Conclusions Having reviewed the Administrative Complaints, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1, The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part I, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaints and Election of Rights forms to the Respondent. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $7,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 1 Filed December 20, 2011 1:30 PM Division of Administrative Hearings ly ORDERED at Tallahassee, Florida, on this day of December 2011. Agency for Health Care Administration
Findings Of Fact Stipulated facts The School Board issued a Request for Proposals (RFP No. 96-029S) March 24, 1995, to solicit bids for its group vision care. The RFP requires parties to file a notice of intent to protest the conditions of the RFP within 72 hours of receipt of the RFP. Optiplan did not file a protest of the conditions of the RFP. Optiplan and VSP, among others, submitted proposals which constituted offers. The Superintendent formed an Insurance Committee of fourteen individuals, consisting, among others, of School Board members, School Board employees, representatives of the three employee unions, and public representatives to review proposals submitted pursuant to the RFP. The Insurance Committee met a total of twelve times, beginning on February 17, 1995, and ending on July 25, 1995. Each meeting lasted between 3 and 10 hours. The Insurance Committee conducted its scoring on the various proposals using a score sheet prepared by Siver on the "Ready and Willing" category at the July 25, 1995, meeting. The scores were divided into three categories: Price [45 points], Ready and Willing [45 points], and Minority/Women Business Enterprise (M/WBE) [10 points] at the July 25, 1995, meeting. The Insurance Committee voted on July 25, 1995, and recommended that VSP be awarded the RFP. VSP was the highest ranked proposal on the evaluation. Optiplan filed a timely formal protest to the School Board's recommendation. Optiplan has standing in this bid protest proceeding to protest the award of the proposed contract. VSP as the successful proposer has standing in these proceedings as an Intervenor. VSP filed a timely Motion for Leave to Intervene and was granted intervention by the Hearing Officer. The Broward County VSP office is a marketing and/or sales office. VSP has only one employee in its Broward County Office. That one employee is a white male. The parties Respondent, the School Board of Broward County, Florida, operates the second largest school system in Florida; and the seventh largest system in the United States. It has approximately 21,000 eligible employees. Petitioner, Optiplan, is a managed vision care program which has been in operation for over eight years. Optiplan's proposal to provide a Group Vision Care plan for the School Board was the second highest ranked proposal. Intervenor, VSP is a not-for-profit Florida corporation which provides group vision service plans. VSP is the incumbent provider and has provided group vision care to the School Board since October 1987. The Insurance Consultant and The Superintendent's Insurance Committee Siver Insurance Management Consultants (the Insurance Consultant or Consultant) acted as independent risk and insurance management consultants for the RFP process, including the RFP development and proposal evaluation. The Superintendent of the School Board formed a committee (the Insurance Committee) to develop requests for proposals for multiple group insurance plans for School Board employees, to develop evaluation factors, to evaluate the proposals submitted, and to make recommendations to the School Board for the award of the insurance contracts. Optiplan had a team of paid lobbyists who met with Insurance Committee members outside of Committee meetings, provided information to Committee members, and represented Optiplan at Committee meetings. Committee Member Brown, President of the Federation of Public Employees, did not like or respect Jack Tobin, one of the Optiplan lobbyists. Mr. Brown did not score the proposals or vote on any of the vision issues. Mr. Brown's alternate, Jim Silvernale, was responsible for voting on the proposals. Mr. Brown's instructions to Mr. Silvernale were that in voting on the subject proposals, Mr. Silvernale should vote his own conscience based on the information presented to the Committee members. The Request for Proposals The Insurance Committee developed the RFP and the School Board issued Request for Proposal No. 96-029S (the RFP), March 24, 1995, to solicit proposals for provision of group vision care to School Board employees and their dependents. The RFP reserved the right of the School Board to reject any or all proposals with or without cause, and to accept the proposal which in its judgment would be in its best interest. The RFP gave the Insurance Committee and the School Board very broad discretion to consider and evaluate vendor proposals and to select the proposal which would best serve the School Board's needs. The RFP provided a description of the current vision group plan, and directed proposers to submit proposals which would meet or exceed current plan coverage, benefits, and plan provisions. Further, the RFP requested an "alternate" proposal which would increase the frequency (from the current plan's frequency of once every 24 months) of the "Frames Only" coverage to once every 12 months. In an addendum to the RFP, the School Board clarified that it was seeking both a proposal for a plan that would include "Frames only" coverage every 12 months and a proposal for a plan that would include "Frames Only" coverage every 24 months. The RFP stated that proposals would initially be evaluated in accordance with the criteria set forth in the RFP and advised that proposers should structure their proposals in a manner to properly address each of the evaluation criteria. The Proposal Forms section of the RFP required proposers to complete forms to provide information on the proposer's identification and address, group representative or account representative and address, administrative and claims payment facility, experience, proposed plan benefits, providers, M/WBE participation and certification, employee statistics, and willingness to provide the RFP's requested Model Program, as well as additional information. Proposal Forms were provided to solicit information which would be used in the application of the evaluation criteria to the proposal. However, proposers were admonished that the Proposal Forms may not address all, or may not fully address some, of the criteria. Proposers were solely responsible for addressing each of the evaluation criteria. At the April 18, 1995, meeting of the Insurance Committee, the Insurance Committee voted to make the minutes of its March 20, 1995, meeting an addendum to the RFP's to clarify for proposers the concern and intentions of the Insurance Committee relating to evaluating the M/WBE component. In this way, the Insurance Committee clarified and/or amended the RFP to clearly provide that remuneration was not the determinative factor for M/WBE participation evaluation. RFP Evaluation Criteria The "Evaluation Criteria and Selection Factors" section of the RFP states: The School Board reserves the right to select that proposal, if any, which in its judgment will be in its best interest. The Insurance Committee will rank all responsive proposals in accordance with listed evaluation criteria. The following factors will be considered in evaluating and ranking the responsive proposals: Projected cost and rate guarantee period - 0 to 45 points. Extent to which Proposer is willing and able to provide products and services as specified in the RFP - 0 to 45 points. For the purposes of evaluating criteria, the primary factors may be: Degree of relevant experience of the Proposer with respect to comparable clients located in Florida; and Degree to which Proposer matches the current plan provisions, coverages and services required; and Capability of network to provide proposed care and services. Extent to which minorities and women will participate in the providing of services - 0 to 10 points. For the purposes of evaluating this criteria, the primary factors may be: Degree to which minorities and women participate in the services to be performed; and Estimated amount of remuneration to qualified M/WBE. [Emphasis supplied.] The RFP, additionally contained a section entitled, "Minority/Women Business Enterprise Participation" which advised proposers that the School Board has a specific goal of at least 20 percent minority participation in the delivery of services for which the RFP addresses. M/WBE participation is part of the evaluation criteria. * * * Proposer shall also provide a detailed state- ment of its Affirmative Action and M/WBE Prog- rams, its commitment to these programs at both the corporate and local level, and a detailed statement concerning the staffing of the Proposer's Broward County office(s) that will be responsible for the administration of the contract. A greater amount of evaluation credit will be given to Proposers with a Broward County office(s) whose employee composition by ethnicity and gender reflects the Broward County population as defined by the 1990 census. Less evaluation credit will be given to Proposers with administrative office(s) located outside Broward County and/or whose office(s) do not have the employee composition by ethnicity and gender that reflects the Broward County population as defined by the 1990 census. . . . [Emphasis supplied.] Establishment by the Insurance Committee of Evaluation Factors and The Initial Evaluation and Ranking of the Proposals While the RFP established the evaluation criteria, the Insurance Committee established the factors which would be considered in determining whether and to what extent the evaluation criteria had been met. The factors for