to enter into a contract to provide inmate telephone service at no cost to the Department. It provided that, “[t]he successful Contractor shall pay to the Department a commission calculated as a percentage of gross revenues.”1/ The commission paid by a vendor is the single largest expense in the industry and is an important aspect of any bid. Contract Term Section 2.8 of the ITN was entitled “Contract Term” and provided: It is anticipated that the initial term of any Contract resulting from this ITN shall be for a five (5) year period. At its sole discretion, the Department may renew the Contract in accordance with Form PUR 1000 #26. The renewal shall be contingent, at a minimum, on satisfactory performance of the Contract by the Contractor as determined by the Department, and subject to the availability of funds. If the Department desires to renew the Contracts resulting from this ITN, it will provide written notice to the Contractor no later than thirty days prior to the Contract expiration date. Own Technology System Section 3.4 of the ITN provided in part: The successful Contractor is required to implement its own technology system to facilitate inmate telephone service. Due to the size and complexity of the anticipated system, the successful Contractor will be allowed a period of transition beginning on the date the contract is executed in which to install and implement the utilization of its own technology system. Transition, implementation and installation are limited to eighty (80) days. The Department realizes that some "down time" will occur during this transition, and Respondents shall propose an implementation plan that reduces this "down time" and allows for a smooth progression to the proposed ITS. GTL emphasizes the language stating that the successful contractor must implement “its own” technology system, and asserts that the technology system which EPSI offers to install is not owned by it, but by Inmate Calling Solutions, LLC (ICS), its subcontractor. However, EPSI demonstrated that while the inmate telephone platform, dubbed the “Enforcer System,” is owned by ICS now, that EPSI has a Master User Agreement with ICS and that an agreement has already been reached that before the contract would be entered into, a Statement of Work would be executed to create actual ownership in EPSI for purposes of the Florida contract. GTL alleges that in EPSI?s reply, EPSI relied upon the experience, qualifications, and resources of its affiliated entities in other areas as well. For example, GTL asserts that EPSI?s claim that it would be providing 83 percent of the manpower is false, since EPSI has acknowledged that EPSI is only a contracting subsidiary of CenturyLink, Inc., and that EPSI has no employees of its own. While it is clear that EPSI?s reply to the ITN relies upon the resources of its parent to carry out the terms of the contract with respect to experience, presence in the state, and personnel, EPSI demonstrated that this arrangement was common, and well understood by the Department. EPSI demonstrated that all required capabilities would be available to it through the resources of its parent and subcontractors at the time the contract was entered into, and that its reply was in conformance with the provisions of the ITN in all material respects. EPSI has the integrity and reliability to assure good faith performance of the contract. Call Recording Section 3.6 of the ITN, entitled “Inmate Telephone System Functionality (General),” provided in part: The system shall provide the capability to flag any individual telephone number in the inmate?s „Approved Number List? as „Do Not Record.? The default setting for each telephone number will be to record until flagged by Department personnel to the contrary. Securus alleges that section 3.6 of the ITN implements Department regulations2/ and that EPSI?s reply was non-responsive because it stated that recording of calls to specific telephone numbers would be deactivated regardless of who called that number. Securus alleges that this creates a security risk because other inmates calling the same number should still have their calls recorded. EPSI indicated in its reply to the ITN that it read, agreed, and would comply with section 3.6. While EPSI went on to say that this capability was not connected to an inmate?s PIN, the language of section 3.6 does not mention an inmate?s PIN either. Read literally, this section requires only the ability to “flag” any individual telephone number that appears in an inmate?s number list as “do not record” and requires that, by default, calls to a telephone number will be recorded until it is flagged. EPSI?s reply indicated it could meet this requirement. This provision says nothing about continuing to record calls to that same number from other inmates. Whether or not this creates a security risk or is what the Department actually desired are issues which might well be discussed as part of the negotiations, but this does not affect the responsiveness of EPSI?s reply to section 3.6. Furthermore, Mr. Cooper testified at hearing that EPSI does have the capability to mark a number as “do not record” only with respect to an individual inmate, at the option of the Department. EPSI?s reply conformed to the call-recording provisions of section 3.6 of the ITN in all material respects. Call Forwarding Section 3.6.8 