The Issue Whether Respondent violated the provisions of chapter 440, Florida Statutes, by failing to secure the payment of workers’ compensation as alleged in the Stop-Work Order and 3rd Amended Order of Penalty Assessment, and if so, what penalty is appropriate.
Findings Of Fact The parties agree to the following facts as set forth in the Joint Pre-hearing Stipulation: The Department is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees and corporate officers. Respondent, a Florida corporation, was engaged in business operations in the state of Florida from November 16, 2010, through November 15, 2013. Respondent received a Stop-Work Order and Order of Penalty Assessment from the Department on November 15, 2013. Respondent received a Request for Production of Business Records for Penalty Assessment Calculation from the Department on November 15, 2013. Respondent received a 3rd Amended Order of Penalty Assessment from the Department on March 11, 2014. Throughout the penalty period, Respondent was an “employer” in the state of Florida, as that term is defined in section 440.02(16), Florida Statutes (2013).1/ All of the individuals listed on the penalty worksheet of the 3rd Amended Order of Penalty Assessment were “employees” in the state of Florida (as that term is defined in section 440.02(15)) of Respondent during the periods of non-compliance listed on the penalty worksheet. None of the individuals listed on the penalty worksheet attached to the 3rd Amended Order of Penalty Assessment had a valid Florida workers' compensation coverage exemption at any time during the periods of non-compliance listed on the penalty worksheet. Respondent did not secure the payment of workers' compensation insurance coverage, nor have others secured the payment of workers' compensation insurance coverage, for any of the individuals named on the penalty worksheet attached to the 3rd Amended Order of Penalty Assessment during the periods of non-compliance listed on the penalty worksheet. None of the individuals listed on the penalty worksheet of the 3rd Amended Order of Penalty Assessment were “independent contractors” (as that term is defined in section 440.02(15)(d)1.) hired by Respondent for any portion of the periods of non- compliance listed on the penalty worksheet. Wages or salaries were paid by Respondent to the individuals listed on the penalty worksheet, whether continuously or not, during the corresponding periods of noncompliance listed on the penalty worksheet. The gross payroll amounts (column “c” of the penalty worksheet of the 3rd Amended Order of Penalty Assessment) for the employees listed on the penalty worksheet are correct. Respondent was engaged in business operations in the state of Florida as an auto recycling store from November 16, 2010, through November 15, 2013. The store operated by Respondent is called A&A Auto Recycling and is located at 5507 9th Street East, Bradenton, Florida. The store consists of an enclosed retail area and an open yard area where vehicles are kept. John Austerman is the business owner and president. Respondent employed at least ten employees at any given time during the period from November 16, 2010, through November 15, 2013. Employees working in the retail area check inventory on the computer, perform customer service, and sell parts. Employees working in the retail area also “mark parts,” such as fenders, when customers bring them in for purchase from the area on Respondent’s property where vehicles are kept (the yard). Respondent does not dispute the assignment of classification code 3821 to the employees identified as such on the penalty worksheet of the 3rd Amended Order of Penalty Assessment. Respondent does dispute, however, that classification code 3821 should be assigned to John Austerman. John Austerman conducts physical inventories of approximately 100 vehicles a month that arrive at the store for recycling. Mr. Austerman’s inventories include opening the doors and popping the engine hoods of the vehicles. Mr. Austerman walks the auto salvage yard approximately once per week for ten to fifteen minutes so as to ensure that the property is being properly maintained. In addition to vehicle and property inspections, Mr. Austerman also performs customer service, accounting, and clerical work for the business. The National Council of Compensation Insurance (“NCCI”), is the rating bureau that establishes class codes for the workers' compensation industry in Florida. NCCI classification code 3821 provides as follows: Code 3821 contemplates dismantling or wrecking of used automobiles, motorcycles and trucks for the salvaging of parts. Auto dismantling may consist of the simple removal of saleable parts by means of hand tools and retaining the frames and bodies for future sale to outside scrap collectors. Some dismantlers will also break up stripped chassis and bodies with acetylene torches or shears to be sold in the form of iron or steel scrap. In addition to the dismantling work, salvaged parts may be reconditioned or repaired and sold over the counter. New parts may also be stocked. In the case of larger risks, a number of other functions may often be performed such as auto repairing, gas station operations, glass reconditioning, brake relining, cylinder re-boring, piston grinding, and battery or tire repair. * * * Special Conditions: Store employees who do not engage in other operations and have no yard exposure are classified to Code 8046. NCCI classification code 8046 provides as follows: Code 8046 applies to those employees of automobile recyclers who are engaged in store operations and have no yard exposure to the yard. Duties conducted by these store employees include but are not limited to greeting and assisting customers, checking inventory on computers, pulling smaller parts from an inside parts warehouse an [sic] taking payments. These store employees may appear to have clerical duties but are properly classified to Code 8046. Refer to Code 3821 for all other employees of automobile recyclers. NCCI classification code 8046 applies to auto salvage employees who only work in the retail area of the store and have no yard exposure. For auto salvage employees, like John Austerman, who engage in other salvage related operations and who have exposure to the yard, code 3821 is the proper classification for such employees. Respondent asserts that all employees assigned the classification code of 8046 on the 3rd Amended Order of Penalty Assessment should be classified as code 8810 because these employees have clerical duties. The credible evidence does not support such a finding.2/ As previously noted, NCCI classification code 8046 provides: “These store employees may appear to have clerical duties but are properly classified to Code 8046.” Petitioner correctly assigned Respondent’s employees appearing on the 3rd Amended Order of Penalty Assessment to classification code 8046. Petitioner assigned the proper classification codes to each of Respondent’s employees. Respondent, in its Proposed Recommended Order, makes no argument with respect to the approved manual rates and only argues that the 3rd Amended Order of Penalty Assessment be amended “to reflect that all employees on the penalty calculation worksheet not classified as ‘3821’ [be] properly classified as ‘8810.’” Given that there is no dispute regarding whether Petitioner applied the appropriate approved manual rates, it is determined that Petitioner assigned the appropriate approved manual rates to assess the workers' compensation insurance coverage premium amounts that Respondent would have paid during the penalty period had Respondent obtained workers' compensation insurance coverage.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order assessing a penalty in the amount of $99,571.67 against Respondent, Austerman, Inc., for its failure to secure and maintain required workers’ compensation insurance for its employees. DONE AND ENTERED this 28th day of October, 2014, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 2014.
The Issue At issue in this proceeding is whether the Respondent, George Washington Beatty, III, failed to abide by the coverage requirements of the Workers' Compensation Law, chapter 440, Florida Statutes, by not obtaining workers' compensation insurance for himself and/or his employees, and, if so, whether the Petitioner properly assessed a penalty against the Respondent pursuant to section 440.107, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. George Washington Beatty, III, is a sole proprietor who works as a painter and general construction handyman in the vicinity of Panama City. The types of work performed by Mr. Beatty are properly considered construction industry work. Mr. Beatty’s business is not incorporated. He has no regular employees other than himself. His Form 1099-MISC tax forms indicate that he was actively engaged in performing construction work during the two-year audit period from September 9, 2012, through September 8, 2014. Carl Woodall is a Department compliance investigator based in Panama City. On September 8, 2014, Mr. Woodall drove up to 1803 New Hampshire Avenue in Lynn Haven, a vacant house where he saw a “for sale” sign and indications of work being performed on the house: the garage door was open and contained a great deal of painting materials such as drop cloths and paint buckets. A work van and a pickup truck were parked in the driveway. Mr. Woodall testified that as he walked up to the front door, he could see someone inside on a ladder, painting the ceiling. As Mr. Woodall started to go in the front door, he was met by Mr. Beatty on his way out the door. Mr. Woodall introduced himself and gave Mr. Beatty his business card. Mr. Woodall asked him the name of his business and Mr. Beatty stated that he did not know what Mr. Woodall was talking about. Mr. Beatty then told Mr. Woodall that he worked for Brush Stroke Painting but that he was not working this job for Brush Stroke. Mr. Beatty told Mr. Woodall that he was helping out a friend. Mr. Woodall asked whether Mr. Beatty had workers’ compensation insurance coverage, and Mr. Beatty again stated that he did not know what Mr. Woodall was talking about. He was just there helping out his friend, the owner of the house. Mr. Woodall asked Mr. Beatty to give him the owner’s name and phone number. Mr. Beatty went out to his van to retrieve the information. While Mr. Beatty was out of the house, Mr. Woodall took the opportunity to speak with the three other men working in the house. The first man, whom Mr. Woodall approached, was immediately hostile. He said that he was not working for anyone, that he was just helping someone out. He walked out of the house and never returned while Mr. Woodall was there. Mr. Woodall walked into the kitchen and spoke to a man who was on a ladder, painting. The man identified himself as Dennis Deal and stated that he was working for Mr. Beatty for eight dollars an hour in cash. He told Mr. Woodall that he helped out sometimes when Mr. Beatty needed help. Before Mr. Woodall could speak to the third person, Mr. Beatty came back into the house with the owner’s contact information. Mr. Beatty continued to deny that he was paying anyone to work in the house. With Mr. Beatty present, Mr. Woodall spoke with the third man, Michael Leneave, who stated that Mr. Beatty was paying him ten dollars an hour in cash. Mr. Woodall then took Mr. Beatty over to Mr. Deal, who reiterated that Mr. Beatty was paying him eight dollars an hour. Mr. Beatty responded that he could not believe the men were saying that because he had never told them a price. Mr. Woodall asked Mr. Beatty to identify the man who left the house, and Mr. Beatty told him it was Tommy Mahone. Mr. Beatty stated that Mr. Mahone had a bad temper and probably left to get a beer. After speaking with Mr. Beatty and the other men, Mr. Woodall phoned Brian Daffin (Mr. Daffin), the owner of the house. Mr. Woodall knew Mr. Daffin as the owner of an insurance company in Panama City. Mr. Daffin told Mr. Woodall that Mr. Beatty was painting his house, but was evasive as to other matters. Mr. Woodall stated that as the owner of an insurance company, Mr. Daffin was surely familiar with workers’ compensation insurance requirements and that he needed a straight answer as to whether Mr. Daffin had hired Mr. Beatty to paint the house. Mr. Daffin stated that he did not want to get Mr. Beatty in trouble, but finally conceded that he had hired Mr. Beatty to paint the house. Of the other three men, Mr. Daffin was familiar only with Mr. Mahone. He told Mr. Woodall that he had hired Mr. Beatty alone and did not know the details of Mr. Beatty’s arrangements with the other three men. At the hearing, Mr. Beatty testified that he was asked by Mr. Daffin to help him paint his house as a favor. Mr. Beatty had met Mr. Daffin through James Daffin, Mr. Daffin’s father and Mr. Beatty’s friend. No one was ever paid for anything. Mr. Beatty stated that he took the lead in speaking to Mr. Woodall because he was the only one of the four men in the house who was sober. He told Mr. Woodall that he was in charge because Mr. Daffin had asked him to oversee the work. None of the three men alleged to have been working for Mr. Beatty testified at the hearing. Mr. Daffin did not testify. Mr. Beatty’s testimony is thus the only direct evidence of the working arrangement, if any, which obtained between Mr. Beatty and the three other men present at the house on September 8, 2014. The only evidence to the contrary was Mr. Woodall’s hearsay testimony regarding his conversations with the three men and with Mr. Daffin. Mr. Woodall checked the Department's Coverage and Compliance Automated System ("CCAS") database to determine whether Mr. Beatty had secured the payment of workers' compensation insurance coverage or had obtained an exemption from the requirements of chapter 440. CCAS is a database that Department investigators routinely consult during their investigations to check for compliance, exemptions, and other workers' compensation related items. CCAS revealed that Mr. Beatty had no exemption or workers' compensation insurance coverage for himself or any employees. There was no evidence that Mr. Beatty used an employee leasing service. Based on his jobsite interviews with the alleged employees and Mr. Beatty, his telephone conversation with Mr. Daffin, and his CCAS computer search, Mr. Woodall concluded that as of September 8, 2014, Mr. Beatty had three employees working in the construction industry and that he had failed to procure workers’ compensation coverage for himself and these employees in violation of chapter 440. Mr. Woodall consequently issued a Stop-Work Order that he personally served on Mr. Beatty on September 8, 2014. Also on September 8, 2014, Mr. Woodall served Mr. Beatty with a Request for Production of Business Records for Penalty Assessment Calculation, asking for payroll and accounting records to enable the Department to determine Mr. Beatty’s payroll and an appropriate penalty for the period from September 9, 2012, through September 8, 2014. Mr. Beatty provided the Department with no documents in response to the Request for Production. On September 24, 2014, the Department issued an Amended Order of Penalty Assessment that assessed a total penalty of $141,790.96. The Amended Order of Penalty Assessment was served on Mr. Beatty via hand-delivery on October 16, 2014. Anita Proano, penalty audit supervisor for the Department, later performed her own calculation of the penalty as a check on the work of the penalty calculator. Ms. Proano testified as to the process of penalty calculation. Penalties for workers' compensation insurance violations are based on doubling the amount of evaded insurance premiums over the two- year period preceding the Stop-Work Order, which in this case was the period from September 9, 2012, through September 8, 2014. § 440.107(7)(d), Fla. Stat. Because Mr. Beatty initially provided no payroll records for himself or the three men alleged to have worked for him on September 8, 2014, the penalty calculator lacked sufficient business records to determine an actual gross payroll on that date. Section 440.107(7)(e) provides that where an employer fails to provide business records sufficient to enable the Department to determine the employer’s actual payroll for the penalty period, the Department will impute the weekly payroll at the statewide average weekly wage as defined in section 440.12(2), multiplied by two.1/ In the penalty assessment calculation, the Department consulted the classification codes and definitions set forth in the SCOPES of Basic Manual Classifications (“Scopes Manual”) published by the National Council on Compensation Insurance (“NCCI”). The Scopes Manual has been adopted by reference in Florida Administrative Code Rule 69L-6.021. Classification codes are four-digit codes assigned to occupations by the NCCI to assist in the calculation of workers' compensation insurance premiums. Rule 69L-6.028(3)(d) provides that "[t]he imputed weekly payroll for each employee . . . shall be assigned to the highest rated workers' compensation classification code for an employee based upon records or the investigator's physical observation of that employee's activities." Ms. Proano testified that the penalty calculator correctly applied NCCI Class Code 5474, titled “Painting NOC & Shop Operations, Drivers,” which is defined in part as “the general painting classification. It contemplates exterior and interior painting of residential or commercial structures that are constructed of wood, concrete, stone or a combination thereof regardless of height.” The corresponding rule provision is rule 69L-6.021(2)(jj). The penalty calculator used the approved manual rates corresponding to Class Code 5474 for the periods of non-compliance to calculate the penalty. Subsequent to issuance of the Amended Order of Penalty Assessment, Mr. Beatty submitted to the Department, IRS Wage and Income Transcripts for the tax years of 2011, 2012, and 2013, but not for tax year 2014. These Transcripts consisted of Form 1099-MISC forms completed by the business entities for which Mr. Beatty had performed work during the referenced tax years. The Department used the Transcripts to calculate the penalty for the 2012 and 2013 portions of the penalty period and imputed Mr. Beatty’s gross payroll for the 2014 portion pursuant to the procedures required by section 440.107(7)(e) and rule 69L-6.028. On August 25, 2015, the Department issued a Second Amended Order of Penalty Assessment in the amount of $58,363.88, based on the mixture of actual payroll information and imputation referenced above. At the final hearing convened on November 3, 2015, Mr. Beatty stated that he now had the Wage and Income Transcript for tax year 2014 and would provide it to the Department. At the close of hearing, the undersigned suggested, and the Department agreed, that the proceeding should be stayed to give the Department an opportunity to review the new records and recalculate the proposed penalty assessment. On December 21, 2015, the Department issued a Third Amended Order of Penalty Assessment in the amount of $9,356.52. Ms. Proano herself calculated this penalty. The Third Amended Order assessed a total penalty of $9,199.98 for work performed by Mr. Beatty during the penalty period, based on the Wage and Income Transcripts that Mr. Beatty submitted. The Third Amended Order assessed a total penalty of $156.54 for work performed by Messrs. Mahone, Deal, and Leneave on September 8, 2014. This penalty was imputed and limited to the single day on which Mr. Woodall observed the men working at the house in Lynn Haven. Mr. Beatty’s records indicated no payments to any employee, during the penalty period or otherwise. The evidence produced at the hearing established that Ms. Proano utilized the correct class codes, average weekly wages, and manual rates in her calculation of the Third Amended Order of Penalty Assessment. The Department has demonstrated by clear and convincing evidence that Mr. Beatty was in violation of the workers' compensation coverage requirements of chapter 440. The Department has also demonstrated by clear and convincing evidence that the penalty was correctly calculated through the use of the approved manual rates, business records provided by Mr. Beatty, and the penalty calculation worksheet adopted by the Department in rule 69L-6.027. However, the Department did not demonstrate by clear and convincing evidence that Tommy Mahone, Dennis Deal, and Michael Leneave were employees of Mr. Beatty on September 8, 2014. There is direct evidence that Mr. Woodall saw the men working in the house, but the only evidence as to whether or how they were being paid are the hearsay statements of the three men as relayed by Mr. Woodall. The men were not available for cross-examination; their purported statements to Mr. Woodall could not be tested in an adversarial fashion. Mr. Beatty’s testimony that the men were not working for him and that he was merely supervising their work as a favor to Mr. Daffin is the only sworn, admissible evidence before this tribunal on that point. Mr. Beatty was adamant in maintaining that he did not hire the men, and his testimony raises sufficient ambiguity in the mind of the factfinder to preclude a finding that Messrs. Mahone, Deal, and Leneave were his employees. Mr. Beatty could point to no exemption or insurance policy that would operate to lessen or extinguish the assessed penalty as to his own work. The Department has demonstrated by clear and convincing evidence that Respondent was engaged in the construction industry in Florida during the period of September 9, 2012, through September 8, 2014, and that Respondent failed to carry workers’ compensation insurance for himself as required by Florida’s Workers’ Compensation Law from September 9, 2012, through September 8, 2014. The penalty proposed by the Third Amended Order of Penalty Assessment should be reduced to $9,199.98, the amount sought to be imposed on Mr. Beatty himself.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, assessing a penalty of $9,199.98 against George Washington Beatty, III. DONE AND ENTERED this 6th day of July, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 6th day of July, 2016.
The Issue Whether Respondent timely filed a written request for an administrative hearing, and, if not, whether the doctrine of equitable tolling provides a defense to the applicable deadline for filing a petition for hearing.
Findings Of Fact The Department is the state agency charged with enforcing workers’ compensation coverage requirements in Florida, including the requirement that employers secure workers’ compensation coverage for their employees. See § 440.107(3), Fla. Stat. Following an investigation to determine whether Respondent had secured sufficient workers’ compensation insurance coverage, the Department served a Stop-Work Order and Order of Penalty Assessment on Respondent on September 10, 2015. The Department served an Amended Order of Penalty Assessment on Respondent on October 15, 2015. The Department served a 2nd Amended Order of Penalty Assessment (the “Penalty Assessment”) on Respondent on December 14, 2015. With the Penalty Assessment, the Department also provided Respondent a document entitled “Notice of Rights.” The Notice of Rights advised, in pertinent part: You have a right to administrative review of this action by the Department under sections 120.569 and 120.57, Florida Statutes. To obtain review, you must file a written petition requesting review. * * * You must file the petition for hearing so that it is received by the Department within twenty- one (21) days of your receipt of this agency action. The petition must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, FL 32399-0390. FAILURE TO FILE A PETITION WITHIN THE TWENTY- ONE (21) DAYS CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THE AGENCY ACTION. Dale Russell, Compliance Investigator with the Department, personally served the Penalty Assessment along with the Notice of Rights on Respondent. As established by the Certificate of Service on the Penalty Assessment, as well as Mr. Russell’s testimony, Mr. Russell hand-delivered the documents to Respondent on December 14, 2015. Mr. Russell personally served the documents on Jose Fuentes, Respondent’s owner and general manager. Mr. Russell also reviewed with Mr. Fuentes the Notice of Rights. Mr. Russell discussed the import of the 21-day deadline to request a hearing to dispute the Penalty Assessment. Twenty-one days after December 14, 2015, is January 4, 2016. Respondent submitted to the Department a letter requesting review of the Penalty Assessment. Respondent’s letter is dated January 11, 2016. The Department received Respondent’s letter on January 12, 2016. At the final hearing, Mr. Fuentes testified regarding his handling of the Penalty Assessment and request for a hearing on behalf of Respondent. Mr. Fuentes acknowledged that he personally received the Penalty Assessment from Mr. Russell on December 14, 2015. Mr. Fuentes explained that his delay in submitting his letter to the Department was based on difficulties his family was experiencing at that time. His wife was facing surgery. Consequently, he was focused on her medical concerns, as well as caring for their three children. Unfortunately, he lost track of the time in which to file the petition. Based on the evidence set forth at the final hearing, the Department established that Respondent did not file its petition requesting administrative review with the Department within 21 days of Respondent’s receipt of the Penalty Assessment. Therefore, the legal issue to determine is whether Respondent’s petition should be dismissed as untimely filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Financial Services, Division of Workers’ Compensation, enter a final order dismissing Respondent’s request for an administrative hearing as untimely filed. DONE AND ENTERED this 16th day of June, 2016, 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 16th day of June, 2016.
