Findings Of Fact The Respondent, Michael L. Illes, holds law enforcement certificate number 02-24636. On or about December 1981, while on duty, the Respondent responded to a call from Deborah Raybin regarding a malfunctioning alarm system at her home in Broward County, Florida. At said time, the Respondent was employed by the Broward County Sheriff's Department in the capacity of a deputy sheriff. The Respondent went to the Raybin home in the routine course of his duties. The Respondent admitted having been to the Raybin home after December 1981 in response to further false alarms and on other occasions not related to his duties. However, no competent evidence was introduced that the Respondent harassed Ms. Raybin by going to her home while either on duty or off duty. No evidence was received in support of the allegations that the Respondent, while on duty, went to the Raybin home and offered pornographic movies to Ms. Raybin. The only competent evidence presented was the credible testimony of the Respondent that while at the Raybin house on official business on or about June 19, 1982, he was asked by Ms. Raybin for a video tape. Respondent admitted that on the night of June 23, 1982, he arrived at the Raybin house with said video tape. At that time, prior to his ringing Ms. Raybin's doorbell, Respondent was stopped by his shift supervisor and another officer of the Broward County Sheriff's Department. They were there in response to a telephone call from a person whose identity was not established by competent evidence. The Respondent was out of his assigned patrol zone and had not checked out of his patrol car (unit). While proceeding to the Sheriff's Department prior to the beginning of his shift, Respondent made a traffic arrest of a driver for driving while under the influence. Respondent was involved in booking the arrested driver until after 12:00 midnight on the evening of June 23, 1982. Thereafter, he went to the Raybin house. On the night shift, the policy regarding leaving an assigned patrol area was flexible, particularly during those periods in which on-duty personnel were on break or eating. While on break, officers were not required to be in their patrol zones. Respondent would have been entitled to a break at the time he was at the Raybin house. Conflicting testimony was received concerning whether officers were required to check out of their units while on break. The shift supervisor stated that officers were required to check out when on break or at meals. Respondent stated that the night shift officers did not customarily check out on breaks because criminals monitored their radio reports and committed crimes when they knew that the officers were on break or at meals. Neither side could substantiate their testimony with any written policy. No evidence was received regarding when officers would report that they were on break, i.e., when they left their assigned zone, when they arrived at a break location, or when they left their units. Based upon the testimony received and the fact that officers wore portable radio units, it is found that officers were required to check out if they intended to be away from their units for more than a few minutes. When stopped by his shift supervisor, the Respondent was wearing his police radio. Respondent's uncontroverted and credible testimony was that he had stopped at the Raybin house on his way to his break location to drop off the tape Ms. Raybin had requested and had not intended to remain at the Raybin house longer than was necessary to drop off said tape.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint filed against the Respondent, Michael L. Illes, be dismissed. DONE and RECOMMENDED this 22nd day of August, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1983. COPIES FURNISHED: William H. Ravenell, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301 Charles T. Whitelock, Esquire 1244 SE Third Avenue Fort Lauderdale, Florida 33316 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission 408 North Adams Street Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been subjected to discrimination based upon her race by the disciplinary actions imposed upon her by the Respondent, her employer, because of the alleged factual events depicted in the Charge of Discrimination and Petition for Relief.
Findings Of Fact Childhood Development Service, Inc. (CDS), is an agency that acts as a centralized administrator of programs for low- income children and families in a five (5) county area in central Florida. It provides educational services with its pre-kindergarten and Head Start programs and provides social services and referrals to needy program member-families. The Petitioner, Marilyn J. McNeely, is currently employed by CDS. Ms. McNeely is contesting several employment actions taken against her by the above-named employer, including unsatisfactory evaluations and suspensions. Specifically she filed a Charge of Discrimination with the Florida Commission on Human Relations (Commission), on July 7, 1995. She charged that the following three (3) actions had been taken against her and constituted racial discrimination because of her race, which is Black. Those actions were: On June 22, 1995, I was given an unsatisfactory evaluation by Sandra Rios. There are seven (7) Family Service Specialists: Two White, one Hispanic and four Blacks. The two Whites and the Hispanic received satisfactory evaluations. One Black (17 years service) initially received unsatisfactory, but had it upgraded after consultation. Three Blacks received unsatisfactory with no changes granted. On April 11, 1995, I was suspended on hearsay for removing records. My belongings were not checked. In fact, the files were never removed. On September 30, 1994, I was suspended for misuse of position. This came about because I was assisting in community affairs, and had nothing to do with my job. Twelve "Disciplinary Notices" had been given to Ms. McNeely since 1991, including four (4) suspensions lasting from one to ten days, and four (4) "Work Plans" which in essence consist of a written instructions and procedures for employee performance improvement. The Petitioner has received more than ten (10) formal evaluations, with scores ranging from a high of 7 on a scale of 1 to 10, to a low of 23 on a scale of 0 to 60, with a satisfactory rating on that scale being a rating of 30. The Petitioner received an overall rating of "satisfactory" on her most recent evaluation. On April 18, 1991, she was warned for using her position to obtain unauthorized, confidential client information. In the course of that warning she was informed that any further misuse of her position would result in a ten (10) day suspension or termination. She appealed this disciplinary action and it was affirmed by the Administrative Director at that time, Mr. Henry Whittier. Ms. Linda Foy became the CDS Executive Director shortly before learning, on September 23, 1994, that the Petitioner had solicited money from a physician in Ocala, Florida, on behalf of a local family who were facing eviction from their residence. In the course of this solicitation of funds from this private individual the Petitioner used her CDS position, name, and the CDS telephone number in the solicitation effort. The family for whom the Petitioner solicited the funds was not enrolled in a CDS program at that time or otherwise associated with CDS. In order to be eligible for social services offered by CDS, including referrals to other agencies that help needy families, a family must be registered with a CDS program. Ms. Foy investigated the Petitioner's actions in this incident and determined that they were unauthorized and inappropriate. It is not within the job requirements or authority of a CDS employee to request a cash donation for a family, even if that family was a CDS client family. If a CDS client family needed help with housing, CDS staff would confer with other agencies which might provide funds for housing or actually assist with providing housing. In the course of the solicitation effort the Petitioner left the physician and his office staff with the impression that the Petitioner was soliciting the funds for and on behalf of CDS. She informed them in the telephone call that she was calling from CDS and left her CDS office telephone number as a return call number. Ms. Foy, in conducting her investigation of the matter, obtained written statements from the doctor and his staff concerning the character and nature of the telephone solicitation. Ms. Thelma Griffith is the Head Start Director. Ms. Foy discussed this matter with Ms. Griffith in the course of her investigation and learned, during the course of her investigation, of Ms. McNeely's previous disciplinary action for misuse of position. Misuse of position is classified as a Group III offense by CDS policy. Disciplinary action for a second Group III offense ranges from a ten (10) day suspension without pay to termination of employment. Based upon the information she gathered in her investigation, Ms. Foy ultimately suspended the Petitioner for ten (10) days without pay. Ms. Griffith concurred in that suspension as being appropriate for the offense committed. At the time she made the decision to suspend Ms. McNeely, Ms. Foy was unaware that she was Black and only learned that she was Black when she met with Ms. McNeely to actually discuss the suspension. Ms. Foy did not take this disciplinary action against Ms. McNeely because Ms. McNeely is Black. In April 1995, the Petitioner's supervisor, Ms. Sandra Rios, told her supervisor Ms. Griffith, the Head Start Director, that certain confidential files assigned to Ms. McNeely were missing. The files, called "master files," contained confidential information regarding each child, such as abuse and health information about the children in the CDS programs. Head Start policy and regulations and CDS policies require that such master files be maintained in a strictly confidential manner and remain at the CDS offices at all times. Ms. Griffith directed Ms. Rios to "double-check" and ascertain that the files were missing. This was after regular business hours and Ms. McNeely had already left the building. After Ms. Rios again searched the location of the files she again informed Ms. Griffith that the files were indeed missing. Ms. Griffith instructed Ms. Rios to leave the Petitioner a note so that the Petitioner would know that both Ms. Rios and Ms. Griffith were aware that files were missing. Because the files were missing when they should have been locked up in the file cabinet the Petitioner was suspended for five (5) days by action of Ms. Rios. After consulting with Ms. Rios, Ms. Griffith concurred that the five (5) day suspension was appropriate for the offense of unauthorized removal of the confidential files. Ms. Griffith was aware that Ms. McNeely had been working on those files to bring them up to date. Ms. Griffith did not direct Ms. McNeely to take home any files and has never authorized an employee to take the confidential master files home to complete unfinished work on them. Master files are not the same as "classroom files," which can be taken from the CDS offices to a classroom site where a particular child is located. Ms. Griffith was unaware of any other instance where an employee had removed master files from CDS offices at the time the Petitioner was disciplined for doing so. Ms. Griffith is unaware of any employee who has ever since removed such confidential files from CDS offices. If she were so aware she would have promptly initiated appropriate disciplinary action. Jennifer Lund is the Human Resources Manager for CDS, and is also unaware of any employee who has ever removed master files from the CDS offices. It is her policy that such a violation be promptly brought to the appropriate supervisor's attention, with her recommendation for disciplinary action consistent with past practice. The Petitioner received a score of 25.5 out of a possible 60 on her May 16, 1995, annual evaluation. Ms. Rios, Ms. McNeely's supervisor, gave her this evaluation. After discussing the basis of the evaluation with Ms. Rios and reviewing documentation from events occurring that year, Ms. Griffith was satisfied that the evaluation was appropriate and accurate and she approved it. The Respondent's "EEO-1" (report) for 1994, reflects that the percentage of Black employees employed by the Respondent entity is almost three (3) times the percentage of Black employees in Marion County, Florida generally. Further 56.4 percent of CDS's work force is White, where as 87.2 percent of the general Marion County work force is White. Forty-Three and sixth tenths of a percent of the CDS work force is non-White according to this report, one of whom is Ms. Griffith.
The Issue The issue in this case is whether the decision of the City of Clearwater Community Development Board (the "Board") to deny the application of Petitioner for flexible development approval to erect a telecommunications tower should be upheld pursuant to the City of Clearwater Land Development Code (the "Code"). (All section references are to the Code adopted on January 21, 1999, unless otherwise stated).
Findings Of Fact Petitioner is a Florida corporation engaged in the business of building telecommunication towers for co-location of antennae to send and receive cellular telephone signals. Proper location of telecommunication towers is essential to efficient and effective cellular telephone communications. There must be an available tower to pick up the signal as a user moves from a distant tower to the available tower. Without an available tower, the user would lose signal. It is undisputed that three telephone carriers, identified in the record as GTE, Nextel, and PrimeCo, need an available tower in the vicinity of Clearwater High School (the "high school"). Another telephone carrier, identified in the record as AT&T, shares an existing tower at the high school with the Pinellas County School Board (the "school board"). No reasonable use can be made by GTE, Nextel, or PrimeCo of the existing tower at the high school without modification to the tower. The existing tower is not adequate in height and structural capacity to meet the requirements of GTE, Nextel, and PrimeCo. The school board and AT&T repeatedly rejected efforts by GTE, Nextel, and Petitioner to discuss the possibilities of modification of the existing tower to accommodate co-location. In 1996, AT&T advised GTE that the school board was not interested in co-location activity. The school board repeated that position in a separate meeting with GTE. GTE and PrimeCo searched for over two years for an alternative structure, tower, or location that would provide reasonable use for their technical requirements. In 1997, GTE requested a permit from Respondent to build a new tower approximately two blocks from the existing tower at the high school. Respondent contacted the superintendent of the school board to encourage co-location. Respondent did not issue a permit to GTE for a new tower. Early in 1998, GTE and PrimeCo approached Petitioner to locate a site for construction of a new tower in the vicinity of the high school. Over the next eight months, Petitioner searched for a suitable site for building a new tower. Petitioner found a site surrounded by commercial property and bordered by mature trees which are 20 to 40 feet tall. On October 13, 1998, Petitioner optioned the portion of the property on which Petitioner intended to build the tower, and Petitioner now owns the property. On May 17, 1999, Petitioner filed its application for site plan approval. The application proposed the construction of a 160-foot wireless communications tower for co-location by GTE, Nextel, and PrimeCo (the "proposed tower"). Petitioner sent a notice of the proposed tower to Mr. Kevin Becker at AT&T. The staff for the Board conducted a technical review of the application. The staff recommended approval of the application subject to certain conditions. Petitioner complied with each of those conditions. The staff also recommended approval by the Development Review Committee (the "DRC"). The DRC must review each application before it is submitted to the Board. The staff report to the DRC stated that the existing tower at the high school was the only other tower in the area and was in poor condition. The report found that the tower cannot structurally hold more weight and cannot accept more antennae. Before the Board reviewed the application, Nextel again contacted Mr. Becker at AT&T to discuss modification of the existing tower for co-location of Nextel's antenna. Mr. Becker responded for AT&T with a terse e-mail that stated, "This is the THIRD TIME I have told Nextel that . . . tower is not available for anyone." The Board conducted five hearings to review the application by Petitioner. The hearings spanned six months. The Board conducted the first hearing on July 20, 1999, a second hearing on October 5, 1999, a third hearing on November 16, 1999, a fourth hearing on December 14, 1999, and the last hearing on January 25, 2000. The Board did not follow the staff recommendation at the first hearing. After hearing testimony and receiving other evidence, the Board continued the first hearing, in relevant part, to "allow the City to do whatever it may want to do in terms of addressing that issue." The Board directed Petitioner to contact the school board concerning the condition of the tower and directed the City Planning Director to also contact the school board. After the July hearing, Petitioner contacted the school board concerning the existing tower. Neither the school board nor AT&T had any plans for modification of the existing tower at the high school. The City Planner conducted an independent inquiry and determined that there is not much of a desire on the part of the school board or AT&T to "create other opportunities at this time." Petitioner and the City Planner reported their findings to the Board at the second hearing conducted on October 5, 1999. No one from the school board or AT&T appeared at the hearing. Petitioner presented an engineering study concerning the inadequacy of the existing tower at the high school. One Board member asked whether a new tower could be constructed at the high school to replace the existing tower. Petitioner and the Board's attorney stated that the Code encourages the use of existing towers rather than new towers. The Board continued the hearing over objection from Petitioner so that City representatives could contact school board representatives at a higher level and also allow consideration of a new tower at the high school. After the October hearing, the City Manager contacted the superintendent of schools to discuss the tower at the high school. On November 10, 1999, the superintendent stated that he would meet with city representatives only if AT&T representatives were also present. The superintendent eventually met with the City Manager without the presence of an AT&T representative. The superintendent indicated a willingness to consider modification of the existing tower but no agreement was reached due to the absence of AT&T participation. Another Board member prevailed on the superintendent four times to make a decision without success. The Board conducted the third hearing on November 16, 1999. Representatives from GTE, Nextel, and PrimeCo testified at the hearing. Modification to the existing tower at the high school would accommodate one of the three companies but not the other two. The proposed tower is the only tower that would accommodate all three companies. The proposed tower is necessary to provide effective and efficient service to the customers of GTE, Nextel, and PrimeCo. GTE has been at a competitive disadvantage since 1996. The Board voted to approve Petitioner's application. The Board conducted a fourth hearing on December 14, 1999. At that hearing, the Board voted to reconsider Petitioner's application on the ground that the Board had received timely requests for reconsideration from an interested party. The Board determined that Petitioner had misrepresented the position of the school board and AT&T concerning their willingness to modify the existing tower at the high school. The catalyst for the Board's reconsideration was a letter from Mr. Becker, dated September 16, 1999, stating that AT&T was willing to consider co-location. Mr. Becker sent a copy of the letter to the Board the day after the Board approved Petitioner's application. The letter stated that AT&T was very interested in considering co-location with other carriers but that the existing tower at the high school was inadequate for the purpose. The letter represented that AT&T would be willing to discuss replacement of the tower with other carriers. Petitioner had never seen the letter prior to the Board's approval and had no knowledge of the change in position by AT&T. The Board conducted a final hearing of Petitioner's application on January 25, 2000. The Board considered the letter from Mr. Becker and a letter from legal counsel for AT&T. Both letters stated that the existing tower does not have the structural capacity to add additional wireless antennae. A staff member for the Board again concluded that the term "existing" meant a tower in existence at that time. Respondent's expert confirmed that the existing tower, without reconstruction, was not a reasonable alternative to the tower proposed by Petitioner. Mr. Becker testified that AT&T was not proposing to modify the existing tower to accommodate the proposed antennae needed by GTE, Nextel, and PrimeCo and that the existing tower was beyond reinforcement to accommodate additional loading. The Board denied Petitioner's application. The Board found that the existing tower "can be modified to accommodate carriers and thus reasonable use may be made of the existing tower." The evidence does not support a finding that the existing tower can be modified to accommodate GTE, Nextel, and PrimeCo. To do so, the existing tower would need to be replaced rather than modified. Reasonable use of the existing tower cannot be accomplished by modification. Replacement of the existing tower with a new tower would not provide reasonable use of the "existing" tower. As a threshold matter, an interference study would be necessary before a determination could be made that the replacement tower would accommodate all of the carriers. PrimeCo cannot commit to the replacement tower until the interference study is completed. In addition, there are other problems. AT&T proposes to place seven carriers on the replacement tower. That configuration would not provide adequate coverage to each carrier. A second tower would be required in the "short term." AT&T's proposed location of each antenna on the replacement tower would reduce the amount of coverage that is available to each carrier on the tower proposed by Petitioner. Petitioner's proposal locates GTE at 155 feet to accommodate GTE's technical needs. AT&T would locate GTE no higher than 120 feet thereby substantially reducing the area served by GTE. If GTE is located at 120 feet, GTE would need to construct another tower a mile away in order to obtain the coverage achieved at 155 feet in Petitioner's proposal. The replacement tower proposed by AT&T imposes additional limitations on AT&T's competitors. It requires GTE to reduce the size of its antenna to four feet from the eight-foot antenna in Petitioner's application. AT&T imposes a similar reduction on Nextel and requires Nextel to agree to a "compromising antenna" to co-locate on the replacement tower. The continuances ordered by the Board delayed construction of the tower proposed by Petitioner. If Petitioner had received approval of the application in July 1999, Petitioner could have had its proposed tower in service by January 2000. The delay has placed GTE, Nextel, and PrimeCo at a competitive disadvantage. As of the date of the administrative hearing, AT&T had not begun construction of the replacement tower. The school board has the right to approve any co-location agreements for the replacement tower proposed by AT&T. AT&T has not submitted any co-location agreements for school board approval. Board policy considers the timeliness of a replacement tower as one factor in determining whether the replacement tower is "feasible" or a "reasonable alternative" within the meaning of Section 3-2.001D.1. A replacement tower that would require more than one year to construct is neither feasible nor a reasonable alternative. Neither the Board nor its staff enunciates any intelligible standards for adopting a one-year time limit or for applying a one-year time limit, including any standard for identifying the starting point of the one-year limit. For example, Petitioner first applied for approval on May 17, 1999. The Board began the one-year period for determining feasibility of the AT&T replacement tower on September 10, 1999. Respondent failed to explicate why it started the one-year period on September 10, 1999, rather than the date of application. The limitations imposed by AT&T for co-location on the replacement tower and the continuances imposed by the Board, individually and severally, comprise a "legitimate limiting factor" within the meaning of Section 3-2001D.1.g. The limitations and continuances have the effect of placing GTE, Nextel, and PrimeCo at a competitive disadvantage and also have the effect of discriminating against the three companies in violation of Section 3-2001A.