of the ITN, entitled “System Restriction, Fraud Control and Notification Requirements,” provided that the provided inmate telephone services have the following security capability: Ability to immediately terminate a call if it detects that a called party?s telephone number is call forwarded to another telephone number. The system shall make a “notation” in the database on the inmate?s call. The system shall make this information available, in a report format, to designated department personnel. In response to an inquiry noting that, as worded, the ITN did not technically require a vendor to have the capability to detect call-forwarded calls in the first place, the Department responded that this functionality was required. Securus alleges that EPSI is unable to comply with this requirement, citing as evidence EPSI?s admission, made some months before in connection with an RFP being conducted by the Kansas Department of Corrections, that it did not yet have this capability. EPSI indicated in its reply to the ITN that it read, agreed, and would comply with this requirement. As for the Kansas solicitation, EPSI showed that it now possesses this capability, and has in fact installed it before. EPSI?s reply conformed to the call-forwarding provisions of section 3.6.8 of the ITN in all material respects. Keefe Commissary Network Section 5.2.1 of the ITN, entitled “Respondents? Business/Corporate Experience,” at paragraph e. directed each vendor to: [P]rovide and identify all entities of or related to the Respondent (including parent company and subsidiaries of the parent company; divisions or subdivisions of parent company or of Respondent), that have ever been convicted of fraud or of deceit or unlawful business dealings whether related to the services contemplated by this ITN or not, or entered into any type of settlement agreement concerning a business practice, including services contemplated by this ITN, in response to a civil or criminal action, or have been the subject of any complaint, action, investigation or suit involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. The Respondent shall identify the amount of any payments made as part of any settlement agreement, consent order or conviction. Attachment 6 to the ITN, setting forth Evaluation Criteria, similarly provided guidance regarding the assessment of points for Business/Corporate Experience. Paragraph 1.(f) provided: “If any entities of, or related to, the Respondent were convicted of fraud or of deceit or unlawful business dealings, what were the circumstances that led to the conviction and how was it resolved by the Respondent?” Addendum #2. to the ITN, which included questions and answers, also contained the following: Question 57: In Attachment 6, Article 1.f. regarding respondents “convicted of fraud, deceit, or unlawful business dealing . . .” does this include associated subcontractors proposed in this ITN? Answer 57: Yes, any subcontractors you intend to utilize on this project, would be considered an entity of and related to your firm. As a proposed subcontractor, ICS is an entity of, or related to, EPSI. There is no evidence to indicate that ICS has ever been convicted of fraud or of deceit or unlawful business dealings. There is no evidence to indicate that ICS has entered into any type of settlement agreement concerning a business practice in response to a civil or criminal action. There is no evidence to indicate that ICS has been the subject of any complaint, action, investigation, or suit involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. The only evidence at hearing as to convictions involved “two individuals from the Florida DOC” and “two individuals from a company called AIS, I think that?s American Institutional Services.” No evidence was presented that AIS was “an entity of or related to” EPSI. Conversely, there was no evidence that Keefe Commissary Network (KCN) or anyone employed by it was ever convicted of any crime. There was similarly no evidence that KCN entered into any type of settlement agreement concerning a business practice in response to civil or criminal action. It was shown that KCN “cooperated with the federal government in an investigation” that resulted in criminal convictions, and it is concluded that KCN was therefore itself a subject of an investigation involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. However, KCN is not an entity of, or related to, EPSI. KCN is not a parent company of EPSI, it is not a division, subdivision, or subsidiary of EPSI, and it is not a division, subdivision, or subsidiary of EPSI?s parent company, CenturyLink, Inc. EPSI?s reply conformed to the disclosure requirements of section 5.2.1, Attachment 6, and Addendum #2 of the ITN in all material respects. Phases of the ITN Section 6 describes nine phases of the ITN: Phase 1 – Public Opening and Review of Mandatory Responsiveness Requirements Phase 2 – Review of References and Other Bid Requirements Phase 3 – Evaluations of Statement of Qualifications, Technical Responses, and Managed Access Solutions3/ Phase 4 – CPA Review of Financial Documentation Phase 5 – Review of Initial Cost Sheets Phase 6 – Determination of Final Scores Phase 7 – Negotiations Phase 8 – Best and Final Offers from Respondents Phase 9 – Notice of Intended Decision Evaluation Criteria in the ITN As amended by Addendum #2, the