The Issue Whether the protest of Barton Protective Services, LLC (Barton) challenging the Department of Transportation's (Department's) announced intention to commence negotiations with Faneuil, Inc. (Faneuil), "the firm ranked number one by the Selection Committee," for the contract advertised in ITN-DOT- 05/06-8007-EH "to provide Revenue Collection Services by staffing Department operated toll facilities" on the Florida Turnpike, should be sustained.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Florida's Turnpike Enterprise and its Toll Operations The Florida Turnpike System consists of toll roads in the southern and central parts of the state. Florida's Turnpike Enterprise (Turnpike Enterprise), a unit of the Department, is responsible for the management and operation of the Florida Turnpike System. There is, organizationally, within the Turnpike Enterprise, a Division of Toll Operations, which is headed by a Director of Toll Operations. The current Director of Toll Operations is Evelio Suarez. Mr. Suarez's immediate predecessor as Director of Toll Operations was Deborah Stemle, who held the position from December 1997, to November 13, 2003. Three "distinct units" make up the Division of Toll Operations, each headed by a Deputy Director, who reports to the Director of Toll Operations: SunPass Operations; Toll Systems Support and Maintenance; and Revenue Collection Services (RCS). The SunPass Operations unit is responsible for the Turnpike Enterprise's electronic toll collection operations. Faneuil currently has two contracts with the Department involving SunPass Operations: a "SunPass Secondary Call Center" contract, which has been in effect since April 2005; and a "SunPass Contact Center and Support Services" contract that has been in effect since April 1, 2006. The Toll Systems Support and Maintenance unit is responsible for acquiring and maintaining the infrastructure and equipment needed for toll operations. RCS is responsible for the "accurate collection and deposit of cash toll revenues and to provide efficient and friendly service to the motoring public in manned and automatic coin lanes." Milissa Burger is now, and has been since July 2002, the RCS Deputy Director. Ms. Burger's immediate predecessor as RCS Deputy Director was Charles Gilliard. Preceding Mr. Gilliard in the position was Ms. Stemle. Ms. Stemle held the position from September 1986, to December 1997.4 Under Ms. Burger's direct supervision are six regional toll managers, who oversee the overall operation of the toll facilities in one of the six following "toll regions": Orlando region; Tampa region; Palm Beach region; North Broward region; South Broward region; and Miami region. There are approximately 10 to 15 toll facilities located in each of these "toll regions." Approximately 50 of the toll facilities are "open[] on [a] 24-hour, seven-days-a-week, 365-days-a-year basis." Barbara Brantley (formerly Trien) is now, and has been since November 2002, the Orlando Regional Toll Manager. Ms. Brantley's immediate predecessor as Orlando Regional Toll Manager was Ms. Burger, who held the position from June 1991, until her promotion to RCS Deputy Director in July 2002. Frankie Cook is now, and has been for the past year and a half, the Tampa Regional Toll Manager. Steve Spitzer is now, and has been since December 1994, the Palm Beach Regional Toll Manager. Mr. Spitzer has been employed by the Department since 1990. Before becoming the Palm Beach Regional Toll Manager, he was an Operations Management Consultant with the Department. Reno Abbadini is now, and has been since December 1997, the North Broward Regional Toll Manager. Mr. Abbadini has been employed by the Department since February 1995. Before becoming the North Broward Regional Toll Manager, he was an Operations Management Consultant with the Department. Karen Greenawalt is now, and has been since October 1996, the South Broward Regional Toll Manager. Ms. Greenawalt has been employed by the Department for 32 years. John Sneed is now, and has been since August 1994, the Miami Regional Toll Manager. Before becoming the Miami Regional Toll Manager, Mr. Sneed was an Operations Management Consultant II with the Department. When she was with the Department, Ms. Stemle exercised supervisory authority over Ms. Burger, Ms. Brantley, Mr. Spitzer, Mr. Abbadini, Ms. Greenawalt, and Mr. Sneed.5 In carrying out her supervisory responsibilities, she evaluated them and authorized or recommended pay increases and/or promotions for them that she believed they "deserve[d]" and had "earned."6 Her relationship with them was "purely professional." They were not personal friends of hers with whom she socialized (nor are they now).7 Each toll facility has a toll facility manager who exercises day-to-day operational control over the activities at the facility, including supervision of regional office support staff. Toll facility managers are under the direct supervision of the regional toll manager of the region in which their facility is located. The Director of Toll Operations, RCS Deputy Director, regional toll managers, toll facility mangers, and regional office support staff are all Department employees. Privatization of Toll Facility Staffing Working at each toll facility under the direction and control of the toll facility manager are toll collectors, toll collector supervisors, toll facility laborers, and toll collection couriers. Toll collectors are "responsible for accurately classifying vehicles, collecting tolls and providing change to motorists traveling through a toll lane." Toll collector supervisors "coordinate [the] work shift[s] of toll collectors." Toll facility laborers "maintain the cleanliness of a toll facility by performing routine maintenance and custodial duties." Toll collection couriers "provide pick up and delivery service between toll facilities and [the] regional office." Until 1994, toll collectors, toll collector supervisors, toll facility laborers, and toll collection couriers were employed by the Department. Since 1994, these positions have been outsourced, with Barton providing the Department with the necessary staffing services pursuant to written contracts (one for each region). Barton representatives have regular contact with RCS personnel, including the regional toll managers (who serve as the Department's contract managers under the contracts), to discuss operational issues relating to the staffing services it provides the Department. Barton was selected to provide these services following competitive procurement solicitations in 1994, 1996, and 2000. It currently provides the Department with approximately 2,000 contract employees. The contracts Barton entered into with the Department following the 2000 solicitation each had an expiration date of November 30, 2005, which "was extended initially for a six-month period." The Department, in or around 2005, decided to "rebid" the contracts. It "wanted to provide a better overall package to the employees" than was required under its contracts with Barton in order to help limit turnover and the number of vacant positions. ITN-DOT-05/06-8006-EH To this end, in or around the first week of November 2005, the Department issued ITN-DOT-05/06-8006-EH (ITN 006), "soliciting written replies from qualified vendors interested in participating in competitive negotiations to establish [two separate] contract[]s to provide Personnel Services: Toll Collections": one providing for staffing services for the Orlando, Tampa, and Palm Beach regions; and the other providing for staffing services for the North Broward, South Broward, and Miami regions. Vendors were instructed that they could "submit proposals for both or one of the contracts to be awarded" and that they were to "submit separate proposals for each of the contracts." Ms. Burger was the "primary drafter" of ITN 006. Ms. Brantley assisted her in "writing parts of the Scope of Services." Also assisting Ms. Burger were Sheree Merting and Elizabeth Hill of the Turnpike Enterprise's "contracts office," which is headed by Woodrow Lawson, who is a contractual services administrator with the Department. ITN 006 provided for a "mandatory pre-proposal meeting," which vendors had to attend to avoid being "immediately disqualif[ied] from further consideration." It also required that vendors have experience "for at least the past five (5) years, in the management and operation of toll collections staffing." Mr. Lawson did not have any direct involvement in the drafting or issuance of ITN 006. When he first reviewed it after its issuance (in order to respond to questions from vendors that had been forwarded to him by his staff), he had a "number of concerns with the document," including the requirement that vendors have previous "toll collections staffing" experience. In Mr. Lawson's view, such a requirement was unnecessary and anti-competitive because the Department, not the vendor, was to be providing training to the contract employees. Given the extensive changes that he believed needed to be made to ITN 006, Mr. Lawson decided that the Department "needed to pull back this document and start all over." He spoke about the matter with Mr. Suarez, who "concurred and he pulled [it] back." Mr. Lawson, with the assistance of a member of his staff, Frank Elmore, and Ms. Burger, made numerous changes to ITN 006. The result of their efforts was a new invitation to negotiate, ITN-DOT-05/06-8007-EH (ITN 007). ITN-DOT-05/06-8007-EH The Department issued ITN 007 in mid to late January 2006, establishing a March 7, 2006, deadline for the submission of sealed replies. Pre-submission addenda to ITN 007 were issued on February 23, 2006 (Addendum No. 1) and February 28, 2006 (Addendum No. 2). The documents comprising ITN 007 included: the Advertisement; Special Conditions; General Contract Conditions (PUR 1000); General Instructions to Respondents (PUR 1001); Standard Written Agreement; Scope of Services (Exhibit "A"); Method of Compensation (Exhibit "B"); Price Proposal (Exhibit "C"); various "forms" and "attachments"; and the aforementioned addenda. Advertisement The Advertisement identified the "Scope of Services" the Department was soliciting as follows: The State of Florida, Department of Transportation (hereinafter referred to as the "Department") is soliciting written replies from qualified Proposers interested in participating in competitive negotiations to establish a term contract to provide Revenue Collection Services by staffing Department operated toll facilities with Proposer's employees. It is anticipated that agreement will have an initial contract term of sixty (60) months with a renewal option. The Department intends to award a contract [to] the responsive and responsible Vendor whose proposal is determined by a Selection Committee to provide the best value to the Department. One contract will be awarded which will cover the following regions in the State of Florida as further described in the Invitation to Negotiate (ITN): Orlando Region Tampa Region Palm Beach Region North Broward Region South Broward Region Miami Region Special Conditions Special Condition 5 addressed the "Scope of Services." It provided as follows: Details of desired commodity/services, information and items to be furnished by the Vendor are described in Exhibit "A," Scope of Services, attached hereto and made a part hereof. Special Condition 6 required that "any technical questions arising from this Invitation to Negotiate . . . be forwarded in writing" to Mr. Lawson's subordinate, "procurement officer" Ms. Hill. In addition, it advised that "[t]he Department's written response to written inquiries submitted timely by interested vendors [would] be posted on the Florida Vendor Bid System." In Special Condition 7, the Department "reserve[d] the right to reject any and all replies received pursuant to this Invitation to Negotiate (ITN), if [it] determine[d] such action [to be] in the best interest of the Department," and it further "reserve[d] the right to waive minor irregularities in submitted replies." The Department provided the following description of the "Invitation to Negotiate Process" in Special Condition 10: The Steps for this Invitation to Negotiate process are outlined below. Dates and times associated with these steps are shown in Section 11, Schedule of Events, of these Special Conditions. Vendors['] replies should be prepared to provide a straightforward, concise description of the Vendor's ability to meet the requirements and to allow the Department to properly evaluate the Vendor's reply. The Vendor's reply shall be thorough and complete since negotiations with respect to items of scope and items of price will be at the sole discretion of the Department. Once Vendors have been ranked, the Department will proceed with negotiation in accordance with the negotiation process described below. Vendors should be cognizant of the fact during negotiations, the Department reserves the right to finalize negotiations at any time in the negotiation process when the Department determines that such election would be in the best interest of the State. Step 1): Scope Pre-Proposal Meeting will be conducted at the Turnpike Enterprise Headquarters . . . . Attendance by Proposers is optional. Step 2) Interested Vendors must submit a sealed reply consisting of the following to the "Procurement Agent" identified on the cover page: Qualifications Questionnaire Form - with additional sheets as needed to address and respond to all questions completely (see Special Condition 14.1). Dun and Bradstreet Supplier Evaluation Report Technical Proposal Price Proposal Step 3) The Evaluation and Selection Committee, composed of at least three members, will evaluate and score the replies individually. The individual scores of the committee members will be averaged by Turnpike's Contractual Service Staff to arrive at an overall score. Vendors will be ranked in the order of their overall score with the highest scored firm ranked number one, the second highest scored firm ranked number two and so forth.[8] Step 4) Posting of Ranking for 72 hours on the Vendor Bid System. Step 5) Once the posting period has ended the Department may undertake negotiations with the first-ranked Vendor until an acceptable contract is agreed upon, or it is determined an acceptable agreement cannot be reached with such Vendor. If negotiations fail with the first-ranked Vendor, negotiations may begin with the second- ranked Vendor, and so on until there is an agreement on an acceptable contract. The Department reserves the option to resume negotiations that were previously suspended. The Department also reserves the right to forego any negotiations and execute an agreement based upon a Vendor's written proposal. The Department will initiate all negotiations. Step 6) The intended award will be posted in accordance with law and rule. Step 7) The Department will contract with the Vendor with whom an acceptable agreement was reached. Special Condition 12 provided the following information regarding the protest procedures that were available to "adversely affected" vendors: Any vendor who is adversely affected by the Department's recommended award or intended decision must file the following with the Department of Transportation . . . .: A written notice of protest within seventy-two (72) hours after posting of the intended decision, and A formal written protest and protest bond in compliance with Section 120.57(3) Florida Statutes, within ten (10) days of the date on which the written notice of protest is filed. At the time of filing the written protest a bond (a cashier's check or money order may be accepted) payable to the Department must also be submitted in an amount equal to one percent of the estimated contract amount based on the contract price submitted by the protestor. Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. If the notice advises of the bond requirement but a bond or statutorily authorized alternate is not posted when required, the agency shall summarily dismiss the petition. In Special Condition 13, vendors were given notice of the optional "pre-proposal meeting," the purpose of which would be "to provide an open forum for the Department to review the Scope of Services, ITN requirements, contractual requirements, etc." This special condition further provided as follows: At least three (3) days before the Scope Meeting, Vendors should Mail, e-mail, or fax known technical questions to the person shown on the Special Conditions page, questions and issues which they want addressed during the pre-proposal meeting. The Vendor should pay particular attention to identifying any improvement, corrective measures, or other changes that could be incorporated in the Scope of Services that had not existed or may have been overlooked or require clarification. If required, a revised Scope of Services will be issued. Vendors are certainly welcome to ask questions at the pre-proposal meeting other than those previously forwarded to the Department, but the Department reserves the right to delay a response when further consideration is needed. Special Condition 14 described what vendors needed to include in their replies to ITN 007. It read, in pertinent part, as follows: The Sealed Reply shall be in the following format and provide the requested information. Qualifications Vendors must complete and submit Form 1 "Qualifications Questionnaire" and provide the Dun & Bradstreet Report requested in the Qualification[s] Questionnaire, to show that they have the necessary qualifications and experience in providing Revenue Collection Services - Toll Operations, as specified in the Scope of Services. Written Technical Proposal Executive Summary. The Vendor shall provide an Executive Summary to be written in non-technical language to summarize the Vendor's overall capabilities and approaches for accomplishing the services specified herein. The Vendor is encouraged to limit the summary to no more than three (3) pages. Administration and Management Plan. The Vendor shall provide an administration and management plan that describes the proposed organization's administration, management, and management personnel to be assigned to the project. This will include the percent of time that each individual assigned to the program will devote to the project, and the effort that top management will commit towards support of the program. The Vendor shall provide resumes of the management personnel assigned to the project as an appendix to the technical proposal. Staffing Plan. The Vendor shall provide an in depth staffing plan for (1) each of the Vendor's six regional offices and the duties and responsibilities for each assigned position including the resumes of known individuals with education and professional experience provided in the resumes[9] and (2) the method planned to be used to staff and schedule the Department's needs at each toll facility taking into consideration both full time and part time positions. Recruitment, Hiring and Employment Matters. The Vendor shall provide an in depth plan on proposed recruitment, screening, hiring, and employee evaluations. Employee Pay, Benefits, Recognition and Retention Programs. The Vendor shall provide an in depth plan for contract employee pay adjustments, benefits, performance recognition whether positive or negative, maintaining communications to minimize turnovers and increase general employee moral[e], and any additional methods for staff retention. When presenting the plan, include as part of your retention plan, your method for calculating and reporting turnover; include as part of performance recognition, your incentive program; include as part of communications your program for communicating information to employees; include as part of the benefits plan the following: (1) the employee's out of pocket expenses expressed as a percentage of total cost for group[] medical coverage (2) vacation and sick leave policy including the amounts of hours earned annually and retention policy of such hours (3) how employees will be compensated for holiday pay and (4) any other planned benefits with associated employee cost; include as part of pay adjustments, your plan for merit increases, cost of living increases and other compensation plans such as bonuses. Implementation Schedule and Plan. The Vendor shall provide an in depth plan and schedule for the implementation of the project, outlining all task[s] necessary to achieve a fully staffed and trained force as well as transitioning retained contract employees. Forms. Forms 2, 3 and 4 are to be completed and included in the Forms Section of the Technical Proposal. Be certain to fill in all blanks on the forms supplied; do not leave any blanks on the forms. Be sure to sign the form. Price Proposal The Proposer shall prepare its price proposal in accordance with the instructions set forth in 14.3.2 below and within the project budget limitations set forth in below. 14.3.1 Project Budget The Proposers Price Proposal shall not exceed the Department's budget. Funding for this Agreement is provided to the Department by the Florida Legislature on a Department fiscal year basis. The Department's fiscal year begins July 1 of each year and ends June 30 of each succeeding year. The Department anticipates that the following funds will be appropriated by the Florida Legislature for the fiscal year noted. The Proposer shall not exceed the Department's anticipated funding for any given fiscal year when preparing its price proposal. Before submitting a Price Proposal, compare your cost for a given time period in Schedule 2 of your price proposal to the corresponding time period shown below and do not exceed the Department's anticipated legislative funding. Fiscal Period Department Funding 6/1/06-6/30/06 $7,000,000 7/1/06-6/30/07 $55,500,000 7/1/07-6/30/08 $57,165,000 7/1/08-6/30/09 $58,880,000 7/1/09-6/30/10 $60,647,000 7/1/10-5/31/011 $57,261,000 14.3.2 Preparation The Proposer is required to present its Price Proposal on the forms set forth in Exhibit "C" . . . . * * * How replies would be evaluated was described in Special Condition 15, which read as follows: Evaluation Process The Department will evaluate the Vendor's Proposal utilizing the following criteria and point system: Qualification[s] Questionnaire(10) 10 Technical Proposal(80) Administrative and Management Plan 5 Staffing Plan 20 Recruitment, Hiring, and Employment Matters 10 Employee Pay, Benefits, Recognition and Retention Programs 35 Implementation Schedule and Plan 10 Price Proposal(10) 10 Total 100 Total Price Proposal (Evaluation) Price Proposal evaluation is the process of examining a Vendor's price. The Proposer's Price will be evaluated using the present value methodology as required by Section 287.0572, Florida Statutes. A present value discount rate of 4.27% shall be used in the evaluation. The price analysis will be conducted by a comparison of the present value of each Vendor's proposal. The criteria for price evaluation shall be based upon the following formula: (Lowest Present Value Price/Vendor's Present Value Price) x Maximum Points (10) = Vendor's Total Price Points The lowest present value proposal price will be divided by the Vendor's present value price. The results will be multiplied by the maximum price proposal points (10) to arrive at the total price points for the Vendor. In Special Condition 18, the Department "reserve[d] the right to perform or have performed an on-site review of the vendor's facilities and qualifications" following the "sealed reply due date and prior to contract execution" in order to "verify data and representations submitted by the vendor"; "determine whether the vendor has an adequate, qualified, and experienced staff, and can provide overall management facilities"; and "verify whether the vendor has financial capability adequate to meet the contract requirements." The Department added: Should the Department determine that the reply has material misrepresentations or that the size or nature of the vendor's facilities or the number of experienced personnel (including technical staff) are not adequate to ensure satisfactory contract performance, the Department has the right to reject the reply. Special Condition 23 stated that the Department would "execute a written agreement with the awarded Vendor, which w[ould] include the final negotiated terms, conditions, specifications/scope of services, and prices." Special Condition 25 listed the forms that were part of the ITN. It provided as follows: FORMS QUALIFICATIONS QUESTIONNAIRE Package (Form 1) Drug Free Work Place Certification (Form 2) MBE/DBE Participation Statement (Form 3) Certification of Acceptable Driving Record (Form 4) OPTIONAL Corporate Resolution (Form 5) General Contract Conditions The General Contract Conditions included the following provisions, among others: * * * 19. Lobbying and Integrity The Contractor shall not, in connection with this or any other agreement with the State, directly or indirectly (1) offer, confer, or agree to confer any pecuniary benefit on anyone as consideration for any State officer or employee's decision, opinion, recommendation, vote, other exercise of discretion, or violation of a known legal duty, or (2) offer, give, or agree to give to anyone any gratuity for the benefit of, or at the direction or request of any State officer or employee. . . . * * * 33. Contractor Employees, Subcontractors, and Other Agents. The Customer and the State shall take all actions necessary to ensure that Contractor's employees, subcontractors and other agents are not employees of the State of Florida. . . . * * * 47. Special Conditions. Pursuant to 60A- 1.002(7), F.A.C., a Customer may attach additional contractual and technical terms and conditions. These "special conditions" shall take precedence over this form PUR 1000 unless the conflicting term in this form is statutorily required, in which case the term contained in the form shall take precedence. General Instructions to Respondents The General Instructions to Respondents included the following provisions, among others: * * * Terms and Conditions. All responses are subject to the terms of the following sections of this solicitation, which in case of conflict, shall have the order of precedence listed: Technical Specifications, Special Conditions, Instructions to Respondents (PUR 1001), General Conditions (PUR 1000), and Introductory Materials. The Buyer objects to and shall not consider any additional terms or conditions submitted by a respondent, including any appearing in documents attached as part of respondent's response. In submitting its response, a respondent agrees that any additional terms or conditions, whether submitted intentionally or inadvertently, shall have no force or effect. Failure to comply with terms and conditions, including those specifying information that must be submitted with a response, shall be grounds for rejecting a response. Questions. Respondents shall address all questions regarding this solicitation to the Procurement Officer. Questions must be submitted via the Q & A Board