The Issue Whether respondent should refund sales tax petitioners paid on account of their purchase of a manufactured home?
Findings Of Fact On September 12, 1984, petitioners made a $160 down payment on a 75 x 150 foot lot in High Ridge Estates in Bay bounty by a check drawn in favor of Ed Franklin. They wanted the lot in order to put a manufactured home on it. After acquiescing to a request by personnel of the Bay County building department that they pay $21.00 for a mobile home permit, the Baileys improved the property in anticipation of placing a manufactured home on it. They put in a septic tank and poured a concrete pad. On November 21, 1984, the Baileys signed a form "FHMA SALES CONTRACT" as buyers. Petitioners' Exhibit No. 2. Jack Lee signed as seller on behalf of "DD&L Joint Venture." Id. Petitioners gave Lee a down payment of $13,400; DD&L undertook to procure from Fleetwood Homes of Georgia, Inc., a manufactured home to be placed on the High Ridge Estates lot. The form contract, which purported to obligate the Baileys for $53,000, describes the lot, but makes no mention of the manufactured home. In December of 1984, the manufactured home arrived at High Ridge Estates, borne by temporary axles and wheels, which were unbolted after its arrival, and left with the truck that had brought it. Statewide of Florida, Inc., placed it on its new foundation. With an exterior of wood siding and an asphalt-shingled roof, the 25.7 by 54 foot structure met VA and FHA materials requirements for standard housing. Carpet was laid over plywood subflooring. Wall joists stand 24 inches apart. The Baileys added a carport, a driveway, three decks and a separate storage shed. On March 13, 1985, Mr. and Mrs. Bailey borrowed money from Peoples First Financial Savings and Loan Association of Panama City (Peoples) to pay the balances they owed for the lot and home. Of the loan proceeds, $6,100.00 went to "C. Ed Franklin and wife, Frances P. Franklin," Hearing Officer's Exhibit No. 1, to pay for the lot on which the manufactured home stood; and $23,328.80 went to "ITT Comm. Finance." Id. To secure repayment of its loan to the Baileys, Peoples took a mortgage from the Baileys encumbering the lot and the manufactured home affixed to it. Petitioners' Exhibit No. 1. Apparently the payment to "ITT Comm. Finance" retired indebtedness the Baileys incurred in acquiring their 1985 Fleetwood Chadwick 3523D. Mrs. Bailey executed a retail buyer's order for their manufactured home in December of 1986, although the form, which showed Best Home Center, Inc., as the "DEALER," was dated March 22, 1985. Hearing Officer's Exhibit No. 2. The form reflects a total price for the manufactured home of $29,045.87, the sum on which sales tax was computed at $1,452.53. The Baileys paid tax in this amount to Best Home Center, Inc., "upon the sales (sic) of tangible personal property." Hearing Officer's Exhibit No. 2. Best Home Center, Inc., forwarded the taxes they collected from the Baileys, along with other taxes collected in March of 1985, to the Florida Department of Revenue. Hearing Officer's Exhibit No. 2. At the time the Baileys purchased the manufactured home it had no license tag. It never had a license tag and, at the time they purchased it, had never been assessed as real property. Best Home Center, Inc., made a written assignment to the Baileys of its rights, if any, to recover the sales tax the Baileys paid.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny petitioners' application for refund. DONE and ENTERED this 5th day of October, 1987, at Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1987. APPENDIX The second sentence of respondent's proposed finding of fact No. 1 and respondent's proposed findings of fact Nos. 3, 4, 6, 8, 9 and 10 have been adopted, in substance, insofar as material. With respect to the first sentence of respondent's proposed finding of fact No. 1, it is not entirely clear who sold the Baileys the manufactured home. The documentation reflected a sale by Best Home Center, Inc., for $29,045. With respect to respondent's proposed finding of fact No. 2, Ed Franklin and his wife conveyed the lot. The down payment was $160 and a $6,100 balance was paid in March. With respect to respondent's proposed finding of fact No. 5, the Peoples Mortgage originated in March, with indebtedness secured by lot and home. With respect to respondent's proposed finding of fact No. 7, the Bay County Building Department required them to purchase a permit on September 20, 1984. COPIES FURNISHED: The Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0305 Charles Stutts, Esquire General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0305 Mr. and Mrs. Bailey 22012 High Ridge Drive Lot 24 Panama City Beach, Florida 32407 D. Alan Burns, Esquire Assistant Attorney General Department of Legal Affairs Tax Section, Capitol Building Tallahassee, Florida 32399-1050
Findings Of Fact The Respondent, Donna M. Clark, is a licensed real estate salesman, holding license number SL 0164246. In 1972, the Respondent acquired title to a mobile home and lot in Casselberry, Florida, as trustee for her two minor sons, by warranty deed. She did not receive a bill of sale or a certificate of title to the mobile home separately, but took title to both the lot and the mobile home via the deed. At no time thereafter, to the time of the transaction which is the subject of this proceeding, did the Respondent ever acquire either a bill of sale or certificate of title to the mobile home. The mobile home was attached to the real property when the Respondent took title. On May 10, 1979, while continuing to act as trustee for her children, the Respondent agreed to sell this lot in Casselberry, with the mobile home still attached to it, for $12,500. The mobile home was described as a 1964 Liberty mobile home with central heat and air conditioning, and the total price included a range, refrigerator, and furnishings. The contract between the Respondent and the purchaser required that the title to the lot, the mobile home, and the furnishings be transferred by warranty deed. The Respondent represented that the entire property was free and clear of all encumbrances. Title was to be transferred subject to a purchase money mortgage to the Respondent in the amount of $10,000. The transaction closed in July of 1979. Subsequently, the purchaser of the lot and mobile home sought to take out a second mortgage thereon, and acquired information leading him to believe that there was an unsatisfied lien still encumbering the property. Nevertheless, the second mortgage was placed by the lender. The Complaint alleges that this lien is in the amount of $4,000 and is payable to the Florida Hospital Credit Union. However, the only lien held by the Florida Hospital Credit Union that encumbered the subject property was satisfied on March 17, 1975. Another encumbrance that existed at the time the Respondent contracted to sell the mobile home and lot was a mortgage which had been taken out in 1972, but a satisfaction of this mortgage was recorded in July of 1979. The evidence presented supports a finding that the subject property was transferred to the purchaser free and clear of all encumbrances. The Complaint further alleges that the Respondent failed to deliver a motor vehicle title certificate to the purchaser, notwithstanding that the purchaser made a demand for delivery of same. The purchaser remembers asking the Respondent for a bill of sale to the mobile home prior to the execution of the contract to purchase, but he did not ask for a title certificate. The parties signed the contract which did not provide for delivery of a title certificate, but required that the property be conveyed by warranty deed. Nothing was said at the closing about a certificate of title to the mobile home. Moreover, the mobile home sits on blocks on the lot. According to the title search made by the title company at the time the subject property closed, the mobile home was listed as realty on the tax records of Seminole County, so that the lot and the mobile home were taxed together. The land valuation for tax purposes was $3,690 and the mobile home was valued at $1,480. One tax bill was submitted for both, with these valuations shown thereon. At the closing, the title company treated the mobile home as realty, and did not collect Florida sales tax as would be required if the mobile home were personal property. Thus, there is sufficient evidence to support a finding that the mobile home which is the subject of this proceeding was not personalty requiring a title certificate, but was realty and taxed as such by Seminole County. The Respondent is also charged with threatening to institute foreclosure proceedings against the purchaser when the insurance policy on the mobile home was allowed to lapse, leaving the mobile home uninsured. The purchase money mortgage executed by the purchaser at the time the sale of this property closed required that insurance be maintained on the mobile home for its full insurable value. This mortgage and the promissory note attached thereto also provided for acceleration of all amounts due upon default in the payment of any money payable under the terms of the mortgage. When the purchaser let the insurance on the mobile home lapse, the Respondent placed the matter in the hands of her attorney, who wrote the purchaser that he was in default under the mortgage. The purchaser was advised that the acceleration clause was being invoked, and demanded full payment of the indebtedness, failing which foreclosure proceedings would be commenced. The evidence does not support a finding that any other threat was made by the Respondent, and the letter to the purchaser from the Respondent's attorney does no more than advise that the Respondent would exercise her right to recover monies due her under the mortgage.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint filed against Donna M. Clark be dismissed. THIS RECOMMENDED ORDER entered on this 18th day of March, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1982. COPIES FURNISHED: Joseph Doherty, Esquire 3220 Chelsea Street Orlando, Florida 32803 Kenneth D. Morse, Esquire Post Office Box 431 Orlando, Florida 32802
The Issue The issue presented is whether Respondent is guilty of the allegations in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent Joseph Potts has been licensed as a professional engineer in the State of Florida. He has been a professional engineer for 40 years. On September 23, 2005, and December 13, 2005, Respondent sealed, signed, and dated engineering documents for the construction of an aluminum screened pool enclosure to replace one which had been damaged in Boca Raton, Florida (the Hacker Project). The documents consisted of a hand-drawn design of the enclosure, a handwritten sheet of specifications sealed on September 23, 2005; and three handwritten pages of engineering calculations sealed on December 13, 2005. Structural engineering documents intended to be submitted for the issuance of building permits, such as those prepared for the Hacker Project, normally are composed of several types of engineering work. The engineer creates (1) calculations, which represent the analysis used by the engineer in making the design decisions for the structure; (2) the design of the structure itself, which encompasses a visual representation of the proposed structure with notations conveying design information in varying levels of specificity depending on the type of project, and (3) specifications, which delineate the methods and prescribe the materials by which the design is to be completed by the builder/contractor. The calculations must justify the engineer's design and specification decisions and must be consistent with the information conveyed in those documents. In the pool enclosure industry it is accepted practice for the actual design of the enclosure to be rendered in a fairly schematic and simplified manner. However, because of this practice, the specifications for the pool enclosure are vitally important and must be clear and consistent in the information imparted to the builder/contractor. It is through the specifications that the intent of the design engineer is conveyed to the builder, and the amount of discretion left to the builder is permitted or circumscribed. Indeed, since in the pool enclosure industry the specifications are generally intended to negate the necessity of an engineer in the design, the specifications must be sufficiently complete and correct so that the builder is able to utilize the information provided in the specifications with the assurance that all reasonable construction decisions will be structurally adequate. Because of the uses to which they are put in the pool enclosure industry, the specifications are "product evaluation documents." Some of the engineering documents for the Hacker Project were submitted to the Palm Beach County Building Department to obtain building permit approval on October 4, 2005. The calculations were submitted in December. The documents for the Hacker Project contained several deficiencies when they were reviewed by employees of the Building Department. These included, among other things: lack of bracing, inadequate depiction of connection, and inappropriate stress increases. The Building Department referred the Hacker Project documents to the Aluminum Association of Florida for review. The Association prepared a report which was forwarded to the Building Department. The report confirmed the Building Department's concerns with Respondent's engineering work on the Hacker Project. As a result, the Building Department rejected the permit application for the Hacker Project and filed a complaint against Respondent with the Board of Professional Engineers. Upon receipt of the Building Department's complaint, Petitioner had the Hacker Project engineering work reviewed by a professional engineer retained for that purpose, Joseph Berryman, P.E. That expert has extensive experience in structural engineering design in general and, in particular, the review of aluminum pool enclosure design documents for compliance with the Florida Building Code and with other engineering practice requirements and standards. While Berryman was reviewing the documents that Respondent had produced for the Hacker Project, Respondent submitted a revised set of sealed and signed design drawings, specifications, and calculations to Berryman in February 2006 but not to the Palm Beach County Building Department. The calculations provided with these new documents were also reviewed by Berryman with respect to the issues raised in his review of the 2005 Hacker Project documents. There were numerous errors and deficiencies in the design and specifications documents prepared by Respondent and filed with the Palm Beach County Building Department. The details for the lap beam connections in Respondent's specification document are unclear. The fasteners for the connections are not adequately indicated as to whether they are to be placed on both sides of the beams or are simply the total number of fasteners without directions for placement. As a result, following the specification literally could result in an interpretation by the builder of the screen enclosure that would cause overstressing in a structural member. The details for Respondent's mansard connection specifications are also deficient since Respondent gave a choice between a one-foot plate and a one-foot-four plate but did not indicate the criteria to be used by the builder in choosing which of the listed plates to use for the job. That failure is a material deficiency since the longer plate produces less stress in the fastener groups, and a builder needs direction as to which plate to use. Further, the detail does not show the H distance (the distance from the outermost fasteners to the edge of the plate material), which should be shown on the documents. Based upon the alloys noted on the specification drawing, the bearing stress on the bolt holes on the largest plate exceeds the allowable stress. Additionally, the beam and column schedule (setting out the maximum lengths and heights which can be achieved with the different sections at given spacing) in the specification drawing allows a builder to select combinations of beams and columns that would be overstressed by factors of from 15 to 90 percent, an improper result. Since builders have a financial incentive to utilize the least expensive size and thickness of structural elements permitted, it is quite possible that the overstressed combinations would be chosen by a builder. The specification details addressing steel reinforcement and concrete strength are also deficient in that the existing foundation's concrete compressive strength is not specified. Absent that detail, the proper cover of steel reinforcing as prescribed by the concrete code is left to the choice of the contractor. Moreover, since the foundation for the Hacker Project would have been placed on existing concrete, unless the strength of the concrete was known, or unless testing was required, or unless the design value was placed on the documents showing that the design was based upon a certain strength with a requirement that the contractor verify the information, it was not possible to know the capacity of the designated fastener. The specification details for typical footings and bracing are deficient. Respondent did not provide sufficient details indicating how the ends of the braces are connected to the frame or the dimensions or configuration of the plates. The details of how the fasteners are attached to the frame of the structure are not provided, and since the screen specification should be the document the builder relies on to tell him how to put together the elements that are specified in the site- specific drawing, the missing details are material errors. The specification details are deficient in the limitations on the rise and run of the mansards. Since allowable stresses are based on unbraced length, it is important to provide limitations on the length of mansard members. However, the calculations provided with the drawings, with only one or two exceptions, are based upon short members wherein no reduction for unbraced length is taken. Because there is no indication as to what the maximum unbraced lengths are in the specification document, a contractor could run members as long as desired, which means, potentially, using a member that has less allowable stress than the design contemplated. Additional errors and omissions existed in the calculations Respondent produced for the Hacker Project. The calculations must be consistent with the specifications in order for the information given to the user in the specifications to reflect the engineer's design decisions. First, the calculations were based on a stronger aluminum alloy than was specified in the screen specifications. If a weaker alloy were used, as allowed by the specifications, it would be likely to be overstressed. Next, the calculation of the distribution of the loading to the individual fasteners and the fastener group at the mansard knee connection is not in accordance with accepted elastic bolt group theory. As a result, the fasteners are not designed for the maximum load that will be placed upon them, and the bearing stresses on the holes in the metal from the fasteners exceed allowable stresses. In addition, on the long-span mansard on Respondent's design drawing shown as 37 feet, 4 inches, the length of the bay spaces is inaccurately calculated. With a mansard beam of this type that is uniformly loaded, as prescribed by the code, the torsional force (twisting) is greater at the center of the beam. Respondent calculated the bays based upon 84 inch spacing, whereas the actual spacing in the largest bay is 108 inches, which means an increased torsion load on that bay which was not calculated by Respondent. Moreover, the fasteners do not all receive the same load. The fasteners on the outside of the group, the ones with the farthest distance from the centroid (the center of gravity of the group), receive the largest portion of the torsional load. In Respondent's calculation, the loading to all the fasteners is averaged, i.e., each fastener gets the same torsional load, which does not comply with accepted engineering theory. The effect of Respondent's calculation decision is that the fasteners are not designed for the maximum load they will receive. In the February 2006 revised documents which Respondent likely created in an attempt to stave off this prosecution and which he provided to Berryman but not to the Palm Beach County Building Department, many of the same errors and omissions appeared as appeared in the documents filed with the County. Additional errors and inconsistencies with the Hacker Project design are found in the February 2006 calculations. Those calculations indicate an allowable tension pull- out for a tapcon anchor at approximately 1,800 pounds per connector. This pull-out value is four to six times as much as is allowed by the product evaluation of those fasteners. Thus, since the value used by Respondent is erroneous, it is not possible to know what the allowable design capacity of the connection is. In addition, the calculations for the K brace indicated a required bracing member that had wall thickness almost double what the original specification had required. Therefore, the February 2006 calculations indicated that Respondent had concurred that the Hacker Project specification was not adequate as far as the size of the brace. While the February 2006 documents were useful in confirming Respondent's design analysis and the errors and omissions contained therein, the documents filed for public record with the Palm Beach County Building Department stand on their own and must meet acceptable engineering standards. Similarly, the revised documents Respondent provided to Petitioner in July 2007, shortly before the final hearing in this cause, are irrelevant to the determination of whether the documents filed with Palm Beach County in 2005 and the documents provided to Petitioner in February 2006 contained errors and deficiencies. Respondent's 2005 calculations submitted to Palm Beach County call for aluminum alloy 6061-T6 in eleven places on the calculation sheets and aluminum alloy 6063-T6 once on the calculation sheets and once in the notes on the beam and column schedule. Alloy 6063-T6 would not be adequate for good engineering standards. Although Respondent testified that this was a typographical error, that explanation for the hand-written entries is not convincing in view of the numerous other deficiencies in the Hacker Project documents. Respondent agrees that the Hacker Project documents are product evaluation documents. He also admits that he did not include on those documents the required information regarding the suitability of the use of the drawings by a contractor as opposed to a licensed architect or engineer. Respondent has previously been disciplined twice for providing substandard engineering services and twice for failing to comply with the final orders entered in those cases involving substandard services.