ITN established scoring criteria to evaluate replies in three main categories: Statement of Qualifications (500 points); Technical Response (400 points); and Initial Cost Sheets (100 points). It also provided specific guidance for consideration of the commissions and rates shown on the Initial Cost Sheet that made up the pricing category. Section 6.1.5 of the ITN, entitled “Phase 5 – Review of Initial Cost Sheet,” provided in part: The Initial Cost Proposal with the highest commission (percentage of gross revenue) to be paid to the Department will be awarded 50 points. The price submitted in Table 1 for the Original Contract Term, and the subsequent renewal price pages for Table 1 will be averaged to determine the highest commission submitted. All other commission percentages will receive points according to the following formula: (X/N) x 50 = Z Where: X = Respondents proposed Commission Percentage to be Paid. N = highest Commission Percentage to be Paid of all responses submitted. Z = points awarded. * * * The Initial Cost Proposal with the lowest telephone rate charge will be awarded 50 points. The price submitted in Table 1 for the Original Contract Term, and the subsequent renewal price pages for Table 1 will be averaged to determine the highest commission submitted. All other cost responses will receive points according to the following formula: (N/X) x 50 = Z Where: N = lowest verified telephone rate charge of all responses submitted. X = Respondent?s proposed lowest telephone rate charge. Z = points awarded. The ITN as amended by Addendum #2 provided instructions that initial costs should be submitted with the most favorable terms the Respondent could offer and that final percentages and rates would be determined through the negotiation process. It included the following chart:4/ COST PROPOSAL INITIAL Contract Term 5 years ONE Year Renewal TWO Year Renewal THREE Year Renewal FOUR Year Renewal FIVE Year Renewal Initial Department Commission % Rate Proposed Initial Blended Telephone Rate for All Calls* (inclusive of surcharges) The ITN, including its Addenda, did not specify selection criteria upon which the determination of best value to the state would be based. Allegation that EPSI Reply was Misleading On the Certification/Attestation Page, each vendor was required to certify that the information contained in its reply was true and sufficiently complete so as not to be misleading. While portions of its reply might have provided more detail, EPSI did not mislead the Department regarding its legal structure, affiliations, and subcontractors, or misrepresent what entity would be providing technology or services if EPSI was awarded the contract. EPSI?s reply explained that EPSI was a wholly owned corporate subsidiary of CenturyLink, Inc., and described many aspects of the contract that would be performed using resources of its parent, as well as aspects that would be performed through ICS as its subcontractor. Department Evaluation of Initial Replies The information on the Cost Proposal table was reviewed and scored by Ms. Hussey, who had been appointed as the procurement manager for the ITN. Attempting to follow the instructions provided in section 6.1.5, she added together the six numbers found in the boxes indicating commission percentages on the Cost Proposal sheets. One of these boxes contained the commission percentage for the original five-year contract term and each of the other five boxes contained the commission percentage for one of the five renewal years. She then divided this sum by six, the number of boxes in the computation chart (“divide by six”). In other words, she calculated the arithmetic mean of the six numbers provided in each proposal. The Department had not intended for the commission percentages to be averaged in this manner. Instead, they had intended that a weighted mean would be calculated. That is, they intended that five times the commission percentage shown for the initial contract term would be added to the commission percentages for the five renewal years, with that sum then being divided by ten, the total number of years (“divide by ten”). The Department did not clearly express this intent in section 6.1.5. Mr. Viefhaus testified that based upon the language, Securus believed that in Phase 5 the Department would compute the average commission rate the way that Ms. Hussey actually did it, taking the arithmetic mean of the six commission percentages provided by each vendor, and that therefore Securus prepared its submission with that calculation in mind.5/ Mr. Montanaro testified that based upon the language, GTL believed that in Phase 5 the Department would “divide by ten,” that is, compute the weighted mean covering the ten-year period of the contract, and that GTL filled out its Cost Proposal table based upon that understanding. The DOC posted a notice of its intent to negotiate with GTL, Securus, and EPSI on June 3, 2013. Telmate, LLC, was not chosen for negotiations.6/ Following the Notice of Intent to Negotiate was this statement in bold print: Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. On June 14, 2013, the DOC issued a Request for Best and Final Offers (RBAFO), directing that Best and Final Offers (BAFO) be provided to the DOC by June 18, 2013. Location-Based Services The RBAFO included location-based services of called cell phones as