scoring the "Willing and Able" criterion were selected at the May 15, 1995, meeting. The Insurance Consultant suggested the factors, and the Committee accepted the factors with some revisions. Attachment Number 3 to the Insurance Committee meeting of May 15, 1995, included the following language: "Maximum Suggested Points means that points may be awarded up to the stated maximum for each criteria." This reflected the consensus of the Insurance Committee that in scoring each of the criteria each Committee member could award points anywhere within the range of points assigned to each of the criteria. The Insurance Committee initially scored and ranked the vision proposals on June 9, 1995. The proposals were analyzed by the Insurance Consultant prior to evaluation by the Committee. The Insurance Committee accepted the analysis and recommended scoring of the Insurance Consultant on the Cost and Willing and Able Criteria, and adopted the scoring as its own without individual scoring by Committee members. At the June 9, 1995, scoring of the proposals, the Insurance Consultants recommended that VSP receive the Insurance Committee's recommendation. The reasons for the recommendation included: lowest overall cost for current plan; lowest proposed family rate for current plan; employee satisfaction reported to be high; and there appeared to be no compelling reason to change. At the June 9, 1995, meeting, the M/WBE Office staff suggested factors to be considered in evaluating the M/WBE RFP component and presented her preliminary analysis of the proposals' submitted M/WBE data. The Committee reviewed the suggested factors, and requested modifications based upon what the Committee thought the factors should be. At the June 9, 1995, meeting of the Insurance Committee, Ms. Dudley handed out documents entitled, "Evaluation Criteria," "M/WBE Participation Analysis," and "Workforce Environment Analysis." The Insurance Committee members had a number of questions concerning the criteria used by Ms. Dudley. Ms. Dudley agreed to return to her office to expand her M/WBE participation analysis to include additional scope of services information. When Ms. Dudley returned, she presented her Workforce Environment evaluation which showed Optiplan and VSP with 4 points. Ms. Dudley was uncomfortable making a recommendation on the M/WBE Participation section. She felt there was a disparity in the nature of the M/WBE companies (one company had 2 employees; another company had 35 employees.) There was considerable discussion relating to the amount of remuneration and the related value of services. The Insurance Committee finally voted to give all proposers 4 points across the board. There is no reflection in the minutes of the Insurance Committee meetings that the Insurance Committee voted to accept Ms. Dudley's June 9, 1995, evaluation factors for determining whether the RFP's M/WBE criteria had been met. Rescoring of the Proposals After the initial scoring of the proposals by the Insurance Committee, Optiplan representatives and lobbyists met with the Superintendent to object to the evaluation and recommendation of VSP. After the meeting, Optiplan sent a letter dated June 16, 1995, to the Superintendent stating its objections. After Optiplan objected to the initial scoring, the Insurance Committee voted to re-score the proposals. At the July 25, 1995, meeting, the Insurance Committee re-scored the vision proposals. For the re-scoring, the Insurance Consultant reviewed the Optiplan objections and presented the Insurance Committee with a "Revised Comparison of Proposals - Willing and Able to provide Products and Services." The Insurance Committee conducted its scoring on the various proposals using a score sheet prepared by Siver (the Insurance Consultant) on the "Ready and Willing" category at the July 25, 1995, meeting. At the July 25, 1995, meeting, Ms. Dudley handed out a tally sheet as well as evaluation criteria for the M/WBE component. This was the only material handed out concerning the M/WBE evaluation that day. The materials were the same as those previously prepared for the health plan proposals. Ms. Dudley advised that the Workforce Environment analysis was the same as was provided in the earlier meeting. She had added the location of administrative offices. The third sheet was a summation of the M/WBE remuneration and the scope of work proposers had identified. The Insurance Committee voted to change the point allocation from 5 points for Workforce Environment and 5 points for M/WBE Participation to 3 points and 7 points respectively. Mr. Gentile asked whether there was clarification on which firm VSP had selected. Mr. Thomas advised that McKinley Financial Services had been selected. The Insurance Committee did not, either by vote or consensus, set a threshold amount of M/WBE remuneration for awarding points. The RFP did not dictate to the Insurance Committee that proposals with the greatest amount of remuneration of M/WBE firms receive the maximum points or greater points. The Insurance Committee did not determine that maximum remuneration, or meeting a threshold of in excess of $40,000, meant that a maximum of 7 points would be assigned. The Insurance Committee considered both the amount of remuneration and the scope of M/WBE work in providing services under the contract. The Insurance Committee scored on a range of points up to a maximum of 7 points for M/WBE Participation. Upon re-scoring of the RFP on July 25, 1995, VSP was again declared the winner of the contract with a score of 43.58 points for the Cost component of the RFP, 39.74 points for the RWA component, and 8.67 points for the M/WBE component, for a total score of 91.98 points. Optiplan was awarded the second highest score with a score of 45.00 points for the Cost component, 36.37 points for the RWA component, and 8.30 points for the M/WBE component, for a total score of 89.68 points. Of 100 possible points, VSP and Optiplan were separated by only 2.30 points. Analysis of the Optiplan Protest by the School Board The Insurance Consultant was asked to review and to respond to Optiplan's protest. The Insurance Consultant performed an analysis of the vision RFP evaluation in accordance with each of the points raised in Optiplan's protest. This analysis was provided to the School Board for its consideration of the Optiplan protest. In performing its analysis of the vision RFP evaluation, the Insurance Consultant changed some of the scoring in light of Optiplan's protest assertions, in order to give Optiplan the benefit of the doubt. The Insurance Consultant concluded and advised that the results did not change, and that VSP would still be ranked higher than Optiplan. The Insurance Consultant advised the School Board that there was no basis for rejecting the Insurance Committee's recommendation of VSP over Optiplan. VSP's Underwriting Loss and Financial Viability Since the inception of its contract with the School Board through the end of March 1995, VSP had experienced an overall underwriting loss of approximately $483,300 on the School Board contract. VSP acknowledged this in its proposal. $293,135.00 of the loss were monies held in reserve to service claims. VSP President Allen Garrett advised the School Board that VSP was willing to stay with the School Board, and even enhance benefits, even though it had lost money because VSP was a nationwide concern with 15 million insured, and a contract with the second largest fully accredited school board in the nation was desirable and good for VSP business. Prior to the School Board's decision to reject Optiplan's protest and to award the contract to VSP, it was advised by its Insurance Consultant that VSP's willingness to continue to provide the group vision care program at the prices proposed was "neither unusual nor unexpected." This advice was based upon the Insurance Consultant's belief that VSP, and other vendors, could hope and expect that, by having a large employee base and resulting network, they would be able to lever- age their ability to serve other clients on a profitable basis. VSP's proposal included a Balance Sheet which clearly demonstrates that VSP is a financially viable company with assets as of December 31, 1994, of $10,256,448, an increase from $7,752,255 in December 1993; Net Income of $2,393,136; and a Fund Balance and General Reserves of $8,369.020. Eye exam appointment waiting time The RFP required proposals to provide eye exam appointments within 3 weeks. Optiplan's proposal stated that the average waiting time for an eye exam appointment is two weeks. VSP's proposal stated that the average waiting time for eye exam appointments for VSP patients is 1-3 days. VSP's authorization process is described in its proposal. The Insurance Consultant's analysis used by the Insurance Committee for re-scoring the proposals noted, in abbreviated fashion, that members first telephoned for a benefit form to be sent by mail; then obtained appointments within 1-3 days after calling for an appointment. Insurance Committee members could score proposals on a range from zero to a maximum of 3 points for the average waiting period for an eye exam appointment. Optiplan did not propose two separate plans for the frequency of the "Frames Only" coverage as requested by the RFP, but instead proposed the alternate plan only. Employees would be able to obtain a "frame only" benefit every 12 months for $55.00. Optiplan stated this as a benefit enhancement. The Optiplan proposal also allowed employees to elect a specific brand of contact lenses, Prosite, in lieu of eye glass benefits, without additional co-payments. Optiplan stated this as a benefit enhancement. The Insurance Consultant's Revised Comparison notes the Optiplan "enhancements." VSP's proposals provided the following plan enhancements: Credit of $293,135.00 IBNR reserves already established as a result of the current contract. Improved frame availability