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations in the Administrative Complaint filed in this cause, reprimanding Respondent, placing Respondent's license on probation for two years with appropriate conditions for this case, and imposing an administrative fine against Respondent in the amount of $5,000. DONE AND ENTERED this 26th day of September, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 26th day of September, 2007. COPIES FURNISHED: John J. Rimes, III, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Joseph Potts, P.E. 4440 Northeast 13th Avenue Fort Lauderdale, Florida 33334 Paul J. Martin, Executive Director Board of Professional Engineers 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Patrick Creehan, Esquire Chief Prosecuting Attorney Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent, T & L Management, Inc., was issued permit number AG646-10 on or about March 18, 1985. This permit was for the erection of a sign on the south side of I-10 approximately .4 mile east of SR 291 (Davis Highway) in Escambia County, Florida. It was issued because of the proximity of a trucking business as shown on a sketch attached to the application submitted by the Respondent. The Respondent submitted the application for the subject permit, and designated thereon that the proposed location was within 800 feet of a business. This application also certified that the sign to be erected would meet all of the requirements of Chapter 479, Florida Statutes. Prior to the issuance of the subject permit to the Respondent the site was inspected by the Department's outdoor advertising inspector, who is presently employed by the Respondent. Before this field inspection the inspector had observed on the sketch attached to the application that a business known as Campbell Truck Brokers was located in the area. When the inspector viewed the property she observed a residence and one flatbed truck. She also saw several Coca Cola drink boxes, characterized as "junky looking drink boxes" on the property west of the Campbell property. The inspector made no inquiry of anyone at this location regarding whether or not a trucking business was actually being conducted there. Nevertheless, she approved the subject permit application based upon the existence of such a business, and the presence of old coke drink boxes. The business known as Campbell Trucking Company is located within 800 feet of the permitted site. Actually, two businesses are located on the Campbell property. First, the Campbell's operate Campbell Truck Brokers, a transportation brokerage business for Yellow Freight. Second, Mr. Campbell is a self-employed trucker. Both businesses are run from an office located in a building where Mr. Campbell, his wife and two sons reside. The business of Campbell Truck Brokers is done by Mrs. Campbell over the telephone located in the residence. Traffic to and from the property consists mostly of independent truckers entering the property to provide Mrs. Campbell with documentation for trip leasing. The exchange of this information is conducted in the office located in the Campbell residence. Mr. Campbell does park his truck on the property when he is not on the road. However, as viewed from the main-traveled way of the interstate there is nothing about the Campbell residence to indicate that any commercial activity is being conducted at this location. Larry Hollis is the warehouse transport manager and plant sanitarian for the Hygeia Coca Cola Bottling Plant located on Davis Highway in Pensacola. Although the Coca Cola plant is located to the west of the subject sign location, the only part of the Coca Cola plant visible from I-10 is a clock tower located more than a quarter of a mile west of the sign site, because a wooded area and drainage ponds obstruct the view. The area used by the plant for storage of empty coke "flats" is not only more than 1,000 feet from the sign location, but also was never visible from I-10. Mr. Campbell testified that two other businesses, Gulf Coast Specialists and Brown's Tank Company, are located to the south of his property. However, Mr. Campbell has never measured the distances from these businesses to the interstate or to the subject sign site, and thus there is no precise evidence relative to what these distances are. Moreover, Mr. Campbell leases part of his property to the Respondent for the sign site which is the subject of this proceeding. This factor does not necessarily taint his testimony, but he is not a disinterested witness because he would not continue to receive rent if the Respondent should lose its permit. Therefore, without corroboration of Mr. Campbell's testimony relative to other businesses in the area, it has been rejected as self-serving. During the summer of 1984 the site was inspected by the Department's Right-of-Way Administrator who determined that the permit had been issued in error because there was no visible commercial activity within 800 feet of the permitted location. In February of 1985, the Department issued its notice of violation advising the Respondent that the subject permit was being revoked because it was not for a location in a zoned or unzoned commercial area.
The Issue The issue in this proceeding is whether the proposed action of the Department with regard to procurement of the State of Florida Statewide Law Enforcement Radio Communications System, DMS Number 21-725-001-W, is contrary to the Department's governing statutes, rules, policies, or any applicable bid or proposal specification.
Findings Of Fact General Background Pursuant to Section 282.1095, Florida Statutes, the State of Florida established the State Agency Law Enforcement Radio Trust Fund (Trust Fund) in the Department to fund the construction, maintenance, or support of a statewide law enforcement radio system. On or about January 31, 2000, the Department issued RFP No. 21-725-001-W entitled "Statewide Law Enforcement Radio Communications System." The RFP sought proposals for providing the statewide law enforcement radio communication system. The purpose of the proposed radio system is to allow various state law enforcement officers to communicate from one end of the state to the other. Motorola was the vendor responsible for the construction and operation of Phases I and II of the radio system. In this procurement, the Department sought proposals for continued maintenance and operation of Phases I and II and completion of Phases III, IV, and V of the radio system. The Department sought "innovative proposals from the private sector that will result in a more economical and timely completion of a statewide radio communications system." The Department stated that it would "consider all approaches, methods, alternative technologies . . . provided that the proposal is reasonable, clearly achievable, and can be accomplished with minimal or no cost to the State of Florida to the extent permitted by law." On March 7, 2000, Com-Net and Motorola submitted proposals in response to the RFP. Com-Net and Motorola were the only two vendors that submitted proposals. On April 4, 2000, the Department posted a notice terminating the RFP and declared both proposals non-compliant. On April 5, 2000, the Department sent a letter to Com- Net and a letter to Motorola, advising each vendor of the major areas of the proposals deemed non-responsive. The letters also informed the vendors that the Department had determined to follow a negotiation process pursuant to Section 287.057(4), Florida Statutes. On April 10, 2000, the Department sent a letter to Com- Net and a letter to Motorola, advising each vendor of the procedures for the negotiation process. The letters included a list of questions and vendor evaluation guidelines and advised the vendors to bring their proposals into compliance with the specifications and requirements of the terminated RFP document. The April 10, 2000 letters also advised Com-Net and Motorola that the Department reserved the right to negotiate concurrently or sequentially with the vendors. On April 19, 2000, Com-Net and Motorola each submitted responses to the questions in the Department's April 10, 2000 letters, revisions to technical and financial proposals, and other information. After Motorola and Com-Net submitted their respective modified proposals on April 19, 2000, the Department conducted an initial meeting on May 12, 2000, with both vendors to provide further direction on how the negotiation process would work and to answer questions. At the May 12, 2000 meeting, the Department introduced a five-member evaluation team. The Chairman of the evaluation team, Roy Cales, explained to the proposers that there would be an evaluation process followed by a negotiation process. During that process, focus would initially be on the technical proposals, while later consideration would focus on cost proposals. Each member of the evaluation team brought different relative strengths and perspectives to the decision process. Kourosh Bastani's primary expertise was technical. As the coordinator of Phase I and II, field manager of the radio system, and twenty years' experience in the Florida Highway Patrol, Captain Keith Gaston brought the skills and perspective of a system user and manager. Lisa Saliba has an extensive background in state budgeting, planning, and coordination of projects with agencies. Rick Blankenship is an investment banker and brought considerable financial expertise to the process. As Chairman of the evaluation committee and Chief Information Officer for the State of Florida, Roy Cales possesses technical expertise and experience with state procurement of technology products. The evaluation team was assisted by a technical advisory team composed of technical experts employed by the state, Bruce Meyers and J.P. Saliba, and external technical consultants, Jeff Ellis and Mike Thayer of the Gartner Group. From May 12, 2000 to June 22, 2000, representatives of the evaluation team and technical advisory team met on several occasions with the proposers, both individually and together. During these meetings, the parties engaged in discussions regarding changes to both technical/financial aspects of the proposals and potential contract. After the series of meetings with one or both vendors present, the evaluation team met in private on June 22, 2000, to review the proposals one last time and to make certain all team members understood the financial aspects of both proposals. On June 23, 2000, the evaluation team met in public and voted to rank Com-Net's proposal first and Motorola's proposal second, and to negotiate sequentially beginning with Com-Net. On that same day, the Department posted notice of its proposed agency action which stated that if the negotiations with Com-Net were successful, a contract would be awarded to Com-Net. If the negotiations with Com-Net were not successful, the Department would proceed to negotiate with Motorola and, if successful, a contract would be awarded to Motorola. On July 10, 2000, Motorola filed its Petition to Formally Protest Decision to Negotiate Sequentially, and Initially, with Com-Net Ericsson Critical Radio Systems, Inc. The sole relief sought by Motorola in its Petition is a final order "declaring that the Department is required to conduct concurrent negotiations with both Com-Net and Motorola . . . and that Motorola be ranked No. 1." On or about July 19, 2000, the Department referred Motorola's protest to the Division of Administrative Hearings and requested that an Administrative law Judge be assigned to conduct a hearing. On August 9, 2000, the Administrative Law Judge entered an Order granting the Petition of Com-Net to intervene in this proceeding. The Evaluation Process Motorola's Allegations The Department terminated the RFP with its April 4, 2000 posting, and any specific scoring or weighting stated in the RFP. The Department's April 10, 2000 letter, explicitly advised that the state would use the attached evaluation criteria only as a "negotiation guideline" and that "these guidelines may not be all-inclusive of the criteria to be considered. Further not all of these criteria will necessarily be considered with the same weighting." Motorola, in its Petition acknowledges that it "was directed [by the Department's April 10, 2000 letter] to forget the RFP, think out of the box, and be creative." By Motorola's own admission, the Department's clear direction to "forget the RFP" and "think out of the box" put Motorola squarely on notice that the RFP was at most a guideline in the Section 287.057(4), Florida Statutes, negotiation process. In internal e-mails, Motorola personnel stated that the Department had "given us the opportunity to change the assumption of our models, get outside the bounds of the RFP and find ways to reduce costs . . . ." Motorola understood that in addition to its response to the April 10, 2000 letter, it had the opportunity to submit technical and financial alternatives "outside the boundaries of the RFP and current technical question submittals." Motorola cited no provision which would prohibit the Department from disregarding the RFP and negotiating in the best interests of the state. Motorola alleged that the Department impermissibly permitted Com-Net to materially alter its proposal after the April 19, 2000 deadline for re-submission of modified proposals during "improper negotiations not in accordance with the procedures set forth in the April 10, 2000 letter." Motorola, however, presented no evidence at hearing as to what "improper negotiations" occurred. The evidence presented does establish that Motorola availed itself of an opportunity to significantly change its April 19, 2000 cost proposal. A simple comparison of Motorola's April 19, 2000 and June 22, 2000, cost proposals reveals substantial differences. Motorola did not establish at any time in this proceeding an absence of Department authority to allow proposers to change their proposals after April 19, 2000. Both proposers were clearly on notice that the Department was seeking changes to the proposals. Both proposers were informed of the process and had an equal opportunity to respond. There was no advantage to one proposer over another when the Department sought modifications to proposals during the negotiation process under Section 287.057(4), Florida Statutes. Evaluation Team Determination Four out of five members of the evaluation committee voted for sequential negotiations and ranked Com-Net first and Motorola second. The only member of the evaluation committee who did not rank Com-Net first and vote for sequential negotiations was Kourosh Bastani. Mr. Bastani ranked Motorola first and voted for concurrent negotiations, although he acknowledged that the rankings were meaningless in concurrent negotiations. He had concerns about both proposals, describing Motorola's technical proposal as "acceptable" and Com-Net's technical proposal as "viable," yet believed that both vendors "provided good proposals, and they were worthy of further consideration." Despite being the only team member who did not rank Com-Net first and vote for sequential negotiations, Mr. Bastani unequivocally expressed his belief in the fairness of the evaluation process and respect for the votes of the other members by stating: I believe that the process provided me an opportunity to objectively review both proposals and provide an opportunity for both vendors to provide clarifications and answer questions. And I was able to, in a fair and objective manner, arrive at my decision. So I believe in the integrity of the process, whether I agree with their vote or not, I think they reached it in an informed manner. Mr. Bastani could think of no basis or prejudice in the process that would undermine the validity of the decision. Captain Gaston voted to negotiate sequentially with Com-Net first because he felt the cost difference between Motorola and Com-Net was so great it was unlikely Motorola was going to get within the "ballpark." His interest is in securing a contract as quickly as possible and he believed concurrent negotiations would delay the final outcome. Ms. Saliba voted to negotiate sequentially with Com-Net first because she wanted the opportunity to concentrate on negotiations with a single vendor without the distraction of lobbying and external communications from representatives of competing vendors. In addition to the cost factor, she favored Com-Net because Com-Net is attempting to gain a "foot-hold" in the industry through this contract to establish itself as a credible provider and therefore is committed to reaching an agreement that will satisfy the state's needs. She did not have that confidence in Motorola. Mr. Cales voted to negotiate sequentially with Com-Net first based on a determination of the overall best value for the state. He informed the vendors from the beginning of the evaluation process that if one stood out above the other, the negotiations would be sequential. In that circumstance, concurrent negotiations would have penalized the vendor that stood out and Mr. Cales determined that Com-Net stood out. Additionally, in Mr. Cales' view, concurrent negotiations (e.g., double sessions with a single DMS negotiation team) would take twice as long and time is a critical factor. Com-Net's proposal stood out because it guaranteed a system that would do the job, guaranteed a cost within the trust fund revenue stream and guaranteed the state would have the level of service it would contract for without additional cost to the state. Motorola's proposal did not provide those guarantees. In fact, the only way the Motorola proposal would not cost the state millions of dollars more than Com-Net would be if projected tower lease revenue was realized, and those projections were unreasonable and unsubstantiated in Mr. Cales' assessment. Mr. Blankenship voted to negotiate sequentially with Com-Net first based on a determination that doing so would be in the best interests of the state because Motorola required the state to assume risk while Com-Net did not; Motorola required the state to borrow money which was not authorized; Motorola's proposal entailed operating at a deficit for years three through seventeen; Motorola's tower revenue projections were unreasonable and unreliable; and Com-Net's proposal included