within MyFloridaMarketPlace and must be RECEIVED NO LATER THAN the time and date reflected on the Timeline. Questions shall be answered in accordance with the Timeline. All questions submitted shall be published and answered in a manner that all respondents will be able to view. Respondents shall not contact any other employee of the Buyer or the State for information with respect to this solicitation. Each respondent is responsible for monitoring the MyFloridaMarketPlace site for new or changing information. The Buyer shall not be bound by any verbal information or by any written information that is not contained within the solicitation documents or formally noticed and issued by the Buyer's contracting personnel. Questions to the Procurement Officer or to any Buyer personnel shall not constitute formal protest of the specifications of the solicitation, a process addressed in paragraph 19 of these Instructions. Conflict of Interest. This solicitation is subject to chapter 112 of the Florida Statutes. Respondents shall disclose with their response the name of any officer, director, employee or other agent who is also an employee of the State. Respondents shall also disclose the name of any State employee who owns, directly or indirectly, an interest of five percent (5%) or more in the respondent or its affiliates. * * * 10. Performance Qualifications. The Buyer reserves the right to investigate or inspect at any time whether the . . . qualifications, or facilities offered by respondent meet the Contract requirements. . . . . Respondent must be prepared, if requested by the Buyer, to present evidence of experience, ability, and financial standing . . . . If the Buyer determines that the conditions of the solicitation documents are not complied with, . . . or that the qualifications, financial standing, or facilities are not satisfactory, . . . the Buyer may reject the response . . . . * * * Clarifications/Revisions. Before award, the Buyer reserves the right to seek clarifications or request any information deemed necessary for proper evaluation of submissions from all respondents deemed eligible for Contract award. Failure to provide requested information may result in rejection of the response. Minor Irregularities/Right to Reject. The Buyer reserves the right to accept or reject any and all bids, or separable portions thereof, and to waive any minor irregularity, technicality, or omission if the Buyer determines that doing so will serve the State's best interests. The Buyer may reject any response not submitted in the manner specified by the solicitation documents. * * * 19. Protests. Any protest concerning this solicitation shall be made in accordance with section 120.57(3) and 287.042(2) of the Florida Statutes, and chapter 28-110 of the Florida Administrative Code. Questions to the Procurement Officer shall not constitute formal notice of a protest. It is the Buyer's intent to ensure that specifications are written to obtain the best value for the State and the specifications are written to ensure competitiveness, fairness, necessity and reasonableness in the solicitation process. Section 120.57(3)(b), F.S. and Section 28- 110.003, Fla. Admin. Code require that a notice of protest of the solicitation documents shall be made seventy-two hours after the posting of the solicitation. Section 120.57(3)(a), F.S. requires the following statement to be included in the solicitation: "Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes." Section 28-110.005, Fla. Admin. Code requires the following statement to be included in the solicitation: "Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes." Scope of Services Section 2.0 of the Scope of Services contained "Definition[s] of Terms," including the following: Department's Project/Contract Manager: The individual employee of the Department responsible for the management of the Contract. Department Deputy Project/Contract Manager: These employees of the Department are responsible for scheduling (establish[ing] staff requirements) and monitoring of work being performed, inspection and acceptance of services provided and approval for payment of services requested herein. Department's Deputy Director [of] Toll Operations - RCS: This individual provides operational oversight and direction for the six (6) toll regions. Serves as the Department's Project/Contract Manager, at the statewide level of this contract. 2.7. Department's Regional Toll Manager: The individual employee responsible for the management oversight of an entire region, including the management of the toll collection staffing contract, supervision of toll facility managers and regional office support staff[;] provides direction and guidance for the operation of the toll facilities, budget control, monitor[s] cash collection, and monitor[s] banking and auditing reports for cash handling errors. Serves as the Department's Deputy Project/Contract Manager at the Region level of this Contract. 2.8 Department's Toll Facility Manager: This individual is responsible for the total operation of a toll facility. Responsibilities include supervision of Department and contract employees, maintaining a well trained and motivated work force, providing exceptional customer service, contract management and meeting the financial goals of the Department. 2.9. Contract Employee: The individual employed by the contractor performing the duties and responsibilities of a toll collector, toll collector supervisor, toll facility laborer or courier. Retained Contract Employee[]: An employee of the current Vendor that accepts employment with the new toll collection services Vendor. Contractor's Program Director: The individual employee of the Contractor responsible for management of Contract, scheduling (staff Department requirements), payroll, monitoring of work being performed, inspection of services provided and the submission of payment documents for all services requested herein. The Contractor's Program Director is responsible for all communication with the Department and the Department's Contract Manager. Section 3.0 of the Scope of Services contained the following "General Description" of the services sought by the Department through ITN 007: The Department is currently under contract for the above-mentioned services; however, the contract will expire in the winter of 2006. It is the intent of the Department to retain all current contracted full-time and part-time positions under this contract (see Section 23.1, First Right of Refusal). This ITN is directed to vendors who can meet the Department's requirements described herein. This indefinite quantity contract retains the Vendor to provide toll collection service employees for full-time and part-time positions at the toll facilities located within the six toll regions. The number of positions may increase or decrease during the term of the contract, depending on need (see Section 9.1.5) and availability of budget. The Vendor shall provide toll facility personnel, including toll collector, toll collector supervisor, laborer, and courier positions. The Vendor shall provide and maintain, at minimum, one local office within the specified geographic boundaries in each of the toll regions, approved by the Department, with space useable for interviewing, scheduling, orientation and training, and maintenance of employee files and uniform inventory. Furnishing each office with appropriate furniture, equipment and office supplies as well as telephone services, utilities, janitorial and other needed services or items are the responsibility of the Vendor. The Department will provide at the toll facilities all toll facility management staff, technical support individuals, procedures, furniture, computers, office supplies, uniforms, and access to the toll collection system for the contractor's employees assigned to the toll facilities. Section 4.0 of the Scope of Services advised that "[o]ne contract w[ould] be awarded from this Invitation to Negotiate to provide services for toll facilities assigned to the Department's six toll regions . . . consisting of the Orlando Region, Tampa Region, Palm Beach Region, North Broward Region, South Broward Region and the Miami Region." Section 5.0 of the Scope of Services was entitled, "Project Management," and read as follows: The Vendor shall provide a senior level employee to be located in the State of Florida and preferably in the area of one of the six toll facilities to act as the Program Director during the term of the Agreement with authority to act on the behalf of the vendor in any matter related to the contract personnel assigned and is responsible for all communication with the Department and the Department's Contract Manager. The Program Director shall speak, read, write and understand the English language and must be available or on-call to the Department on a 24/7 (24 hours per day, 7 days per week) basis during the term of the Contract. The Vendor shall provide emergency telephone numbers and contingency procedures for failure of first level of response. The Vendor shall respond, by telephone, to the Department within thirty (30) minutes of initial contact. The "Revenue Collection Services Vendor Team" was the subject of Section 6.0 of the Scope of Services, which read as follows: The Vendor shall establish and maintain a fully qualified team for all phases and for the duration of the contract. The Vendor shall supply all of the labor, expertise and travel necessary to provide all of the services specified herein. Contract staff performing Revenue Collection Services at the toll facilities will consist of: Toll Collectors, Toll Collector Supervisors, Toll Facility Laborers, and Couriers. The job descriptions for the above-mentioned staff are located in Attachment "B." The contract personnel shall meet the minimum requirements and be able to perform duties listed for each position. Section 7.0 of the Scope of Services was entitled, "Work Force Diversity," and read as follows: The Department desires to maintain a work force that is ethnically and culturally diverse. As such, the Vendor shall be required to provide a diverse and balanced mix of employees to meet the Department’s goal. Discrimination on the grounds of race, color, religion, sex, national origin, age or disability shall result in termination of the contract as stipulated in Section 6 of the Standard Written Agreement. Section 8.0 of the Scope of Services addressed "Recruitment, Hiring and Employment Matters." Subsection 8.1 discussed the "Screening Method" for prospective contract employees. It provided as follows: The Vendor shall establish and maintain a screening process for potential employees assigned to the project. The focus of the screening process shall be the safe and proper handling of Department revenues, and the ability to effectively communicate and deal with the motoring public. The Vendor must obtain the Department's approval of the screening methods prior to their use. Documentation of successful screening results shall be maintained in the employee's individual personnel file. Assignment of unqualified personnel may result in liquidated damages as stipulated in Section 21. The screening process will include, but not be limited to, a background check at the State level to exclude from employment individuals with financial crime records or other background history which might jeopardize the Department's ability to perform its mission. The successful results of the background check must be in the employee's individual personnel file prior to the assignment of the employee. At the request of the Department, the Vendor will periodically be required to perform a National Level background check on employees assigned to this contract. The Vendor will be reimbursed for the out of pocket expense for National Level background checks requested and approved in writing by the Department's Contract Manager. The screening process shall include a method to measure the following: the applicants' ability to speak and read English; accuracy and speed of simple math and cash calculation skills; and ability to use a computerized cashiering system to determine if they meet the minimum requirements of the position. Additional skill based evaluations approved by the Department may also be administered. Under no circumstances shall an employee be assigned to this Contract unless they have successfully passed both the English and the math and cash calculation test. The Department reserves the right to approve all tests prior to use and to test contract personnel that do not appear to meet minimum requirements. An interview process for all positions shall be conducted by the Vendor. Second interviews by the Department may be required for toll collector supervisory, laborer and courier positions prior to assignment to the Contract. The Vendor shall permanently fill vacant positions as quickly as possible, but shall have no longer than thirty (30) calendar days to permanently fill vacant positions. A vacant position does not exclude the Vendor from the responsibility to fill the required shifts left open by the vacancy. Subsection 8.2 indicated that contract employees who were related to one another could not be assigned to the same work location and that, "[a]dditionally, relatives of the Vendor's management team [could] not be assigned to this project." Subsection 8.3 prescribed the procedure the successful vendor would have to follow for "Reassignments and Rehires" of contract employees. Subsection 8.4 set forth the requirements the successful vendor would have meet with respect to "maintain[ing] individual personnel files on each contract employee." Subsection 8.5 was entitled, "Employment Matters," and read as follows: The Vendor shall be responsible for all matters pertaining to the employment, scheduling, benefits, compensation (i.e. wages, salary, unemployment, worker's compensation, etc.), payroll administration, discipline, discharge, and similar matters of personnel such as, but not limited to: mandatory Sexual Harassment and Workforce Violence training, provided under this Contract. The Vendor shall be an independent contractor of the Department in performance of its duties herein. The Vendor's personnel performing services under the Contract, shall at all times be under the Vendor's exclusive control and shall be employees of the Vendor and not of the Department. Subsection 8.6 was entitled, "Employee Direction," and read as follows: Contract personnel shall follow the directions and instructions of the Department's designated representative and shall be subordinate to these individuals while on duty for the Department. The Department will provide the Vendor written documentation on contract employee performance using an agreed upon form. The Vendor shall be responsible for initiating corrective and progressive disciplinary action with the contracted employee. The Vendor shall provide the Department with written notification of action initiated. Subsection 8.7 was entitled, "Employee Evaluation," and read as follows: The Department requires all contract employees receive, at a minimum, an annual performance appraisal in a format to be approved by the Department. The Vendor shall solicit input on the employee's performance from the appropriate Toll Facility Manager and/or Regional Toll Manager. The Department's input will be considered in final performance ratings and incorporated into the employee's reviews. Subsection 8.8 was entitled, "Employee Removal," and stated that "[t]he Department reserve[d] the right to require the immediate removal of any contract employee whom the Department identifie[d] as a potential threat to the health, safety security or general well-being of the Department's customers, employees, agents, assets or whomever the Department determine[d] d[id] not meet the minimum performance requirements of the position." The subject of Section 9.0 of the Scope of Services was "Staffing, Scheduling, Shift Reporting and Time Keeping." Subsection 9.1 addressed "Staffing and Scheduling." It indicated, in its introductory paragraph, that the "vendor w[ould] be required to provide contract employees, as described herein, for a 24/7 operation at times and locations required by the Department." Subsection 9.1.5.2 discussed "replacement employees." It provided as follows: The Vendor shall be responsible for providing replacement employees for scheduled Vendor employees who fail to report to work or are otherwise unavailable. The Vendor is required to provide replacement employees as quickly as possible, but no later than one (1) hour of the beginning of the schedule[d] shift, or at the beginning of the scheduled shift time if notified at least one (1) hour before the scheduled shift. Requests for replacement employees will be made verbally to the Vendor by the Department managers or their designee. The Department reserves the right to require another contract employee from the off-going shift to remain on-duty until the replacement employee arrives. Compensation for such shift extensions will be billed at the Vendor's hourly rate. No overtime additive rate will be paid by the Department for any hours worked by the Vendor's employees. Subsection 9.2 addressed "Shift Reporting and Timekeeping." It read as follows: Contract personnel shall be required to report to the on-duty manager or supervisor at the beginning of their assigned shift at the specified toll facility location. Contract employees shall be required to record their shift starting and ending times and all rest and meal breaks on prescribed forms or by use of an electronic timekeeping device provided by the Department. Hours worked shall be calculated using the Department method for calculating hours. The Department's method for calculating hours is provided in Attachment "C." The Vendor shall be required to verify hours worked with the Department Toll Facility Manager weekly and the Department Region staff monthly. The Department will pay the Vendor's hourly rate for hours worked by contract employee positions, described herein, on approved schedules and for training required by the Department. All other hours shall be considered non-billable and should not be reflected on the time logs or monthly invoice. Orientation given to contracted employees is not considered training and therefore is not billable as time worked.[10] The Department strongly discourages use of overtime for this contract. To that extent, the Vendor shall not be able to bill at an overtime hourly billing rate when the Vendor provides an employee who works in excess of forty (40) hours per week on this contract. This does not eliminate the Vendor's responsibility to comply with the federal or state employment laws should a contract employee work in excess of forty (40) hours in a week. Section 10.0 of the Scope of Services dealt with "Employee Pay, Benefits, Recognition and Retention Programs." The prefatory language of this section read as follows: The Department desires to maintain an experienced workforce through retention of quality employees and programs that reduce unnecessary turnover and training costs. The Vendor shall minimize turnover rates by providing salaries that are competitive within the area and benefits to its full- time employees and maintain a well-trained staff by implementing timely performance recognition and feedback, incentive programs and an effective communication plan. The Department requests that the Vendor define in its technical proposal their evaluation, recognition, incentive and communication plan. Additional methods for staff retention may be presented by the Vendor to the Department for review and approval. The Vendor shall be responsible for tracking contract employee turnover and providing monthly reports, in a format approved by the Department, by position, Region and toll facility. The Vendor shall provide its method for calculating and reporting turnover in its technical proposal for the Department. Subsection 10.1 discussed "Stable Workforce." It read as follows: The Vendor shall provide a stable workforce which will include both full-time and part- time employees. The Vendor shall be required to maintain a 75% minimum full-time contract employee workforce at each toll facility. Full-time employees are defined as employees whose position requires them to work a minimum of thirty-two (32) hours per week. Subsection 10.2 discussed "Employee Pay." It read as follows: The Vendor shall be required to pay the minimum hourly starting wages by position classification and Region as outlined in the table below. Should at any time the federal or state minimum wage rate laws change such that such governmental minimum wage rates exceed the minimum wage rates established in this contract, the Contractor shall use the minimum wage rate required by governing law as the starting wages. MINIMUM STARTING WAGES Orlando: TOLL COLLECTOR- TOLL COLLECTOR SUPERVISOR- $7.25 $9.25 TOLL FACILITY LABORER $8.00 COURIER $9.00 Tampa: TOLL COLLECTOR- TOLL COLLECTOR SUPERVISOR- $7.00 $9.00 TOLL FACILITY LABORER $7.50 COURIER $9.00 Palm Beach: TOLL COLLECTOR- TOLL COLLECTOR SUPERVISOR- $7.00 $9.00 TOLL FACILITY LABORER $8.00 COURIER $9.00 North Broward: TOLL COLLECTOR- TOLL COLLECTOR SUPERVISOR- $7.00 $9.25 TOLL FACILITY LABORER $8.00 COURIER $9.00 South Broward: TOLL COLLECTOR- TOLL COLLECTOR SUPERVISOR- $7.00 $9.25 TOLL FACILITY LABORER $8.00 COURIER $9.00 Miami: TOLL COLLECTOR- TOLL COLLECTOR SUPERVISOR- $7.00 $9.25 TOLL FACILITY LABORER $8.00 COURIER $9.00 Effective July 1, 2007, and on each annual anniversary thereof, the minimum hourly starting wage for each position classification within each Region shall increase by 3%. The Vendor shall be required to provide each retained contract employee hired at least their current rate as of December 13, 2005, or if the retained contract employee was earning less than the minimum required by this contract, such retained contract employees shall be paid at least the minimum required for their position. The current rate of pay, as of December 13, 2005, of retained contract employees is shown in Attachment D. The names of retained contract employees will be provided to the Vendor upon execution of the Contract. The Vendor shall define in its proposal how it will address annual adjustment of salary rates for its employees to include, but not limited to, merit and cost of living increases. The Vendor shall also address any other programs it plans to implement that would increase the compensation paid an employee such as bonuses. * * * Subsection 10.3 discussed "Employee Benefits." It read as follows: The Department desires to maintain an experienced work force through the recruiting and retention of quality employees. In order to meet the Department's goal, the Vendor shall provide an employee benefits program that, at a minimum, provides the following: Group Medical Coverage: Affordable medical coverage which is in part subsidized by the contract and is available for all full-time employees no later than 90 days after their hire date. There will be no waiting period for insurance coverage for retained contract employees participating in the current contractor's medical plan. This coverage must allow for, at minimum, single and family coverage. Paid Vacations for full-time employees. Full-time employees are defined as employees whose position requires them to work a minimum of thirty-two (32) hours per week. Retained contract employees will be eligible for vacation based on their total years of service in providing toll collection services to the Department whether as a Department or contractor employee. Retained contract employees will not have a waiting period to earn or use their vacation time. Paid Sick Leave for full-time employees. Retained contract employees will not have a waiting period to earn or use their sick leave. Holiday Pay for full-time employees to include: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day. The Vendor shall address how it plans to compensate holidays for employees required to work on holidays and how it plans to compensate holidays for employees whose scheduled day off falls on the holidays. The Vendor shall define in its technical proposal an attractive benefit package aimed at staff retention. The Vendor shall include [an] individual's out of pocket expenses for group medical coverage for both single and family. The Vendor shall also include in its proposal the vacation and sick leave policy including the amount of hours earned annually and retention of such hours earned. The Vendor shall also include any other benefit programs available to employees. Subsection 10.4 discussed "Incentive Program[s]." It read as follows: The Department understands the need to reward its staff. Incentive programs are critical to maintain a dynamic and enthusiastic workplace. The following goals should be considered the basis for implementing incentive programs: To boost morale and provide challenge to a routine day. To create an atmosphere of healthy competition, thus providing enhanced customer care and overall work results. To challenge and strengthen the ability of a struggling employee. The Vendor shall implement incentive programs for its employees assigned to this contract. Competitions can be set up as individual contests, teams located at the same toll facility, teams representing toll facilities in the same Region, and/or teams representing an entire Region. Prior to implementation, the Department shall approve the program and its monthly awards and rules. The Department expects the following parameters to be considered as part of a Vendor's proposal for incentive programs. All contract personnel should be eligible for incentives. The amount of monthly incentives should not exceed $10.00 per person with a total maximum dollar value based on no more than 30% of the total number of active contracted employees receiving an incentive in any given month. The 30% shall be calculated by Region. The number of active employees will be determined by the previous monthly report. The incentives will be awarded on a schedule approved by the Department but no less than once a month. Incentives can include, but are not limited to, store gift certificates, restaurant gift certificates, trophies, certificates of achievement, plaques, bonuses, movie passes, toll facility lunches, Regional events and points established in an awards catalogue. All incentives will be approved in advance by the Department. The Vendor shall provide the Department, on a monthly basis, a list of individuals who received incentives and a description of the incentive received, including the value. The Contractor's incentive program is not eligible as a direct reimbursable expense under this contract. Section 11.0 of the Scope of Services was entitled, "Employee Orientation and Training."11 It read as follows: It is the Department's desire to have a well-trained and motivated staff focused on the mission. Orientation The Vendor shall develop and furnish a general orientation program for all contracted personnel. This orientation shall not be considered training.