an additional negotiated service, requesting a narrative description of the service that could be provided. The capability to provide location-based services had not been part of the original ITN, but discussions took place as part of the negotiations. Securus contends that EPSI was not a responsible vendor because it misrepresented its ability to provide such location-based services through 3Cinteractive, Inc. (3Ci). EPSI demonstrated that it had indicated to the Department during negotiations that it did not have the capability at that time, but that the capability could easily be added. EPSI showed that due to an earlier call it received from 3Ci, it believed that 3Ci would be able to provide location- based services to it. EPSI was also talking at this time to another company, CTI, which could also provide it that capability. In its BAFO, EPSI indicated it could provide these services, explained that they would require payments to a third- party provider, and showed a corresponding financial change to their offer. No competent evidence showed whether or not 3Ci was actually able to provide that service on behalf of EPSI, either at the time the BAFO was submitted, or earlier. EPSI showed that it believed 3Ci was available to provide that service, however, and there is no basis to conclude that EPSI in any way misrepresented its ability to provide location-based services during negotiations or in its BAFO. Language of the RBAFO The RBAFO provided in part: This RBAFO contains Pricing, Additional Negotiated Services, and Value Added Services as discussed during negotiation and outlined below. The other specifications of the original ITN, unless modified in the RBAFO, remain in effect. Respondents are cautioned to clearly read the entire RBAFO for all revisions and changes to the original ITN and any addenda to specifications, which are incorporated herein and made a part of this RBAFO document. Unless otherwise modified in this Request for Best and Final Offer, the initial requirements as set forth in the Department?s Invitation to Negotiate document and any addenda issued thereto have not been revised and remain as previously indicated. Additionally, to the extent that portions of the ITN have not been revised or changed, the previous reply/initial reply provided to the Department will remain in effect. These two introductory paragraphs of the RBAFO were confusing. It was not clear on the face of the RBAFO whether “other specifications” excluded only the pricing information to be supplied or also the specifications indicating how that pricing information would be calculated or evaluated. It was not clear whether “other specifications” were the same thing as “initial requirements” which had not been revised. It was not clear whether scoring procedures constituted “specifications.” While it was clear that, to the extent not revised or changed by the RBAFO, initial replies that had been submitted -- including Statements of Qualifications, Technical Response, Financial Documentation, and Cost Proposals -- would “remain in effect,” it was not clear how, if at all, these would be considered in determining the best value to the State. In the RBAFO under the heading “PRICING,” vendors were instructed to provide their BAFO for rates on a provided Cost Proposal table which was virtually identical to the table that had been provided earlier in the ITN for the evaluation stage, including a single square within which to indicate a commission rate for the initial five-year contract term, and five squares within which to indicate commission rates for each of five renewal years. The RBAFO stated that the Department was seeking pricing that would provide the “best value to the state.” It included a list of 11 additional services that had been addressed in negotiations and stated that, “in order to provide the best value to the state,” the Department reserved the right to accept or reject any or all of these additional services. It provided that after BAFOs were received, the Negotiation Team would prepare a summary of the negotiations and make a recommendation as to which vendor would provide the “best value to the state.” The RBAFO did not specify selection criteria upon which the determination of best value to the State would be based. In considering commission percentages as part of their determination as to which vendor would receive the contract, the Negotiation Team decided not to consider commissions that had been listed by vendors for the renewal years, concluding that the original five-year contract term was all that was assured, since renewals might or might not occur. On June 25, 2013, the DOC posted its Notice of Agency Decision stating its intent to award a contract to EPSI. Protests and the Decision to Reject All Replies Subsequent to timely filing notices of intent to protest the intended award, Securus and GTL filed Formal Written Protests with the DOC on July 5 and 8, 2013, respectively. The Department considered and compared the protests. It determined that language in the ITN directing that in Phase 5 the highest commission would be determined by averaging the price for the original contract term with the prices for the renewal years was ambiguous and flawed. It determined that use of a table with six squares as the initial cost sheet was a mistake. The Department determined that the