technology refreshers that Motorola did not. Technical Proposals After several meetings with both vendors to review their technical proposals and after considering the input of the technical committee, the evaluation team determined that the two technical proposals were either equivalent or that, if not equivalent, both vendors could do the job. The responsiveness of both vendors' technical proposals is not at issue in this proceeding. Both vendors met any "threshold" requirements in the Department's April 10, 2000 letter, and were eligible to be considered for negotiation. Cost Proposals Motorola alleges that the Department "failed to properly calculate the cost to the State of Motorola and Com- Net's proposals," and the Department "improperly assigned a zero revenue figure to the revenue sharing financial component of Motorola's June 22, 2000 financial proposal." Both Com-Net and Motorola submitted cost proposals on April 19, 2000, and submitted revised cost proposals on June 22, 2000. Both Com-Net and Motorola outlined modifications to their respective cost proposals during meetings with the Department evaluation team on June 22, 2000. The major components of both vendors' cost proposals are similar, including up-front cash payments from the vendor to the state, an initial first-year payment from the state to the vendor of a portion of the current balance in the Trust Fund, continuing payments from annual Trust Fund revenues to the vendors, and sharing with the state of revenues that the vendors expect to derive by renting excess tower space to third party users of "tower tenants." While the major components in the two proposals are similar, the dollar figures and guarantees differ substantially. The proposals can be fairly summarized based on the major components which most greatly affect the cost to the state. On April 19, 2000, Com-Net's proposal was for revenue sharing to the state of 33 percent, an initial capital contribution from Com-Net to the state for tower upgrade and enhancement, an initial payment to Com-Net of $39 million from the current Trust Fund balance, and annual payments to Com-Net of all Trust Fund revenues, plus $2 million per year. On June 22, 2000, Com-Net reduced the revenue sharing component to 15 percent, eliminated the $2 million per year payment, and proposed to charge the state the annual net revenues from the Trust Fund. Com-Net represented to the evaluation team that this proposal would give the state its "entire wish list within the confines of the trust fund." Com-Net proposed to build, operate, and maintain the radio system for no more than the amount of the current balance and annual revenues in the Trust Fund. Steve Savor, Chief Executive Officer of Com-Net, told the evaluation team on June 22, 2000: We want you to be in a position where you do not have to go back to the Legislature. We are guaranteeing a position where we do not come back to you. Regardless of whether the state ever receives a single dollar of revenue sharing, it can obtain the radio system from Com-Net without exceeding the confines of the Trust Fund. The total cost to the state of Com-Net's June 22, 2000 proposal as calculated by the evaluation team was approximately $331 million. Com-Net's June 22, 2000 proposal included an initial contribution from Com-Net to the state of $20 million, a first-year payment to Com-Net from the Trust Fund of $39 million, and annual payments from the state to Com-Net of all future Trust Fund revenues over twenty years totaling $348 million. Com-Net also proposed to include two features not included in Motorola's June 22, 2000, proposal - a mobile data system valued between $25 million to $40 million and "technology refreshes" valued between $10 million and $50 million. Motorola's April 19, 2000 cost proposal included two alternates. The cost of the primary proposal was approximately $80 million more than the cost of the alternate. Motorola acknowledges that its cost proposal as of April 19, 2000 was "considered outrageous" by the Department. At the June 22, 2000 evaluation team meeting, Motorola presented a revised cost proposal which it explained to the team. Motorola proposed a total cost of $418 million. This figure exceeded the projected Trust Fund revenues of $348 million by $70 million. Because the proposed annual payments to Motorola would exceed available monies to the state in the early years, Motorola proposed to loan the state the funds to cover these shortfalls, and charge the state an estimated total of $55 million in interest. In that the interest cost is only an estimate and funds available to the state could differ from that projected by Motorola, the actual interest cost to the state could increase. Motorola's witness, David Kliefoth, testified that despite the cost of $418 million offered to the Department in Motorola's June 22, 2000 proposal for the project, Motorola's real or "net" price is actually $364 million. Even after making adjustments to the costs of both proposals, Mr. Kliefoth admitted that Motorola's "net price" was $34 million more than Com-Net's price. In order to pay for the radio system, Motorola proposed three sources of funds: i) Trust Fund current balance and projected annual revenues of $348 million, ii) revenue sharing from third party tower rentals of $68 million, and iii) an initial cash contribution from Motorola of $32 million, for a total of $448 million. Although the annual Trust Fund revenues are not sufficient to cover the annual payments to Motorola, the company contends that its proposal provides the state with ample revenue sharing that will allow the state to have a $30 million positive balance in the Trust Fund at the end of twenty years. Yet, despite repeated requests by the evaluation team, Motorola failed to guarantee the projected amount of revenue sharing required to "make the deal work" within the confines of the "Trust Fund. As Motorola representatives told the evaluation committee on June 22, 2000, if Motorola's projected third party tower rental revenues or the projected Trust Fund revenues did not materialize, the state would be expected to make up the difference. The most Motorola was willing to do was to say they "could talk about it." As a basis for its third party tower rental revenue projections, Motorola told the evaluation team on June 7, 2000, that its tower company partner, Pinnacle Tower, had an average of 4.9 tenants per tower nationally and an average of 3.9 tenants per tower in Florida. On June 22, 2000, just two weeks later, Motorola doubled the estimate, claiming that Pinnacle Tower would average 10 tenants per tower in Florida. Motorola raised its estimate without any explanation and despite the fact that tower industry financial research analysts, such as Lehman Brothers, limit their estimates to a more conservative five tenants per tower. In contract to Motorola, Com-Net used a more conservative figure of 1.1 to 2.4 tenants per tower when estimating future third party tower rental revenues. As Com-Net stated to the evaluation team at its June 22, 2000 meeting, third party revenues are "speculative at best." Because they considered both vendors' projections of potential future revenues to be speculative and because neither vendor could guarantee the projections, the evaluation team decided to disregard both vendors' revenue sharing projections and evaluate both proposals based on cost alone. On that basis, the evaluation team determined that the Motorola proposal would be significantly more expensive to the state. Depending on how the proposals were viewed and the assumptions made, most of the evaluation team members determined that the Com-Net proposal would cost the state approximately $91 million less than the Motorola proposal. Each of the evaluation team members decided that the two technical proposals were either equivalent or that, while not equivalent, both vendors could do the job. Having determined that both proposers could do the job, the paramount consideration for most team members became cost. Motorola's internal e-mails demonstrate that it fully understood the importance of cost to the state. Motorola's June 9, 2000 internal e-mail states that the evaluation committee "continues to place higher percentage priority on cash flow of the trust fund and revenue sharing funds versus technology, system performance and long-term maintenance" and that "the State is trying to back into the completion of [the radio system] by using funds available and doing the best they can [to] reduce the scope of work and technology if that's what it takes to finish the State buildout." Motorola alleges that the Department impermissibly altered Motorola's financial proposal such that Motorola's true financial proposal was not fairly considered. Specifically, Motorola argues that the evaluation team disregarded Motorola's revenue-sharing projections by assigning a zero revenue figure. Yet Motorola points to no statute, rule, or policy which would prohibit the Department from such flexibility in evaluating the proposals. Motorola refused to guarantee the revenue-sharing projections and the Department was free to accept or reject such projections. Motorola also complains that the evaluation committee did not inform Motorola of its decision to disregard revenue-sharing projections; yet again Motorola points to no authority imposing an obligation on the committee to do so. The evaluation team treated Motorola and Com-Net equally in this regard by ignoring both vendors' revenue projection and focusing instead on cost. The team recognized the risks and speculation involved in predicting market conditions and revenue streams twenty years into the future. Motorola also alleges that it was told to provide a stronger revenue-sharing model, and thus having been explicitly solicited, its revenue-sharing projections should not be disregarded. However, Mr. Cales established in his testimony that what he asked for was not a higher percentage of revenue sharing or for the state to bear more risk, but rather by "stronger model" he meant he wanted to see the numbers and assumptions behind the projections. Mr. Cales was especially concerned that Motorola kept changing its projected tower revenue figures and that except for changes in the sharing percentage, the total revenue projections should not change. At 6:51 p.m., on June 22, 2000, Motorola transmitted by e-mail to a Department technical consultant additional information from Pinnacle Tower relating to tower tenants. At the time of the e-mail the evaluation team was in session and the team did not know of the information that night. Some of the team members saw it at some point, but the information would not have affected their votes. Pinnacle Tower had a full opportunity to state its case for tower revenues at the June 7, 2000, meeting and at that time projected only five tenants per tower. Moreover, Pinnacle Tower was present at the meeting site on June 22, 2000, but Motorola elected not to have them present in the meeting room even though Motorola understood the team had serious concerns about the revenue projections. As Mr. Cales made clear in his testimony, the last-minute information from Pinnacle Tower concerning tenant projection did not resolve concerns over the substantial increases in projections or their speculative nature. Further as to Motorola's tower revenue projections of June 22, 2000, Mr. Bastani believed the projection of 10 tenants per tower was unrealistic. The other team members likewise did not accept Motorola's assumption that it would achieve 10 tenants per tower. Ultimate Findings of Fact Motorola's June 22, 2000 proposal did not guarantee that the cost of the contract would be within the revenue from the Trust Fund. Motorola's projections of revenue from tower leases was not reliable and was not guaranteed by Motorola. Com-Net's cost proposal of June 22, 2000, was substantially less costly than Motorola's proposal and provided a guarantee that the cost of the contract would not exceed the revenue from the Trust Fund. The decision to negotiate sequentially beginning with Com-Net was logical and reasonable.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Management Services enter a final order denying Motorola's protest. DONE AND ENTERED this 3rd day of October, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2000. COPIES FURNISHED: C. Everett Boyd, Jr., Esquire Melissa Fletcher Allaman, Esquire Ervin, Varn, Jacobs & Ervin Post Office Drawer 1170 Tallahassee, Florida 32302 W. Robert Vezina, III, Esquire Mary M. Piccard, Esquire Vezina, Lawrence & Piscitelli, P.A. 318 North Calhoun Street Tallahassee, Florida 32301 William E. Williams, Esquire J. Andrew Bertron, Jr., Esquire Huey, Guilday & Tucker, P.A. 106 East College Avenue, Suite 900 Tallahassee, Florida 32301 Alan C. Sundberg, Esquire Mark K. Logan, Esquire Smith, Ballard & Logan, P.A. 403 East Park Avenue Tallahassee, Florida 32301 Shari M. Goodstein, Esquire Shipman & Goodwin, LLP One Landmark Square Stamford, Connecticut 06901 Pennington G. Kamm, Esquire Terry A. Stepp, Esquire Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Bruce Hoffmann, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Cynthia Henderson, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue to determine in this bid protest matter is whether Respondent’s (Department of Management Services’), intended award of the Statewide Law Enforcement Radio Communications System to Intervenor, Motorola Solutions, Inc., was contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact The Department is charged with overseeing and managing Florida’s Statewide Law Enforcement Radio System (“SLERS”). In its role, the Department is authorized to “acquire and administer a statewide radio communications system to serve law enforcement units of state agencies, and to serve local law enforcement agencies through mutual aid channels.” See § 282.709, Fla. Stat. Section 282.709(3) directs that, “[u]pon appropriation, moneys in the [State Agency Law Enforcement Radio System Trust Fund] may be used by the department to acquire by competitive procurement the equipment, software, and engineering, administrative, and maintenance services it needs to construct, operate, and maintain the statewide radio system.” In September 2000, the Department contracted with Harris (through its predecessor) to construct, maintain, and operate the existing SLERS system. Harris identifies itself as a leader in technologies for first responders with more than 80 years of experience in public safety communications. Harris’ contract runs through June 2021. The current SLERS system provides radio coverage to law enforcement personnel throughout Florida. SLERS allows radio communication between more than 4,000 state law enforcement personnel from 22 state agencies utilizing approximately 20,000 radios in aircraft, boats, motorcycles, and patrol cars, as well as portable handheld radios. SLERS communications are provided through a network of tower sites arrayed across the state which enables radio users in one part of Florida to talk to users in other parts of the state. State agencies currently using SLERS include the Department of Highway Safety and Motor Vehicles, the Fish and Wildlife Conservation Commission, the Department of Corrections, and the Florida Department of Law Enforcement. In addition, more than 40 local government jurisdictions have elected to participate as SLERS partners. The current SLERS is built on Harris’ proprietary technology known as Enhanced Digital Access Communication System with Extended Addressing (“EDACS-EA”). Since 2000, however, radio communication technology has evolved. The new industry standard for land mobile radio systems (such as SLERS) is known as Project 25 (“P25”).4/ Unlike Harris’ EDACS-EA system, P25 is based on non-proprietary technology. This “agnostic” or “open” standard enables law enforcement personnel from different organizations to communicate with other “subscribers” or users, regardless of the manufacturer or type of radio being used.5/ State agencies may use whatever brand of radios they want. A P25 system allows interoperable, multi-agency communications between federal, state, and local governments’ systems and radios during emergency situations. The Department initiated this procurement for the express purpose of implementing a radio system based on the new P25 technology. Although Harris’ contract runs through 2021, the Department desires for the next-generation, P25 SLERS to be constructed and operational before Harris’ contract expires to ensure a seamless transition. Background The Department’s decision to issue an Invitation to Negotiate for the new SLERS system was the culmination of a process that spanned more than two years. In 2014, the Department contracted with a private consulting firm to develop a “Business Case”6/ to review whether a private sector vendor could more effectively and efficiently provide the SLERS service based on P25 technology.7/ In January 2015, the consulting firm issued the SLERS Business Case. The Business Case recommended the state contract for services to establish a P25 SLERS. The Business Case further expressed that the new SLERS must be highly available and highly reliable. The expectation was for SLERS to provide 98 percent statewide coverage for mobile radios (i.e., in-vehicle or dashboard radios) and 95 percent statewide coverage for portable radios (i.e., handheld radios). The Business Case estimated that the overall cost to the state by outsourcing the P25 SLERS service would be $941.4 million over a 19-year contract term. The Business Case also noted that additional funding would be necessary as funds required to fulfill a SLERS contract would exceed the current annual appropriation from the Law Enforcement Radio System Trust Fund. Thereafter, the Florida legislature, in its 2016 budget, included proviso language in Specific Appropriation 2838 designating certain appropriated funds to the Department to conduct the competitive procurement for a new SLERS contract. The proviso language stated: From the funds in Specific Appropriation 2838, $933,800 of nonrecurring funds from the Law Enforcement Radio System Trust Fund is provided for the Department of Management Services to acquire and maintain the necessary staff augmentation support and subject matter experts to assist the department in the competitive solicitation and providing other services as determined necessary by the department for procuring a land mobile radio support system based upon a Project 25 Phase II delivery methodology. The system will provide communication services for state and local public safety agencies. The procurement shall accomplish, but not be limited to: improved coverage, audio clarity, interoperability, and enhanced system features including GPS location service, text messaging, and central device management. The scope of the services provided by the staff augmentation support and subject matter experts should include, but not be limited to, assisting the department in completing the following tasks identified in the study referenced in Specific Appropriation 2904A of Chapter 2014- 51, Laws of Florida: (1) project planning and management; (2)consultation and providing technical expertise to the department; (3) assist department as requested in the evaluation of responses; and (4) negotiation with procurement respondents as requested by the department. * * * When scoring proposals, the department shall consider, among other factors, any respondent's ability to leverage existing resources to the public's best interest. The department must release a competitive procurement and, thereafter, award a procurement for the replacement of the Statewide Law Enforcement Radio System. Ch. 2016-66, Laws of Florida. The Invitation to Negotiate The Invitation to Negotiate at issue in this matter is DMS-15/16-018 (the “ITN”). The Department issued the ITN for the P25 SLERS service on October 31, 2016. The ITN seeks “to establish a contract for a new generation of Statewide Law Enforcement Radio System (SLERS), a Land Mobile Radio (LMR) telecommunications service to provide voice and data communications to public safety agencies.” See ITN, Section 1.10. The ITN’s overall coverage objective is a communication system that provides 98 percent coverage, 98 percent of the time for mobile radios, and 95 percent coverage, 95 percent of the time for portable outdoor radios. See ITN, Section 3.3.1. On February 7, 2017, the Department received timely Replies to the ITN from three vendors, including Harris and Motorola.8/ After receiving the Replies, the Department appointed four evaluators to evaluate the Replies to determine which vendors the Department could negotiate with. The