[12] The program shall be submitted to the Department for review and approval prior to commencement of the work. Specific subjects to be covered shall include, but not be limited to, an overview of the Department's toll operations, customer service, safety, lane crossing procedures, uniform and dress code requirements, non revenue travel policies, and an explanation of specific contract provisions related to employee behavior and performance. Each contract employee must complete the orientation program prior to reporting to an assigned work location. Orientation for a contracted employee is not considered time worked and therefore such hours are non-billable.[13] The Vendor shall provide Department staff written certification of the orientation completion for each contract employee. Certification must be included in the employee's individual personnel file. Interactive Training The Department will provide an interactive training program for toll collectors by Department employees.[14]. All toll collectors and toll collector supervisors (with no previous toll collector experience) shall be required to successfully complete interactive training prior to assignment to a toll facility for on-the-job training. The interactive training program is administered primarily by Department managers. On-The Job (OJT) Training Upon completion of the orientation and interactive training programs, contract employees will be assigned to a toll facility for on-the-job operational and equipment training. Employees must successfully complete OJT before being assigned to a lane or shift. The Department currently has an OJT program in place for all contract positions described herein. The program includes using designated contracted employees as trainers. The Vendor shall work with the Department in improving the OJT program as needed. Additional Training Requirements The Vendor shall be required to develop additional training programs for contracted employees to meet Department requirements. This additional training includes, but is not limited to, Sexual Harassment, Work Place Violence, Safety and Customer Service. The Department shall approve all training programs before they are administered. Training Compensation The Department shall pay for attendance of contract employees at initial or follow-up Department provided or mandated training at the employees' hourly rate. Training History and Record The Vendor shall be required to maintain records on contracted employees' training history. The Vendor is responsible for ensuring that all employees have the proper training required for their position. The Vendor shall provide these reports as requested by the Department in a format that will be compatible with the Department's database. Section 12.0 of the Scope of Services was entitled, "Uniforms." Subsection 12.1 provided that "[t]he Department w[ould] provide uniforms to the Vendor to be issued to employees assigned to the contract." Subsection 12.2 read as follows: Contract employees shall be expected to be in uniform within two weeks of assignment to their work unit. Employees shall be required to sign a toll uniform receipt, acknowledging receipt of the uniform items issued. A copy of the receipt shall be included in the employee’s individual personnel file. The remaining subsections of Section 12.0 imposed additional requirements that the Vendor awarded the contract would have to meet with respect to "Uniforms." Section 13.0 of the Scope of Services was entitled, "Photo Identification, Name Tags and Access Cards." Subsections 13.3.1 through 13.3.5 read as follows: Upon satisfactory completion of orientation and training programs, the Vendor shall place an order for the access card to the Department by providing the contracted employee’s name and a unique identification number on the prescribed form. The employee access card will be issued to the contract employee by the Department. The contract employee shall be required to sign an acknowledgement receipt for the card. The Vendor shall be responsible for collecting employee access cards from contract employees at the time of their termination and for returning the access cards to the Department. The Vendor shall immediately notify the Department of lost, stolen, or unreturned employee access cards. The Vendor is responsible for all access cards issued to contracted employees. The Department will assess a replacement charge to the Vendor for any lost or damaged cards. The Department will replace any worn card, damaged due to normal wear and tear. It is the sole determination of the Department to determine if the card was damaged due to normal wear and tear or through employee misuse. The Department will send a monthly statement to the Vendor detailing the total amount due for lost or damaged cards which shall serve as an invoice. The Vendor has sixty (60) days from the date of notice to reimburse the Department for all lost or damaged cards. Section 15.0 of the Scope of Services was entitled, "Transportation." Subsection 15.1 addressed "Department Vehicles" and included the following provisions: The Vendor shall maintain and provide proof annually of automobile liability insurance covering all vehicles with minimum combined single limit for bodily injury and property damage of at least $500,000. All such policies of insurance shall name the Department as an additional insured, as its interests may appear, and shall not be canceled without thirty (30) days' written notice to the Department. The Vendor shall be responsible for any and all damages caused by its employees, agents or sub vendors as a result of the operation of any Department vehicle. Subsection 15.2 discussed "Payment for Mileage" and provided as follows: In the event that a Department vehicle becomes unavailable for use, for whatever reason, Contract employees will be required to use their personal vehicles for travel to and from the assigned toll facility administration building to remote ramps or other work locations. The Vendor shall be required to reimburse the employee for this mileage at the Department's reimbursement rate. Mileage reimbursement will be billed separately and should not be included in the price proposal. Section 16.0 of the Scope of Services was entitled, "Reports." Subsection 16.4 discussed "Training Reports," and read as follows: The Vendor shall be required to maintain records on contracted employees' training history. The Vendor shall provide these reports as requested by the Department in a format that will be compatible with the Department's database. Section 17.0 of the Scope of Services addressed "Invoice Requirements." Subsection 17.2 set forth procedures for "Invoicing for Payment." Section 19.0 of the Scope of Services concerned "Equipment, Manuals, Policies and Procedures" and read as follows: The Department will provide all equipment and materials required for operations at the toll facilities for use, as needed, by the contracted employees. The Department will also provide the State rules and regulations for use of such items to the Vendor. These rules and regulations shall be adhered to at all times during the length of the contract. The Department's RCS Operating Procedures, Safety Procedures, Comprehensive Emergency Management Plan manuals and Quality Assurance Review program will be made a part of the Contract by reference. Such documents will be available for review at designated Department offices. Section 20.0 of the Scope of Services was entitled, "Workday Shortages," and read as follows: The Department routinely performs daily audits and security investigations on toll employees to ensure that vendor's employees are following proper cash handling procedures. The Vendor shall cooperate with the Department during these investigations and provide [the] Department with all information requested on a contracted employee as soon as possible. When an employee has a cash shortage(s), $50 or higher, that is determined, at the sole discretion of the Department, to be caused by contracted employee error, contracted employee theft or is unrelated to any equipment issues, the Vendor will be responsible for reimbursing the Department for the shortage(s). The Department will send a written notice informing vendor of the shortage(s) and Vendor will have thirty (30) days to reimburse the Department for this amount. Historical information for toll collector shortages of $50 or higher invoiced under the current contract is provided in Attachment E. Section 21.0 of the Scope of Services described circumstances under which the vendor awarded the contract would have pay the Department "Liquidated Damages." Section 22.0 of the Scope of Services was entitled, "Implementation Plan," and provided as follows: The Vendor shall provide an implementation plan in its technical proposal detailing how they would staff and train employees for toll facilities, as well as transition the current Vendor's staff to be operational within thirty (30) days from the execution of the contract. The implementation shall be sufficient in detail to clearly demonstrate the Vendor's knowledge of the steps necessary to implement this contract. Within five (5) days of execution of the contract, the Vendor shall provide an update of the Implementation Plan, which will include a detailed schedule of when each activity is to commence and end. This schedule shall also provide the names of the responsible person(s) or parties that are to complete each activity. This implementation plan shall be in sufficient detail as to clearly demonstrate the Vendor's ability to manage the implementation process. Section 23.0 of the Scope of Services was entitled, "Transition," and provided as follows: The Department is currently under contract for staffing. Under this agreement, the current Vendor has paid its employees and provided them with certain employee benefits. The Vendor awarded this contract, shall engage with the current Vendor's staff as follows: First Right of Refusal for Positions The Vendor shall provide first right of refusal to each current Vendor's employees, hereafter referred to as retained contract employees, who desire to be employed by the Vendor. This includes contracted employees covered under this contract; toll collectors, toll collector supervisors, laborers and couriers; and does not include the current Vendor's management team or office personnel. The Vendor shall offer the retained employees the same or equivalent position the employee held as of the last day of the term of the previous Vendor's agreement. If an employee is not offered a position, the Vendor must provide the reason in writing to the Department. Salaries The Vendor agrees to provide each retained contract employee hired their current rate as of December 13, 2005, or if the retained contract employee[] was earning less than [the] minimum required by this contract, such retained contract employee shall be paid at least the required minimum of their position. The current rate of pay, as of December 13, 2005, of retained contract employees is shown in Attachment "D." The names of retained contract employees will be provided to the selected Vendor upon execution of the contract. Insurance Benefits Insurance benefits shall meet or exceed ITN specifications, as per Section 10.3. The probationary period for any health benefits shall be waived for the retained contract employee participating in the current contractor's medical plan. The benefits shall become effective as of the date the Vendor hires the employees. Vacation and Sick Leave Vacation and sick leave benefits shall meet or exceed ITN specifications as per Section 10.3.2 and 10.3.3. The vacation and sick leave benefits of each retained contract employee shall be calculated as of the date the Vendor hires the retained contract employee based on their total years providing toll collection services for the Department whether as a Department or contractor employee. Holiday Pay Holiday benefits shall meet or exceed the ITN specifications as per Section 10.3.4. Any probationary period for the receipt of holiday pay benefits shall be waived for all retained contract employees and be in effect beginning the first day the Vendor hires the retained contract employee based on their total years of service providing toll collection services for the Department whether as a Department or contractor employee. Anniversary Date Retained contract employees will maintain their current anniversary date for leave calculation. Section 24.0 of the Scope of Services was entitled, "Department Employment Opportunities," and read as follows: The Department may periodically advertise for permanent Department positions. In the event that an employee of the Vendor is selected to fill a Department position, the Department will provide, at minimum, two (2) weeks notice to allow the Vendor time to replace the employee. NON EXCLUSIVITY CLAUSE IN CASE OF DEFAULT OR CONTRACT TERMINATION: The Contractor agrees that should they default or the contract is terminated, the Contractor’s staff will have the right with no penalties and at no cost to be hired by the Department or the new Vendor to conduct the work. Section 25.0 of the Scope of Services discussed "Subcontracting or Assignment of Work" and read as follows: The Vendor shall not subcontract, assign, or transfer any work under this Agreement without the written consent of the Department. After written consent of the Department, the Vendor will be permitted to subcontract a portion of the work, but shall perform within its organization, work amounting to not less than 51% of the total contract amount. Any and all sub vendor[]s are required to be qualified and certified, in accordance with requirements herein, meet all federal, state and local regulations, and be approved by the Department. Subcontracting of work shall not relieve the Vendor of its respective liabilities. The Department recognizes a subcontractor only in the capacity of an employee or agent of the Vendor. The Vendor may subcontract with a qualified non-profit agency as defined in 413.033, Florida Statutes, through RESPECT agency as authorized under 413.036, Florida Statutes and any such subcontracting will not be subject to the 51% restriction. Section 26.0 of the Scope of Services was entitled, "Licenses and Fees," and provided that the vendor awarded the contract would "be responsible for all licenses and fees associated with performance of this Contract." Section 27.0 of the Scope of Services was entitled "Succession Planning." It advised that the vendor awarded the contract would be required to "provide a Succession Plan for the transfer of operations at the end of the contract, in the event the Vendor cannot, will not, or is not allowed to continue operations." Method of Compensation Section 3.0 of the Method of Compensation discussed "Progress Payments." It read as follows: For the satisfactory performance of services, the Vendor shall be paid monthly for the following: Hours worked by contract employees performing toll collection activities or receiving required training will be paid for at the contract hourly billing rates established in Exhibit "C" [Price Proposal], Schedule 1a, attached hereto and made a part hereof. The contract hourly billing rates shall include the cost of salaries, overhead, fringe benefits, overtime, contract management, administration, operating margin or profit, and all expenses except the expenses defined herein as allowable. Regional Office expenses shall be paid for at the monthly lump sum amount established in Exhibit "C," Schedule 1b, attached hereto and made a part hereof. Actual costs of the following items which shall be supported by receipts. Unless specifically approved in writing by the Department, there will be no direct reimbursement of any other items. Travel expenses associated with Department authorized travel of contracted employees. No travel expense shall be paid for contract employee[s] when reporting to work at their assign[ed] Toll Facility Administration Building. When directed by the Department, out of pocket expenses associated with obtaining a National Level background check on a contract employee assigned to this project. When directed by the Department, out of pocket expenses associated with participation in a customer services and satisfaction assessment. "Minority Business Enterprise Utilization (MBE)" was discussed in Section 4.0 of the Method of Compensation, which read as follows: When subcontracting services or making reimbursable purchases, the Vendor should take all necessary and reasonable steps to ensure that minority businesses have the opportunity to compete for and perform contract work for the Department in a non- discriminatory environment. An MBE certification form shall be submitted by the Vendor with each invoice. Form 1: Qualifications Questionnaire Form 1, with its various attachments, contained the "Qualifications Questionnaire" referred to in the ITN's Special Conditions. The following "Instructions to the Qualifications Questionnaire" were set forth in the form: The Proposer is required to complete and return this Qualifications Questionnaire (Form 1) and include as part of this questionnaire, a Dun & Bradstreet Report. This information shall be included as part of the Proposer's Proposal as set forth in the Special Conditions in ITN-DOT-05/06- 8007-EH. Failure to properly complete this Qualification[s] Questionnaire (Form 1) or to provide requested related information, either in part or in its entirety or fail[ure] to provide the Dun & Bradstreet Report may result in the rejection of the Proposer's application for qualification.[15] If the Proposer's Qualification[s] Questionnaire is rejected, the Proposer's Proposal will not be considered. When completing the Proposer's Qualification Statements, the Proposer is required to use either ink or typewriter (black ribbon) and affix signatures where required. NOTICE: APPLICANTS FOR QUALIFICATION ARE HEREBY NOTIFIED THAT INTENTIONAL INCLUSION OF FALSE, DECEPTIVE OR FRAUDULENT STATEMENTS ON THIS APPLICATION CONSTITUTES FRAUD. FURTHERMORE, APPLICANTS ARE HEREWITH NOTIFIED THE STATE OF FLORIDA CONSIDERS SUCH ACTION ON THE PART OF AN APPLICANT TO CONSTITUTE GOOD CAUSE FOR DENIAL OF THE QUALIFICATION FOR BIDDING ON STATE PROJECTS LET TO CONTRACT BY THE STATE OF FLORIDA DEPARTMENT OF TRANSPORATION. DUN AND BRADSTREET REPORT The Department has chosen Open Ratings (a partner of Dun & Bradstreet) to assist with the evaluation process of this ITN through a report that Open Ratings will generate about your company when you provide them with the requested information. The report is called "Past Performance Evaluation/Supplier Evaluation Review" (PPE/SER) and will provide an overall rating on timeliness, problem responsiveness, quality of purchased products or services, total cost, technical support, deliveries/quantities, and attitude of vendor personnel. This report must be submitted with your "Qualifications Questionnaire." Information and Forms are attached. It is mandatory that you order and pay for this report and submit the results with your reply to the "Questionnaire" in order to be considered for this contract. Because this Report takes approximately four weeks to complete, interested vendors are encouraged to submit their request to Open Ratings in a timely fashion. In the event your firm has obtained this report within the past twelve months, such report will be acceptable and will meet this requirement. REQUIRED FORMS The Proposer shall complete the following required forms of this Qualification[s] Questionnaire: Form 1- Attachment No. 1A: Organization - Prime Form 1- Attachment 1B: Organization - Subcontractor Form 1- Attachment 1C: List of Completed Projects Form 1- Attachment 1D: List of Current Projects Under Contract Form 1- Attachment 1E: Required Background Information Form 1- Attachment 1F: Staffing - Program Director Form 1- Attachment 1G: Staffing - Other Key Personnel Form 1- Attachment 1H: Proposer's Surety History Form 1- Attachment 1I: Subcontractor Approval List Reference Checks The Department may choose to perform reference checks on one or more, but not necessarily all of the Proposers as a result of the Department's review of the Dun & Bradstreet Report or other information provided in this Qualification[s] Questionnaire. Some, but not necessarily all of the purposes for reference checks, if performed, will be to determine the level of satisfaction and quality of service provided by the Proposer to present and past clients in the areas of: General performance of the proposed services Technical Competency Compliance with implementation plans Project management Working within the projected dollar amounts General responsibilities Contract compliance Customer satisfaction Adherence to project schedule Employee satisfaction. Note: The results of the reference checks, if performed, may be graded as part of the overall evaluation. The Proposer is advised that the Program Director named in this Questionnaire as well as any other named key staff may be contacted or required to attend an interview with the Department if additional information is required for the purpose of understanding or confirming the information furnished. Form 1- Attachment 1C: List of Completed Projects, contained the following "attachment-specific" instructions: The Proposer shall list representative[16] projects or programs the Proposer has completed during the past five (5) years in the area of providing staffing services for a client with employees of the Proposer. The Proposer shall ensure that the Principal Contact and telephone number information is current so the Department may contact the customer (attach additional sheets if necessary). There were spaces on the form for the vendor to provide: "Customer Name"; "Project Name & Brief Description"; "Principal Contact Name"; "Principal Contact Title"; "Address"; "Telephone Number"; "Location of Work"; "Prime or Subcontractor"; "Number of Staff Provided"; "Contract Start Date"; "Scheduled Completion Date"; "Actual Completion Date"; "Value of Work Performed"; and "Other Pertinent Information." Form 1- Attachment 1D: List of Current Projects Under Contract, contained the following "attachment-specific" instructions: The Proposer shall list representative[17] projects or programs the Proposer has under contract in the area of providing staffing services for a client with employees of the Proposer. The Proposer shall ensure that the Principal Contact and telephone number information is current so the Department may contact the customer (attach additional sheets if necessary). There were spaces on the form for the vendor to provide: "Customer Name"; "Project Name & Brief Description"; "Principal Contact Name"; "Principal Contact Title"; "Address"; "Telephone Number"; "Location of Work"; "Prime or Subcontractor"; "Number of Staff Provided"; "Contract Start Date"; "Scheduled Completion Date"; "Actual Completion Date";18 "Value of Work Performed"; and "Other Pertinent Information." Form 1- Attachment 1F: Staffing - Program Director, directed that the following information "for the planned Program Director" be supplied on the form in the spaces provided: "Name"; "Title"; "What percentage of his/her time will this person devote to this Project"; "Is this individual currently employed by Proposer"; "If yes, number of years employed"; "Is this individual currently employed by Proposer's subcontractor"; "If yes, number of years employed"; "If this individual is not currently employed by Proposer or Proposer's subcontractor, does the Proposer or subcontractor have a Letter of Commitment from this individual"; "Current employer name"; "Address"; "telephone number"; "Does this individual currently live in the State of Florida"; and "If no, does the Proposer or Subcontractor have a Letter of Commitment from this individual to move to the State of Florida." It then further directed that the vendor also supply on the form in the spaces provided "a list of project(s) where this individual has had the responsibilities and has performed the duties similar to the Project responsibilities and duties being proposed with the following information: Project name; Employer; Client name; Start and end dates of project assignment; Address; [and] Telephone number of Client." Form 1- Attachment 1G: Staffing - Other Key Personnel, directed that the following information "for [the vendor's] planned key personnel" "(as determined by [the vendor])" be supplied on the form in the spaces provided: "Name"; "Title"; "What percentage of his/her time will this person devote to this Project"; "Is this individual currently employed by Proposer"; "If yes, number of years employed"; "Is this individual currently employed by Proposer's subcontractor"; "If yes, number of years employed"; "If this individual is not currently employed by Proposer or Proposer's subcontractor, does the Proposer or subcontractor have a Letter of Commitment from this individual"; "Current employer name"; "Address"; and "telephone number." It then further directed that the vendor supply on the form in the spaces provided "a list of project(s) where this individual has had the responsibilities and has performed the duties similar to the Project responsibilities and duties being proposed with the following information: Project name; Employer; Client name; Start and end dates of project assignment; Address; [and] Telephone number of Client." Form 1, Attachment 1I: - Subcontractor Approval List, contained the following additional "attachment-specific" instructions: This form is included as a Proposal requirement to assist the Department in the evaluation of the subcontractor(s) proposed by the Proposer for the work under this ITN (attached additional sheets as necessary) Once approved by the Department, subcontractor substitutions, additions, or replacements must receive prior written approval. All subcontractors assigned more than five percent (5%) of the Contract dollar value per year are considered Major Subcontractors and must be listed. The Proposer shall also provide identification of all major subcontractors who are Minority Business Enterprises (MBEs). Form 5: Corporate Resolution Form 5 contained the following form resolution: NOW THEREFORE, IT IS RESOLVED, that the (specify authorized officer; e. g. President, Vice President, Treasurer) of this corporation or LLC is hereby authorized and empowered on behalf of the corporation or LLC to enter into a contract with the State of Florida, Department of Transportation, in consideration of Dollars ($ ), upon the terms and conditions contained in the proposed contract, a copy of which is attached hereto as Exhibit A, and made a part hereof. Preparation of Faneuil's Reply, Including Ms. Stemle's Involvement Anna McNider is Faneuil's Vice President and Managing Director of Government Services. Ms. McNider was responsible for putting together Faneuil's reply to ITN 007. She thought it would "helpful" to have a consultant with expertise in toll operations to not only "look over her proposal" before it was