by increasing the frame allowance 56 percent from the current frame allowance. Panel doctors will accept a 10 percent discount for total cost of covered elective contact lenses after applying the $85.00 flat allowance. Insurance Committee members could score proposals on a range from zero to a maximum of 5 points based upon their evaluation of how and to what extent proposals exceeded the current plan's benefits and exclusions. Membership satisfaction surveys VSP performs member satisfaction assessments by mailing satisfaction questionnaires to every 25th patient. The Insurance Consultant's Revised Comparison notes this method of assessment of VSP. The scoring factors for Criterion No. 11 were as follows: Frequency of employee satisfaction Maximum points assessments Point of service +2 Monthly/quarterly +1 Semi-annually/annually 0 No assessments -2 VSP's methodology for satisfaction assessments does not fit neatly into any of the scoring factors itemized above. Inasmuch as VSP does have an assessment methodology, it would appear to be inappropriate to score it as a -2 on this criterion. Viewed on a frequency basis, a satisfaction assessment survey of every 25th patient would, depending on the number of patients seen, result in an assessment frequency more frequent than annually and perhaps as frequent as daily. Accordingly, it would appear to be within the discretion of the Insurance Committee members, depending on how they interpreted VSP's satisfaction assessment methodology, to have scored VSP on this criterion anywhere within a range from +0.1 points to +2 points. Proposers' experience/references Although Optiplan could not state exactly, it estimated that in excess of 200 employers receive Optiplan benefits. Volusia County, a reference provided by Optiplan, rated Optiplan "5-6" (on a ten point scale). Optiplan did not have a contract with a comparable size government group. Optiplan's proposal provided references indicating that it provides vision services to several HMO's with memberships of as high as 60,000. VSP has satisfactorily provided group vision care services to the School Board since October 1987. VSP also has contracts with 442 employers in Florida, including contracts to provide group Vision care to at least five other school boards in Florida. VSP's references gave it high ratings of "8-9" and "10." Local offices Optiplan has offices in Broward County. VSP clearly indicated in its proposal that its corporate headquarters are in Tampa. It clearly indicated that it had a Broward County office where its Group Representative or Account Executive for the School Board contract was located. VSP's administration and claims payment facility is located at its Tampa location. All materials provided to the Insurance Committee to be used in scoring proposals accurately stated the locations of VSP's offices. M/WBE RFP Component Prior to the due date for submission of proposals, the Insurance Committee discussed the M/WBE component of the RFP's and evaluation factors several times. The Insurance Committee discussed the M/WBE component of the health and vision care RFP's at length during the March 20, 1995, Insurance Committee meeting, which took place during the development process of the RFP's and prior to the issuance of the Group Vision Care RFP. The Committee was concerned that if the points available for the M/WBE component were inflated, proposers conceivably would subcontract with minority firms for questionable services, thus increasing costs. The discussion included comments that the past practice was to require insurance carriers to bid directly without agents and to furnish salaried service representatives for open enrollment and continuing in- house service. There had been a recent newspaper expose dealing with agent commissions within the county government group. At the April 18, 1995, meeting, the Insurance Committee voted to make the minutes of its March 20, 1995, meeting an addendum to the RFP's to clarify for proposers the concern and intentions of the Insurance Committee relating to evaluating the M/WBE component. In this way, the Insurance Committee clarified and/or amended the RFP to clearly provide that amount of remuneration was not the determinative factor for the M/WBE participation evaluation. M/WBE Workforce Environment The RFP requested proposers to complete a chart to provide employment statistics on the proposer's workforce. This chart provided for the submission of data from "Corporate, Home Office, Regional Office, Local Office." The chart did not limit proposers to supplying information only on Broward County Offices. VSP provided employee statistics as required by the RFP. It clearly identified that the statistics were for its "Corporate," "Home Office," and for its "Local Office." The "Local Office" was identified as a sales office with two non-Hispanic white males. VSP's minority statistics revealed that it has at least 80 percent women/minority employees in its offices. While VSP's administrative office is located outside of Broward County, it's offices have a high percentage of women/minorities as employees. M/WBE Participation The RFP requested proposers to "identify the M/WBE firm or firms who will be working with you on this engagement." The RFP also required proposers to Indicate . . . the extent and nature of the M/WBE's work with specificity, as it relates to Service Requirements detailed in Section III, including the percentage of total engagement cost/fee/commission which will be received by the M/WBE firm in connection with the work to be performed on this engagement. In response to the RFP M/WBE information request, Optiplan identified More Financial Services, Inc., as its M/WBE firm, and attached a document outlining the extent and nature of work that More Financial would be performing under the contract. More Financial was to receive 3 percent of all employee premiums. The amount of estimated remuneration to Optiplan's M/WBE firm was calculated to be approximately $47,163 per year for the life of the contract. VSP identified a printing firm as one of its M/WBE firms with total amount of remuneration to be "$17,568 (3 yr. estimate) depending on volume printed per job." VSP also identified More Financial Services, Inc., or McKinley Financial Services, Inc., as another M/WBE firm. It clearly indicated that it would be More Financial Services, Inc., or McKinley Financial Services, Inc. Either one of these companies, if selected as the M/WBE contractor, would perform the same services for VSP and would receive the same amount of remuneration. The estimated remuneration was stated to be "$31,200 (3 yr. estimate) based on 3/4 of 1 percent of annualized premium." By letter of July 6, 1995, Allen Garrett notified Richard Thomas, The School Board Benefits Director, that VSP had selected McKinley Financial Services, Inc. as the VSP M/WBE participant. The letter was copied to Anthony Gentile, Chairman, Insurance Committee. The extent and nature of work to be performed by More Financial Services, Inc., for either Optiplan or VSP, as stated in the Optiplan and VSP proposals, was the same. Mr. Collymore, President of More Financial Services, Inc., prepared the work statements which were included in the proposals of each of the three firms he contacted. After the June 9, 1995 scoring of the proposals and before the July 25, 1995 re-scoring, Mr. Collymore wrote to the Insurance Committee Chairman, Anthony Gentile, to "urge the Members of the Insurance Committee to use the total M/WBE dollar remuneration as the measure when allocating points based on remuneration." Mr. Collymore explained to the Insurance Committee that the actual work to be performed might be more. He provided examples of why the remuneration might be more for the different proposals. Mr. Collymore wrote the letter because there was a discussion on June 9, 1995, by Shelia Dudley of the EEO Office that the scope of work was the same for all the proposals, but the remuneration was different. Copies of Mr. Collymore's July 10, 1995, letter were passed out to Insurance Committee members at the July 25, 1995, meeting. Optiplan's selection as the contractor would be the most advantageous selection for Mr. Collymore due to the larger amount of remuneration. The RFP does not specify that proposers must provide the type of services which Mr. Collymore testified he would provide for Optiplan. VSP had discussions with minority vendors concerning the provision of services contingent upon an award of the group vision contract. VSP had contacted vendors and had estimated the amount of remuneration. After VSP was initially recommended for the award of the contract, it executed a Commission Agreement with McKinley Financial Services, Inc. The remuneration under this agreement was the same amount as quoted in the VSP proposal. Some general observations The evidence in this case is sufficient to show that at least a few of the members of the Insurance Committee made a few scoring decisions on the basis of mistakes in their understanding of the facts. Those few scoring decisions made on the basis of mistaken understanding of the facts have not been described in detail in these Findings of Fact because the impact of those few scores on the average scores is de minimus. If all of the average scores were to be recalculated to take into account the few scores that were proved to be based on mistake, there would be no significant change in the ranking of the parties. There were some scores by some members of the Insurance Committee that, on the record in this case, appear to be what can best be described as unexplained aberrations. Because they are unexplained, the evidence is insufficient to establish that these apparent aberrations were based on arbitrary considerations. It is possible they were merely honest mistakes. It is possible there is some logical explanation for some or all of the apparent aberrations, which explanation is not part of the record in this case because the members who made those scores were not called as witnesses or, if called, were not asked about those scores. Unexplained aberrations are an insufficient basis upon which to conclude that a bidding process is arbitrary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order dismissing the Formal Written Protest filed by Optiplan, Inc. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of December 1995. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December 1995 APPENDIX The following are the specific rulings on all proposed findings of facts submitted by all parties: Proposed findings submitted by Petitioner: Paragraphs 1 through 8: Accepted in whole or in substance. Paragraph 9: Rejected as consisting of subordinate and unnecessary details and as not fully consistent with the greater weight of the evidence. Paragraphs 10 and 11: Accepted in substance. Paragraph 12: Rejected as consisting of subordinate and unnecessary details. Paragraph 13: Rejected as consisting of subordinate and unnecessary details and of argument. Paragraphs 14 through 19: Accepted in whole or in substance. Paragraphs 20 and 21: Rejected as subordinate and unnecessary details, or as irrelevant, because the Insurance Committee did not use the sub- classifications in Petitioner's Exhibit 3 during their re-scoring on July 25, 1995. Paragraph 22: Rejected as subordinate and unnecessary details and as, in any event, not fully consistent with the greater weight of the evidence. Paragraph 23: Rejected as consisting primarily of argument. Paragraph 24: The first two sentences of this paragraph are rejected as consisting of subordinate and unnecessary details. The last sentence is rejected as irrelevant because it is inconsistent with the scope of services described in the Optiplan response to the RFP. Paragraph 25: Rejected as consisting primarily of argument; specifically, argument which is inconsistent with the greater weight of the evidence. Paragraphs 26 through 28: Rejected as subordinate and unnecessary details or as irrelevant, because the Insurance Committee did not use the Dudley sub- classifications proposed in Petitioner Exhibit 3 when it scored the proposals on July 25, 1995. Paragraph 29: Rejected as consisting of subordinate and unnecessary details and as argument. Paragraph 30: Rejected as consisting of subordinate and unnecessary details and as not fully supported by the greater weight of the evidence. Paragraph 31: Rejected as consisting of subordinate and unnecessary details and as argument. Paragraph 32: Accepted. Paragraph 33: Accepted up to the word "organizations." The remainder is rejected as a proposed conclusion of law, rather than a proposed finding of fact. Paragraphs 34 through 39: Accepted in whole or in substance, with some unnecessary editorial comments deleted. Paragraph 40: Accepted in substance that Optiplan and More Financial Services had some form of understanding about the terms on which the latter would provide services if Optiplan received the subject contract. The evidence is insufficient to show that an enforceable contract was entered into. Paragraph 41: Accepted. Paragraphs 42 and 43: Rejected as contrary to the greater weight of the evidence; the cover letter is part of the response. Paragraphs 44 through 46: Accepted. Paragraph 47: Rejected as consisting of subordinate and unnecessary details. Paragraph 48: The portion from the beginning to the second comma is rejected as subordinate and unnecessary details. The remainder is accepted. Paragraph 49: Rejected as consisting of subordinate and unnecessary details. Paragraph 50: Rejected as consisting of subordinate and unnecessary details and as argument. Paragraph 51: Rejected as consisting of subordinate and unnecessary details. Paragraph 52: Rejected as argument. Paragraph 53: First sentence accepted in substance. The remainder is rejected as irrelevant; the RFP did not require contracts with proposed M/WBE firms. Paragraphs 54 through 57: Rejected as consisting of subordinate and unnecessary details or as irrelevant. Paragraph 58: First sentence accepted. The remainder is rejected as consisting of subordinate and unnecessary details. Paragraphs 59 and 60: Rejected as consisting of subordinate and unnecessary details or as irrelevant. Paragraph 61: Accepted. Paragraphs 62 through 64: Rejected as consisting of subordinate and unnecessary details or as irrelevant. Paragraph 65: Rejected as comprised primarily of argument, rather than proposed findings of fact. Paragraphs 66 and 67: Accepted in whole or in substance. Paragraphs 68 through 72: Rejected as consisting of subordinate and unnecessary details or as irrelevant in view of the re-scoring. Paragraph 73: Rejected as consisting of subordinate and unnecessary details about status of the record. Paragraphs 74 through 76: Accepted in whole or in substance. Paragraphs 77 through 81: Rejected as consisting primarily of argument and as, to the extent it proposes facts, as contrary to the greater weight of the evidence. Paragraph 82: Rejected as contrary to the greater weight of the evidence. Paragraph 83: Rejected as consisting of subordinate and unnecessary details which do not support the inference for which they are offered. Paragraph 84: Rejected as contrary to the greater weight of the evidence. Paragraph 85: Rejected as consisting of subordinate and unnecessary details or as irrelevant. Paragraph 86: Rejected as consisting of subordinate and unnecessary details and as not fully supported by the evidence. Paragraph 87: Rejected as argument and, to the extent it proposes facts, as being contrary to the greater weight of the evidence. Paragraph 88: Rejected as consisting of subordinate and unnecessary details or as irrelevant. Paragraph 89: Rejected as consisting primarily of argument. Paragraph 90: Rejected as consisting of subordinate and unnecessary details. Paragraph 91: First sentence is accepted in substance. Second sentence is rejected as contrary to the greater weight of the evidence; there were no thresholds in effect at the July 25 re- scoring of the M/WBE criteria. Paragraph 92: Rejected as argument; specifically, argument based on incorrect facts. Paragraph 93: Rejected as in part irrelevant and in part not fully supported by the persuasive evidence. Paragraph 94: Rejected as irrelevant because the description of the proposed services to be performed by More Financial Service is the same in the proposals submitted by Optiplan and VSP. Paragraphs 95 and 96: Rejected as argument; specifically, argument not supported by the greater weight of the evidence. Paragraph 97: Accepted in substance. Paragraphs 98 and 99: Rejected as consisting primarily of argument. Paragraphs 100 and 101: Rejected as primarily argument and as not fully supported by the persuasive evidence. Paragraphs 102 and 103: Rejected as primarily argument and as consisting of subordinate and unnecessary details. Paragraph 104: Rejected as argument. Paragraph 105: Rejected as consisting of subordinate and unnecessary details and as argument; specifically, argument in support of a conclusion that is not warranted by the greater weight of the evidence. Paragraph 106: Rejected as argument; specifically, argument in support of a conclusion not fully supported by the greater weight of the evidence. Paragraphs 107 through 118: Rejected as irrelevant because the issue to which the proposed facts relate was not raised with specificity in the formal protest. (Several of these paragraphs are also rejected as being primarily argument.) Paragraphs 119 through 132: Rejected as consisting of subordinate and unnecessary details and as argument not fully warranted by the greater weight of the evidence. Also rejected as irrelevant because the issue to which the proposed facts relate was not raised with specificity in the formal protest. Paragraphs 133 and 134: Accepted in substance. Paragraphs 135 through 147: Rejected as consisting primarily of argument regarding issues that were not raised with specificity in the formal protest. Paragraphs 148 through 150: Accepted in substance. Paragraph 151: First sentence accepted in substance. Second sentence rejected because the Insurance Committee members had discretion to award more or less than one point depending on their interpretation of VSP's satisfaction assessment methodology. Paragraph 152: Rejected as consisting of subordinate and unnecessary details. Also rejected as not fully supported by the evidence. Paragraph 153: Rejected as argument; specifically, argumentnot warranted by the greater weight of the evidence. Paragraphs 154 through 158: These paragraphs are rejected as consisting of subordinate and unnecessary details and as irrelevant because they address issues not raised with specificity in the formal protest. Paragraphs 159 through 174: These paragraphs are rejected for several reasons. First, they are irrelevant because the issue of whether Committee member Brown was biased against Optiplan was not raised in the formal protest. Second, even if relevant, most of the facts proposed would be subordinate and unnecessary details because Mr. Brown did not participate in the July 25 re- scoring of the proposals and the evidence is insufficient to show that Mr. Silvernale's scoring was tainted by Mr. Brown's attitude towards Optiplan or its representatives. Paragraphs 175 through 179: Rejected as irrelevant because the proposed facts relate to an issue that was not raised in the formal protest. Paragraphs 180 through 184: Rejected as irrelevant because the proposed facts relate to an issue that was not raised in the formal protest. Also irrelevant because the facts proposed, even if accepted, would not warrant the inference for which they are offered. Paragraphs 185 through 188: Accepted in substance that the evaluation factors were adopted after the responses to the RFP were distributed to the Committee