evaluators independently reviewed and scored the technical aspects of each vendor’s Reply. See ITN, Sections 2.1, 4.1, and 4.2, and Attachment J – Evaluator Scoring Workbook. Each vendor’s proposed price was scored separately based on the vendor’s response to Attachment E – Pricing Workbook. These scores established a competitive range of replies reasonably susceptible to an award of the SLERS contract. On March 21, 2017, the evaluators revealed their technical scores at a public meeting. During this meeting, the evaluators announced that Harris’ Reply received a technical score of 62.47 points. Motorola’s Reply received a technical score of 58.25 points. Regarding price, Harris’s Reply received a score of 13.05. (Harris’s Reply received a combined score of 75.52.) Motorola’s Reply received a pricing score of 25 points. (Motorola’s Reply was awarded a total score of 83.25.)9/ Following the evaluators’ review and scoring, the Department proceeded to determine the responsiveness of each Reply. The Department found that both Harris’s and Motorola’s Replies met the Responsiveness Requirements set forth in ITN, Section 3.5. Thereafter, the Department invited both Harris and Motorola to negotiate for the new SLERS contract. See ITN, Sections 2.1, 4.2.3, and 4.3. The Negotiation and Scoring of Replies The Department appointed a Negotiation Team of five individuals to conduct negotiations with Harris and Motorola. The Negotiation Team included from the Department, Ailneal “Neal” Morris (Bureau Chief of Private Prison Monitoring), Matthew Matney (Bureau Chief of Public Safety), and Jonathan Rakestraw (Operations and Management Consultant II – Division of Telecommunications). Joining them was Becky Bezemek (Planning and Policy Administrator – Information Technology, Florida Department of Law Enforcement) and Phil Royce (Communications Branch Director, Department of Emergency Management). The Department also retained two outside contractors, John Hogan and Phillip Shoemaker, as Subject Matter Experts throughout the procurement process. At least one of these experts was present at every Negotiation Team meeting. In addition, two of the evaluators, Keith Gaston and Bill Skukowski, also participated in at least one Negotiation Team meeting as a Subject Matter Expert. The Department’s negotiations with Harris and Motorola began on April 4, 2017. The Negotiation Team conducted separate negotiation sessions with each vendor. The Negotiation Team also met for their own “debriefing” and strategy sessions without either vendor present. During the negotiation sessions, the negotiators reviewed the terms and conditions of each vendor’s Reply and confirmed their understanding of the vendors’ offers. The strategy sessions included discussions of the vendors’ proposed service designs, technical solutions, and costs savings. In August 2017, the Department requested that Harris and Motorola submit more detailed design information, as well as an updated Pricing Workbook addressing cost elements related to their design submission. The Negotiation Team last met with Harris on October 17, 2017. The Negotiation Team last met with Motorola on October 18, 2017. On November 30, 2017, the Department issued a Request for Revised Reply to both Harris and Motorola. See ITN, Section 4.3. The Request for Revised Reply included changes to the initial Statement of Work, which were derived from the Negotiation Team’s discussions with the vendors. In addition, the Pricing Workbook in the Request for Revised Reply amended the initial contract term by increasing it to 15 years, with up to ten renewal years. On December 21, 2017, both Harris and Motorola submitted Revised Replies. The system design both Harris and Motorola presented differed from what they had included with their initial Replies in February 2017. However, the Negotiation Team did not meet with either Harris or Motorola to review their modified designs at any point after October 2017. The Negotiation Team conducted internal strategy sessions through January 24, 2018, to review the Revised Replies. One issue that arose during these meetings was a letter Harris sent to the Department’s Procurement Officer, Jesse Covell, on January 9, 2018. In its letter, Harris asked the Department to reconsider the “termination for convenience” language in the proposed SLERS contract. Harris indicated that this provision might affect its ability to respond to a Request for Best and Final Offer. Upon reviewing Harris’ concern, on January 24, 2018, the Department replied, “As to the termination for convenience section of the Terms and Conditions, the risk of such possibility remains with the vendor.” On January 29, 2018, the Department issued to Harris and Motorola a Request for Best and Final Offer. The Request for Best and Final Offer included: a revised Attachment A – Final Statement of Work and a revised Attachment B - Final Contract (in both clean and redlined formats). The Request for Best and Final Offer also included Attachment E, Final Pricing Workbook, and a revised Attachment F - Final Special Conditions (in both clean and redlined versions). The Request for Best and Final Offer required each vendor’s Best and Final Offer to include: (a) a response to Attachment A - Final Statement of Work showing redline changes to the vendor’s original Reply (additions via underline and deletions via strikethrough); and (b) a response to Attachment E, Final Pricing Workbook. As part of their Best and Final Offers, the Final Statement of Work directed the vendors to submit “representative documentation” of the “proposed” Service design. The vendors were further instructed to provide a diagram of the “proposed connectivity” as part their description of their System Overview Topology. See Request for Best and Final Offer, Attachment A - Final Statement of Work, Section 16.1. In addition, the Final Statement of Work changed the word “should” to “shall” in many places. The Final Special Conditions provided that: Any Contract that results from ITN No. DMS- 15/16-018 will be subject to the following Special Conditions. * * * 22 TERMINATION FOR CONVENIENCE[10/] The Department, by no less than 180 calendar days’ prior written notice to the Contractor, may terminate the Contract in whole or in part when the Department determines in its sole discretion that it is in the State’s interest to do so. The Contractor shall not furnish any product or service after it receives the notice of termination, except as necessary to complete the continued portion of the Contract, if any. The Contractor shall not be entitled to recover any cancellation charges or lost profits. See Attachment F, Section 45, Annual Appropriations. Pursuant to subsection 287.058(6), F.S., the Contract does not prohibit the Contractor from lobbying the executive or legislative branch concerning the scope of services, performance, term, or compensation. On February 8, 2018, the Department issued a revised Attachment B – Final Contract to be included with its Request for Best and Final Offer. This Final Contract addressed a topic of discussion between the Negotiation Team and the vendors concerning any capital investment costs the vendors might incur to buildout and deploy their P25 SLERS system prior to the start of the SLERS contract. The negotiators recognized that both vendors would expend significant up-front costs. However, they decided not to change the payment terms in the Final Contract. Instead (and in response to a Harris e-mail inquiring about the payment structure), the revised Final Contract, in Section 2.1, included language that: The initial term of the Contract will begin with [the vendor] having up to four years of non-paid transition followed by fifteen paid years. The fifteen year payment period will not begin earlier than July 1, 2021. (emphasis added). The Final Contract also extended the number of renewable contract years from seven to ten years (which was consistent with the Request for Revised Reply issued on November 30, 2017).11/ Under the Final Contract, the Department would not begin paying the vendor until after the transition period and upon the start of the “paid years.” The vendor would then be paid the “Maximum Annual Service Price” the vendor listed in the Final Pricing Workbook, apportioned on a monthly basis. On or about February 14, 2018, both Harris and Motorola timely submitted Best and Final Offers to the Department. As with the Revised Replies submitted in December 2017, the design information Harris and Motorola included in their Best and Final Offers differed from that previously submitted to the Department. However, the Negotiation Team did not meet with either Harris or Motorola following submission of their Best and Final Offers. The Best and Final Offers were distributed to the negotiators for scoring. Under Attachment L – Negotiator Scoring Workbook, each vendor’s response to Attachment A - Final Statement of Work was evaluated based on ten selection criteria, including: (1) Experience & Ability; (2) Approach; (3) Capabilities & Technology; (4) Coverage & Capacity; (5) Security; (6) Testing; (7) Support, Maintenance & Training; (8) Service Level Agreement; (9) Technology Evolution; and (10) Transition Plan. The Coverage & Capacity component included the proposed system design, as well as coverage prediction maps, frequency plan, and capacity plan. The Negotiation Team members scored each vendor’s response to Attachment A - Final Statement of Work. Each Negotiation Team member used a Scoring Sheet and scored each Best and Final Offer using the ten categories identified in Attachment L – Negotiator Scoring Workbook. Each member could award a score of zero to four points in each category. Attachment L also gave greater or lesser weight to some categories so that a total of 50 points was available to be awarded for the Best and Final Offer.12/ The Negotiation Team members did not score the vendor’s price recorded in response to the SLERS Design Pricing Workbook Pricing Summary.13/ Instead, points were awarded for pricing based on the formula: Points Awarded = Maximum Available Points x (Lowest Offered Price/Offeror’s Price). The total price Harris submitted to perform the SLERS contract was $979,983,031.14/ Motorola’s total price equaled $687,797,127.15/ Attachment M – Master Negotiation Scoring Workbook provided the best value scoring methodology. Pursuant to the Master Negotiation Scoring Workbook, the Negotiation Team members’ scores for each Best and Final Offer were averaged (up to 50 maximum points). Concurrently, the price of each Best and Final Offer was scored up to 50 maximum points. (One hundred total points was available for each vendors’ Best and Final Offer.) Post-Negotiation and Selection of the Winning Vendor At that point, as described in ITN, Section 2.1: Once negotiations have concluded and best and final offers (BAFO) have been received and reviewed, the Department will hold a Negotiation Team public meeting to recommend award to the Vendor(s) who offer(s) the best value to the state based on the selection criteria.[16/] ITN, Section 4.4, further provided that: If a contract(s) is awarded, the Contract(s) will be awarded to the responsible and responsive Vendor(s) whose [Best and Final Offer] is assessed as providing the best value to the State in accordance with Attachment L – Negotiator Scoring Workbook and Attachment M – Master Negotiation Scoring Workbook. The Department will consider the total cost of each year of the Contract, as submitted by the offeror. On March 1, 2018, the Negotiation Team held a public meeting during which each negotiator presented their Negotiator Scoring Workbook. The vendors were awarded the following scores: Harris received 43.86 points for technical, experience, and ability (the Final Statement of Work); and 35.09 points for price (the Final Pricing Workbook). Harris’ total score equaled 78.95. Motorola received 45.36 points for technical, experience, and ability (the Final Statement of Work); and 50 points for price (the Final Pricing Workbook). Motorola’s total score equaled 95.36. According to the Negotiation Team’s overall scores, Motorola “offers the best value to the state, based on the selection criteria.” On March 9, 2018, the Department’s Director of Telecommunications, Heath Beach, prepared a Recommendation of Award Memorandum recommending the new SLERS contract be awarded to Motorola “as the responsible and responsive vendor, which will provide the best value to the state, based on the selection criteria of this ITN.” The Department’s Chief of Staff, David Zeckman, signed the Recommendation of Award Memorandum accepting the recommendation. On March 13, 2018, the Department posted its Notice of Intent to Award to the Vendor Bid System stating that the Department intends to award the contract arising out of the ITN to Motorola. HARRIS’ PROTEST Harris protests the Department’s selection of Motorola for the SLERS contract instead of its own reply. Harris contends that Motorola's Best and Final Offer consists of a service design that Motorola cannot deliver. Harris, on the other hand, believes that it is the only company that can achieve the ITN’s goal of a complete, comprehensive, and reliable statewide communications network. Harris’ protest presents three primary arguments. The Negotiation Team was Not Qualified to Score the Best and Final Offers: Harris charges that the Department’s Negotiation Team was not qualified to negotiate and score the ITN. To conduct a procurement via an invitation to negotiate, section 287.057(16)(a)(2) directed the Department to assign: At least three persons . . . who collectively have experience and knowledge in negotiating contracts, contract procurement, and the program areas and service requirements for which commodities or contractual services are sought. Harris asserts that the Department failed to select negotiators with the requisite experience and knowledge in the subject matter of the ITN. Harris contends that the technical details involved in negotiating for a P25 SLERS service, which include subject areas such as coverage, capacity, reliability, and frequency planning, are highly technical in nature and require some proficiency in radio system engineering. Harris (via Danielle Marcella) alleges that the Negotiation Team members did not display the breath or depth of knowledge Harris would have expected for a procurement of this significance and size. Harris points out that not a single member of the Negotiation Team is an engineer. Furthermore, at the final hearing, Harris produced evidence that neither Becky Bezemek nor Jonathan Rakestraw had any technical knowledge or background in law enforcement radio systems before serving on the Negotiation Team. Similarly, Neal Morris’ only prior experience was his use of portable radios while serving in the military, and he had no technical knowledge of radio communication systems. Matthew Matney’s knowledge and experience was limited to purchasing and using radios as a law enforcement officer. Furthermore, Mr. Matney had never served as a negotiator for an ITN. Neither did he know how to read a radio coverage map. Phil Royce does have a background in emergency management and public administration where he was responsible for the maintenance and programming of radios. However, he has no experience in designing communication systems. Harris acknowledges that the Negotiation Team was supported by several Subject Matter Experts. Harris recognizes that one or more of these experts attended every strategy session of the Negotiation Team. Harris contends, however, that the Subject Matter Experts did not conduct any technical evaluation of Motorola’s network design to determine whether Motorola could actually deliver the system it proposed in its Best and Final Offer. Instead, they only responded to the Negotiation Teams’ questions. The Subject Matter Experts did not comment or opine on the viability of the vendors’ competing systems. Consequently, the Department could not have conducted a comprehensive or sound technical evaluation of the service design Motorola (or Harris) proposed in its Best and Final Offer. Therefore, the Negotiation Team did not select a vendor (Motorola) who will legitimately provide “the best value to the state, based on the selection criteria.” See ITN, Section 2.1 and § 287.057(1)(c)4., Fla. Stat. In other words, to state it simply, the Department could not have fairly or competently decided that Motorola was the “best value to the state” because the Department did not know what service it would actually buy from Motorola. As a result, the Department’s decision to award the SLERS contract to Motorola must be overturned. Inadequate Coverage, Capacity, Reliability of Motorola’s Service Design: Harris alleges that Motorola cannot deliver the service design that it presented in its Best and Final Offer. Harris further charges that Motorola’s reply fails to comply with mandatory and material requirements of the Department’s ITN regarding coverage, capacity, and reliability. Consequently, because Motorola’s design is rife with unknown factors, or simply not capable of providing the required P25 SLERS service, the Department’s selection of Motorola for the SLERS contract was clearly erroneous, contrary to competition, arbitrary, or capricious. Motorola’s Use of Conveyed Towers: Initially, Harris asserts that Motorola cannot deliver the P25 SLERS communications system because Motorola cannot use a number of the Radio Frequency (“RF”) tower sites listed in its Best and Final Offer. The Department’s Request for Best and Final Offer required each vendor to submit site specific, service design information. The vendors were to identify the individual tower sites they would use to establish their statewide networks in a site list. The vendors were also to include the latitude and longitude of each tower site, coverage prediction maps, a capacity plan, and a frequency plan. See Request for Best and Final Offer, Attachment A – Final Statement of Work, Section 16. Motorola’s service design listed 144 separate RF tower sites located across the state. Harris contends that Motorola cannot use some of these 144 towers because they are “Conveyed Towers.” At this time, Harris owns the Conveyed Towers.17/ The State of Florida conveyed the Conveyed Towers to Harris as part of the original SLERS contract. Harris uses these Conveyed Towers in its current (and active) EDACS-EA system. At least 21 of the 144 towers Motorola included in its network are Conveyed Towers. As of the final hearing, Harris had no intention of allowing Motorola to use any of the Conveyed Towers. Harris further asserts that the State of Florida does not have the authority to allow Motorola to use the Conveyed Towers.18/ Harris argues that Motorola’s reply will not meet the ITN’s coverage and capacity objectives if the 21 (unauthorized) Conveyed Towers are removed from its tower network. To support its position, Harris presented expert testimony (Dominic Tusa of Tusa Consulting Services) that, when the 21 Conveyed Towers are removed from Motorola’s 144 tower sites, Motorola’s network design will contain large holes of non-coverage. In addition, the audio quality of the radio communications will drop. Therefore, because Motorola is proposing a network of tower sites it cannot use, Motorola cannot provide the radio communication service the state requires. Mr. Tusa further explained that identifying and obtaining replacement RF towers or tower sites is a lengthy and difficult process. Based on a number of factors, such as cost, permitting, and space issues, this process could take up to 18 months. Harris also asserts that even if Motorola could legally use Harris’ Conveyed Towers, Motorola still cannot effectively incorporate the Conveyed Towers into its tower network because of tower-loading, signal interference, and construction issues. Regarding tower-loading, Harris argues that, due to the existing telecommunications equipment and antennae already mounted on the Conveyed Towers, Motorola simply will not have enough space to install its own antennas for a P25 service. Further still, Motorola may not be able to affix its antennae on the tower at a height that will adequately support its coverage plan. Regarding construction issues, the ITN requires the winning vendor to instantaneously switch SLERS radio communications from Harris’ EDACS-EA system to the new P25 system. While the ITN would provide Motorola a four-year transition period to fashion a functioning “constellation” of towers, Motorola will not be permitted to interfere with Harris’ current SLERS service. Consequently, Harris proclaims that Motorola will not have sufficient time to physically install, test, then activate, the necessary