submitted, but to also commit to being a part of the "ongoing management of the contract" if it was awarded to Faneuil. In late February 2006, Ms. McNider contacted TEAMFL, a Florida toll industry association, asking for the name of someone who might be able to provide this help. Ms. Stemle was recommended. Ms. Stemle was by now employed in the private sector. She was working as a senior consultant - toll operations for Montgomery Consulting Group (MCG), a Department-certified Disadvantaged Business Enterprise, and had been in this position since accepting an "Offer of Employment" from MCG, dated March 19, 2004, which read, in part, as follows: The Montgomery Consulting Group, Inc. (MCG) is pleased to offer you a part-time position as a senior consultant - toll operations. Your position centers on providing strategic planning and consulting services for specific task assignments on projects with the Florida Turnpike Enterprise Authority and their general consultant, Post, Buckley, Schuh & Jernigan (PBS&J) and others as may be appropriate. . . . As project manager for MCG, Monty Gettys will coordinate your activities; however, specific PBS&J and Turnpike staff may direct your day-to-day activities. You should closely coordinate all contractual and budget matters with Monty Gettys. As an MCG employee, Ms. Stemle had provided (and was continuing to provide) sub-consultant services to the Turnpike Enterprise. In her capacity as a sub-consultant, she worked on projects for the Turnpike Enterprise's Toll Systems Support and Maintenance unit. This, at times, involved her serving on committees and otherwise interacting with Ms. Burger and some (but not all) of the regional toll managers. She also, as a sub-consultant, helped Mr. Suarez prepare a presentation he was going to give to the Department Secretary on the Turnpike Enterprise's experience with toll operations "over the years," including its "privatization effort[s]." Her task was to obtain the historical information Mr. Suarez needed for his presentation. On February 22, 2006, Ms. Stemle met with Ms. Burger in Ms. Burger's office to retrieve a "file" that contained such information. The meeting lasted approximately 15 minutes. During the meeting, Ms. Burger told Ms. Stemle that the toll facility staffing services contract "was out for bid again,"19 but provided no other information about the matter. Up until this point in time, Ms. Stemle had not known anything about this solicitation. She had not been involved in any way in the drafting or issuance of either ITN 006 or ITN 007. To enable her to more efficiently provide services to the Department as a sub-consultant, Ms. Stemle was given a Department e-mail address and a card that gave her access to the "offices and conference rooms" in the Turnpike Enterprise's Boca Raton facility (but not to the "computer room" in that building where computer hardware storing data relating to the Turnpike Enterprise's toll operations is located). Other consultants that Ms. Stemle worked with had the same access. On February 27, 2006, after having spoken with her attorney and finding out from him that Ms. Stemle was a former Director of Toll Operations with the Department, who was, in the attorney's opinion, "nice" and "very well respected," Ms. McNider telephoned Ms. Stemle to see if she would be interested in teaming with Faneuil to provide the Department with the services it was seeking through ITN 007. Ms. Stemle told Ms. McNider that "she might be interested but that she worked for a company called Montgomery Consulting, and that [Ms. McNider] would have to talk to her boss," Monty Gettys. During their conversation, Ms. Stemle truthfully assured Ms. McNider that she had "absolutely nothing to do with the preparation of [ITN 007]." After Ms. McNider spoke with Ms. Gettys, Faneuil and MCG entered into a "Teaming Agreement," dated March 1, 2006, which read, in pertinent part, as follows: The Teaming Agreement is entered into by and between Montgomery Consulting Group, Inc. ("MCG") and Faneuil, Inc., each a "Party" and collectively the "Parties." The Proposed Transaction. MCG and Faneuil desire to assess the commercial viability of providing Revenue Collection Services - Toll Operations to the Florida Department of Transportation (FDOT) with the intent of Faneuil submitting a proposal and making a presentation (if asked) for FDOT Advertisement Number ITN-DOT-05/06-8007-EH. If Faneuil is successful in obtaining a contract with FDOT for this project, it is the intention that MCG would provide professional consulting services as a subcontractor to Faneuil in support of this project. The Draft Term Sheet. To assist in discussions on the proposed transaction if the team is successful, some of proposed principal terms and conditions that may be contained in future, definitive, written agreements are set forth on the Draft Term Sheet attached hereto as Exhibit "A." The Teaming Agreement and Term Sheet are intended to be and shall be construed only as the proposed framework for discussions between MCG and Faneuil and their respective representatives. Non-Exclusive Arrangement. The Parties agree that teaming together for this project is not an exclusive arrangement. Faneuil and MCG may join in commercial pursuits and/or team with other firms pursuing this project. . . . * * * Exhibit "A" to the "Teaming Agreement" provided, in pertinent part, as follows: Pursuit Defined FANEUIL intends to respond and pursue the above referenced project [ITN-DOT-05/06- 8007-EH]. MCG intends to assist FANEUIL in preparation of such response. FANEUIL shall be the prime contractor and MCG shall be a subcontractor for any agreement that may arise from a successful effort in obtaining a contract with FDOT. * * * Services FANEUIL desires to be the prime contractor for the project and would have the direct contractual relationship with FDOT. MCG desires to be a subcontractor to FANEUIL to provide professional toll operations planning services throughout the contract period and provide a senior tolls consultant (i.e., Debbie Stemle) to act as subject matter expert on the Toll Collection Services contract, including, but not limited to: Initial Project Start-up/Initiation: Contract award to complete transition in each region providing overall operational support during transition and implementation including, but not limited to, integration with Turnpike Enterprise organization and business practices, staffing models, training program content, training delivery methodologies, contract requirement fulfillment strategies, resource utilization analyses and techniques to maximize efficiencies. Expected commitment level of MCG: Approximately 20-24 hours per week (on average) for senior tolls operation consultant. Screening Staff: MCG senior management (i.e. Debbie Stemle or other senior staff) would assist Team with screening of contract management employees. Expected commitment level of MCG: Be part of team throughout contract period for MCG Senior Management Staff. Ongoing responsibility as needed for review of routine business information reports and continuous improvement to operating processes and programs. Expected commitment level of MCG: Approximately 4-8 hours per week (on average) for senior tolls operation consultant. Special needs such as implementation of changes in contract scope, dispute resolution, quality assurance, and other identified needs. Expected commitment level of MCG: Be part of team throughout contract period for MCG Senior Management staff. * * * Ms. Stemle met with Ms. McNider in Orlando on Friday, March 3, 2006, and Saturday, March 4, 2006, to go over Faneuil's reply to ITN 007, which was due on March 7, 2006. After reviewing the document, Ms. Stemle recommended that certain changes be made including adding two satellite offices (one in the Panhandle and one in Naples); "hav[ing] the head office [in Orlando physically] separate from the regional office [there]"; "ton[ing] down" the role of the other subcontractor, Imperial Parking US), Inc. (Impark); eliminating unnecessary layers of management; and deleting details regarding "cash controls and auditing functions." Faneuil's reply was revised accordingly and subsequently submitted in a timely manner to the Department. Contents of Faneuil's Reply Faneuil's reply was responsive to ITN 007 in all material respects. As required by ITN 007, Faneuil's reply included a Technical Proposal, Price Proposal, and filled-out Forms 1 through 4 (including, as part of Form 1, a Dun and Bradstreet/Open Ratings report20 reflecting an "overall performance rating" of 87, with no "Negative Feedback"21). It also included a completed "Corporate Resolution" (Form 5). As required by ITN 007, Faneuil's Technical Proposal included an Executive Summary; an Administration and Management Plan (supplemented by resumes of management personnel who would be assigned to the project22); a Staffing Plan; provisions relating to Recruitment, Hiring and Employment Matters; Employee Pay, Benefits, Recognition and Retention Programs23; and an Implementation Schedule and Plan. As part of its Staffing Plan, Faneuil provided the following discussion (along with explanatory charts and diagrams) regarding its "change management philosophy": Faneuil's change management philosophy includes two concurrent components: change monitoring and change execution. Faneuil uses a virtual command center method to view and respond to the effect of staff changes to schedules in real-time. The command center team comprised of six Scheduler/Dispatcher positions covering the 24/7 hours of operation executes schedule changes in order to minimize the impact on staffing coverage.[24] On-duty command center staff as well as Department managers or Toll Supervisors will be able to monitor staffing levels across all facilities via our workforce management system. Faneuil's use of integrated time collection software provides real-time staffing attendance information specific to each toll facility and region. Faneuil tracks employee attendance using the time collection system and provides trending reports so that long-term and near-term actions can be implemented to respond to absenteeism and attendance issues. The integrated attendance data enable Dispatchers to react in real-time when employee[]s sign on late- the display uses color-coded schedule verification to view staff status based on actual sign in time. Schedules are highlighted in different colors based on user-defined parameters and thresholds to help monitor position status changes. Real-time monitoring of shift sign ins/sign outs allows command center personnel the ability to assess staffing shortages at any time. The change management process includes: Monitoring real-time displays of actual shift sign in/sign out to identify staffing shortages due to absences or late shift sign in. Maintaining communication with Department Manager and Toll Supervisor on employee activities and schedule assignments. Escalating to Department Manager and Toll Supervisors when changes in personnel shift assignment occur within a 2-hour period. Maintaining communication with Toll Supervisors. Coordinating with Toll Supervisors to ensure proper staffing levels for each toll facility. Processing employee transactions such as vacation requests, status change requests, leave of absences, etc. Using workforce management software to adjust schedules, assign shifts, and determine on-call availability for replacement shifts or emergency call-in situations. The command center will be able to view employees work availability so on-call employees can fill workforce shortages. Faneuil surveys employees to determine their work preferences, location, on-call availability, and on-call notice method. This process allows the command center to quickly determine who is available to cover an open shift or a replacement shift. * * * Upon arranging alternate shift coverage, the Scheduler/Dispatcher will notify management of the change in personnel assignments immediately as well as update schedules with the new shift assignment. Staffing requirements will be monitored in real-time to continually assess Faneuil's ability to provide staffing for each toll facility. Faneuil management teams will have access to past, present, future, and real-time schedules to ensure schedule adherence. The command center will serve as a resource for on-duty Department managers and Toll Supervisors to help ensure staffing meets coverage needs. In the event an emergency arises that requires additional staff coverage to report to work on a temporary basis, the Department can rely on the command center to initiate Faneuil's on-call emergency process and alert employees of the situation. These Workforce Management change processes and others will be reviewed and finalized with Department staff prior to incorporating the processes as Standard Operating Procedures. Faneuil's Staffing Plan, in addition, discussed its "time collection and tracking software," which would allow "Faneuil to track training activity and mark it as billable or non-billable."25 The following discussion regarding "overtime" was also included in Faneuil's Staffing Plan: Faneuil's workforce management system integrated with time collection software provides the ability to minimize and control overtime. The integrated systems ensure that overtime does not occur through automated overtime reporting. The automated tracking process identifies real-time overtime on a daily basis. Additionally, Faneuil sets parameters for hours worked to prohibit unauthorized overtime. Faneuil can anticipate overtime situations on a daily/weekly basis to prevent overtime at the scheduling level. However, in the event that overtime occurs, Faneuil will pay employees in accordance with the FLSA- mandated employment overtime laws.[26] Faneuil's Employee Pay Program, as delineated in its Technical Proposal, set minimum hourly rates for new, inexperienced employees that met or exceeded the minimum rates prescribed by ITN 007. Its program featured a "step and grade pay system" with two different grades (regular and senior) for each of the four contract positions, and three levels or steps for each grade. Faneuil described the system as follows in its Technical Proposal: . . . . Faneuil has structured a Step and Grade system that creates a process for supervisors and managers and illustrates to the employees opportunities for advancement. * * * All current employees will be designated into one of the grade and level sections as most appropriate for their current pay rate but in no case will they receive a lower rate of pay. New hires will start at Grade 1 Level 1 for their position and will move through the levels on average every two years. Note that these levels will increase over time as for example the Grade 1 Level 1 Toll Collector will increase by 3% annually as required in the ITN.[27] The Step and Grade system also brings peer recognition rewards as more experienced employees receive the designation of Senior. Eventually an employee will progress to the top of their range of pay. In this case, lump sum re-earnable bonuses can be given annually dependent on performance. The amount of this bonus would typically be the annualized value of a one-step increment in the range. The bonuses are subject to regular deductions. Among the recruitment strategies discussed in Faneuil's Technical Proposal was "Creative Network Recruiting," which it described as follows: Creative Network Recruiting Ongoing posting will be faxed or emailed to our community partners and posted in their locations. Our contact person will be knowledgeable about our open positions and explain to their members what we are looking for and refer candidates to our Human Resource professionals. Our community partners will mirror our community and assist with our diversity recruitment efforts. Community Partners include but are not limited to: Workforce Development Agencies, Agencies for Senior Citizens, Hispanic Human Resource Council, Haitian Center for Human Services, Chamber of Commerce, and Community Colleges.[28] The section of its Technical Proposal devoted to Recruitment, Hiring and Employment Matters also contained the following discussion regarding "Training" and "Inventory Management": Training It is Faneuil's and Impark's practice to provide thorough and on-going training in order to ensure a highly competent and motivated work force. The first step to achieve this goal is to solicit and incorporate the Department's training objectives into our training system. The specially designed training is implemented utilizing the following systematic approach: Orientation Aware of the potential anxiety associated with employees changing employment, [the] new employee orientation program meets two objectives: a) welcome employees to the Company and b) train[] employees to practice and procedures. Human Resources welcomes new employees with a small gift and a comprehensive overview of the company, its history, scope of services and presence across North America. Human Resources discuss and instruct new employee on all company policies and procedures, inform the new employee of job performance expectation, and criteria for performance appraisals, with a strong emphasis on the need for exceptional customer service and how the employee's job contributes to the overall performance of the organization.[29] Included in the orientation are the essential materials the employee needs to be successful from the start: his schedule, uniform and contact directory. On the Job Training Faneuil will utilize the expertise of our subcontractor Impark by working with [it] to assist the Department in improving the OJT program as needed. Impark has extensive experience developing on the job training programs for employees in the parking industry that will provide valuable in[sight] to the Department for future training needs. * * * Inventory Management During the transition Faneuil will request, from the current contractor, inventory data by employee as well as inventory on hand. This data will be entered in Faneuil's web- based Inventory Management System to track security cards,[30] uniforms and transponders. New employees will be provided with the Department's standard issue as appropriate. Faneuil's Inventory Management System will track all issuances, returns, certified for destruction, losses and purchases as well as inventory in stock.[31] The Inventory Management System will be remotely accessible by the Department's inventory auditors and reports can be created by them. Quarterly audits will be streamlined with the introduction of the system. Faneuil's Employee Benefits Program, as delineated in its Technical Proposal, included medical32 and dental benefits; "paid time off"; company holidays (which were the same as those listed in Subsection 10.3.4 of the Scope of Services); "double time" for holiday work; tuition reimbursement; life insurance; short-term disability insurance; paid bereavement leave; paid leave for jury duty; unpaid military leave; unpaid personal leave; unpaid leave to vote; unpaid leave to testify pursuant to a subpoena; day care benefits; Employee Assistance Program availability; and access to "[t]wo benefit coordinators . . . rotat[ing] between [Faneuil's] six regional offices and two satellite offices" who "w[ould] be available to enroll employees in benefit programs [and] answer employee questions." At the end of its discussion in its Technical Proposal of its Employee Benefits Program, Faneuil provided an Employee Benefits Summary. The medical benefits Faneuil proposed to offer were summarized in the Employee Benefits Summary as follows: Who is Eligible- Full time employees after 90 [] day[s] of employment.*[33] Description- Coinsurance: 90% in-network 70% Out-of-Network Preventative Care: 100% no deductible Health Reimbursement Acct: $500-1000- acct created by Faneuil for participating employees that pays first dollar coverage for medical expenses before any deductible. A percentage of unspent dollars at year end can be rolled over to the following years['] HRA Acct.[34] Deductible: $1000 after HRA Acct Who Pays- Faneuil pays 70% employee and 50% family rate. The dental benefits Faneuil proposed to offer were summarized in the Employees Benefits Summary as follows: Who is Eligible- Full time employees after 90 [] day[s] of employment.*[35] Description- In Network Deductible- None Out of Network Deductible- $50/$150 Plan Year Max- $1000 Cleaning Copayment- $10 Set Copayment Schedule for In Network Out [of] Network Copay- 100%/80%/50% Who Pays- Faneuil pays 70% employee and 50% Family rate.[36] The "paid time off" (PTO) benefits Faneuil proposed to offer were summarized in the Employee Benefits Summary as follows: Who is Eligible- Full time and eligible part-time employees after 90 [] days of employment.*[37] Description- PTO is an all-purpose time-off policy for eligible employees to use for vacation, personal business, and an employee's own illness or an illness of a family member. It combines traditional vacation and sick leave plans as well as most traditionally company-sponsored holidays into one flexible paid time-off policy. PTO accrues based on length of employment accordingly: -0-5 years- 21 days or 168 hours -5 to 10 years- 26 days or 200 hours -10 to 20 years- 31 days or 248 hours -20+ years- 36 days or 288 hours Employees accrue PTO each pay cycle Employees are strongly encouraged to use PTO within the year it is earned as Faneuil recognizes the need for employees to take time away from work to refresh themselves periodically. Employees can, however, carryover up to 25% of their earned and unused time to a separate "reserve bank" up to a maximum of 100 hours at any one time. Faneuil's PTO policy offers a unique feature in that it allows employees to "sell back" up to 30% of their accrued and unused time at the end on an employee's vacation year at a rate of 50% of the employee's average base pay. Employees would forfeit any accrued and unused time remaining. Employees must schedule PTO in accordance with the Company Attendance Policy. Who Pays- The Faneuil Group The tuition reimbursement benefits Faneuil proposed to offer were summarized in the Employee Benefits Summary as follows: Who is Eligible- Full time employees with 90 days of employment. Employee must start and complete course while retaining active full- time status. Description- - Reimbursement of percentage of allowable tuition costs for eligible, successfully completed courses as follows and not exceeding $2,500 per calendar year, per employee. -Individual courses that are part of an accredited degree program must be related to the employee's current job duties or a foreseeable future position with the organization in order to qualify for tuition assistance. The percentage of tuition reimbursement (50% or 100%) will be determined based on the relevance of the course to the employee's job. -Expenses will be reimbursed 100% up to $2,500 per year, per employee if the course is directly related to the employee's job. -Expenses will be reimbursed 50% up to $2,500 per year, per employee if the course is not directly related to the employee's job, but is related to a future job at Faneuil. Who Pays- The Faneuil Group Faneuil also described in its Technical Proposal a variety of Recognition and Retention Programs that it proposed to use as part of its effort to communicate effectively with contract employees. Although Faneuil omitted certain information from the various attachments that comprised the Qualifications Questionnaire (Form 1) it submitted as part of its reply, the information it did provide on these attachments, particularly when considered together with the other information contained elsewhere in its reply, was sufficient to show that it had the necessary qualifications and experience to provide the staffing services sought by the Department through ITN 007. A completed Attachment 1A (Organization - Prime) was submitted. On it, Faneuil indicated, among other things, that it had 12 years of experience as a prime contractor "in staffing the needs of its clients with [its] employees . . . as would be required by this project." Two completed Attachments 1B (Organization - Subcontractor), one for Impark and one for MCG, were submitted. A completed Attachment 1C (List of Completed Projects) was submitted. On it, Faneuil provided the requested information concerning two of its "completed projects": the "TennCare" project for the State of Tennessee; and the "Megacenter Operations" project for Verizon.38 On the Attachment 1D (List of Current Projects Under Contract) that Faneuil submitted, nine "current projects" were listed: "SunPass Contact Center and Support Services" project for the Department; "SunPass Secondary Call Center" project for the Department; "Medicaid Appeals" project for the State of Tennessee; "Customer Sales and Service" project for Network Solutions; "Bell Canada Holding 1B Sales" project for Bell Canada; "DSL, Long Distance and Future Sales" project for Sprint; "Private Education-Inbound" project for Collegiate Funding Services; "Private Education-Inbound" project for First Marblehead; and "ATX Tire Recall" project for Bridgestone/Firestone. Faneuil did not provide on Attachment 1D the "Location of Work" for the Sprint "DSL, Long Distance and Future Sales" project. Faneuil did not provide on Attachment 1D the requested "Prime or Subcontractor" information for the Sprint "DSL, Long Distance and Future Sales" project, the Collegiate Funding Services "Private Education-Inbound" project, the First Marblehead "Private Education-Inbound" project, or the Bridgestone/Firestone "ATX Tire Recall" project. Faneuil did not provide on Attachment 1D the "Number of Staff Provided" for the Network Solutions "Customer Sales and Service" project or the Sprint "DSL, Long Distance and Future Sales" project. Faneuil did not provide on Attachment 1D the "Contract Start Date" for the Network Solutions "Customer Sales and Service" project or the Sprint "DSL, Long Distance and Future Sales" project. Faneuil did not provide on Attachment 1D the "Scheduled Completion Date" for the Network Solutions "Customer Sales and Service" project, the Sprint "DSL, Long Distance and Future Sales" project, or the Bridgestone/Firestone "ATX Tire Recall" project. For none of the projects, except the Bridgestone/Firestone "ATX Tire Recall" project, did Faneuil provide on Attachment 1D the "Actual Completion Date."39 For none of the projects, except the State of Tennessee "Medicaid Appeals" project, did Faneuil provide on Attachment 1D the "Value of Work Performed."40 Except as noted above, Faneuil provided on Attachment 1D all of the information requested for the projects listed. A completed Attachment 1E (Required Background Information) was submitted. A completed Attachment 1F (Staffing - Program Director) was submitted. Ed Borchardt, Faneuil's Vice President for Service Delivery Support, was identified on the attachment as Faneuil's "planned Program Director,"41 who would devoting 100 percent of his time to the project.42 On the Attachment 1G (Staffing - Other Key Personnel) that Faneuil submitted, Faneuil identified the following individuals, in addition to Mr. Borchardt, as its "planned key personnel" "(as determined by [the vendor])": Tarsha Lehrr (of Faneuil), Francine Andrieshyn (of Faneuil), Cynthia Selley (of Faneuil), Gregg Hickman (of Faneuil), Mike McKeon (of Impark), Colleen Niese (of Impark), and Bruce Cousin(of Impark).43 On the attachment, Faneuil provided all of the information requested about these individuals except: it did not indicate the number of years Ms. Selley had been employed by Faneuil, nor whether she was also "currently employed by Proposer's subcontractor"; no details were given regarding "similar" projects Ms. Niese and Mr. Cousin had been assigned other than the name of their employer at the time (Impark); and the "similar" project assignments listed for Ms. Lehrr, Ms. Andrieshyn, Ms. Selley, Mr. Hickman, and Mr. McKeon did not reveal a "start . . . date[] of project assignment." As required by Attachment 1H (Proposer's Surety History), Faneuil appended to the attachment "a copy of a letter from a surety company [Acstar Insurance Company] that state[d] that [the] surety plan[ned] to bond [Faneuil] for this project." The Attachments 1I (Subcontractor Approval List) that Faneuil submitted indicated that that MCG and Impark would each be working as a subcontractor for Faneuil on the project for "less than 1%" of the "prime contract value." Appended to this attachment was Ms. Stemle's resume.44 On the completed Form 3 that it submitted, Faneuil indicated that it was not a Department-certified Minority Business Enterprise (MBE) or Disadvantaged Business Enterprise (DBE); that the "[e]xpected percentage of contract fees to be subcontracted to MBE/DBE's [was] .5%"; that MCG would be the "MBE/DBE" performing this subcontracting work; and that the "[t]ype of [w]ork" MCG would be performing was "management consulting." Other Replies Submitted The Department received five other timely submitted replies to ITN 007, in addition to Faneuil's. These replies were submitted by Barton, Serco, Ampco System Parking, EG&G Technical Services, and Central Parking System. One reply was submitted after the deadline and was rejected without further consideration because it was untimely. Evaluation, Scoring and Ranking of Replies An evaluation committee was formed to evaluate and score the Qualifications Questionnaires and Technical Proposals that had been submitted by Faneuil, Barton, Serco, Ampco System Parking, EG&G Technical Services, and Central Parking System as part of their replies to ITN 007. The RCS Deputy Director (Ms. Burger) and the six regional toll managers then under her supervision (Ms. Brantley, Ms. Cook, Mr. Spitzer, Mr. Abbadini, Ms. Greenawalt, and Mr. Sneed) were selected to serve on the evaluation committee.45 They were logical choices given their job responsibilities and experience with RCS. Regional toll managers46 had been on the evaluation committees for past procurements for RCS staffing services, and, more importantly, they had served as contract managers under the contracts (with Barton) resulting from those procurements, including the most recent contracts. Moreover, they would be deputy contract managers under the contract awarded pursuant to ITN 007, assisting the RCS Deputy Director (who would be the contract manager). In short, Ms. Burger, Ms. Brantley, Ms. Cook, Mr. Spitzer, Mr. Abbadini, Ms. Greenawalt, and Mr. Sneed were all capable of competently discharging their duties as members of the evaluation committee. Furthermore, there was no apparent impediment to them performing these duties in a fair and impartial manner. Members of the evaluation committee were given copies of ITN 007, as well as the replies that had been submitted (which, prior thereto, had not been reviewed for responsiveness by Mr. Lawson or anyone else in the Turnpike Enterprise's "contracts office"). Evaluation committee members were also provided with, for each reply, score sheets that Ms. Burger had prepared, with Ms. Brantley's assistance. These score sheets (which were not among the documents that comprised ITN 007) had spaces for the evaluators to write in their scores for each of the scoring categories (except "price proposal") specified in Special Condition 15 of ITN 00747 and for them to make written "comments" regarding their scoring. The score sheets also contained information and instructions designed to help the evaluators perform their evaluative functions. "Submittal Requirements" imposed by ITN 007 were listed by scoring category and evaluators were "refer[red]" to pertinent sections of the Scope of Services: Section 9.0, for the "Technical Proposal: Staffing Plan" scoring category; Section 8.0, for the "Technical Proposal: Recruitment, Hiring and Employment Matters" scoring category; Section 23.0, for the "Technical Proposal: Implementation Schedule and Plan" scoring category; and Section 10.0, for the "Technical Proposal: Employee Pay, Benefits, Recognition and Retention" scoring category. For each scoring category, the maximum number of points, as established by Special Condition 15 of ITN 007, was indicated, as were three different ranges of point awards: one for "Exceeds Requirements"; another for "Meets Requirements"; and a third for "Fails to Meet Requirements." The scoring sheets erroneously indicated that a completed "Corporate Resolution" (Form 5) was a "Submittal Requirement." Pursuant to Special Condition 25 of ITN 007, such a submission was actually "optional." Also, the scoring sheets should have referred the evaluators to Section 22.0 of the Scope Services for the "Technical Proposal: Implementation Schedule and Plan" scoring category.48 The evaluation committee members met as a group before beginning their evaluations. At the meeting, Ms. Burger went over the scoring sheets with the other committee members and answered their questions about the evaluation process. Among other things, she advised them to address to Mr. Lawson any questions they might have, when reviewing a particular reply, concerning the reply's responsiveness. The Department has a Procurement of Commodities and Contractual Services policy (Topic No. 375-040-020-j, effective July 21, 2005), Section 4.13.8 of which states the following regarding the ITN review process, including responsiveness determinations: ITNs: The procurement unit and/or Project Manager[49] shall review all information submitted to the Department to ensure that the vendors were responsive to the ITN and are responsible and qualified. Evaluations/reviews/negotiations should be conducted by at least three (3) persons for contracts of the threshold amount provided in Section 287.017, F.S., for Category Four or less. For contracts in excess of Category Four, the agency head or designee shall appoint at least three (3) persons to evaluate replies and at least three (3) persons to conduct negotiations (can be the same) 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. The authority to appoint these persons is delegated to Senior Management Level Directors and above, who may delegate such authority to other office heads in writing. All meetings of these persons to discuss or evaluate replies will be conducted as public meetings. The procurement unit is responsible for tabulating the scores and completing the Negotiation Tabulation, 375- 040-2C. Following the committee's pre-evaluation meeting, committee members went their separate ways and began their evaluations of the Qualifications Questionnaires and Technical Proposals submitted in response to ITN 007. They were given no formal training on how to analyze and compare employee benefit plans before commencing their evaluations. During the time that the evaluation committee members were conducting their evaluations, Mr. Lawson received questions from three committee members concerning the responsiveness of certain replies. In each instance, Mr. Lawson determined that the reply in question was "not nonresponsive," and he communicated his determination to the inquiring evaluator (but not to any of the other evaluators on the committee).50 Mr. Lawson did not tell any evaluator "how to score something." Ms. Brantley was one of the three evaluators who addressed a responsiveness question to Mr. Lawson. Her question was whether Barton's failure to include a completed "Corporate Resolution" (Form 5) rendered its reply nonresponsive, to which Mr. Lawson responded in the negative. Mr. Sneed made a similar inquiry and received a like response. Each member of the evaluation committee, independently and without collaboration or collusion with any other member of the committee, reviewed and evaluated the Qualifications Questionnaires and Technical Proposals and entered their scores on the score sheets they had been provided for that purpose. No member of the evaluation committee attempted to influence the evaluation of any other committee member in favor or against any vendor. Furthermore, there is no persuasive record evidence that anyone else, including Ms. Stemle, acted through channels not authorized by ITN 007 in an effort to affect the scoring of any evaluation committee member. ITN 007 granted the evaluators extremely broad discretion in determining how to score the Qualifications Questionnaires and Technical Proposals. Special Condition 15.1, which described the "Evaluation Process," merely identified the various scoring categories and the maximum number of points that could be awarded for each category. How the evaluators were to determine the number of points to award a vendor within the maximum allowable for each category was a matter left to the judgment of the each evaluator based on the evaluator's assessment of the relative importance of the different components of that category and how well the vendor addressed each of those components in its Qualifications Questionnaire and Technical Proposal. The evaluation committee members exercised the considerable discretion they were granted by ITN 007 in a good faith and consistent, "across-the-board" manner. They acted honestly and without any unfair bias, partiality, or favoritism, giving each of the Qualifications Questionnaires and Technical Proposals full and evenhanded consideration and scoring them, not in a manner designed to further their personal interests,51 but rather in accordance with the provisions of ITN 007, as they understood them. How Ms. Stemle had treated Ms. Burger, Ms. Brantley, Mr. Spitzer, Mr. Abbadini, Ms. Greenawalt, and Mr. Sneed when they were her subordinates played no role in the scores these five evaluators gave Faneuil (or any other vendor). Some of the evaluators compared services set forth in the Technical Proposals to those being provided under the requirements of the Department's existing contracts with Barton in order to help them gauge the quality and "pointworthiness" of the proposals.52 Doing so was neither unreasonable, nor prohibited by ITN 007.53 After completing their evaluations, the evaluators turned in their completed score sheets. The following are the scores that Faneuil, Barton, and Serco received from Ms. Burger: Faneuil Qualifications Questionnaire: 5 Technical Proposal: Administration and Management: 4 Staffing Plan: 18 Recruitment, Hiring and Employment Matters: 8 Implementation Schedule and Plan: 7 Employee Pay, Benefits, Recognition and Retention 23 TOTAL POINTS: 65 Barton Qualifications Questionnaire: 5 Technical Proposal: Administration and Management: 2 Staffing Plan: 7 Recruitment, Hiring and Employment Matters: 5 Implementation Schedule and Plan: Employee Pay, Benefits, 6 Recognition and Retention: 15[54] TOTAL POINTS: 40 Serco Qualifications Questionnaire: 5 Technical Proposal: Administration and Management: 5 Staffing Plan: 7 Recruitment, Hiring and Employment Matters: 5 Implementation Schedule and Plan: Employee Pay, Benefits, 9 Recognition and Retention: 16 TOTAL POINTS: 47 The following are the scores that Faneuil, Barton, and Serco received from Ms. Brantley: Faneuil Qualifications Questionnaire: 6 Technical Proposal: Administration and Management: 3 Staffing Plan: 19 Recruitment, Hiring and Employment Matters: 9 Implementation Schedule and Plan: 9 Employee Pay, Benefits, Recognition and Retention: 30 TOTAL POINTS: 76 Barton Qualifications Questionnaire: 3[55] Technical Proposal: Administration and Management: 4 Staffing Plan: 10 Recruitment, Hiring and Employment Matters: 5 Implementation Schedule and Plan: 8 Employee Pay, Benefits, Recognition and Retention: 20 TOTAL POINTS: 50 Serco Qualifications Questionnaire: 7 Technical Proposal: Administration and Management: 5 Staffing Plan: 10 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: 9 Employee Pay, Benefits, Recognition and Retention: 20 TOTAL POINTS: 57 The following are the scores that Faneuil, Barton, and Serco received from Ms. Cook (who was the only member of the evaluation committee who had never been a subordinate of Ms. Stemle's): Faneuil Qualifications Questionnaire: 6 Technical Proposal: Administration and Management: 4 Staffing Plan: 15 Recruitment, Hiring and Employment Matters: 7 Implementation Schedule and Plan: 7 Employee Pay, Benefits, Recognition and Retention: 33 TOTAL POINTS: 72[56] Barton Qualifications Questionnaire: 5 Technical Proposal: Administration and Management: 2 Staffing Plan: 11 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: Employee Pay, Benefits, 9 Recognition and Retention: 30 TOTAL POINTS: 63 Serco Qualifications Questionnaire: 7 Technical Proposal: Administration and Management: 4 Staffing Plan: 13 Recruitment, Hiring and Employment Matters: 7 Implementation Schedule and Plan: Employee Pay, Benefits, 10 Recognition and Retention: 21 TOTAL POINTS: 62 The following are the scores that Faneuil, Barton, and Serco received from Mr. Spitzer: Faneuil Qualifications Questionnaire: 5 Technical Proposal: Administration and Management: 4 Staffing Plan: 18 Recruitment, Hiring and Employment Matters: 8 Implementation Schedule and Plan: 9 Employee Pay, Benefits, Recognition and Retention: 24 TOTAL POINTS: 68 Barton Qualifications Questionnaire: 5 Technical Proposal: Administration and Management: 4 Staffing Plan: 13 Recruitment, Hiring and Employment Matters: 8 Implementation Schedule and Plan: 9 Employee Pay, Benefits, Recognition and Retention: 24 TOTAL POINTS: 63 Serco Qualifications Questionnaire: 7 Technical Proposal: Administration and Management: 4 Staffing Plan: 15 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: 9 Employee Pay, Benefits, Recognition and Retention: 21 TOTAL POINTS: 62 The following are the scores that Faneuil, Barton, and Serco received from Mr. Abbadini: Faneuil Qualifications Questionnaire: 6 Technical Proposal: Administration and Management: 4 Staffing Plan: 17 Recruitment, Hiring and Employment Matters: 10 Implementation Schedule and Plan: Employee Pay, Benefits, 8 Recognition and Retention: 32 TOTAL POINTS: 77 Barton Qualifications Questionnaire: 5 Technical Proposal: Administration and Management: 2 Staffing Plan: 14 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: 10 Employee Pay, Benefits, Recognition and Retention: 32 TOTAL POINTS: 69 Serco Qualifications Questionnaire: 8 Technical Proposal: Administration and Management: 4 Staffing Plan: 12 Recruitment, Hiring and Employment Matters: 7 Implementation Schedule and Plan: 7 Employee Pay, Benefits, Recognition and Retention: 30 TOTAL POINTS: 68 The following are the scores that Faneuil, Barton, and Serco received from Ms. Greenawalt: Faneuil Qualifications Questionnaire: 6 Technical Proposal: Administration and Management: 3 Staffing Plan: 12 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: Employee Pay, Benefits, 6 Recognition and Retention: 11 TOTAL POINTS: 44 Barton Qualifications Questionnaire: 4 Technical Proposal: Administration and Management: 3 Staffing Plan: 9 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: 6 Employee Pay, Benefits, Recognition and Retention: 22 TOTAL POINTS: 50 Serco Qualifications Questionnaire: 6 Technical Proposal: Administration and Management: 4 Staffing Plan: 9 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: 7 Employee Pay, Benefits, Recognition and Retention: 20 TOTAL POINTS: 52 The following are the scores that Faneuil, Barton, and Serco received from Mr. Sneed: Faneuil Qualifications Questionnaire: 5 Technical Proposal: Administration and Management: 3 Staffing Plan: 11 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: 6 Employee Pay, Benefits, Recognition and Retention: 17 TOTAL POINTS: 48 Barton Qualifications Questionnaire: 6 Technical Proposal: Administration and Management: 3 Staffing Plan: 12 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: 6 Employee Pay, Benefits, Recognition and Retention: 19[57] TOTAL POINTS: 52[58] Serco Qualifications Questionnaire: 5 Technical Proposal: Administration and Management: 3 Staffing Plan: 11 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: 6 Employee Pay, Benefits, Recognition and Retention: 18 TOTAL POINTS: 49 The total number of points each vendor received from the seven evaluators was divided by seven to obtain a "Qualification & Technical/Average Score" for that vendor. Faneuil's "Qualification & Technical/Average Score" was 64.29. Barton's "Qualification & Technical/Average Score" was 55.29 Serco's "Qualification & Technical/Average Score" was 56.71. A "price proposal evaluation" was performed on the price proposals submitted, in accordance with the requirements of Special Condition 15.2 of ITN 007, to obtain a "Price Score" for each vendor. Faneuil's "Price Score" was 8.98. Adding this "price Score" to its "Qualification & Technical/Average Score" gave it a "Total Score" of 73.27, which was the highest "Total Score" received by any vendor. Barton's "Price Score" was 9.04. Adding this "price Score" to its "Qualification & Technical/Average Score" gave it a "Total Score" of 64.33, which was the third highest "Total Score" received by any vendor. Serco's "Price Score" was 9.34. Adding this "Price Score" to its "Qualification & Technical/Average Score" gave it a "Total Score" of 66.05, which was the second highest "Total Score" received by any vendor.59 The awards committee met on March 23, 2006, and publicly announced the scores that the vendors had received and ranked the vendors based on their "Total Scores" as follows: 1: Faneuil; 2: Serco; 3: Barton; 4: EG&G Technical Services; 5: Central Parking System; and 6: Ampco System Parking. These rankings were set forth on a "Posting Tabulation," which also indicated: The Department will commence negotiations with the firm ranked number one by the Selection Committee. Should the Department be unable to negotiate a satisfactory contract with the number one ranked firm, negotiations with the firm shall be suspended. The Department may then undertake negotiations with the firm ranked number two by the Selection Committee. Failing accord with the firm ranked number two, the Department may continue the negotiations process in the order of the ranking until the Department is able to negotiate a satisfactory contract. The Department reserves the option to resume negotiations that were previously suspended with any of the shortlisted vendors; and further indicated: Failure to file a protest within the time prescribed in Section 120.52(3), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Failure to file the proper bond at the time of filing the formal protest will result in a denial of the protest. The "Posting Tabulation" was posted from March 23, 2006, through March 28, 2006. Petitioners' Protest Barton timely protested the decision announced in the "Posting Tabulation."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order rejecting Barton's protest. DONE AND ENTERED this 20th day of July, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 20th day of July, 2006.
The Issue Whether David Cooper’s Construction, Inc. (“Respondent”), failed to secure the payment of workers’ compensation insurance coverage for its employees; and, if so, whether the Department of Financial Services, Division of Workers’ Compensation (“Petitioner” or “Department”), correctly calculated the penalty to be assessed against Respondent.
Findings Of Fact The Department is the state agency charged with enforcing the statutory requirement that employers in Florida secure workers’ compensation coverage for their employees. See § 440.107(3), Fla. Stat. Respondent is a Florida corporation engaged in the business of residential construction in Port St. Joe, Florida. At all times relevant hereto, Carl Woodall was a workers’ compensation compliance investigator employed by the Department. Employers may comply with the workers’ compensation coverage requirement by obtaining a workers’ compensation insurance policy or an employee leasing agreement. Corporate officers and members of limited liability companies can elect an exemption from workers’ compensation coverage. See § 440.05, Fla. Stat. On August 12, 2016, Mr. Woodall made an unannounced, random inspection of a worksite at 2912 Garrison Avenue in Port St. Joe, Florida. Mr. Woodall observed two men on the roof of an existing structure at that address who appeared to be framing an addition to the structure. At Mr. Woodall’s request, the two men identified themselves as David Cooper and Macon Stewart. Mr. Cooper identified himself as Respondent’s owner and stated that Mr. Stewart was working for him. Mr. Cooper informed Mr. Woodall that he paid Mr. Stewart by check at the rate of $10 per hour. While at the worksite, Mr. Woodall checked the Coverage and Compliance Automated System (“CCAS”) database, which tracks workers’ compensation insurance coverage and exemption data for employers in Florida. Mr. Woodall’s search of CCAS revealed that Respondent did not have a workers’ compensation insurance policy to cover its employees nor an employee leasing agreement. The search also revealed that Mr. Stewart did not have an active workers’ compensation exemption. Mr. Woodall personally served Mr. Cooper with a Stop-Work Order (“SWO”) and Order of Penalty Assessment on August 12, 2016. Respondent complied with the SWO by making a $1,000 down payment toward the penalty assessment (which had yet to be calculated) and agreeing not to allow Mr. Stewart to work for Respondent until such time as Mr. Stewart obtained an exemption. The Order of Penalty Assessment includes a Request for Production of Business Records (“Request”) which could be used to calculate the amount of the penalty. In response to the Request, Mr. Cooper provided the Department with billing statements, handwritten time sheets, and certificates of exemption for certain employees. Lynne Murcia is a Department penalty auditor. She is tasked with reviewing business records provided by employers and calculating penalties for employers who have been notified they are in violation of workers’ compensation coverage requirements. Ms. Murcia was assigned to calculate the penalty to be assessed against Respondent. Ms. Murcia began by reviewing Respondent’s business records for the audit period, which is the two-year period immediately preceding the date of the SWO. See § 440.107(7)(d), Fla. Stat. The audit period in this case is from February 1, 2015, through January 31, 2017. The Department’s penalty is based on the employer’s payroll to employees during any periods during the audit period in which the employer did not provide workers’ compensation insurance coverage for its employees (“the period of non-compliance”). In this case, the period of non-compliance is the same as the audit period. An employer’s payroll is the amount of wages or other compensation made to employees during the period of non-compliance. See Fla. Admin. Code R. 69L-6.035. Transactions that are considered payroll include direct payment for services rendered, as well as outstanding loans, reimbursements, bonuses, and profit-sharing. Id. Based upon the records received from Respondent, Ms. Murcia identified Respondent’s employees during the period of non-compliance as Joseph Turner, Linda Cooper, and Macon Stewart.2 Compensation paid to those employees during the period of non- compliance was as follows: Joseph Turner, $11,740; Linda Cooper, $2,178; and Macon Stewart, $60. Thus, Respondent’s gross payroll for the period of non-compliance was $13,978. Next, Ms. Murcia consulted the Scopes Manual published by the National Council on Compensation Insurance (“NCCI”) to assign a class code to each employee. The class codes correspond with the type of work performed by an employee and establish the manual rate for workers’ compensation insurance for that type of work. Based upon Mr. Woodall’s observations of the work being performed at the worksite, Ms. Murcia assigned NCCI class code 5645, Carpentry, to Mr. Stewart. 2 Ms. Murcia initially identified additional employees whose wages were included in the Second and Third Amended Orders of Penalty Assessment. For purposes of this Recommended Order, the relevant payroll is that identified in the Fourth Amended Order of Penalty Assessment. Based on Ms. Cooper’s description of her job duties, Ms. Murcia assigned NCCI class code 8810, Clerical, to Ms. Cooper. Respondent’s records did not identify the type of work performed by Mr. Turner. When the business records do not identify the type of work performed by an employee, the Department must apply to the employee the highest manual rate associated with any employee’s activities based on the investigator’s personal observation of work activities. See Fla. Admin. Code R. 69L-6.035(4). Ms. Murcia assigned class code 5645, Carpentry, to Mr. Turner because that class code corresponds with a higher manual rate than 8810, Clerical. Using the gross payroll to each employee, multiplied by the applicable manual rate, Respondent would have paid $1,897.51 in workers’ compensation insurance premiums to cover its employees during the period of non-compliance (“the avoided premium”). The statutory penalty to be assessed is twice the avoided premium. See § 440.107(7)(d)1., Fla. Stat. Ms. Murcia calculated the penalty to be assessed as $3,795. Ms. Murcia applied the correct approved manual rates and correctly utilized the methodology specified in section 440.107(7) and Florida Administrative Code Rules 69L-6.027 and 69L-6.035 to determine the penalty to be imposed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers’ Compensation, finding that David Cooper’s Construction, Inc., violated the workers’ compensation insurance statute and assessing a penalty of $3,795. DONE AND ENTERED this 26th day of January, 2021, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2021. COPIES FURNISHED: David Cooper David Cooper’s Construction, Inc. 2449 Hayes Avenue Port St. Joe, Florida 32456 Diane Wint, Agency Clerk Division of Legal Services Department of Financial Service Room 612.14, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0390 Rean Knopke, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399
The Issue Whether the doctrine of equitable tolling applies to excuse the late filing of Respondent's Election of Rights form.