members. The conclusion that this was in and of itself improper is rejected. Paragraphs 189 through 200: Rejected as consisting primarily of argument about the weight of the evidence, rather than proposed findings of fact. Paragraphs 201 through 216: Rejected as constituting primarily argument about legal issues or proposed conclusions of law, rather than proposed findings of fact. Proposed findings submitted by Respondent: Paragraph 1 (including its subparts) through 43: Accepted in whole or in substance. Paragraphs 44 and 45: Reject as being comprised primarily of legal argument or proposed conclusions of law, rather than proposed findings of fact. Paragraph 46: Accepted. Proposed findings submitted by Intervenor: Paragraph 1 through 23: Accepted in whole or in substance. Paragraph 24: Rejected as subordinate and unnecessary details. Paragraph 25 through 50: Accepted in whole or in substance. Paragraph 51: First sentence accepted. Second sentence rejected as irrelevant. Paragraph 52 through 67: Accepted in whole or in substance. Paragraph 68: Rejected as subordinate and unnecessary details. Paragraph 69 through 85: Accepted in whole or in substance. Paragraph 86: Rejected as an over-simplification or as subordinate and unnecessary details. Paragraphs 87 through 103: Accepted in whole or in substance. COPIES FURNISHED: Edward J. Marko, Esquire Broward County School Board 1401 East Broward Boulevard, Number 201 Post Office Box 4369 Ft. Lauderdale, Florida 33338 Mitchell Berger, Esquire Holiday Russell, Esquire Berger & Davis 100 Northeast 3rd Avenue Suite 400 Ft. Lauderdale, Florida 33301 Leonard A. Carson, Esquire Rosa H. Carson, Esquire Carson & Adkins 2873 Remington Green Circle, Suite 101 Tallahassee, Florida 32308 Frank R. Petruzielo, Superintendent Broward County School Board 600 Southeast 3rd Avenue Fort Lauderdale, Florida 33301-3125
The Issue The issue in this proceeding is whether Petitioner Monroe Lee Kelly, the minor son of his personal representative and mother, Kimberly Maffei Kelly, should immediately receive developmental services or remain on a waiting list for such services.
Findings Of Fact Monroe Lee Kelly is three years old and displays verbal apraxia. Verbal apraxia is delayed speech development. He became a client of Developmental Services on July 28, 2000, after a legislatively designated funding cut-off date of July 1, 1999. Monroe Kelly was receiving speech therapy through Children's Medical Services. However, because he turned three years old he no longer qualifies for services under the medical program even though his apraxia is still a problem. Therefore, the medical program referred Monroe Kelly to Developmental Services for evaluation. Petitioner's mother was also informed by the Department that her son could receive speech therapy to ameliorate this condition from the school system. Verbal apraxia puts Monroe Lee Kelly at risk of having a developmental disability, but is not itself a developmental disability. Testing at a later date will ascertain whether he actually has a developmental disability. Until such testing can be accomplished, however, pursuant to federal law and long-standing policy, the Department regards Monroe Lee Kelly as a client because of his risk status. His mother, for personal reasons, did not apply for benefits through the Medicaid Waiver program. Thus Monroe Lee Kelly is a client of the Developmental Services Program of the Department and is therefore eligible to receive developmental services from that program. The only question is whether Monroe Lee Kelly should receive those services for which he is eligible immediately or remain on the waiting list. Currently there are approximately eight thousand persons who became clients of the Developmental Services Program after July 1, 2000. A long and complex chain of events and circumstances led to the situation faced by Monroe Lee Kelly. Prior to the 1999 legislative session and after federal litigation, the Department identified 23,361 Developmental Services clients who were enrolled in the developmental services program but were receiving inadequate services. The Governor, members of the Legislature, and the Department met to address this problem and jointly proposed to the Legislature for fiscal year 1999-2000, a plan to address the underserved clients over a two-year period. Under this plan, 15,984 of the identified 23,361 clients would be served during fiscal year 1999-2000, with the remaining 7377 clients to be added to the group in fiscal year 2000-2001. The Legislature elected to route the new moneys into the Medicaid Waiver program, because that program provided for a 45/55 State/Federal match, under which fifty-five cents of federal moneys would be provided for every forty-five cents contributed by the Florida Legislature. Since most of these clients resided in the community and not in institutions, the program utilized under this plan was not the Institutional Medicaid program, but the Home Community Based Waiver program. The Home Community Based Waiver program, also called the Medicaid Waiver program, differs from the Institutional Medicaid program. The Institutional Medicaid program is an entitlement program. The Medicaid Waiver program is not. Consequently, the moneys which fund the Medicaid Waiver program are limited and claims on them must be prioritized. The Legislature directed the Department to prioritize these limited funds by requiring that they be spent first on providing full services to the 23,361 clients already known to the Department as of July 1, 2000. The Department implemented this mandate by implementing policy that, except for crisis situations, only persons who were clients on July 1, 2000, would receive services. All others would be put on a waiting list. The Department is currently working on a Legislative Budget Request for the coming year which will address the needs of clients, such as Monroe Lee Kelly who came into the system after July 1, 2000. Even so, Monroe Lee Kelly is not eligible for the Medicaid Waiver since Ms. Kelly has declined to apply for Medicaid. The funds she seeks come from another source, the Individual and Family Support appropriation. Nevertheless, for the reasons set forth below, the result in this case is the same as if her child had been on the Medicaid Waiver. In order to consistently apply the legislative intent behind this appropriation scheme to all Developmental Services clients, the Department has applied the prioritization described in paragraph 7, not only to the appropriations made through the Medicaid Waiver program, but also to those relating to the Individual and Family Support appropriation. The prioritization is required because, in the past two years, the Legislature has not appropriated any new funds under the Individual and Family Support Program. Thus, since the existing client base in Developmental Services remained stable, the new client base has increased by approximately 8,000 clients since July 1, 1999, and the Department can only provide funds to new clients by withholding services from existing clients who received these services in past years. An untenable result. Moreover, the interests of fairness require that the allocation of Developmental Services money be made on a consistent basis. This is particularly true inasmuch as many of the clients who receive Medicaid Waiver funds also receive Individual and Family Support funds. Finally, the Department's prioritization puts at the top of the list those clients who are in crisis. Under these circumstances, the Department's decision to allocate the Individual and Family Support moneys entrusted to it by the Legislature in the same manner as the Medicaid Waiver moneys is not unreasonable or unfair. Because Monroe Lee Kelly became a client after July 1, 1999, he can only receive services if he is in crisis. The Department has identified six conditions which, if present, constitute a crisis which would permit it to provide services to persons who became clients after July 1, 1999. These are: A court order from a criminal proceeding requires the Department to provide services. The client is highly dangerous to himself or others, and danger will continue if services are not provided immediately. The client is living in a high risk situation in which abuse and/or neglect is occurring or likely to occur. The client is homeless, living either in a homeless shelter or on the street. The caregiver is unable to provide care for the client, no alternative arrangements are possible, and without the provision of services, the client cannot safely remain with the caregiver. Other circumstances exist which will present a danger to the client's safety and/or security if services are not provided. Monroe Lee Kelly met none of the foregoing criteria. Consequently, the Department could not provide him the services his mother sought on his behalf.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order leaving Monroe Lee Kelly on the waiting list of clients to be served by the Department's Developmental Services Program. DONE AND ENTERED this 19th day of December, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 19th day of December, 2000. COPIES FURNISHED: Kimberly Maffei Kelly 9127 Foxwood Drive Tallahassee, Florida 32308 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 100A Tallahassee, Florida 32399-2949 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