antennae, microwave dishes, or other telecommunications equipment on the Conveyed Towers before its system must “go live.” Moreover, Motorola did not identify any alternate tower sites in its Best and Final Offer that it would use if the Conveyed Towers were not available. Although Motorola represented that it would deploy temporary sites to ensure the SLERS remains operational, Harris asserts that these temporary sites will not provide the required level of coverage. Mr. Tusa stressed that the loss of any tower site creates a hole in coverage. Therefore, a replacement location must be found. Harris asserts that Motorola’s own coverage prediction maps show that Motorola would not meet the ITN’s coverage requirements unless the Conveyed Towers are substituted with alternatives. Coverage of Motorola’s Service Design: As a direct result of Motorola’s (alleged) tower site deficiency, Harris argues that Motorola’s network design will not meet the ITN’s mandatory coverage requirements. At the final hearing, Harris (through Michael Hancock, a Bids and Proposals Manager for Harris) emphasized that one of the most important aspects of a law enforcement radio system is its coverage. “Coverage” refers to the area in which a radio user can communicate with other users at a certain level of quality. The ITN required the vendors’ system to provide mobile coverage at 98 percent of the area - 98 percent of the time, and portable (handheld) outdoor coverage at 95 percent of the area - 95 percent of the time. See Request for Best and Final Offer, Attachment A – Final Statement of Work, Section 3.3.1. SLERS radio communications will entail two types of structures, RF tower sites and Microwave Relay sites. Factors that affect the efficacy of coverage include a tower’s height, as well as the location of the radio or microwave antennae on the tower. If there are coverage gaps in the geographic area where law enforcement officers are attempting to use their radios (such as, holes left after removing the Conveyed Towers), then the SLERS will not function as desired. Harris claims that Motorola is attempting to save costs by designing a network with fewer tower sites. By way of comparison, Harris’ EDACS-EA system includes 219 towers, consisting of 197 RF sites and 23 Microwave Relay sites. In addition, while Motorola represents that it can achieve the P25 SLERS performance objectives with 144 RF towers site, Harris’ own reply includes 190 RF tower sites. Mr. Hancock also observed that Motorola represented in its Best and Final Offer that it might incorporate a number of local government RF tower sites into its network. Mr. Hancock expressed skepticism that Motorola could actually use local government towers in its network indicating that many government systems may not accommodate P25 equipment. Capacity of Motorola’s Service Design: Harris argues that Motorola’s proposed service design will not meet the ITN’s mandatory capacity objective. “Capacity” refers to the communication system’s ability to accommodate multiple radio users, i.e., the number of users who can talk on the SLERS at any one time. The ITN required the vendors’ service to “provide capacity with a goal of achieving a Grade of Service of one percent ([n]o more than 1 out of 100 calls queued) during the busy hour for each Terrestrial and Maritime Service RAN [Radio Access Network] site.” (If there was no room for a user to talk, the system queued their call until a line/channel opened.) See Request for Best and Final Offer, Attachment A – Final Statement of Work, Section 3.4.2. As with the coverage issue, Harris charges that Motorola’s system design cannot meet the ITN’s mandatory capacity requirements due to the low number of RF tower sites and working radio channels. Reliability of Motorola’s Service Design: Harris argues that Motorola’s system design will not meet the ITN’s reliability objectives. The ITN requires the vendor’s to provide a service “based upon a high availability/high reliability system providing resilience and tolerance to component and connectivity failures.” See Request for Best and Final Offer, Attachment A – Final Statement of Work, Section 3.1.5. Harris asserts that Motorola’s Best and Final Offer fails to comply with this requirement. Harris argues that Motorola’s proposed system design is unreliable because of Motorola’s extensive use of, often lengthy, microwave paths. Harris' expert, Mr. Tusa, explained that microwave signals are used for point-to-point (i.e., tower-to- tower) transmission. Motorola intends to use mostly 11- gigahertz (“GHz”) microwave links, as opposed to 6-GHz microwave links. Mr. Tusa explained that 11-GHz microwave channels are more susceptible to outages and “rain fade”19/ under adverse weather conditions. Furthermore, the likelihood of rain fade affecting 11-GHz microwave links increases with the length of the connectivity path between two tower sites.20/ Because of the amount of rain activity in Florida, these deficiencies make for a highly unreliable system. (In contrast, Harris’ proposed network uses hardened network connectivity at all equipment locations. These locations are also connected together with a redundant microwave network to ensure reliable connectivity.) Mr. Tusa declared that Motorola's service design fails to provide a “highly reliable” antenna configuration because the number of long, 11-GHz microwave paths between tower sites will expose the SLERS network to possible signal distortion and loss of radio signals during rain storms. Furthermore, Motorola’s backup plan, the use of Ethernet and carrier-provided circuits, is also typically unreliable. Consequently, the network design Motorola’s proposes in its Best and Final Offer creates an unacceptable risk and places the reliability of the SLERS service in jeopardy. Motorola’s Inadequate Frequency Plan: Finally, Harris attacks the “detailed frequency plan” Motorola provided in its Best and Final Offer. The ITN required the vendors to list the proposed radio frequencies per tower site and indicate whether each frequency passed the respective analysis for each frequency type. The ITN specifically directed the vendors to “[d]escribe how a detailed frequency plan will be developed and any special considerations for use of 700 MHz and 800 MHz channels.”21/ See Request for Best and Final Offer, Attachment A – Final Statement of Work, Sections 3.5 and 16.4. Harris criticizes Motorola’s decision to transmit approximately 50–70 percent of its frequencies using 700 band channels, as opposed to the 800 band. (Harris intends to only use 800 band channels.) Harris (through Mr. Tusa and Mr. Hancock) asserts that this proposed frequency plan is defective. Specifically, the Motorola frequency plan includes radio frequencies that are not currently available for use in the SLERS network. Other frequencies are not licensable in the state of Florida as they are currently used by the state of Georgia. Consequently, because many of the 800 MHz channels Motorola listed in its frequency plan are unavailable, the Department could not reasonably determine whether Motorola’s service design will meet the ITN’s coverage and capacity objectives. Therefore, the Department’s decision to award the SLERS contract to Motorola based on the information included in its Best and Final Offer is faulty and must be rejected. To conclude, based on all the above technical deficiencies, Harris argues that the Department could not discern the actual design of Motorola’s SLERS service when it ranked the vendors’ Best and Final Offers. The intent behind the Department’s Request for Best and Final Offer was to solidify the essential details of each vendor’s proposed P25 service. Harris asserts that, based on the amount of ambiguous or misrepresented elements in Motorola’s reply, the Department’s Negotiation Team/scorers could not have reasonably determined Motorola’s plan. Consequently, when the Department scored Motorola’s Best and Final Offer, it could not have known, or verified, exactly how Motorola intends to deliver the SLERS service. As a result, the Department’s determination that Motorola’s Best and Final Offer constitutes the “best value” to the state is fundamentally flawed. The Price of Motorola’s Proposed System Design is Unknown: Finally, Harris complains about the contract price Motorola offered in its Best and Final Offer. Harris asserts that Motorola has presented an incomplete price which, based on Motorola’s flawed service design, will actually cost the state substantially more than the amount Motorola seeks. Harris alleges that Motorola’s response to Final Pricing Workbook does not contain Motorola’s complete price to construct, operate, and maintain its proposed network. Harris points to the ITN’s requirement that the vendors shall submit detailed component pricing including the cost of each specific tower site listed in the vendor’s Best and Final Offer. See ITN, Section 3.9.6, and the SLERS Design Pricing Workbook. Because Motorola cannot use some or all of 144 RF tower sites it identified, the Department cannot accurately evaluate the price of the network solution Motorola proposes to deliver. Consequently, because the Department has no way of knowing the true price of the SLERS system it will be buying from Motorola, the Department’s award of the SLERS contract to Motorola is erroneous, arbitrary, and capricious. Harris further asserts that Motorola’s reply omits certain costs. Harris objects to Motorola’s statement in its Best and Final Offer that certain “tower costs will be a subject for negotiations.” Motorola also indicated that other costs, such as security fences, “have not been included in our pricing sheets.” Harris also points out that a cost is typically associated with the use, access to, and maintenance of systems owned and operated by third parties, which was not included in Motorola’s pricing summary. Harris suggests that this pricing obfuscation explains why Motorola’s proposed contract price is significantly lower than Harris’ price (by approximately $300,000,000). Motorola either does not accurately portray anticipated costs, or simply omits costs from its Final Pricing Workbook in hopes of negotiating a price increase after the contract is awarded. This tactic not only enabled Motorola to obtain an unfair pricing advantage over its competitor, but impaired the Negotiation Team’s ability to reasonably ascertain whether Motorola will actually deliver the SLERS service the Department seeks. Consequently, because the true price and functionality of Motorola’s proposed service design cannot be calculated or evaluated, the Department does not know what it is paying for if it awards the SLERS contract to Motorola. As a result, the Department cannot fairly conclude that Motorola will provide the “best value” to the state. (Harris, on the other hand, asserts that it can build and deliver the system design the ITN solicited with no further calculations, hidden costs, or modifications.) Therefore, the Department’s contract award to Motorola must be rejected. DEPARTMENT RESPONSE TO HARRIS’ PROTEST In response to Motorola’s challenge, the Department asserts that it properly acted within its legal authority, as well as the ITN specifications, to award the SLERS contract to Motorola. Initially, the Department (through Robert Downie II, its Deputy Director for the Division of Telecommunications) emphasized that, in this procurement, the Department is searching for a vendor to provide a “service.” The Department is not purchasing the new P25 SLERS system. Therefore, when determining the “best value,” the Department focused on each vendor’s ability to construct, and then implement, a radio communications “solution” that would meet the SLERS objectives. The Department believes it found the “best value” in Motorola’s proposed service design. Harris Lacks Standing to Protest the Department’s Notice of Intent to Award: As a preliminary issue, the Department asserts that Harris lacks standing to challenge the Department’s Notice of Intent to Award the SLERS contract to Motorola. In support of its position, the Department argues that its Request for Best and Final Offers advised that: By submitting a Best and Final Offer, the vendor confirms acceptance of the attached final Contract and Special Conditions, as is; do not make any changes, revisions, exceptions, or deviations. (emphasis added). See Request for Best and Final Offer, page 2. Despite this directive, Harris wrote in the cover letter of its Best and Final Offer, as well as its Pricing Summary (both dated February 14, 2018): Harris’ value proposition comes with basic assumptions regarding funding and financial risk. . . . [T]he ITN terms and conditions present risks to the Contractor and its lenders making it difficult to finance the Contractor’s capital investment program. With no additional funding identified to promptly pay the Contractor as capital investment costs are incurred, Harris is unable to assume such risk. (emphasis added). Harris added: Until additional adequate funding is provided by the Legislature and until the Department agrees to pay costs as incurred, or another mutually agreeable resolution is arrived at (including assurances of capital cost recover upon early contract termination), project implementation will be delayed. Harris looks forward to working with the Department to address this challenge. Until this and the final remaining open items have been mutually agreed upon, Harris agrees that a notice of intent to award does not form a contract between the Department and Harris and that no contract is formed until such time as Harris and the Department formally sign a contract. (emphasis added). Harris appears to condition its acceptance of the SLERS contract on the Department’s ability to obtain “additional adequate funding.” Despite Harris’ choice of words, the Department accepted, evaluated, found responsive, and scored Harris’ Best and Final Offer. At the final hearing, however, the Department (and Motorola) argued that Harris’ cover letter creates a “conditional” offer. The Department (and Motorola) further maintained that Harris is attempting to create an “exception or deviation” from the terms of the Department’s Request for Best and Final Offer, by refusing to execute the Final Contract until the Department agrees to pay its capital investment costs. To counter the Department’s standing argument, Harris presented Danielle Marcella, the author of Harris’ cover letter, to clarify its intent. Ms. Marcella, who led Harris’ effort to win the SLERS contract, acknowledged that, after reviewing the Department’s Request for Best and Final Offer, Harris had several reservations about agreeing to the SLERS contract. Ms. Marcella first explained that Harris objected to executing a contract that was not adequately and fully funded. Ms. Marcella correctly observed that the price both Harris and Motorola offered to provide the SLERS service exceeds the existing legislative appropriation. See also Request for Best and Final Offer, Attachment B – Final Contract, Section 3.7, which states that, “The State of Florida’s performance and obligation to pay under this contract is contingent upon an annual appropriation by the Legislature.” Ms. Marcella testified that Harris did not desire to sign a contract “until the Department agree[d] to pay costs as incurred or another mutually agreeable resolution is arrived at.” Harris also had serious concerns about the Termination For Convenience provision in the SLERS contract, as well as the Department’s position that it would not reimburse the vendors’ start-up costs during the transition period. See Request for Best and Final Offer, Attachment F – Final Special Conditions, Section 22, and Attachment B – Final Contract, Sections 2.1 and 3.7. Harris feared that building a new P25 SLERS would not be commercially viable unless it received some payment during the transition period. Harris hoped that the Department would change its mind about this provision prior to executing the contract. At the final hearing, Ms. Marcella softened Harris’ arguably uncompromising position in its cover letter. Ms. Marcella claimed that Harris was “simply stating in the [cover] letter that we want the ability to ask the Legislature . . . if the Legislature appropriated money.” Ms. Marcella represented that Harris would have agreed to the SLERS contract even if the Legislature did not appropriate additional money. Ms. Marcella further declared that, “to the extent that the contract could be executed, [Harris] would execute it.” Ms. Marcella stressed that Harris would not have submitted a Best and Final Offer unless it was prepared to sign the Final Contract the Department presented. (As discussed in paragraphs 131 through 139 below, the undersigned concludes that Harris has standing to bring this bid protest matter.) The Negotiation Team Was Qualified: The Department rejected Harris’ allegation that the Negotiation Team members lacked the requisite, collective experience and knowledge in negotiating contracts, contract procurement, and the program areas and service requirements in order to negotiate, then score the vendors’ Best And Final Offers. At the final hearing, each of the Negotiation Team members testified about their background and experience in state procurements and radio communication systems as follows: Neal Morris is currently the Bureau Chief of Prison Monitoring for the Department. In his job, Mr. Morris coordinates the development and negotiation of contracts with private contractors for the acquisition, construction, and operation of private correctional facilities. Mr. Morris has participated as a negotiator in approximately ten prior invitations to negotiate. Mr. Morris earned a degree in Management Information Systems. He is also a Florida Certified Contract Manager, as well as a Florida Certified Contract Negotiator. Mr. Morris used law enforcement radios while serving in the United States Marine Corps. Mr. Morris testified that, before he ranked the replies, he reviewed and understood the ITN. He also received technical information from the Subject Matter Experts, as well as reviewed the vendors’ responses to questions during the Negotiation Team meetings. Mr. Morris also represented that the Negotiation Team members treated the vendors fairly and gave their replies equal consideration. In scoring the Best and Final Offers, Mr. Morris ranked Motorola higher than Harris, awarding Motorola’s reply more points in the Experience & Ability category. Becky Bezemek is the Planning and Policy Administrator for the Florida Department of Law Enforcement (“FDLE”). In her job, Ms. Bezemek manages all information technology contracts and issues relating to procurements for FDLE. She has a degree in Management Information Systems. Ms. Bezemek is also a Florida Certified Contract Manager and has had more than ten years of information technology experience, including experience as an Information Security Manager. Ms. Bezemek testified that, during the Negotiation Team meetings, she relied upon the Subject Matter Experts to educate her on the technical aspects of each vendor’s reply. In scoring the Best and Final Offers, Ms. Bezemek ranked Motorola higher than Harris, awarding Motorola’s reply more points in the Approach, Testing, and Technology Evolution categories. Phil Royce serves as the Communications Branch Director for Florida Division of Emergency Management. He is also the Statewide Interoperability Coordinator. Mr. Royce received a degree in Emergency Management and Public Administration. Mr. Royce has over 33 years of experience in communications, electronics, and electrical development, and management experience in 911 centers, communications sites, satellite networks, and first responder subscriber units. He has also worked with state, national, and international committees on communications governance, systems development, and policy. Mr. Royce also sits on the SLERS technical committee for Florida’s Joint Task Force. Mr. Royce testified that he understands how land mobile radio communications systems work, and that he provides consulting and coordination around the state and nation to improve interoperability between radio systems. In addition, Mr. Royce has received instruction on radio operating systems, encryption, radio system infrastructure and maintenance, as well as P25 radio implementation at both Motorola University and Harris University. He formerly served as the lead communications technician for the Alachua County Sherriff’s Office where he played a significant role in procuring and implementing its law enforcement radio system. Mr. Royce also assisted the sheriff’s office with loss of signal and coverage issues, and helped develop and build a