language and structure of the RBAFO could be read one way to say that the Department would use the same methodology to evaluate the pricing in the negotiation stage as had been used to evaluate the Initial Cost sheets in Phase 5, or could be read another way to mean that BAFO pricing would not be evaluated that way. It determined that the inclusion in the RBAFO of a table virtually identical to the one used as the initial cost sheet was a mistake. The Department determined that the language and the structure of the RBAFO could be read one way to require further consideration of such factors as the Statement of Qualifications and Technical Response in determining best value to the State, or could be read another way to require no further consideration of these factors. The Department prepared some spreadsheets demonstrating the varying results that would be obtained using “divide by six” and “divide by ten” and also considered a spreadsheet that had been prepared by Securus. The Department considered that its own Contract Manager had interpreted the Phase 5 instructions to mean “divide by six,” while the Department had actually intended the instructions to mean “divide by ten.” The Department had intended that the Negotiation Team give some weight to the renewal-year pricing, and had included the pricing table in the RBAFO for that reason, not simply to comply with statutory requirements regarding renewal pricing. The Department determined that the way the RBAFO was written and the inclusion of the chart required at least some consideration of ten-year pricing, and that vendors had therefore been misled when the Negotiation Team gave no consideration to the commission percentages for the renewal years. Specifically, based upon the Securus protest, the Department determined that the RBAFO language had been interpreted by Securus to require that the Phase 5 calculation of average commission percentage be carried over to evaluation of the pricing in the BAFOs, which Securus had concluded meant “divide by six.” The Department further determined that based upon the GTL protest, the RBAFO language had been interpreted by GTL to require the Department to consider the renewal years in pricing, as well as such things as the Statement of Qualifications and Technical Response in the BAFO stage. The Department determined that had “divide by six” been used in evaluating the BAFOs, Securus would have a computed percentage of 70 percent, higher than any other vendor. The Department concluded that the wording and structure of the ITN and RBAFO did not create a level playing field to evaluate replies because they were confusing and ambiguous and were not understood by everyone in the same way. Vendors naturally had structured their replies to maximize their chances of being awarded the contract based upon their understanding of how the replies would be evaluated. The Department concluded that vendor pricing might have been different but for the misleading language and structure of the ITN and RBAFO. The Department did not compute what the final award would have been had it applied the scoring procedures for the initial cost sheets set forth in section 6.1.5 to the cost elements of the BAFOs. The Department did not compute what the final award would have been had it applied the scoring procedures for the Statement of Qualifications and Technical Response set forth in section 6.1.3 to the BAFOs. Ms. Bailey testified that while she had originally approved the ITN, she was unaware of any problems, and that it was only later, after the protests to the Notice of Intended Award had been filed and she had reviewed the specifications again, that she had come to the conclusion that the ITN and RBAFO were flawed. Following the protests of the intended award by GTL and Securus, on July 23, 2013, the DOC posted to the Vendor Bid System a Notice of Revised Agency Decision stating the DOC?s intent to reject all replies and reissue the ITN. On August 5, 2013, EPSI, GTL, and Securus filed formal written protests challenging DOC?s intended decision to reject all replies. Securus subsequently withdrew its protest to DOC?s rejection of all replies. As the vendor initially notified that it would receive the contract, EPSI?s substantial interests were affected by the Department's subsequent decision to reject all replies. GTL alleged the contract had wrongly been awarded to EPSI and that it should have received the award, and its substantial interests were affected by the Department's subsequent decision to reject all replies. The Department did not act arbitrarily in its decision to reject all replies. The Department did not act illegally, dishonestly, or fraudulently in its decision to reject all replies. EPSI would likely be harmed in any re-solicitation of bids relative to its position in the first ITN, because potential competitors would have detailed information about EPSI?s earlier reply that was unavailable to them during the first ITN. An ITN requires a great deal of work by the Department and creates a big demand on Department resources. The decision to reject all replies was not undertaken lightly. The State of Florida would likely benefit in any new competitive solicitation7/ because all vendors would be aware of the replies that had been submitted earlier in response to the ITN, and bidders would likely try to improve upon those proposals to improve their chances of being awarded the contract.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Corrections issue a final order finding that the rejection of all replies submitted in response to ITN 12-DC-8396 was not illegal, arbitrary, dishonest, or fraudulent, and dismissing all four protests. DONE AND ENTERED this 1st day of November, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2013.