Findings Of Fact The home of Hazel Philpot was licensed as a Shelter Home on 2 October 1979 for a maximum of seven children ages 2 through 12 (Exhibit 1). This license was to expire 6/15/80. to coincide with Sanitation Report On 21 November 1979, the day before Thanksgiving, a 6-months old girl (Melanie) was delivered to Mrs. Brenda Moore, a foster mother licensed by Petitioner. No records accompanied this child, who appeared to be in some discomfort. The baby was accompanied by a bottle full of whole milk with a nipple that had been previously used by an older baby and which did not appear sterile. Mrs. Moore called to find out what formula Melanie was on and was advised to call Respondent's home. Moore then called Philpot. During this phone conversation Mrs. Moore was told that Melanie did not sleep well but would eat anything put before her; that whole milk with vitamins was given to Melanie; that Mrs. Philpot didn't always have money for baby foods and fed mashed table scraps; and, regarding poor sleepers, that a little bit of booze sometimes worked wonders. When questioned about this conversation by a Single Intake Counsellor from Respondent, Mrs. Philpot denied the incident and stated she does not use home remedies (Exhibit 5). Melanie continued to cry all hours of the day and night over Thanksgiving and the weekend following. On Thanksgiving eve, Mrs. Moore called the pediatrician assigned for the children in her foster hone, but he would not come and told her to watch over Melanie and if she got worse to take her to the Emergency Room at the hospital. Melanie had no Medicaid card which would have allowed Mrs. Moore to take her to the clinic which was otherwise available. During this period Mrs. Moore found Melanie very constipated and after she did have a bowel movement her stool indicated unmashed food had been fed to her. When Barbara Rittner, Direct Services Supervisor for HRS, visited the Moore home on Monday, 26 September 1979, to check on the two children assigned to her and living at the Moore home, she found Mrs. Moore exhausted from lack of sleep caused by Melanie's crying for four days, and upset by the situation. Mrs. Moore reported what she knew and what she had been told to Mrs. Rittner, who submitted an Unusual Incident report (Exhibit 2) containing the information regarding Melanie and Mrs. Philpot's comments which had been told to her by Mrs. Moore. Shelter homes take children on an emergency basis while the child's situation is determined. Abused children are those normally placed in a shelter home, pending a judicial determination if the child is to be returned to its parents or placed elsewhere. Normally, children stay in a shelter home less than one month. Foster mothers take children and act as sub-parents until the child can be returned to its home or placed for adoption. Petitioner looks for similar qualities in the operators of both shelter and foster homes. Shelter homes are supervised by Single Intake and are licensed by Social and Economic Services, both units of DHRS. Normally, incidents involving shelter homes are investigated by Single Intake. The Unusual Incident report was referred to Single Intake but no written report of an investigation was submitted or presented at this hearing. The Unusual Incident follow-up report (Exhibit 5) appears based entirely on hearsay and no witness corroborated any information contained therein. Specifically, this follow-up report stated that Melanie had been fed hard liquor by Mrs. Philpot and the only evidence to support that conclusion is the information Moore received from the Philpot Home as noted above. Prior to the issuance of Mrs. Philpot's current license (Exhibit 1) her home had been licensed for several years as a shelter home, however, in 1978 it appears her relicensing was delayed because of a drinking problem of Mr. Philpot. He moved to North Carolina to live with a son and upon the condition that he not be allowed to return to live at the home Mrs. Philpot's license was renewed to certify her home as a shelter home for up to seven children, ages two through twelve. Prior to rescinding Mrs. Philpot's license information was received by HRS (Exhibit 3--not admitted) that Mr. Philpot had been observed at the home at Christmastime. No evidence in this regard was presented at the hearing and this incident was not given as a reason for rescinding the license in the January 18, 1980 letter (Exhibit 1). Those grounds are only that Respondent failed to provide proper nourishment to shelter children in her home. The only evidence respecting the nourishment provided children in the Philpot Shelter Home is the testimony of Mrs. Moore above noted. Most of Mrs. Moore's conclusions were obtained from a telephone conversation she had with the Philpot home and a person she assumed to be Mrs. Philpot. She did not say she knew Mrs. Philpot or had previously talked to her on the telephone. No evidence was presented that the bottle accompanying Melanie when she was deposited at the Moore home came from the Philpot home. If an effort was made to verify the information contained in the Unusual Incident Report, no competent evidence wad presented in this regard, nor was any corroborating evidence presented to verify the information contained in the Unusual Incident report other than the testimony of Mrs. Moore, the source of that information. There was only one shelter home in the Miami specifically approved to take babies in 1979. This home was frequently full and children under two years of age were routinely placed in shelter homes not licensed for them such as the Philpot home. Relicensing Summary (Exhibit 4) submitted on Philpot home prior to the issuance of this current license shows the home fully qualified for licensure as a shelter home. Respondent's objection to hearsay evidence was overruled subject to the caveat that no finding would or could be based upon such evidence not corroborated by competent evidence.
The Issue Whether New Hope Youth Home, Inc., failed to comply with applicable rules as alleged by Petitioner and, if so, whether Respondent's Provisional Certificate of Child Care should be revoked.
Findings Of Fact New Hope Youth Homes, Incorporated (New Hope), is a residential group care facility designed for long-term placement of dependent delinquent male teenagers, a group which is particularly difficult to place. The total capacity for the facility is six placements. New Hope was initially issued Provisional Child Care Agency License No. 1094-43-06 by the Department to operate the residential group care facility. The effective period of the license was October 19, 1994 through October 18, 1995. Consistent with applicable rules governing child care licensing, New Hope was issued a provisional license because the Department believed the facility met all safety standards and had reasonable assurance that the facility could come within compliance during the licensure period. In a letter dated August 9, 1994, to the bank providing New Hope with a line of credit, the contract manager for the Department stated that the Department intended to contract with New Hope once the facility received its license. The letter further indicated that a rate agreement had been developed, which would pay New Hope $1,650.00 monthly for each child in care. According to the correspondence, for the first two months of the contract period, the Department would advance funds to New Hope, based on anticipated cash needs. The amount of each advance payment to New Hope would be approximately $9,500.00, "totaling an advance of approximately $19,000.00." The Department stated that New Hope "can expect to receive their advance within three weeks of contract execution." There was no mention in the letter that these funds had to be repaid by New Hope. A copy of the letter was provided to Al Pompey, Executive Director of New Hope. Notwithstanding the representations made in the August 9, 1994 letter, after New Hope was licensed in October 1994, the agreement was disapproved by the State Comptroller's Office and, consequently, was never implemented. In light of its prior agreement with New Hope, the Department made a special effort to develop another contract that would allow New Hope to open and operate as planned. Eventually, another contract was developed. This contract was executed in December 1994 or January 1995. Under the contract that was subsequently executed, the Department was authorized to provide New Hope with three advance payments of $10,230.00 each. The first advance payment was received by New Hope in January or February 1995. By letter dated January 27, 1995, the Department notified New Hope that all advance payments made to the facility would have to be repaid by June 30, 1995, the end of the fiscal year. Repayment would be made by the Department reducing the biweekly increments paid to New Hope. If the entire $30,069.00 were advanced to New Hope, the repayment schedule would require that $3,069.00 be deducted from each of the biweekly invoices submitted to the Department between February and June 1995, inclusive. Based on the average biweekly invoice for New Hope of $4,125.00, the $3,069.00 deduction for repayment of advances would reduce the Department's biweekly payments to New Hope from $4,125.00 to $1,056.00. The estimate of $4,125.00 represents the Department allocation for providing services to five residents for sixteen days. Prior to receiving the letter from the Department regarding repayment of all funds advanced, Mr. Pompey did not know that these advances had to be repaid. Once Mr. Pompey was notified that repayment was required, he found it necessary to significantly reduce the staff and services at New Hope. The $1,650.00 per month per child rate paid to New Hope was one of the highest rates paid by the Department to child-caring agencies in Sarasota. However, in order for New Hope to survive, it was anticipated and necessary that the agency would develop other sources of revenue. Although New Hope projected that it would generate $25,000.00 from outside sources, efforts in this regard was unsuccessful. Between October 1994 and October 1995, the Department performed approximately eight operational reviews of New Hope. Of these, four visits were made between August and October 1995, in order to determine whether a license should be issued to New Hope upon expiration of its current one. During the operational reviews, the Department's