radio frequency tower. Mr. Royce added that he had no concerns about the Negotiation Team members’ ability to score the ITN. In scoring the Best and Final Offers, Mr. Royce ranked Motorola higher than Harris, awarding Motorola’s reply more points in the Approach and Capabilities & Technology categories. He scored Harris higher in Transition Plan. Matthew Matney currently serves as the Bureau Chief of Public Safety for the Division of Telecommunications at the Department. In his role, Mr. Matney supervises Department employees who manage and repair of Florida’s current SLERS system. As part of his responsibilities, Mr. Matney works to ensure that the SLERS remains operational. He also supervises engineers who work on SLERS. In addition, he provides administrative support to the Joint Task Force on State Agency Law Enforcement Communications, the state governing body that manages improvements and changes to SLERS. Mr. Matney also oversees the Florida Interoperability Network and Mutual Aid programs. He is a Florida Certified Contract Manager. Since 1977, Mr. Matney has attended numerous specialized radio and network communications training classes and courses. As a former law enforcement officer, Mr. Matney gained hands-on experience using law enforcement radios. Mr. Matney testified that, during the Negotiation Team meetings, he was able to ask the Subject Matter Experts any questions he had about coverage maps and modelling. Mr. Matney had no concerns whether Motorola could provide a network design that met the ITN’s coverage objectives. In scoring the Best and Final Offers, Mr. Matney ranked Motorola higher than Harris, awarding Motorola’s reply more points in the Approach, Capabilities & Technology, and Service Level Agreements categories. He scored Harris higher in Coverage & Capacity. Jonathan Rakestraw is an Operations and Management Consultant II in the Division of Telecommunications for the Department. He has served as a Contract/Project Manager for over a decade. Mr. Rakestraw is a certified Project Management Professional, a Florida Certified Contract Manager, and a Florida Certified Contract Negotiator. Mr. Rakestraw testified that he believed Motorola’s system design will meet the ITN’s coverage objectives. On the other hand, Mr. Rakestraw was the lone negotiator who scored Harris’ Best and Final Offer higher than Motorola’s. He awarded Harris more points in the Transition Plan category. Assisting the Negotiation Team were several Subject Matter Experts, including John Hogan, Philip Shoemaker, Robert Downie II, Keith Gaston, and Bill Skukowski. John Hogan is vice president of Omnicom Consulting Group, which performs needs assessments, develops procurements, and assists in the implementation and management of public safety radio systems. Mr. Hogan has been a licensed professional electrical engineer since 1997, and has performed an extensive amount of coverage analysis, system design propagation, and design modeling for land mobile radio systems. Mr. Hogan participated in all negotiation session, but one, and every strategy session, except one. Throughout the negotiation process, Mr. Hogan answered questions and provided guidance to the Negotiation Team members. He also suggested questions the negotiators might ask the vendors, as well as provided information to facilitate the negotiators’ understanding of any highly technical matters. Mr. Hogan relayed that he ensured that the negotiators sufficiently understood the vendors’ presentations so that they were able to knowledgably score the replies. Philip Shoemaker is currently the chief executive officer of Inspired Technologies. Mr. Shoemaker helped write the SLERS Business Case for the Department. He also assisted in drafting the ITN. Mr. Shoemaker has over 28 years of experience in the information technology field and vast experience in telecommunication procurements. Mr. Shoemaker participated in all aspects of the Department’s negotiation process involving the Negotiation Team, except for actually scoring the vendors’ Best and Final Offers. Robert Downie II serves as the Deputy Director of the Department’s Division of Telecommunications. Mr. Downie assisted the Negotiation Team by advising on the program area during the negotiations. Keith Gaston is a Major with the Florida Highway Patrol. Major Gaston is the security manager for the current SLERS system, as well as a Joint Task Force Technical Committee member. Major Gaston participated in at least one strategy session. Bill Skukowski is a Fish and Wildlife Commission employee and a member of the Joint Task Force Technical Committee. Bill Skukowski participated in at least one strategy session. Based on their various professional and educational backgrounds and vocational experience, the Department was quite comfortable that the negotiators were fully capable and competent to review and score all aspects of Harris’ and Motorola’s Best and Final Offers. The negotiators were adequately knowledgeable of, and well-prepared for, their task of understanding and evaluating the vendors’ network designs, coverage, capacity, and reliability (including use of microwave paths) capabilities, frequency plans, and responses to other objectives in the ITN’s Final Statement of Work. The Department asserts that the Negotiation Team reached the right conclusion for the right reasons. Based on the testimony received at the final hearing, the Department demonstrated that the members of the Negotiation Team “collectively [had] the experience and knowledge” required to conduct and score the ITN. Each negotiator convincingly testified regarding their ability to ably and proficiently participate in the Department’s solicitation process. Although, none of the negotiators, individually, had prior experience developing a statewide telecommunications network or administering a P25 system, as a team, they possessed the acumen and competence to conduct this SLERS procurement. Therefore, Harris did not establish that the Department’s appointment of a Negotiation Team consisting of Neal Morris, Becky Bezemek, Phil Royce, Matthew Matney, and Jonathan Rakestraw was contrary to its governing statutes (section 287.057(16)(a)2.). Coverage, Capacity, Reliability Of Motorola’s Service Design: Motorola’s Use of Conveyed Towers: Regarding Harris’ contention that Motorola should not have incorporated Conveyed Towers into its tower network (and, therefore, the Department’s scoring of Motorola’s Best and Final Offer was flawed), the Department (through each negotiator, as well as Mr. Hogan) explained that it was well aware that Motorola’s system design of 144 RF Towers included 21 Conveyed Towers. The Negotiation Team specifically examined the issue of Motorola’s (or any winning vendor) reliance on Conveyed Towers if it is awarded the SLERS contract. The negotiators concluded that the state has the right to authorize Motorola to use the Conveyed Towers. The Department relayed that, to help reduce costs, the ITN encouraged vendor’s to take advantage of state resources. As stated in the 2016 budget proviso language, the Legislature instructed the Department, “[w]hen scoring proposals, the department shall consider, among other factors, any respondent’s ability to leverage existing resources to the public’s best interest.” (The ITN specifically referenced this quote in its Request for Best and Final Offer, Section 9.) Furthermore, even assuming that Harris’ expert (Mr. Tusa) accurately testified that Motorola cannot meet the ITN’s coverage requirements without the Conveyed Towers, the Negotiation Team was satisfied with Motorola’s representation that, for each Conveyed Tower in its proposed network, Motorola could acquire or construct an alternate tower that would enable Motorola to meet and maintain all coverage and capacity requirements. The Department, through Mr. Hogan and Mr. Shoemaker, testified that the ITN allowed the vendors flexibility in constructing their service design. The Department also understood that either vendor might alter their tower networks before the SLERS contract officially starts in July 2021. Mr. Hogan relayed that Motorola satisfactorily demonstrated the ability to build and adapt a tower network that would meet the ITN’s coverage objectives. The Department stressed that the ITN did not mandate a specific number of radio towers a vendor must use to reach the coverage and capacity objectives. Neither did the ITN dictate where a vendor was to actually locate its constellation of tower sites. Furthermore, Mr. Hogan attested that neither the ITN nor the Negotiation Team required the vendors to identify alternative tower sites. Mr. Hogan acknowledged that a vendor will confront a number of factors in selecting a new tower site, including access, construction, cost, environment, and permitting issues. However, he believed that six months was a reasonable amount of time Motorola would need to find an alternate tower site. In addition, to protect the Department’s interests, the Final Statement of Work provides that, before the SLERS contract begins, the vendor’s system will undergo significant final acceptance testing. If the vendor is unable to meet the 98 percent/95 percent coverage requirements and pass the final acceptance test, the vendor will be obligated to make whatever changes are necessary to ensure that its service meets the coverage requirements at no additional charge to the State. The state will bear no costs beyond the “Total Price for Scoring” the vendor listed on its SLERS Design Pricing Workbook Pricing Summary, even if the vendor must construct additional towers.22/ The Department fully expected the vendors to rely upon their own experience to develop innovative solutions to meet the ITN’s coverage and capacity objectives. In line with this approach, the Department pointed to an e-mail sent on November 6, 2017, when it made clear to both vendors that: All price submissions represent maximum amounts owed to the vendor. The Department will not be responsible for payment in excess of the prices submitted, regardless of the eventuality. For example, if the awarded vendor proposes to use a resource controlled by the state or a governmental entity and is unable to secure the use of that resource, then the vendor must utilize an alternate resource and charge no higher cost than set forth in the vendor’s Best and Final Offer. In other words, if Motorola could not use the Conveyed Towers in its network, then Motorola assumed all risk to buildout and complete its tower constellation. The state will not bear any additional costs or expenses necessary to replace or substitute towers. Motorola’s Service Design: The Department is fully satisfied that Motorola is capable of designing and implementing a system that will meet the ITN’s requirements. Mr. Downie and Mr. Shoemaker expressed that the Department sought to place the onus on the vendors, not the state, to build the P25 SLERS system. Therefore, the ITN allowed the vendors to be creative and flexible in crafting a proposed “solution” to build, then operate, the new P25 SLERS. Mr. Hogan represented that, based on the methodology and coverage prediction maps Motorola presented in its Best and Final Offer, the Department believes that Motorola will build a system that meets the ITN’s coverage and capacity objectives. Regarding Harris’ charge that the frequency plan Motorola listed in its Best and Final Offer was inadequate to meet the ITN’s capacity objective, Mr. Hogan pointed out that the ITN did not require vendors to present a “valid final” frequency plan. Instead, the Request for Best and Final Offer asked vendors to describe how they would develop their frequency plan. Furthermore, Mr. Hogan explained that radio frequencies available on one date, (e.g., February 14, 2018) might not be available at a later date (e.g., July 1, 2021) when the vendor would apply to the Federal Communications Commission for the frequency licenses. Further, Mr. Hogan testified that the Department recognizes that conducting a frequency interference analysis or intermodulation analysis is an enormous and costly undertaking. Therefore, the Department did not request the vendors complete this task prior to an award of the SLERS contract. He commented that this type of analysis for a statewide network of this scale is normally accomplished during system implementation, along with an extensive site-by-site review. Mr. Hogan further articulated that if a proposed tower site is determined to be unusable during the construction and implementation of the network, the vendor, not the state, is obligated to identify and secure a viable, alternate tower site. The Department also found that Motorola’s proposed service design satisfies the reliability requirements of the Request for Best and Final Offer. During negotiations (and at the final hearing), Motorola presented credible testimony explaining that any risk of rain fade in its 11-GHz microwave paths would not unacceptably disrupt SLERS radio communications. Mr. Hogan explained that microwave is commonly used in public safety communication systems. Microwave is the mechanism that allows wide area communication over long distances. Therefore, the Department anticipated the vendors’ use of microwave paths between towers to enable their systems to meet the required reliability expectations. The ITN did not prohibit vendors from using 11-GHz microwave paths. Mr. Hogan was aware that rain may cause the microwave signal levels to decrease. Mr. Hogan was also cognizant that 11-GHz microwave paths are more susceptible than 6-GHz microwave paths to rain fade. Therefore, thunderstorm activity combined with the lengthy distance between towers in Motorola’s network might affect the connectivity of Motorola’s system design. However, Mr. Hogan was satisfied that Motorola’s design includes a mechanism to reduce loss due to rain fade, thereby maintaining the desired reliability of its system. Motorola intends to equip its RF towers with a back-up Ethernet system, as well as multiple alternate paths. This system design will operate to prevent RF towers from losing connection to the network during a rain storm. MOTOROLA RESPONSE TO HARRIS’ PROTEST In arguing that Harris’ protest has no merit, Motorola asserts that not only does its Best and Final Offer comply with all ITN requirements, but its proposed service design will provide the state with a new P25 radio system that takes advantage of the latest advancements in technology and network designs. Motorola’s solution will meet the performance objectives set forth in the ITN. And, it will do so for approximately $300 million less than Harris. Coverage, Capacity, Reliability of Service Design: Regarding Harris’ allegations that Motorola’s Best and Final Offer does not meet the ITN’s technical requirements, Motorola responds as follows: Use of Conveyed Towers: Motorola testified that the Department fully supported Motorola’s (or any vendor’s) use of Conveyed Towers to develop their tower network. Motorola points to the Department’s Request for Best and Final Offer, Attachment A – Final Statement of Work, Section 9, which refers directly to Specific Appropriation 2838, chapter 2016-66, Laws of Florida, and states, “When scoring proposals, the department shall consider, among other factors, any respondent's ability to leverage existing resources to the public's best interest.” Motorola understood that the state will have access to the Conveyed Towers, rent free, beginning in 2021 after the Harris SLERS contract expires. Based on the legislative directive to “leverage existing resources,” Motorola readily incorporated the Conveyed Towers into the overall architecture of its system. Motorola also points out that the ITN did not require vendors to provide a list of fixed and immutable tower sites or identify alternate tower sites in their Best and Final Offers. Instead, the winning vendor was free (if not expected) to finalize their tower networks during the transition period prior to the start of the SLERS contract.23/ Several provisions of the ITN demonstrate that the Department sought the vendors’ preliminary plans for future development of a coverage configuration that would meet the SLERS service requirements. For example, ITN, Section 3.3.1, directed the vendors to “[d]escribe how the proposed Terrestrial and Maritime Service design will be developed.” (emphasis added). ITN, Section 9, advised that the Department required “a detailed Transition Plan that defines the proposed activities that will be completed during the SLERS implementation. Should the [vendor] propose utilization of existing resources[,] the Transition Plan shall explain how these resources will be leveraged in the transition of the implementation.” (emphasis added). At the final hearing, Motorola, through Andrew Miller, a system engineer, credibly testified that Motorola had already identified potential alternative sites to replace any of the 144 towers listed in its Best and Final Offer should they not be available or feasible for use in its final tower network. In reaching its proposed list of 144 tower sites, Motorola personnel visited more than 290 potential sites to evaluate suitable candidates. Motorola personnel also assessed approximately 300 additional sites in case any of the 144 tower sites were unavailable for the new P25 system. In addition, to verify its coverage assumptions, Motorola ran coverage-prediction scenarios through computer programs which enabled Motorola to further refine its service design. Mr. Miller was confident that Motorola would find alternative tower sites before July 2021 if Harris’ Conveyed Towers were not available. Furthermore, Motorola’s Best and Final Offer represented to the Department that if access to any of the Conveyed Towers was delayed, Motorola is prepared to deploy temporary sites and Project 25 Inter RF Subsystem Interfaces (“ISSI”) to ensure that its SLERS system meets the required level of operational capacity. Finally, Motorola also points out that the Department made it clear during negotiations that if Motorola won the contract, but was not able to use any of Harris’ Conveyed Towers (or any other “existing resource”) in its system design, Motorola was responsible for finding an alternative at no additional cost to the Department. Motorola also referenced Ms. Covell’s e-mail, dated November 6, 2017, wherein she explained that, “All price submissions represent maximum amounts owed to the vendor. The Department will not be responsible for payment in excess of the prices submitted, regardless of the eventuality.”24/ Reliability of Motorola’s Service Design: Motorola declares that its service design fully complies with the ITN’s requirement that vendors must build redundancies and backup options into the P25 system to account for possible connectivity, component, or hardware failures. See ITN, Section 3.1.5. Regarding Harris’ charge that Motorola’s use of 11-GHz microwave paths is less reliable than 6-GHz microwave in bad weather, Motorola responds that it designed its system with several layers of redundancy. At the final hearing, Motorola presented Said Jilani, a network solutions architect with Aviat Networks, who described how Motorola’s microwave transport system was designed to account for, and circumvent, possible rain fade. Mr. Jilani explained that Motorola’s network includes: 1) industry traditional microwave radio (operating mostly on 11-GHz channels, as well as some 6-GHz channels)25/; 2) carrier circuits supplied by AT&T (referred to as Ethernet); and 3) 4G LTE wireless (similar to cell phone service). Furthermore, in designing its system’s microwave paths, Motorola assessed microwave path reliability, and identified backup paths or other options in the event of outages or microwave fading due to rain, equipment failure, or other adverse conditions. Mr. Jilani further testified that Motorola’s proposed system design includes Internet Protocol/Multiple Protocol Layer Switching (“IP/MPLS”) routing equipment at every tower site. This IP/MPLS equipment serves to identify the optimal microwave path to transmit radio signals. The optimal path might be a microwave path or an AT&T-owned carrier path. Mr. Jilani stated that IP/MPLS technology provides full detection, quick recovery, and scaling of the network through virtualization. The use of IP/MPLS technology is a common practice in the public-safety industry. In developing its system, Motorola also used a software program to analyze the parameters and availability of each microwave path. Factored into the program’s analysis was historical rain data for the applicable region of the state. Should rain fading occur, Motorola’s system will be programed to detect the issue and switch transmission to the second-shortest microwave path (or AT&T carrier path). With its multi-layered design, Motorola asserts that its system will remain fully operational during extreme weather events. Motorola’s preliminary design is expected to provide 99.999966 percent composite path availability. (Mr. Miller explained that this standard equates to approximately 15 seconds of lost radio signal per year if every communications system at a tower site failed at once-–thus, a highly reliable number.) Therefore, while Motorola’s decision to use mostly 11-GHz microwave paths (instead of 6-GHz channels) increases the potential for rain fade, Mr. Jalani and Mr. Miller credibly testified that Motorola’s backup paths enable its SLERS system to continue operations and remain viable even during heavy rainstorms. 