The Issue In an order dated January 29, 1992, the State of Florida, Commission on Ethics found probable cause that the Respondent, as a city commissioner of the City of Cottondale, violated Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with a business entity which was doing business with the city. The issue in this proceeding is whether the violation occurred and, if so, what penalty should be recommended.
Findings Of Fact Leonard Norsworthy served two two-year terms as a city commissioner for the City of Cottondale, a small community in the Florida panhandle. His tenure spanned from 1987 until July 1991. Mr. Norsworthy is sole proprietor of J. & L. Housepainting and Remodeling (J & L), a roofing and remodeling business. He has a State of Florida contractor's license. Sometime in 1990, the City of Cottondale, through its grants coordinator in Tallahassee, sought and obtained Community Development Block Grant (CDBG) funds for various needed public works. The project was advertised, and a bid was awarded to T & A Utilities Contractors, Inc. (T & A), a Lynn Haven, Florida, firm owned by Charles Williams. The total contracted amount of $244,282 included resurfacing two streets, a parking lot, a children's park, 8-inch water lines, and renovations to the city hall. Not all of the work was done immediately, as the city needed to get various permits. Due to changes in the scope of work, additional money became available for other projects, including renovating a public bathroom to make it accessible for handicapped persons. Some of the work was subcontracted by T & A to other firms. Charles Williams did not advertise for bids for the subcontracted work, but obtained proposals. He had obtained proposals from some Panama City firms for the bathroom and city hall renovations because he was not aware of firms closer to Cottondale. "Pete" Hilton was Cottondale's Public Works Director for eight years until he left in October 1992 for medical reasons. He told Charles Williams that he knew someone who could do the work for a good price, and shortly thereafter Leonard Norsworthy called Williams. Mr. Norsworthy's proposal was less than the prices quoted by the Panama City firms, and on June 5, 1991, T & A subcontracted with J & L for the renovation work for a total amount of $8,460. The sum was paid in three releases. The jobs performed by Mr. Norsworthy under the subcontract included redoing the bathroom and a handicap ramp entrance, installing rain gutters, removing a wall and plastering and finishing a wall. At no charge for his labor, Mr. Norsworthy also painted the building. Leonard Norsworthy knew about the city's revitalization contract with T & A because he was a city commissioner at the time. While the city was a party to the contract, the specifications and the background work were handled by the city engineer, who recommended the award to T & A. Leonard Norsworthy admits that he did the work and says, "You live and learn." He concedes that there are others in the area who could have done the work, but believes he gave a good price for the job. He says that work is scarce in the area and you have to take it where you find it. He knew that the law prohibited doing business with one's own agency, but he had no idea that the prohibition extended to subcontracts as well.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Commission enter its final order and public report finding that Leonard Norsworthy violated Section 112.313(7), Florida Statutes, and recommending a penalty of $300.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of April 1993. MARY CLARK 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 12th day of April 1993. COPIES FURNISHED: Craig Willis, Esquire Michael Ingraham, Esquire Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399 Leonard Norsworthy Post Office Box 299 Cottondale, Florida 32431 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue The issue in this case is whether Rule 25-4.113(1)(f), Florida Administrative Code, is a valid exercise of delegated legislative authority.
Findings Of Fact History of the Rule The Commission first adopted a rule setting out its policy on disconnection and refusal of service in August of 1955. In re: Adoption of rules and regulations governing telephone companies, Order No. 2195 (June 24, 1955) (O.R. E). (Prehearing stipulation p. 10) Rule 20 provided that: “Service may be denied to any subscriber or applicant for failure to comply with these rules, the telephone company’s tariff, municipal ordinances or state laws.” Id. Effective December 1, 1968, the Commission revised its disconnect rule to specifically provide that a company could disconnect telephone service for nonpayment. In re: Proposed revision of rules and regulations governing telephone companies, Order No. 4439 (October 17, 1968) (O.R. F). (Prehearing stipulation p. 10) Since adoption of Rule 310-4.66(1) in 1968, the Commission’s disconnect