licensing specialist noted that New Hope did not have a system in place to assure accurate documentation of the activities and record-keeping required by Chapter 10M-9, Administrative Code. In an effort to bring New Hope into compliance, the Department provided technical assistance to New Hope throughout the period between October 1994 and October 1995. This assistance consisted of making recommendations regarding completion of required documentation and, in some instances, providing sample forms that could be used. Specific documentation which was required included placement documents, service plans, service review plans, bedcheck logs, and fire drill logs. Also, documentation of screening for employees and volunteers was required. Often suggestions made by the Department specialist involved simply pointing out changes necessary because of technical requirements of rules and did not involve serious infractions. For example, during one operational review, the specialist observed that, based on the meal that was being served to the children, there was a deviation from the posted menu. The specialist used this opportunity to point out that any changes to the menu should be noted so that the menu accurately reflected what is actually being served. Once this was discussed, there is no indication that New Hope failed to make such notations in the future. Another example of New Hope's efforts to comply with Department recommendations involve the facility's need to work with a registered dietician. Initially, New Hope did not consult with professionally registered dietician or local health department. However, once informed of the need for such consultation, New Hope received services from a registered dietician at a local school. Suggestions made by the Department specialist to Mr. Pompey were positively received. According to the specialist, Mr. Pompey was cooperative and expressed a willingness to implement the recommendations necessary to bring New Hope in compliance with Department rules. On follow-up visits there had usually been an attempt to comply with the recommendations. In some instances, the recommendations had been fully implemented. However, due to the staff shortage necessitated by the significant reduction in funds, some recommendations had been only partially implemented. Recommendations not fully implemented consistently involved the completion of the paperwork for the children in care. On April 20, 1995, Rosemary Nardi, an internal auditor, with the Department performed a fiscal review of New Hope. At the time of the visit, Ms. Nardi requested a copy of the New Hope's books. In response to this request, Ms. Nardi expected to review a general ledger and documents such as cash receipts. In fact, New Hope provided Ms. Nardi with only a checkbook indicating the facility's expenditures. Based on Ms. Nardi's review, she found that cash was overdrawn in a small amount and that New Hope had exhausted its line of credit. After sending New Hope a corrective plan, Ms. Nardi visited the facility again on June 15, 1995. During the subsequent visit, Ms. Nardi met with New Hope's certified public accountant (CPA), who assured her that the corrections would be made. There is no indication that New hope failed to taken the recommended corrective action. Except for one unfortunate incident in June 1995, there was never a concern from the Department about the care of children placed at New Hope. This incident involved a child in care at New Hope who ran away from the facility and the next day was shot and killed. The child, described in the Department's Relicensing Narrative as "one of the facility's more ungovernable youth," had a history of running away from facilities to which he had been assigned. Prior to June 1995, Mr. Pompey requested that the Department remove the youth from New Hope because of the serious problems he was having. The Department requested that New Hope keep the child until May 1995, and assured Mr. Pompey that the child would then be removed from the facility. However, the child remained assigned to New Hope until June 1995. New Hope staff did not report this incident to the Department or police. However, no evidence was presented regarding how much time had lapsed between New Hope discovering that the child had run away and the time of the shooting incident. As a result of this episode, the Department issued no citations against New Hope, but used the incident to point out to Mr. Pompey the need for New Hope to provide twenty-four hour awake supervision. During the initial contract period, New Hope provided group counseling and individual counseling to residents of the facility. These services were documented in quarterly summaries completed by Dr. Ford, the person providing the services. New Hope also provided tutoring to children residing at the facility. At one time Mr. Pompey had inquired about the tutoring services available through the North County Educational Assistance Program, but services through this program were never provided to the youth at New Hope. Rather, due to fund shortages, tutoring was provided by Mr. Pompey,(who holds a bachelor's degree and a master's degree), and by volunteers, some of whom were students from the University of South Florida. Despite the fiscal problems experienced by New Hope in the initial contract and license period, and its failure to adequately document all services, the facility provided adequate services for the children in its care. Both the counseling and tutoring services provided by New Hope were commended by the Department In its October 18, 1995, Relicensing Narrative, the Department stated the following: Significant improvements have been noted regarding each youth's academic performance and several of the resident's behavioral deficits. It is noteworthy that each resident in the program graduated from middle school to high school; this speaks very well for the tutoring program in place during the 1994-95 school year, as well as the supportive components of therapy and the creative use of the "community role model" speaking program. The Department initiated the relicensing review process for New Hope in August 1995. This review included a fiscal review and monitoring of compliance with programmatic requirements. During the relicensing review, Rosemary Nardi again met with the CPA for New Hope. The financial situation of New Hope had not significantly improved since Ms. Nardi's earlier visits. In assessing New Hope's situation, Ms. Nardi determined that the residence occupied by New Hope was owned by and previously had been the home of Mr. Pompey's sister. New Hope had paid the owner of the property an initial relocation fee of $8,000.00 and was making monthly lease payments of $1,200.00. Ms. Nardi believed that the relocation payment was a significant amount of New Hope's overall budget and may have contributed to some of the agency's fiscal problems. However, Ms. Nardi conceded that payment of the relocation fee by New Hope was not illegal. New Hope believed the payment was justified based on the difficulty of locating acceptable and appropriate housing for its facility. Also, during the review of the renewal application, the Department made visits to New Hope on August 18, 1995, August 29, 1995, September 29, 1995, and October 12, 1995. The Relicensing Narrative prepared by the Department summarized the Department's findings and specific areas in which New Hope remained out of compliance. According to the narrative, New Hope needed to resolve the following deficiencies and provide the listed information: An official list of the provider of all of employees and volunteers and their qualifications (due no later than 10/31/95); a list of training provided staff during the past year (due no later than 10/31/95); the annual budget (due by 11/15/95); an annual audit due by (12/31/95); an approved sanitation inspection (due prior to relicensure on 10/19/95); an approved final fire inspection (due prior to relicensure on 10/19/95); development and use of placement agreements, service plans, service review forms which conform to 10M-9 requirements (due by 11/30/95); corrections regarding screening and file maintenance for employees and volunteers (due by 10/31/95); employment of hired staff to insure licensing and contract compliance (several employee positions are filled by screened volunteers) (due by 11/30/95); finalization of policy and procedural manuals (due within sixty days after the delivery of the recommended changes by a specialist). Notwithstanding the deficiencies, the Department believed that New Hope had made acceptable progress and issued a second Provisional License No. 10951906to the agency, subject to compliance with the requirements detailed in the Relicensing Narrative. In recommending New Hope for a second provisional license, the specialist who had worked with New Hope during its initial licensure period stated that This agency has come a long way toward becoming a provider to which the Department can have faith that effective services and proper supervision is provided to difficult-to-manage teenage males. The agency has a strong network of committed individuals whom are deeply concerned about the state of youth in Sarasota and the surrounding communities. The Sarasota operational unit indicates a continuing need for this provider's services. It is therefore recommended that New Hope Youth Homes, Inc., located at 2395 North Tuttle Avenue, Sarasota, Florida, be granted a one year provi- sional Child Caring Agency license, to provide residential group care to six youths from 10-19-95 to 10-19-96, pending resolution of the. . . deficiencies by the due date listed. Of the ten deficiencies listed in Relicensing Narrative, only two required compliance prior to issuance of the second provisional child care agency license. Prior to receiving its second license, New Hope was required to provide the Department with