3) Motorola’s Frequency Plan: Motorola asserts that the frequency plan it provided in its Best and Final Offer fully complies with the terms of the ITN. Motorola argues that Harris’ contention that Motorola cannot implement a viable frequency plan is incorrect. In addition, the ITN sought a preliminary, not final, frequency plan.26/ (The ITN directed the vendors to “[d]escribe how a detailed frequency plan will be developed and any special considerations for use of 700 MHz and 800 MHz channels.” See Final Statement of Work, Section 3.5. (emphasis added).) The Department did not require the vendors to pre-license their frequencies at the time they submitted their Best and Final Offers. Motorola’s expert witness, Dominic Villecco of V-Comm, LLC, credibly testified that, if awarded the SLERS contract, Motorola will be able to effectuate a fully capable and compliant frequency plan to meet the ITN’s coverage objectives. Motorola intends to find the majority of the frequencies it will use for radio transmissions in 700 band frequencies. Mr. Villecco explained that 800 band frequencies are congested because they have been allocated and licensed for public-safety purposes since the 1980s. In contrast, 700 band frequencies, which were not licensed for public-safety purposes until the 2000s, contain more unused channels. Mr. Villecco relayed that Motorola’s system will need between 6-10 channels at each tower site. In its Best and Final Offer, Motorola identified potential frequencies it might use to generate its frequency plan. Mr. Villecco opined that, prior to implementing the SLERS contract in July 2021, Motorola should not have any difficulty acquiring available frequencies in the 700 band over which to conduct radio communications. In addition, using the “cleaner” 700 band will allow Motorola more flexibility to position RF tower sites where necessary to provide maximum coverage and reliability. Motorola further contends that Harris’ allegations ignore how radio frequencies are allocated and licensed in practice. Testimony at the final hearing explained that licenses for radio frequencies are normally issued after a communications tower or network has been constructed or installed. Consequently, the competitors for this SLERS contract will not be able to definitively identify which radio frequencies their communication networks will use (or which frequencies will actually be available for use) until a license is applied for. Furthermore, because the final tower design will be pieced together over the transition period, a frequency that was identified at the time the vendors submitted their Best and Final Offers might not be available when the system “goes live.” Mr. Villecco testified that, consequently, securing the precise statewide frequency plan prior to award of the SLERS contract is impractical, if not impossible. Instead, the standard industry practice in procurements is for a vendor to ascertain the general availability of frequencies. Then, after award of the contract, the winning vendor identifies the specific, available frequencies to incorporate into its network. At that point, a license to use those frequencies is obtained from the Federal Communications Commission in the name of the applicable government entity. Thereafter, the vendor fully develops the final frequency plan (as contemplated by ITN, Section 3.5.) The Price is the Price: Regarding Harris’ complaint that Motorola submitted an (unrealistic) price to provide the SLERS service, Motorola pithily responded that “the price is the price.” In other words, should Motorola be awarded the SLERS contract, the total price that the Department will be obligated to pay for the service is capped by the figure Motorola quoted on the Final Pricing Workbook ($687,797,127). See Request for Best and Final Offer, Attachment B – Final Contract, Section 3.1, which states, “The [Vendor] shall adhere to the prices as stated in Pricing Workbook, Attachment E.” Furthermore, the Department will not pay the winning vendor during the transition period when the vendor is constructing and implementing its system’s final design. Therefore, despite Harris’ claims that Motorola’s much lower price will lead to future financial liabilities on the part of the state, Motorola repeatedly and credibly testified that it has no expectation or intention of seeking additional monies from the state to operate the SLERS service. Furthermore, in response to Harris’ allegation that Motorola’s Best and Final Offer did not include firm component prices, Motorola, through Jay Malpass, its Strategic Project Manager, presented credible testimony reiterating the Department’s description of finality of the price Motorola quoted as its “Total Price for Scoring,” as well as Motorola’s obligation to bear any additional costs after the Department awards the contract (e.g., the cost of locating or constructing alternate tower sites or erecting security fencing). Mr. Malpass explained that Motorola will bear all costs incurred during the four-year transition period to make its system operational. Mr. Malpass further testified that the price recorded in its Final Pricing Workbook ($687,797,127.00) “is locked in.” That figure represents Motorola’s “full total price, all inclusive, not to exceed, complete, compliant design.” Mr. Malpass asserted that Motorola fully intends to be bound by that price and does not expect the state to pay it anything more for the delivery of a successful P25 SLERS service. To summarize the findings in this matter, the competent, substantial evidence presented at the final hearing demonstrates that Motorola submitted a service design in its Best and Final Offer that fully complied with the ITN requirements. Motorola (and the Department) credibly explained the methodology Motorola will use to construct, operate, and maintain a new P25 SLERS service. Motorola presented persuasive evidence that the radio communications system it will build will meet the ITN’s coverage, capacity, and reliability objectives (with or without the Conveyed Towers). Motorola’s witnesses credibly testified that Motorola will be able to acquire any necessary assets or equipment to build its network during the transition period prior to the start of the SLERS contract (e.g., alternate tower sites or radio frequencies). Furthermore, based on its explanation of the “routing diversity” incorporated into its system design, Motorola presented credible and persuasive evidence that its use of 11-GHz microwave paths will be sufficiently structured to meet the ITN’s coverage and reliability expectations in the event of microwave path outages, rain fading, or other severe environmental incidents. Finally, Motorola satisfactorily addressed any concerns about the price it will charge the state. The price it quoted as its “Final Price for Scoring” ($687,797,127.00) is the maximum price the state will pay Motorola upon award of the SLERS contract. Regarding Harris’ complaint that the Department did not assign a qualified Negotiation Team, the evidence establishes the contrary. Testimony at the final hearing demonstrated that the individuals the Department assembled to score the vendors’ responses “collectively” possessed the “experience and knowledge in negotiating contracts, contract procurement, and the program areas and service requirements for which commodities or contractual services are sought” as required by section 287.057(16)(a)2. The Negotiation Team’s ranking of the Best and Final Offers was logical, reasonable, and based on a sound understanding of the information sought in the ITN. Finally, Harris did not establish, by a preponderance of the evidence, that the Department’s decision to award the SLERS contract to Motorola was clearly erroneous, contrary to competition, arbitrary, or capricious. There is no evidence Motorola obtained any competitive advantage in this solicitation. Neither is there evidence that the Department conducted this procurement in a manner that was contrary to its governing statutes, rules or policies, or the provisions of the ITN.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order dismissing the protest by Harris. It is further recommended that the Department of Management Services award the contract under Invitation to Negotiate No. DMS-15/16- 018 to Motorola. DONE AND ENTERED this 5th day of September, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 5th day of September, 2018.
The Issue The central issue in this case is Petitioner's challenge to the request for proposal (RFP) which the Department of Labor and Employment Security (Department) has identified as RFP 94-052-SH. Such protest relates to four specific areas of the RFP.
Findings Of Fact On May 16, 1994, the Department issued RFP 94-052-SH seeking contractor submittals for the maintenance of its Information Management Center (IMC) including IBM, Xerox, and Storagetek mainframe peripherals and standalone printers. The request did not include the mainframe processor. After receiving the RFP and other documents, Petitioner timely filed a notice of intent to challenge provisions of the RFP. On June 6, 1994, Bell timely filed a written formal petition protesting the provisions of the RFP which it alleged favored one prospective bidder over others. Prior to hearing, seven of the eleven challenges to the provisions were resolved by the Department and Bell. Consequently, no findings of fact are submitted as to those provisions. Section 4.4 of the RFP provides, in pertinent part: Staffing--In accordance with the requirement of this Request For Proposal, the proposer shall provide documentation describing the staffing infrastructure to support the requirements listed in this RFP. Documentation should include at a minimum: * * * c. Proposals shall include, 1) the number of experienced, trained staff that will be working on this contract, and 2) the number of additional experienced, trained staff that will be available in the Tallahassee area for backup. More specific than the foregoing, Section 6.2 of the RFP provides: The Contractor shall have Customer Engineers specifically trained for each piece of equipment included in the RFP or maintenance bid located at the IMC in Tallahassee, Florida. These Customer Engineers shall be available to be onsite, 24 hours each day, 7 days each week. There must be a sufficient number of primary Customer Engineers and backups to maintain a minimum staffing level of one primary CE and one backup trained on each component listed in the RFP. Each primary and backup CE must be trained on the equipment to which they are assigned. Training shall be completed before the individual is assigned to service the equipment covered by this proposal. [Emphasis added.] The services specified by this RFP project should require no more than one person devoting two hours per day. Based upon the terms of the RFP, the "number of additional experienced, trained staff that will be available in the Tallahassee area for backup" should be construed to be those who are available for this project, as opposed to those who may be located in Tallahassee but are assigned to other projects. As the language is clear, this provision is not arbitrary or vague. Section 4.6 of the RFP provides: Value Added Services--The Contractor shall provide a detailed list of additional support services available through this contract. These services shall be considered as part of the contract and made available to the Department at no additional cost. The Department will evaluate the services based on their application to the Department's needs. Monthly equipment pricing should take into consideration any services listed in this section. Areas of interest include services such as: Machine monitoring for enhanced corrective and preventative services; Network Problem Resolution Assistance; Equipment relocation. For each service listed by the Contractor, the following information should be provided to assist the Department in the evaluation of these services: Detailed description of the functions, capabilities, and availability of the service including scope and delivery of benefits; The availability of acquiring the services outside the scope of this contract and, if applicable, the published cost of the service; If the service is being subcontracted, subcontractor information will be required as outlined in section 4.3; References of current customers who use the service. The Department has not specified the types of "value added services" that must be included in the contract cost; nor has it disclosed, among the examples listed, the extent to which the vendor will be responsible for same. As there are literally hundreds of services which could be included, this provision fails to specify which are of importance to the agency. Moreover, by requiring that a vendor include in the contract price the amount necessary to provide the service, the contract price is arbitrarily inflated should a vendor not be required to provide the service. Additionally, a current vendor who can more accurately estimate the level a service will be used, has an advantage over those unfamiliar with past levels of utilization who are required to submit a contract price to include "value added services." As the Department has nothing to gain by requiring that the "value added services" be included in the proposed contract price, and as a current vendor aware of the Department's past need for same has an advantage over others who may bid, this provision is arbitrary and without logic. If additional services are to be required, the Department should specify the services needed and an estimate of the level of use for such services. If the Department merely seeks a laundry list of the "value added services" which a vendor could provide, then the cost for same should be separated from the contract price so that all vendors compete on the same basis. Section 7.21 of the RFP provides: At a minimum, critical replacement parts and parts which are required to meet minimum equipment failure downtime requirements as defined in section 7.40 shall be held in the Contractor's Service Center or warehouse in Tallahassee, Florida. This includes, but is not limited to replacement parts for communica- tions controllers and each type of Head Disk Assembly for all installed disk drives (see Appendix C-list of items that must be maintained in Contractor's Service Center or Warehouse in Tallahassee, Florida). All parts stocked in the Contractor's Service Center or warehouse must be deliverable to the IBM within thirty (30) minutes. High usage replacement parts must be identifiable, in part, based on recommendations by the OEM and approved by the Department. The Department obtained the list of "critical replacement parts and parts which are required to meet minimum equipment failure downtime requirements as defined in section 7.40" from the equipment manufacturers. Such vendors are likely to compete for the subject RFP. The Department intended such list to include any parts necessary to assure that the downtime of the system would be minimized. The Department did not consider the failure rate of such parts and, in the past, has not incurred problems with many of the items listed. In fact, fifty percent of the parts listed have no industry history for failure. Additionally, the Department did not consider the price of the part in determining whether it should be warehoused in Tallahassee. As it relates to this provision, section 7.40 only requires that the maintained equipment is to have "diagnostics and corrective actions performed to eliminate equipment failure downtime as soon as possible but not to exceed two (2) hours." Whether that section requires a correction within two hours or that diagnosis and actions be begun within two hours is unclear. However, the cited section is the sole reference for the parts replacement list standard. Curiously, the list of parts required does not include items which, by history, have a high rate of failure and which could result in downtime to the system; such parts include: a cooling fan, a blower fan for the assembly, and a battery backup for the solid state memory. These parts have a minimal cost and could be readily stocked in Tallahassee. In contrast, the parts which are required by the RFP are relatively expensive. Collectively, the cost of such parts exceeds $60,000 and, given the estimate of the monthly price for this contract, it is less likely such parts would be warehoused in Tallahassee by a vendor who did not manufacture same. As a result, this provision arbitrarily favors a vendor who manufactures the part since there is no showing that the part is necessary to minimize downtime. Section 7.31 of the RFP provides: The IMC currently utilizes real-time online retrieval of Engineering Changes for some components under maintenance contract in order to decrease EC procurement and installation time in a remedial maintenance situation. The contractor shall provide a similar method by which Engineering Changes can be acquired expeditiously. The foregoing provision fails to acknowledge that a vendor, other than the manufacturer, can only implement engineering changes as coordinated with the OEM. This provision, if construed to recognize that limitation, would not, based upon the language, arbitrarily favor one bidder over another.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Labor and Employment Security enter a final order amending the provisions of RFP 94-052-SH to either delete the inclusion of the price of "value added services" from the contract cost or to specify more information as to the Department's need regarding such services; and to amend the critical parts list to those items that have an industry history for failure and thus contribute to system downtime. DONE AND RECOMMENDED this 30th day of September, 1994, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3527BID Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1-9, 11-15, 20, and 22-27 are accepted. The first sentence of paragraph 10 is accepted; the remainder rejected as incomplete or irrelevant as it is not clear what the intention of the phrase was. The first sentence of paragraph 18 is accepted; the remainder rejected as argument. Paragraph 19 is rejected as argument. Paragraph 21 is rejected as irrelevant. Paragraph 28 is rejected as argument. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1-3, 8 and 11 are accepted. Paragraph 4 is accepted but is irrelevant. With regard to paragraph 5, the last sentence is rejected as irrelevant; the remainder is accepted. Paragraph 6 is rejected as irrelevant. Paragraph 7 is accepted as to the statement of intent but is rejected as the cited provision does not accomplish the Department's stated goal and is therefore not supported by the weight of credible evidence; consequently, an amendment to the provision is necessary. All references to the Comptroller's RFP are rejected as irrelevant to the extent such comments infer that the record in this case supports the cited provision. Accordingly, such references in paragraphs 9 and 10 are rejected. Additionally, the inference in paragraph 9 that the critical parts list rationally relates to parts necessary to keep the system running is rejected as not supported by the credible weight of the evidence. The Department acknowledged or did not refute that many of the parts do not have an industry record for failure additionally, other parts were not listed which do have a failure history and which could cause the system downtime. Except as noted above, paragraph 10 is accepted. Paragraph 12 is accepted but is irrelevant. COPIES FURNISHED: Gregory P. Borgognoni RUDEN, BARNETT, McCLOSKY, SMITH SCHUSTER & RUSSELL, P.A. 701 Brickell Avenue, Suite 1900 Miami, Florida 33131 Edward A. Dion General Counsel Department of Labor and Employment Security The Hartman Building, Suite 307 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2189 Shirley Gooding, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-0300