Findings Of Fact The Department is the state agency charged with regulating massage establishments pursuant to chapter 20 and section 20.43, Florida Statutes. Respondent is licensed as a massage establishment in the State of Florida, having been issued license number MM 33902. Respondent's address of record is 440 South Military Trail, West Palm Beach, Florida 33415. The August 5, 2016, Letter and First Response On or about August 5, 2016, the Department issued a letter to Respondent at its address of record ("August 5 Letter"), advising Respondent that the Department was conducting an investigation based on an internally generated complaint that on July 24 and August 1, 2016, Respondent ran an advertisement on www.backpage.com ("Backpage") with images "of Asia women dressed in swim wear and lingere," which was considered by the Department as designed to "induce sexual misconduct." The August 5 Letter also alleges that Respondent failed to include a license number in the advertisement. The advertisement in question was not provided to Respondent by the Department. The August 5 Letter advised Respondent that it could submit a written response within 20 days of receiving the letter and that it was not possible to estimate how long it would take to complete the investigation. Respondent, who at that time was owned by Ms. Jing Hui Guo, contacted a retired attorney, Jule Paulk, regarding the correspondence from the Department. Ms. Guo only reads and speaks Mandarin. Ms. Guo had purchased the business, formerly known as "Ocean Spa," about 15 months prior. She was not familiar with the advertising content of Ocean Spa. When she purchased the business, Ms. Guo changed the name to Kai Xin Spa, Inc., and she kept paying the invoice from the prior advertising agency. After receipt of the August 5 Letter, Ms. Guo provided a copy of it to her advertising agency and directed that they remove and/or stop running the offending advertisements. According to her testimony, she approved new advertisement content with the business license number and with none of the cited offending content. That new advertisement ran as of August 8, 2016. On August 15, 2016, Mr. Paulk drafted a written response to the August 5 Letter ("First Response Letter") on behalf of Respondent. The First Response Letter was electronically signed by Ms. Guo and it contained the new advertisement which included the business license number and removed the women in bathing suits and lingerie. The First Response Letter states: We have taken immediate steps to address the issues in the letter mentioned above. We will continue to do so until all issues are resolved. We hope this letter will show our sincere efforts to bring our business into compliance. (Emphasis added). Ms. Guo sold the business in the beginning of 2017 to Mr. Haibing Wang. Hearing nothing further from the Department prior to sale, she reasonably assumed the Department approved of her new advertising and that matter was closed. The April 12, 2018, Letter and Second Response Despite receipt of the First Response Letter, the Department continued to "investigate" Respondent's alleged misconduct. On April 12, 2018, 20 months after its original notification to Respondent, the Department issued a second letter to Respondent ("April 12 Letter"), advising Respondent that the matter was still ongoing. The Department's April 12 Letter was identical to the August 5 Letter except for the date. When it was received by the new business owner, Mr. Wang, he forwarded it to Ms. Guo telling her that it was her problem because she did not tell him about the investigation at the time of the sale. Ms. Guo provided the letter to Mr. Paulk. Mr. Paulk recognized the letter as identical to the August 5 Letter, but noted there was a new document included, dated August 1, 2016, which was styled "Health Care Provider Complaint Form." This form states, "[w]e will send a copy of the Complaint to the health care provider if the complaint is assigned for investigation." The Complaint with the Department of Health was certainly assigned for investigation in 2016, but this form was not given to Respondent until 2018. Mr. Paulk also noted the following additional discrepancies in the Health Care Provider Complaint form: It was dated August 16, 2016, but attached to a letter dated April 12, 2018. The form identified the reason for the complaint to be that of advertising. The box for sexual contact was not checked. Attached to the Health Care Provider Complaint Form was a document signed by Mr. Kevin Lapham dated August 1, 2016. Such document identified the same advertisements, which were the subject of the prior investigation which were published on August 1 and June 24, 2016, and which he thought was resolved. Further, the initial August 5 Letter included an attachment which specifically references advertising to induce sexual misconduct and identifies specific Florida Statutes. However, the Department's April 12 Letter, nor the attachments thereto, reference sexual misconduct or a statute dealing with sexual misconduct. On or about April 16, 2018, Mr. Paulk submitted a written response to the Department's April 12 Letter ("Second Response Letter"), on behalf of Respondent. The letter was electronically signed by Ms. Guo. The Second Response Letter states: Your letter of April 12, 2018 refers to 2016 Case Number 2016-20171. By our letter of August 15, 2016 (copy enclosed), we responded to this Case, assuring your office that we had taken steps to correct the concerns you had listed. We are not sure why you are still addressing this same Case. We assumed that our August 15, 2016 letter had satisfied the concerns. In addition, the concerns expressed in your August, 2016 letter involved a Backpage ad. We corrected those issues at that time. Now, Backpage has been removed from the internet. We hope this information resolved this matter. Please contact us if otherwise. Ms. Guo received no response from the Department to her Second Response Letter. The Administrative Complaint On June 28, 2018, the Department filed an Administrative Complaint against Respondent, alleging that Respondent inappropriately advertised to induce sexual misconduct and failed to include its license number in its advertising. The cover letter included with the Administrative Complaint stated: Please review the attached documents and return the Election of Rights form to my attention. You must sign the Election of Rights form and return the completed form to my office within twenty-one (21) days of the date you receive it. Failure to return this form within twenty-one (21) days may result on the entry of a default judgement against you without hearing your side of the case. (Emphasis added). The cover letter also referenced an enclosed Voluntary Relinquishment form for consideration described as "an offer to resolve this matter without the necessity of further proceedings and the expense of further proceedings." The Administrative Complaint contained a Notice of Rights section, which informed Respondent that "[a] request or petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to Rule 28-106.111(2), Florida Administrative Code." The EOR form included with the Complaint stated: In the event that you fail to make an election in this matter within twenty-one (21) days from receipt of the Administrative Complaint, your failure to do so may be considered a waiver of your right to elect a hearing in this matter, pursuant to Rule 28-106.111(4), Florida Administrative Code, and the Board may proceed to hear your case. (Emphasis added). The Department mailed the Administrative Complaint, a Notice of Rights, and an EOR form via certified U.S. mail to Respondent's address of record. On July 14, 2018, Mr. Wang received the Administrative Complaint and gave the Administratve Complaint and EOR to Ms. Guo, who provided the documents to Mr. Paulk. Mr. Paulk consulted with counsel for Respondent, Mr. Samuel Holland, Esquire, about the EOR. Mr. Holland completed and signed the EOR on August 8, 2018. However, neither Mr. Paulk nor Mr. Holland returned the completed EOR to the Department until August 17, 2018, nine days later. Mr. Paulk testified that this nine-day delay was because he and Mr. Holland were "confused," "not quite sure how to proceed the best way," that he "needed to collect [his] thoughts," and that he needed to "do a little more looking into [the] matter" in order to decide the "best approach." This confusion is understandable and in large part created by the Department's own doing. At no time did the Department supply Respondent with a copy of the alleged offending advertisement. In fact, even the Administrative Complaint does not attach the advertisement at issue. The allegations in the Administrative Complaint deviate from the matters of which Respondent was provided notice were under investigation. For the first time, the Department indicates a concern that the advertisement contained hearts with arrows going through them, women in "sexually suggestive poses," and massage therapists described as "hot," "beautiful," and "young." The EOR and the penalty for failure to return such was not stated in absolute terms. The EOR form states, "[f]ailure to return this form within twenty-one days may result in the entry of a default judgment against you without hearing your side of the case." The use of the word "may" detracts from any finality to the consequences of failure to return the signed EOR. This sentence also suggests that a hearing will be conducted with or without the return of the EOR. Eventually, Mr. Paulk and Mr. Holland decided the best course of action would be to submit the EOR because "any further delay might be harmful." Twenty-one days from July 14, 2018, was August 3, 2018. The Department ultimately received the EOR via regular mail on August 20, 2018; 16 days after it was due. On or about September 12, 2018, the Department sent a letter to Mr. Holland ("Denial Letter"), denying Respondent's request for a formal administrative hearing. On October 15, 2018, the Department received a letter from Respondent ("October 9 Letter") contesting the Denial Letter. In the October 9 Letter, counsel for Respondent, Mr. Holland, explained the reason for the untimely filing and asked for a hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's request for a formal hearing under section 120.57(1), Florida Statutes, be permitted in accordance with the doctrine of equitable tolling. DONE AND ENTERED this 21st day of August, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 21st day of August, 2019.
The Issue The issue in this bid protest matter is whether the decision of Respondent, Department of Transportation, to award the contract for the Centralized Customer Service System to Intervenor, Xerox State and Local Solutions, Inc., over Petitioner, Accenture, LLP, was contrary to its governing statutes, rules or policies, or the solicitation specifications.
Findings Of Fact The Department is an agency of the State of Florida charged with planning, acquiring, leasing, constructing, maintaining, and operating toll facilities and cooperating with and assisting local governments in the development of a statewide transportation system. §§ 334.044(16)-(22), Fla. Stat. (2015).3/ The Department is authorized to enter contracts and agreements to help fulfill these duties. §§ 20.23(6) and 334.044(7), Fla. Stat. FTE is a legislatively created arm of the Department and is authorized to plan, develop, own, purchase, lease, or otherwise acquire, demolish, construct, improve, relocate, equip, repair, maintain, operate, and manage the Florida Turnpike System. FTE is authorized to cooperate, coordinate, partner, and contract with other entities, public and private, to accomplish these purposes. § 338.2216(1)(b), Fla. Stat. The Department has the express power to employ the procurement methods available to the Department of Management Services under chapter 287, Florida Statutes. § 338.2216(2), Fla. Stat. On November 1, 2013, the Department advertised the ITN, soliciting Proposals from vendors interested in participating in competitive negotiations for the award of a contract to provide a Customer Service System and associated Operations and Maintenance. The Department issued the ITN pursuant to section 287.057, Florida Statutes. The Department did not receive any challenges to the ITN specifications.4/ The Customer Service System is expected to process nearly all electronic toll transactions in Florida. It will be designed to replace not only the FTE's existing customer service center systems (or "back offices"), but the back office operations for the other three local tolling agencies in Florida as well. These local tolling agencies include the Central Florida Expressway (formerly known as the Orlando–Orange County Expressway Authority), the Miami–Dade Expressway Authority, and the Tampa Hillsborough Expressway Authority (collectively the "Local Authorities"). Under the terms of the ITN, the contract will include all systems and services connected with the customer service operations of toll roads and the payment of tolls to the FTE and Local Authorities including: processing and billing of transactions; identification of the registered owners of vehicles; operational and financial reconciliation; comprehensive system reporting; and website, mobile website, mobile app, and interactive voice response. The FTE, which oversees all Department tolling activities in the state, will execute and manage the Customer Service System contract. Through the ITN, the Department will enter a contract directly with the successful vendor. Thereafter, the Department will enter agreements with the Local Authorities to coordinate the joint use of the new tolling system. The initial contract term for the Customer Service System is seven years. Generally, the Department's ITN set forth a solicitation process consisting of two phases. Phase one involved: (a) the prequalification or short-listing of vendors to determine vendors' eligibility to submit Proposals; and (b) following Proposal submissions, the Department's evaluation and ranking of the vendors' Proposals. Phase two of the ITN is the negotiation phase which would culminate in the Department's award of the Customer Service System contract to the vendor that the Department determined would provide the "best value to the state." The ITN, section 2.26, NEGOTIATION PROCESS (as amended by Addendum 8), outlines the specific steps for the Department's solicitation and provides: Once Proposers have been ranked in accordance with Section 2.6.2 Proposal Evaluation, the Department will proceed with negotiations in accordance with the negotiation process described below. Proposers should be cognizant of the fact that the Department reserves the right to finalize negotiations at any time in the process that the Department determines that such election would be in the best interest of the State. Step 1: Follow the evaluation process and rank Proposals as outlined in Section 2.6 Evaluation Process. Step 2: The ranking will be posted, in accordance with the law (see Section 2.27), stating the Department's intent to negotiate and award a contract to the highest ranked Proposer that reaches an acceptable agreement with the Department. Step 3: Once the posting period has ended, the Negotiation Team will undertake negotiations with the first-ranked Proposer until an acceptable Contract is established, or it is determined an acceptable agreement cannot be achieved with such Proposer. If negotiations fail with the first-ranked Proposer, negotiations may begin with the second-ranked Proposer, and so on until there is an agreement on an acceptable Contract. The Department reserves the option to resume negotiations that were previously suspended. Negotiation sessions are not open to the public and all negotiation sessions will be recorded by the Department. Step 4: The Negotiation Team will write a short plain statement for the procurement file that explains the basis for Proposer selection and how the Proposer's deliverables and price will provide the best value to the state. Step 5: The Department will contract with the selected Proposer. Section 2.27.1 of the ITN, Ranking/Intended Award, provides that "[t]he Ranking/Intended Award will be made to the responsive and responsible Proposer that is determined to be capable of providing the best value and best meet the needs of the Department." Per ITN, sections 2.6 and 2.26, Step 1, the Department created a Technical Review Team and a Selection Committee which evaluated and ranked the Proposals in order of preference based on the vendors' technical approach and capabilities. The Selection Committee ranked Xerox first followed by Petitioner, then Cubic. The Selection Committee based its decision on Xerox's proven experience with other similar and large tolling projects, including some of the country's largest tolling systems. The Selection Committee further explained that, of the three vendors, only Xerox has fully operational tolling systems in the United States, bringing a "'comfort level' that did not exist with [Petitioner] and Cubic."5/ Thereafter, per ITN, section 2.26, Step 2, on April 10, 2014, the Department posted its ranking of vendors with Xerox first, Petitioner second, and Cubic third. The posting also announced the Department's intent to commence "sequential" negotiations. Under this process, the Department would start negotiations with Xerox as the first-ranked vendor. If negotiations with Xerox failed, the Department would then begin negotiations with Petitioner as the second-ranked vendor, and so on down the order of ranking until the Department negotiated an acceptable agreement. Phase one of the solicitation, which involved section 2.26, Steps 1 and 2 above, was the subject of a prior bid protest in DOAH Case No. 14-2322BID before ALJ Linzie F. Bogan (the "First Protest"). Following the Department's ranking of vendors and its notice of intent to initiate negotiations with Xerox on April 10, 2014, Petitioner and Cubic each filed formal bid protests. Following an administrative hearing, ALJ Bogan entered a Recommended Order recommending that Petitioner and Cubic's bid protests be dismissed. The Department issued a Final Order on October 6, 2014, adopting ALJ Bogan's Recommended Order in its entirety. As Petitioner and Cubic protested the Department's decision to enter negotiations with Xerox, and because of the automatic stay provision of section 120.57(3), the Department never commenced the negotiation phase (phase two) of the procurement as detailed in the ITN, section 2.26, Steps 3 and 4. However, once all litigation involving the First Protest concluded in January 2015, the Department continued with the solicitation process for the ITN.6/ The current bid protest proceeding relates only to phase two of the solicitation process, i.e., Steps 3, 4, and 5 above. Therefore, the undersigned specifically reviewed the negotiation phase of the Department's solicitation and the Department's ultimate decision to award the Customer Service System contract to Xerox. The Department initiated the negotiations phase for the ITN on February 9, 2015. The negotiations were conducted by a Negotiation Team appointed by Department Secretary, Jim Boxold, on February 9, 2015, in accordance with the requirements of section 287.057(16). Section 287.057(16)(a) provides that the agency head shall appoint "[a]t least three persons to evaluate Proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought." The Negotiation Team included: Sheree Merting, FTE's Contractual Services Administrator; Tim Garrett, the tolls program manager for HNTB Corporation ("HNTB"), which is a subcontractor for FTE; and John McCarey, of McCarey Consulting, a sub-consultant to FTE general engineering contractor, Atkins North America, Inc. Mr. Garrett was the project manager for the Customer Service System project. Mr. McCarey would serve as the chief negotiator. Ms. Merting is a Florida certified contract negotiator, a Florida certified contract manager, and a Florida certified contract purchasing manager. Ms. Merting has significant procurement experience with the FTE, including prior experience serving on a negotiation team. Mr. Garrett is employed by HNTB, an engineering consulting firm that provides tolling operations consultation to FTE. His full-time assignment for HNTB is as the tolls program manager for the FTE. Mr. Garrett has extensive knowledge of tolling systems and the software technology that the vendors presented in response to the ITN. Mr. Garrett was the project manager for the Customer Service System procurement and, together with Ms. Merting, oversaw the ITN procurement process from its inception. Mr. Garrett was familiar with the technical aspects of the ITN and was aware of the technology required to transfer the current back office system to the Customer Service System. Mr. McCarey has an extensive background in the transportation and tolling business and has participated in numerous contract negotiations for tolling system contracts. Mr. McCarey formerly worked for Lockheed Corporation for approximately 25 years, serving for a time as its chief operations officer who oversaw its transportation and tolling lines of business. Thereafter, he worked for five years for Affiliated Computer Services, Inc. ("ACS"), serving at one point as the chief financial officer for ACS's State and Local Solutions Group, which managed its tolling business. Mr. McCarey departed ACS in 2006. Xerox acquired ACS two years after Mr. McCarey left. The Negotiation Team's task, as stated in the ITN, section 2.26, Step 3, was to undertake negotiations with the first-ranked Proposer (Xerox) until it established an acceptable contract. If the Negotiation Team did not reach an acceptable agreement with the first-ranked Proposer, the Negotiation Team was to begin negotiations with the second-ranked Proposer (Petitioner), and so on until it achieved an acceptable contract. Once the Negotiation Team agreed with a Proposer on an acceptable contract, per the ITN, section 2.26, Step 4, it was to make a recommendation to the Department explaining how that Proposer would be the "best value to the state." The Negotiation Team was not to reevaluate the vendor Proposals or rankings previously conducted by the Technical Review Team and Selection Committee. Rather, the Negotiation Team was tasked to negotiate a contract with the first-ranked Proposer as listed on the Selection Committee's ranking and continue the process of determining the "best value to the state." The Negotiation Team members were aware that the Technical Review Team and Selection Committee considered the ITN, section 2.5.2, "Best Value Selection" criteria when they evaluated and ranked Proposals. The ITN, section 2.5.2 provides: The Department intends to contract with the responsive and responsible short-listed Proposer whose Proposal is determined to provide the best value to the Department. "Best value," as defined in Section 287.012(4), F.S., means the highest overall value to the state, based on objective factors that include but are not limited to: Company history Project experience and qualifications Proposed Project approach to the technical requirements Proposed approach to the Project plan and implementation Proposed approach to System Maintenance Proposed approach to Operations and performance Price Because the Technical Review Team and the Selection Committee had already evaluated each Proposal under the ITN selection criteria, the Negotiation Team did not revisit each technical issue listed in the ITN, section 2.5.2. The Negotiation Team's purpose was to negotiate with the vendor the Selection Committee ranked first. Nevertheless, the Negotiation Team members attended the vendors' oral presentations during the rankings phase of the procurement. They also reviewed the Technical Review Team's written evaluation summaries, as well as the vendors' Proposals. The Negotiation Team also considered Xerox's prior relevant experience in similar projects as required by section 287.057(1)(c)3. The ITN, section 2.24.2, Technical Proposal Section 9, required vendors, in their technical Proposals, to identify any exceptions and assumptions. "Exceptions" pertained to any and all exceptions Proposers had to the ITN terms and conditions. "Assumptions" related to any assumptions vendors' relied upon to develop their proposed contract price. Section 2.24.2, Technical Proposal Section 9, explained that the Department was not obligated to accept any vendors' exceptions and that the Department would consider any exceptions during the evaluation process at the Department's sole discretion. Section 2.24.2, Technical Proposal Section 9, provides: Technical Proposal Section 9: Exceptions and Assumptions If Proposers take exception to Contract terms and conditions, such exceptions must be specified, detailed and submitted under this Proposal section in a separate, signed certification. The Department is under no obligation to accept the exceptions to the stated Contract terms and conditions. Proposers shall not identify any exceptions in the Price Proposal. All exceptions should be noted in the certification provided for in Proposal Section 9. Proposers shall not include any assumptions in their Price Proposals. Any assumptions should be identified and documented in this Section 9 of the Proposal. Any assumptions included in the Price Proposals will not be considered by the Department as a part of the Proposal and will not be evaluated or included in any Contract between the Department and the Proposer, should the Proposer be selected to perform the Work. Failure to take exception in the manner set forth above shall be deemed a waiver of any objection. Exceptions may be considered during the Proposal evaluation process at the sole discretion of the Department. As allowed by the ITN, section 2.24.2, all vendors included a detailed listing of exceptions and assumptions in their Proposals. The Department intended to address the exceptions and assumptions during the negotiation phase of the procurement process. From the Negotiation Team's perspective, if the Negotiation Team resolved Xerox's exceptions and assumptions favorably to the Department, received acceptable answers to any questions regarding Xerox's Proposal, and obtained a price reduction, then the Negotiation Team would have achieved a contract that represented the "best value to the state." To accomplish its task, Mr. Garrett developed a comprehensive list of topics to guide the negotiations. From a practical standpoint, Mr. Garrett's list became the agenda for the Negotiation Team's first negotiation meeting with Xerox. The list addressed all of the exceptions and assumptions Xerox included in its Proposal, as well as the Negotiation Team's questions about Xerox's Proposal. On February 10, 2015, the Negotiation Team initiated negotiations with Xerox as the first-ranked Proposer. The negotiation sessions, some lasting multiple days, occurred in February, March, April, and May of 2015, and entailed approximately 80 hours of meetings. These meetings included face-to-face engagements between the Negotiation Team and Xerox, as well as internal strategy meetings between the Negotiation Team members where Xerox was not present. Negotiation meetings also were periodically attended by various personnel from the Local Authorities and HNTB who provided input to the Negotiation Team throughout the process. During these meetings, the Negotiation Team discussed negotiation points and reviewed information gathered from Xerox. During the negotiation meetings with Xerox, the Negotiation Team addressed each exception and assumption Xerox submitted with its Proposal. The Negotiation Team rejected most of Xerox's exceptions. However, the Negotiation Team did agree to certain exceptions that it believed would benefit the Department or improve the Customer Service System. These benefits included (1) the tolling system's potential inter- operability with other states' tolling systems, (2) a clause requiring at least 120 days' notice to exercise the contract renewal option, (3) the Department's access to Xerox's software source code to increase the Department's ability to operate and modify the system should Xerox cease to serve as the contracted vendor, and (4) limiting the use of interactive voice response ("IVR") technology to only customer service and not for user account set-up due to the frequency of errors associated with IVR usage. No evidence shows that the exceptions and assumptions the Negotiation Team accepted were detrimental to the Department. Neither did any evidence indicate that the exceptions the Negotiation Team approved would negatively impact the operational performance of the tolling system or increase the cost or risk to the Department. The Negotiation Team and Xerox also reviewed "in excruciating detail" every Department question about Xerox's Proposal. At the final hearing, Mr. McCarey recounted that the Negotiation Team wanted to ensure that "the record was clear as to what Xerox was actually going to provide as a result of their Proposal." By the conclusion of its negotiations, the Negotiation Team had thoroughly negotiated the exceptions and assumptions with Xerox and clarified all questions it had about Xerox's Proposal. In addition to favorably resolving all issues related to Xerox's exceptions and assumptions, the Negotiation Team obtained a significant price reduction from Xerox. At the Negotiation Team's insistence, Xerox agreed to reduce the price of its Proposal by over $20 million (roughly 3.5 percent). The Negotiation Team considered this price reduction a "big deal." The Department did not make any concessions to Xerox in negotiating the exceptions or assumptions. The