rule has been revised seven times: In re: Proposed revision of Chapter 2-4 relating to telephone companies and radio common carriers, Order No. 7132 (March 1, 1976) (O.R. G); In re: Amendment of Rules 25-4.113 and 25-10.74 - Relating to Refusal or Discontinuance of Service, Order No. 13787, 84 F.P.S.C. 10:208 (1984) (O.R. J); In re: Amendment of Rules 25-4.109 - Customer Deposits, 25-4.110 - Customer Billing, and 25-4.113 - Refusal or Discontinuance of Service, Order No. 16727, 86 F.P.S.C. 10:157 (1986) (O.R. K); In re: Amendment of Rule 25-4.113 - F.A.C., pertaining to Refusal or Discontinuance of Service by Company, Order No. 23721, 90 F.P.S.C. 11:75 (1990) (O.R. M); In re: Adoption of Rule 25-4.160, F.A.C., Operation of Telecommunications Relay Service and Amendment of Rules 25-4.113, F.A.C., Refusal or Discontinuance of Service by Company; 25- 4.150, F.A.C., The Administrator; 25-24.475, F.A.C., Company Operations; Rules Incorporated, Order No. PSC-92-0950-FOF-TP, 92 F.P.S.C. 9:208 (1992) (O.R. N); In re: Proposed Amendment of Rule 25-4.113, F.A.C., Prohibiting Refusal or Discontinuance of Service for Nonpayment of a Dishonored Check Service Charge Imposed by the Utility, Order No. PSC-92-1483-FOF-PU, 92 F.P.S.C. 12:543 (1992) (O.R. P); In re: Proposed Amendment to Rule 25- 4.113 F.A.C., Refusal or Discontinuance of Service by Company, Order No. PSC-95-0028-FOF-TL, 95 F.P.S.C. 1:50 (1995) (O.R. T). (Prehearing stipulation p.11) By Order No. 12765, issued December 9, 1983, the Commission expanded its disconnect policy to allow local exchange companies (LECs) that bill for interexchange carriers (IXCs) to disconnect local service for nonpayment of the long distance portion of the bill. In re: Intrastate telephone access charges for toll use of local exchange services, Order No. 12765, 83 F.P.S.C. 12:100, 125 (1983) (O.R. H). (Tr 118-119) The Commission believed that “by granting LECs disconnect authority bad debts for toll charges will be less than without this authority.” Order No. 12765 at 12:125. (Tr 120) In addition, the Commission found that if the IXCs encounter excessive bad debt expense, the IXCs may increase their toll charges to recoup expenses, which would cause Florida subscribers to pay higher toll rates. Order No. 12765 at 12:125. (Tr 120) The disconnect authority for nonpayment for IXC toll charges was limited only to LECs who performed billing and collection services for IXCs. Order No. 12765 at 12:125. (Tr 120) By Order No. 13429, issued June 18, 1984, the Commission ordered Florida’s LECs to file a uniform tariff that specified their billing and collection procedures and rates when billing for IXCs. In re: Intrastate telephone access charges for Toll Use of Local Exchange Services, Order No. 13429, 84 F.P.S.C. 6:221 (1984) (O.R. I). The LECs complied with this requirement. (Tr 126-127; Ex 30) Since the Commission first adopted its disconnect policy, the Legislature has never enacted legislation to invalidate the Commission’s policy. (Tr 155) Nor has the Joint Administrative Procedures Committee ever objected to any version of the Commission’s disconnect rule. (Tr 155-156) The Current Version of Rule 25-4.113(1)(f) Today, Rule 25-4.113(1) provides: the company may refuse or discontinue telephone service under the following conditions provided that, unless otherwise stated, the customer shall be given notice and allowed a reasonable time to comply with any rule or remedy any deficiency: * * * (f) For nonpayment of bills for telephone service, including the telecommunications access system surcharge referred to in Rule 25-4.160(3), provided that suspension or termination of service shall not be made without 5 working days’ written notice to the customer, except in extreme cases. The written notice shall be separate and apart from the regular monthly bill for service. A company shall not, however, refuse or discontinue service for nonpayment of a dishonored check service charge imposed by the company. No company shall discontinue service to any customer for the initial nonpayment of the current bill on a day the company’s business office is closed or on a day preceding a day the business office is closed. * * * (O.R. CC) LECs that bill for IXCs can still disconnect for nonpayment of toll calls. (Tr 122, 158) No company, however, can disconnect for nonpayment of unregulated services, such as customer premises services like inside wire maintenance and information services like voice mail. Rule 25-4.113(4)(e), Florida Administrative Code. (Tr 124-125, 130) In addition, the billing and collection tariffs are not uniform today because LECs have individually lowered many of the rates they charge for billing and collection services. (Tr 128-129; Ex 31). Two Separate, Pertinent Service Contracts It is important for understanding the Commission’s rationale for its disconnect rule to recognize that two separate, pertinent service contracts are involved. (Tr 151-152) One is the billing and collection services contract between the LEC and the IXC. (Tr 126, 152) The other is the contract for service between the company providing telephone service and the subscriber. (Tr 152) As discussed above, LECs who perform billing and collection services for IXCs have a tariff on file with the Commission that sets out the terms, conditions, and rates upon which the LECs offer this service. (Tr 126 -129; Ex 31) Pertaining to the contract for telephone service, the Commission has specified by rule the terms and conditions upon which a company may refuse or disconnect service. (Tr 137) Each company has a tariff on file with the Commission that sets out the terms and conditions upon which it will refuse or disconnect service. (Tr 137; Ex 32) The Commission’s Dispute Policy If service is going to be disconnected for any authorized reason, separate notice must first be provided to the customer. Rule 25-4.113, Florida Administrative Code; In re: Complaint of Aristides Day Against BellSouth Telecommunications, Inc. d/b/a Southern Bell Telephone and Telegraph Company regarding interruption of service, Order No. PSC-94-0716-FOF-TL, 94 F.P.S.C. 6:157 (1994) (O.R. R). If a customer has a pending complaint concerning disputed charges, Rule 25-22.032(10), Florida Administrative Code, prohibits disconnection for nonpayment of the disputed charges. (Tr 129) (O.R. FF) The customer, however, is expected to pay the charges not in dispute. In re: Complaint of Ron White against AT&T Communications and GTE Florida Incorporated regarding responsibility for disputed calling card charges, Order No. PSC-92-1321-FOF-TP, 92 F.P.S.C. 11:274 (1992) (O.R. O); In re: Complaint of Leon Plaskett against BellSouth Telecommunications, Inc. d/b/a Southern Bell Telephone and Telegraph Company regarding unpaid long distance bills, Order No. PSC-94-0722-FOF-TL, 94 F.P.S.C. 6:177 (1994) (O.R. S). When a LEC contracts with an IXC to perform an IXC’s billing and collection functions, the Commission acts to resolve disputes over both intra and interstate toll calls. In re: Complaint against AT&T Communications of the Southern States, Inc. and United Telephone Company of Florida by Health Management Systems, Inc., regarding interLATA PIC slamming, Order No. PSC- 97-0203-FOF-TP, 97- F.P.S.C. 2:477, 482 (1997) (O.R. AA). (Tr 55) Rationale for Rule 25-4.113(1)(f) The reasons the Commission gave in 1983 to allow companies to disconnect for nonpayment of toll are still viable today. (Tr 122, 158). If LECs could not disconnect for unpaid IXC bills, the IXCs uncollectible expenses would probably increase. (Tr 122-123, 138, 158) Moreover, if local service was not disconnected, a consumer could run up bad debts with different IXCs without ever paying for a toll call. (Tr 124, 135) This bad debt would have to be passed on to Florida consumers through increased rates to cover the uncollectible expenses. (Tr 122-123, 135, 158) Good paying customers should not have to pay for the fraud created by those who switch from carrier to carrier leaving behind unpaid toll charges. (Tr 124, 135) Additional reasons for the policy also exist because of the 1995 changes to Chapter 364, Florida Statutes (1995). If the Commission prohibited LECs from disconnecting local service for nonpayment of toll, LECs would be economically disadvantaged and alternative local exchange companies (ALECs) would be advantaged. (Tr 123, 147-148) This is because LECs could not disconnect local service for nonpayment of toll, but the ALECs could continue to disconnect due to the Commission’s limited jurisdiction and regulation over ALECs. (Tr 123, 147-148) Moreover, deposit requirements are affected by the disconnect policy. If LECs could not disconnect for nonpayment, deposit requirements would probably increase. (Tr 123-124, 195) Large deposits are a barrier to access to telecommunications services and would have an adverse effect on subscribership. (Tr 124) Finally, the Rule puts costs on the cost causer. (Tr 158) The Rule’s Impact on Universal Service The obligation to provide universal service is the obligation to offer access to basic telephone service at reasonable and affordable rates. Section 364.025(1), Florida Statutes (1995). (Tr 139, 167; Ex 29) As long as a customer pays the nondisputed portion of his bill, service will not be disconnected. (Tr 143) Therefore, Rule 25-4.113(1)(f) does not preclude a subscriber from obtaining basic local service, as long as he pays the undisputed portion of his telephone bill. (Tr 142-143) Basic service includes access to all locally available IXCs. Section 364.02(2), Florida Statutes (1995). (Tr 133-134) Any consumer who pays his bill can have access to any available carrier in the market where he resides. (Tr 133-134, 149) The Rule’s Impact on Competition Today the toll market is reasonably competitive. (Tr 144) In 1995, the Legislature authorized competition in the local market. However, very few providers are actually providing basic local service; therefore, market conditions have not substantially changed since Rule 25-4.113 was last amended. (Tr 144-145) The basic local market is still largely a monopoly despite the legislative changes at the state and federal level. (Tr 145; Ex 28) The Commission is charged with regulating telecommunications companies during the transition from monopoly to competitive services. Section 364.01(3), Florida Statutes (1995). (Tr 156, 197-198) To a certain extent, all rules and regulations restrict competition. (Tr 147) In this case, the benefits of the rule outweigh any negative impact the rule may have on competition, because the rule keeps uncollectible expenses lower than they would otherwise be and it also puts costs on the cost causer.
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.