Department was going to pay less for the Customer Service System contract and receive the same services from Xerox. Also during the negotiations, the Negotiation Team scrutinized Xerox's performance on two of its existing customer service system contracts. The first contract was Xerox's back office system for the SunRail commuter rail system operating in the Department's District 5 in the Orlando area. Prior to negotiations, Negotiation Team members became aware that the Xerox SunRail system was experiencing problems. Therefore, to address any concerns that these issues might manifest in Xerox's performance on the Customer Service System contract, the Negotiation Team required the Xerox personnel responsible for the SunRail system to attend the first negotiation session. The Negotiation Team directed Xerox to provide an overview of the SunRail difficulties and discuss how Xerox was addressing those issues. During the course of the negotiations, the Negotiation Team determined that Xerox's SunRail "transit" system was significantly different from its proposed FTE "tolling" system. The Negotiation Team learned that the SunRail system's account management and back office operations materially differed from the back office system Xerox planned to implement for the Customer Service System contract. SunRail is a transactional or card-based system. SunRail customers (commuters) purchase tickets ("fare media") from ticket vending machines for use on a transit (train) transportation system. The SunRail back office processes money stored by commuters on fare media. By contrast, the Customer Service System contract involves a "tolling" system for motor vehicles. In a tolling system, customers use electronic transponders, such as a SunPass or E-Pass transponder, mounted in or on their vehicle as they drive through a tolling plaza. The Customer Service System would also include a video transaction component where a photo or video might be taken of a vehicle license plate as it passes through the tolling plaza. The license plate information is processed by the back office to determine whether the driver's prepaid account may be charged for the transaction. If no customer account is associated with the vehicle tag, the driver is sent an invoice. The Negotiation Team discovered that the SunRail back office customer service problems primarily involved the operation of SunRail ticket vending machines. Ticket vending machines would not be used in the Customer Service System motor vehicle tolling operations. The Negotiation Team further ascertained that the Xerox business unit that would run the Customer Service System tolling system is a separate, independent business unit from the Xerox division that operates the SunRail transit system. The two business units would employ different personnel, different management teams, different reporting processes, and different technology. Moreover, the Negotiation Team determined that the technology Xerox used to operate the SunRail transit system is "very new" technology. Conversely, the account management product Xerox intends to use for the Customer Service System contract is its VECTOR 4G tolling technology. The VECTOR 4G system is a well-established product in the toll collection industry. The VECTOR 4G system is used by multiple state agencies and in some of the largest toll collection systems in the United States, including New York, New Jersey, California, and Texas. Fundamentally, the VECTOR 4G back office system tracks customer prepaid accounts from which money is withdrawn and replenished for transactions being processed. Xerox's longstanding operation of VECTOR 4G-based systems, as well as its status as one of the largest providers of back office electronic tolling systems in the United States, became a key factor in the Negotiation Team's ultimate determination that Xerox's Proposal provides the "best value to the state." Nonetheless, to alleviate any Department concerns and provide additional incentive for Xerox to perform as expected on the Customer Service System contract, the Negotiation Team took advantage of the negotiation process to strengthen the Department's position on the SunRail contract. The Negotiation Team demanded Xerox agree to a "cross-default" provision that would allow the Department to default Xerox and terminate the Customer Service System contract if Xerox defaulted on its responsibilities on the SunRail contract. The Negotiation Team believed the cross-default provision would pressure Xerox to ensure that it performed its duties under the smaller SunRail contract, as well as provide added protection on the Customer Service System contract. Although initially resistant, Xerox ultimately agreed to the addition of a cross-default provision to the Customer Service System contract. The second Xerox contract the Negotiation Team reviewed was a similar tolling system Xerox currently operates for the Texas Department of Transportation ("TxDOT"). The Negotiation Team followed up on reports it received regarding problems TxDOT was experiencing with its Xerox tolling system. The Negotiation Team learned that the TxDOT issues primarily concerned data migration from prior tolling system accounts. These issues, however, did not arise from Xerox's system. They primarily resulted from TxDOT's specific instruction to Xerox to collect outstanding tolling fees and fines that were two years old and had never been processed or invoiced by the previous vendor. In addition, the Negotiation Team learned that the issues with the TxDOT databases resulted from the use of duplicate accounts and database sources that were much larger than what Xerox would experience with the FTE. Following its review, the Negotiation Team was satisfied with Xerox's approach to data migration for the FTE and was not concerned that Xerox's issues with TxDOT would impact Xerox's management and operation of the Customer Service System contract. Ultimately, after considering all the problems Xerox experienced managing the SunRail and TxDOT contracts, the Negotiation Team concluded that any performance issues on the SunRail and TxDOT systems would not negatively impact or occur with the Customer Service System contract. Thereafter, the Negotiation Team concluded that Xerox could successfully implement and perform the toll collection system it proposed in response to the ITN. At the conclusion of negotiations with Xerox, the Negotiation Team members were confident that Xerox could deliver the toll collection system it proposed. All three Negotiation Team members agreed that the two sides had resolved all outstanding exceptions and assumptions, as well as questions regarding Xerox's Proposal. Further, the Negotiation Team reconciled to their satisfaction any lingering concerns about the SunRail and TxDOT tolling contracts. The Negotiation Team members were also very pleased with Xerox's $20 million contract price reduction.7/ Accordingly, the Negotiation Team believed that it had achieved an acceptable agreement with Xerox that was beneficial to the Department and consistent with the ITN. Therefore, the Negotiation Team made a final determination that Xerox provided the "best value to the state" and should be awarded the Customer Service System contract. In accordance with the ITN's "sequential" negotiation process detailed in ITN, section 2.26, step 3, the Negotiation Team only negotiated with Xerox, the first-ranked vendor. Once the Negotiation Team believed that it had established an acceptable contract with Xerox, it never initiated negotiations with Petitioner, the second-ranked vendor. Consequently, Petitioner was never provided the opportunity that Xerox received during the negotiation process to address any issues related to its exceptions and assumptions, answer any questions about its Proposal, or reduce its Proposal price. Upon negotiating an acceptable contract with Xerox, Mr. McCarey, with input from the other Negotiation Team members, prepared a written recommendation memorandum (the "Recommendation Memorandum") setting forth the Negotiation Team's recommendation for the Department to award the Customer Service System contact to Xerox. The Recommendation Memorandum, entitled "Recommendation of Negotiation Team to Diane Scaccetti, Executive Director of the FTE," included background information on the negotiation, a summary of the negotiation, a review of the Negotiation Team's objectives and strategy, and the basis for its recommendation of Xerox. The Recommendation Memorandum cited to several key factors, including Xerox's prior relevant experience in operating high-volume toll service centers, as well as the approximately $20 million contract price reduction. Mr. McCarey summed up the Recommendation Memorandum by writing: Recommendation As a result of the actions of the Technical Review committee, the selection committee, and the negotiations as noted previously, as well as, all of the recorded meetings, the negotiating team believes it is in the best interest of the state to contract with Xerox for the [Customer Service System] contract, as providing the best value resulting from the ITN process. Xerox's experience in operating high volume toll service centers and the negotiating team's negotiated price reduction, were key factors in arriving at the negotiating team's recommendation. Mr. McCarey concluded the Recommendation Memorandum with one additional recommendation that the Department establish a "peer review contract." Mr. McCarey wrote that: the team would also like to see the Turnpike engage an outside party, knowledgeable in large systems development and possessing toll industry experience to do a peer review of the Proposal, contract, schedule, etc to ensure the Turnpike has identified all risks, and recommend any improvements that may improve the success of the project moving forward. Recognizing that this ITN procurement involved the largest back office system in the United States for tolling, the Negotiation Team believed that it would be prudent for the Department to consider obtaining additional oversight to ensure that no issues or risks were overlooked during the procurement process. The ITN did not require a peer review contract. The Negotiation Team considered this recommendation independent and separate from its official recommendation to award the contract to Xerox as the "best value." The peer review recommendation was not based on the Negotiation Team's concern over whether Xerox could perform the Customer Service System contract. The Negotiation Team felt the Department could choose to implement, or not implement, a peer review as it so determined. On June 2, 2015, the Department scheduled a public meeting to announce its notice of intent to award the Customer Service System contract. At that meeting, Mr. McCarey read the Recommendation Memorandum aloud to Ms. Scaccetti, who was present for the meeting. Ms. Scaccetti, in her capacity as FTE Executive Director, was delegated the general authority from the Secretary of the Department to award and execute contracts issued by the Department. As explained in the Recommended Memorandum, the Negotiation Team recommended that the Department award the Customer Service System contract to Xerox as the best value proposer. After Mr. McCarey read the Recommendation Memorandum, Ms. Scaccetti asked each Negotiation Team member if they concurred with the recommendation. Each member confirmed that they did. With that, Ms. Scaccetti accepted the recommendation to award the Customer Service System contract to Xerox as the best value proposer to the state. Ms. Scaccetti was satisfied that the Negotiation Team had performed its job under the ITN, and she endorsed the Negotiation Team's recommendation that Xerox provided the "best value to the state." Ms. Scaccetti also accepted the Negotiation Team's additional recommendation for a separate peer review contract. The Negotiation Team's Recommendation Memorandum was made part of the Department's procurement file. On that same day, the Department publicly posted its notice of intent to award the Customer Service System contract to Xerox. Ms. Merting, as the procurement administrator, was responsible for maintaining the ITN procurement file. Promptly after the June 2, 2015, meeting, Ms. Merting began drafting a "short plain statement" to be placed in the solicitation and contract files prior to the execution of the Customer Service System contract as required by section 287.057(1)(c)(5) and ITN, section 2.26, Step 4. At the time of the final hearing, however, Ms. Merting's short plain statement remained in draft format. Ms. Merting ceased working on her statement after Petitioner filed its notice of intent to protest the Department's intended award to Xerox. Ms. Merting testified that her "short plain statement" would have tracked the language of the Negotiation Team's Recommendation Memorandum and would have explained the basis for selecting Xerox and how Xerox's deliverables and price will provide the best value for the state. Ms. Merting placed her draft statement in the ITN procurement file. Based on the above Findings of Fact, the greater weight of the evidence presented at the final hearing does not establish that the Department's action was clearly erroneous, contrary to competition, or arbitrary, or capricious. Therefore, the undersigned concludes, as a matter of law, that Petitioner did not meet its burden of proving that the Department's decision to award the Customer Service System contract to Xerox contravened the Department's governing statutes, rules or policies, or the solicitation specifications that apply to this procurement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order upholding its determination to award the Customer Service System contract to Intervenor, Xerox, and denying the Petitioner's Petition for bid protest. DONE AND ENTERED this 14th day of October, 2015, 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 14th day of October, 2015.
The Issue The sole threshold issue in this bifurcated proceeding is whether Petitioner has met her burden of proving grounds for equitable tolling as a defense to the admitted untimely filing of Petitioner's request for an administrative hearing. Consideration of the merits of Petitioner's challenge to the initial agency action was deferred, pending the threshold determination of whether the challenge can be heard.
Findings Of Fact Petitioner's husband was a State of Florida employee. He passed away in 1999. As the surviving spouse of a former State of Florida employee, Petitioner is entitled to, and has obtained coverage under, the state's group health insurance since 1999. Since sometime in 2002, Petitioner has also had Medicare health care coverage. However, Petitioner continued to pay the individual monthly premium rate for state group health insurance through May 2010, instead of the lower monthly rate applicable to someone who also has Medicare coverage. In May 2010, Petitioner submitted a written request to change her state group health insurance coverage level to accurately reflect the lower monthly Medicare rate and to refund the difference in premiums between the regular premium rate she had been paying and the lower Medicare rate from May 2002 to May 2010. Petitioner's May 2010 written request for changed coverage and reimbursement of overpaid premiums was not offered into evidence. By certified letter dated June 2, 2010, the Department responded to Petitioner's May 2010 written request. The Department advised that it was granting Petitioner's request to change her coverage level to reflect that she has Medicare coverage and that Petitioner's request for a refund was granted, in part, and denied, in part. The letter advised Petitioner of her right to an administrative hearing to contest the partial denial and enclosed an informational page specifying how and when to request such a hearing. In addition, enclosed with the letter were copies of Florida Administrative Code Rules 28-106.201 and 28-106.301, which codify the manner for initiating proceedings when there are disputed issues of material fact and when there are no disputed issues of material fact, respectively. The Department's certified letter was delivered to Petitioner's home on June 5, 2010. Petitioner was at home and personally signed the certified receipt for the Department's letter on June 5, 2010. Petitioner testified that she does not remember answering the door when the Department's certified letter was delivered to her home, nor does she remember signing the certified receipt, even though she acknowledged that she did so on June 5, 2010. Petitioner and her daughter, Ms. Viegas, testified that Petitioner has had mental health issues since 2001, when Petitioner became depressed not too long after her husband died in 1999. Petitioner testified that she has been seeing a psychiatrist since 2008 and has been taking medication prescribed by the psychiatrist for depression. No evidence was presented to establish how frequently or infrequently Petitioner was seeing a psychiatrist, nor was any evidence presented with respect to the type or dosage of medication Petitioner has taken. Neither the psychiatrist whom Petitioner said she had been seeing, nor any other expert testified with respect to Petitioner's medical or psychological condition, and no medical records were offered into evidence. Throughout the years of Petitioner's chronic depression, Petitioner has lived in her own home, at times alone or with a gentleman who lives there now and is now 81 years old. In addition, in June 2009, Ms. Viegas moved in with Petitioner and has lived there continuously since that time. Ms. Viegas is 39 years old and is unemployed. Since Ms. Viegas does not work, she is present at the home 90 percent of the time. Ms. Viegas testified that the reason she moved in with Petitioner was because Petitioner needed her help with business and other needs and, also, because Ms. Viegas broke up with her boyfriend with whom she had been living. Petitioner's other daughter, Cindy, also helps out. Cindy is a regular visitor and helps with household tasks, such as doing laundry, paying bills, and calling banks on Petitioner's behalf. According to Ms. Viegas, Petitioner's chronic depression got worse in late January or early February 2010 and remained bad until sometime in July 2010, when Petitioner's medication was changed. As described by Petitioner and Ms. Viegas, in Petitioner's worsened state for this six- or seven-month period in 2010, Petitioner slept most of the day in addition to at night. Petitioner did not clean the house or cook her own meals, and she did not bathe until Ms. Viegas pushed her to bathe. Because Petitioner was not cooking her own meals, she either ate peanut butter sandwiches or went out to eat at a restaurant. Petitioner testified that during this period when her depression worsened, she frequently went out to eat. Petitioner also acknowledged that she has had a valid driver's license and a car and that she would drive herself around, sometimes alone with no passengers. Despite the fact that Ms. Viegas moved in with Petitioner to help with her business and other needs, Ms. Viegas testified that her mother was able to keep up with her own business affairs pretty well until she got worse in January or February 2010, at which point bills frequently would go missing, and Ms. Viegas would realize that when second notices were received. Even before Petitioner got worse in early 2010, important mail, such as utility bills, would occasionally go missing. Ms. Viegas explained that she was reluctant to impose tighter controls to address this chronic issue, because she did not want to give her mother the impression that she (Ms. Viegas) did not have faith in her mother's ability to handle her own business. In addition, Ms. Viegas was unwilling to restrict her mother's freedom to walk outside to the mailbox to collect the mail or to get the mail while she was out walking their poodle. Instead, Ms. Viegas just dealt with the repercussions of the occasional lost mail. Ms. Viegas acknowledged that the problem of missing important mail, such as bills, became a more frequent occurrence when Petitioner's condition got worse in January or February 2010. Still, Ms. Viegas and Petitioner did nothing different with regard to the mail routine. No evidence was presented that Petitioner's depression ever became so severe that Ms. Viegas and/or Petitioner contemplated hospitalization or some form of more intensive treatments beyond periodic office visits with a psychiatrist. Petitioner has not been adjudicated incompetent of handling her own affairs, and no guardian has been appointed to manage Petitioner's affairs, nor was there evidence that such a step was ever contemplated. The evidence suggested to the contrary-- that Petitioner led an independent lifestyle and that Ms. Viegas was unwilling to, and apparently believed it was unnecessary to, restrict Petitioner's freedoms. Petitioner testified that in July 2010, her psychiatrist changed her medication, and after that, Petitioner felt better and began cleaning house, cooking, and doing other things she had not been doing. Petitioner found the letter from Respondent, showed the letter to Ms. Viegas, and asked Ms. Viegas to help. Ms. Viegas prepared a letter requesting an administrative hearing to dispute the partial denial of Petitioner's overpayment refund request. Ms. Viegas testified that she knew enough to prepare the letter without Petitioner's help, because Ms. Viegas knew all about Petitioner's dispute with the Department. Ms. Viegas had no problems understanding from the Department's notice how to request an administrative hearing for Petitioner. Ms. Viegas reviewed her draft with Petitioner to make sure there was nothing Petitioner wanted to change or add. The request for administrative hearing prepared by Ms. Viegas was signed by Petitioner on August 13, 2010, and sent to the Department where it was filed on August 16, 2010, nearly seven weeks after the 21-day deadline specified in the letter for filing a request for administrative hearing. Petitioner does not assert that she was misled or lulled into inaction by anything said or done by the Department's representatives. Petitioner does not assert that the Department's notice was unclear or confusing with regard to when, whether, or how Petitioner needed to request an administrative hearing to contest the Department's proposed action. Instead, her sole contention is that her "diminished mental capacity"1/ constitutes an extraordinary circumstance that prevented her from timely filing her request for hearing. The greater weight of the credible evidence does not support a finding that during the six- or seven-month period in 2010, when Petitioner's depression worsened, her condition rendered her incapable of functioning. The facts are inconsistent with the suggestion of a debilitated state. Petitioner drove a car, sometimes by herself; collected the mail from the mailbox herself; walked her pet poodle; and went out for meals when she tired of peanut butter sandwiches. Though she did not, herself, clean the house or cook meals, she had the help of two daughters, one of whom lived in the house and had no other job besides helping Petitioner. Moreover, in May 2010, Petitioner was capable of submitting an appropriate written request for change of insurance coverage level and for refund of overpaid premiums; and on June 5, 2010, Petitioner was able to respond to receive the delivery of the certified letter on June 5, 2010, and to sign the certified receipt with a clear, steady signature. Based on the credible evidence, the undersigned is unable to find that Petitioner's condition rose to an extraordinary circumstance, such that she was "prevented" from timely filing a petition. "Prevented" suggests an external factor beyond one's control, something far beyond one's own lack of reasonable prudence. As Petitioner and her live-in daughter observed Petitioner's worsening condition, reasonable prudence would have mandated an adjustment in protocol. It defies credibility to suggest that Petitioner's condition worsened to the point that it was impossible for Petitioner to care for herself and tend to her business and that Ms. Viegas would have stood by unwilling to assume full responsibility for Petitioner, including dealing with day-to-day business affairs. It must be emphasized that no medical testimony and no medical records were offered to support the testimony of Petitioner and her daughter regarding Petitioner's condition during the critical time of June and July 2010. Not only are Petitioner and her daughter lay witnesses who lack the expertise to offer medical opinions, but these two witnesses share an interest in characterizing Petitioner's condition, in this proceeding, as extreme and extraordinary. Instead, the impression given by the inconsistencies noted above is that Petitioner's condition was neither extreme nor extraordinary, but, rather, was chronic and manageable or at least accepted as the norm for the household. If Petitioner's condition were as extreme and debilitating as suggested for purposes of arguing equitable tolling, it would have been reckless for Petitioner to be allowed to continue driving her car. If, in fact, Petitioner was unable to function or comprehend day-to-day occurrences, there would be no excuse, in the exercise of reasonable prudence, for Ms. Viegas, who was not otherwise employed and was living in the home for the expressed purpose of helping Petitioner, to not have assumed full responsibility for her mother's functioning and dealing with day-to-day business affairs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that Respondent, Department of Management Services, enter a final order dismissing the petition for administrative hearing filed by Petitioner, Mary Ann Steadman. DONE AND ENTERED this 26th day of January, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2011.
The Issue The issue in this case is whether Respondent failed to provide workers' compensation insurance coverage for employees and, if so, what penalty should be assessed.
Findings Of Fact Petitioner, Department of Financial Services, Division of Workers' Compensation ("Division") is the state agency responsible for enforcing the requirement within the state that employers cover employees with workers' compensation insurance. § 440.107, Fla. Stat. (2009). Respondent, Jurgenson Trading Corporation, is owned, in part, by Julio Raudsett, and operates a "Subway" sandwich restaurant franchise in Hialeah, Florida. It is a family-owned business with a total of five employees, three of whom are related. Cesar Tolentino, an investigator for the Division, conducted a field interview of Raudsett, who admitted that he did not carry workers' compensation insurance. Tolentino checked the database in the Coverage and Compliance Automated System ("CCAS"), and there were no records showing workers' compensation coverage for the Subway employees, nor any notices of applicable exemptions. Martha Aguilar, Tolentino's supervisor authorized the issuance of a Stop-Work Order that was personally served on Raudsett by Tolentino by hand-delivery on April 17, 2009. At the same time, Tolentino served a Request for Production of Business Records for Penalty Assessment Calculation. Raudsett provided his business records, including payroll journals and unemployment tax returns. Based on Aguilar's review of the business records, the Division issued its Amended Order of Penalty Assessment ("Order") on June 8, 2009, with an assessed penalty of $19,873.79. Aguilar determined the amount of the penalty, using the following steps: (1) assigning each employee the National Council on Compensation Insurance (NCCI) class code that was applicable for restaurant workers; (2) determining how much the employee had been paid from April 2006 to April 2009 (the period of non-coverage); and (3) assigning the rate to the gross pay to calculate the insurance premium that should have been paid, then multiplying that by 1.5, as required by rule. The NCCI class codes for employees administrative staff as compared to restaurant workers are lower and, therefore, their workers' compensation insurance premiums would be lower. The business records available to Aguilar did not distinguish among employee's responsibilities. Absent that information, the penalty is, by law, calculated using the highest NCCI class code associated with that kind of business, and was correctly done in this case. Raudsett has entered into a payment plan with the Division. He objected only to that portion of the penalty that was based on his earnings, and those of his wife, Maribel Medina, who works part-time, and his father-in-law, Rolando Medina. He claims an exemption for the three of them as owners and managers of the corporation. Excluding their salaries and associated penalties, according to Joseph Cabanas, Respondent's accountant, would reduce the penalty by $10,267.67, to $9,606.12. Cabanas testified that Raudsett, an immigrant from Venezuela, was not aware of workers' compensation laws, and that was why the three owners/officers of the Respondent's corporation failed to file a Notice of Elections to be Exempt from coverage until after the Division's investigation began.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Financial Services, Division of Workers' Compensation, that upholds the assessment of a penalty of $19,873.79. DONE AND ENTERED this 15th day of December, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2009. COPIES FURNISHED: Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 Douglas D. Dolan, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399 Joseph Cabanas 10520 Northwest 26 Street, Suite C-201 Doral, Florida 33172