an approved sanitation inspection report and an approved final fire inspection report. This information was provided to the Department on or before the time designated in the Relicensure Narrative. New Hope attempted to resolve the remaining deficiencies by the designated dates, but was successful in complying with only some of the requirements noted in the Relicensure Narrative. Other than the sanitation and fire inspection reports, documentation requested by the Department and which was timely submitted by New Hope included an official list of New Hope's employees and volunteers and their qualifications; a list of training provided to staff during the past year; and corrections regarding screening and file maintenance. With regard to screening of employees and volunteers, the Department determined that these individuals had been fingerprinted, but not screened. In two areas in which there were noted deficiencies, New Hope failed to submit documentation that it had taken the appropriate corrective action. First, New Hope did not develop and use placement agreements, service plans, and service plan review forms which comply with applicable rules. More importantly, when used, the documents did not contain some of the required information. Second, New Hope had not employed "staff to assure licensing and contract compliance," by November 30, 1995. The other three items requiring action involved New Hope's annual budget, annual audit, and policy and procedure manuals. In regard to the annual budget , it is unclear whether this was prepared and provided to the Department by the designated due date, November 15, 1995. The annual audit was to be submitted to the Department by December 31, 1995. Since this due date was after the New Hope's contract with the Department was terminated and its license was revoked, there was no need or expectation that New Hope would provide the Department with an annual audit. The final version of the policy and procedural manuals was due "within 60 days after delivery of recommended changes" by the Department. The Department specialist anticipated that this review would be complete by November 15, 1995. However, no evidence was presented as to whether this target date was met. Nevertheless, even assuming that the Department review of the manuals was completed as planned, New Hope would have had until January 1996, to submit its policy and procedures manuals to the Department. Because New Hope's contract was terminated and its license revoked in early December 1995, there was no reason or opportunity for New Hope to comply with this directive. Several weeks after New Hope received a second provisional license, the District Eight Health and Human Services Board (Board), directed the Department to investigate New Hope. The Board resolution directing this investigation was, at least in part, the result of a published newspaper article concerning the backgrounds of several individuals connected with New Hope. As a result of the Board directive, Department staff undertook an additional and extensive review of New Hope in November 1995. As a part of the investigation requested by the Board, a third fiscal monitoring visit was made by Rosemary Nardi on November 20, 1995. The audit revealed that New Hope had failed to pay payroll taxes for 1995, and that a balance of approximately of $5,700.00, was still due to the Internal Revenue Service. The audit also revealed that New Hope began its operation using a bank line of credit. Even though New Hope had paid the loan off, it had subsequently drawn on the line of credit and currently owed the bank $4,600.00. Ms. Nardi's report noted that while New Hope had a shortage of funds, there had been no misappropriation of funds. In a memorandum prepared by Ms. Nardi after the audit, she summarized her findings and concluded that New Hope was not a financially viable concern. The memo stated that: The financial stability at best under the present circumstances is limited. Without additional and other sources, I fail to see how this can be a viable and on-going concern. The liabilities (re-payment of line of credit and payroll taxes) far exceed the cash available. In addition there are additional expenses and overhead which need to be met During November 1995 investigation, the Department became aware of a situation involving a child in which appropriate notification was not given to the Department by New Hope. A child assigned to New Hope became extremely emotional at school, and as a result was sent to the school office. School officials contacted Mr. Pompey, who immediately went to the school. Mr. Pompey and school officials agreed that the youth should be Baker Acted and sent to a crisis stabilization unit (CSU). Neither Mr. Pompey nor any other New Hope staff member reported this incident to the child's case worker. Mr. Pompey's failure to report this was based on his belief that this was not a serious incident. Also, Mr. Pompey believed that notification to the Department was unnecessary because, Wayne Wallace, liaison between New Hope and the Department, was aware of the episode, having gone to the CSU to calm the child down. Another incident which came to light during the November 1995 investigation involved the detention on September 29, 1995, of three children residing at New Hope. These children were detained by the Sheriff's Department for possession of alcohol and petit theft, but were not arrested or taken into custody. Instead they were returned to New Hope and released into the custody of Mr. Pompey. The caseworker for two of the children was never informed of this incident by staff of New Hope, and learned about it on October 18, 1995, from a juvenile justice caseworker During the November 1995 investigation, a visit to New Hope by a caseworker led the Department to conclude that New Hope was not properly supervising children in its care. One Sunday afternoon, in November 1995, while off duty, a caseworker assigned to two children residing at New Hope, passed by the facility. Upon observing the children on the porch, the case-worker stopped and asked the boys if anyone was at home. The boys indicated that they did not know. Because in the past these children were sometimes reluctant to talk to Department staff, it is unknown whether the boys were answering truthfully or were being uncooperative. Given the boys' response, the case worker knocked on the door. Although no one answered the door, several minutes later, Gwen Whitaker, a staff member of New Hope, drove up and stated that she had been on an errand, but that her mother, Donnie Whitaker was at home. Donnie Whitaker is always at home on Sundays, except between 11:00 a.m. and 2:00 p.m. when she attends church. The time of the case worker's visit was not established, therefore, it cannot be clearly determined whether there was anyone supervising the children at New Hope. As a result of the November 1995, investigation, the Department also concluded that New Hope had violated numerous health standards. This conclusion was based on problems associated with New Hope's septic system. While investigating New Hope, the Department learned about an August 1995, road improvement project on the street abutting the New Hope facility. Apparently, at or near the time of that project, a pipe attached to the septic system at the New Hope facility was discharging raw sewage onto the adjacent property. The Sarasota County Public Health Unit (CPHU) attempted to contact the owner or occupants of the property. No evidence was presented to establish that this was actually accomplished. A crisis situation developed on November 20, 1995 when a road construction crew again uncovered a pipe discharging raw sewage from the New Hope facility. The pipe was capped at the direction of the CPHU, but the cap was removed from the pipe on or about November 22, 1995. No evidence was presented as to who removed the cap. A CPHU supervisor went to the New Hope facility on November 27, 1995, and informed the "person on duty" at New Hope that the sewage had to be pumped out of the hole immediately and that the pipe had to be recapped. Shortly after the CPHU supervisor visited the New Hope facility to notify the occupants of the sewage discharge, pump outs were arranged. No evidence was presented as to who arranged for the pump outs, but under New Hope's lease, the landlord was responsible for maintenance of "the sewer, water pipes, and other matters related to plumbing." Although there was no mention in the Relicensing Narrative that enhanced and basic services were not being provided by New Hope, the Department determined during the November 1995 investigation that these services were not being provided. The Department did not specify the particular services that were required, but not being provided by New Hope. With regard to enhanced services, the Relicensing Narrative noted only that there was "very little documentation in the client files regarding enhanced services". However, the Relicensing Narrative further stated that the contract "itself did not specify enhanced service requirements beyond the general guidelines". Finally, during the November 1995 investigation, the Department determined that the individual providing counseling at New Hope was unlicensed and, therefore unqualified to provide services to the children residing at New Hope. The precise nature and basis of this determination is unclear It appears that during this investigation, the Department concluded that the children required therapy by a psychologist or a psychiatrist. However, no evidence was presented to establish that such therapy, in lieu of the counseling being provided, was either required by the contract or recommended by a qualified mental health professional. Prior to this investigation, the Department had not indicated that the counseling services being provided were inappropriate or that the person providing the was unlicensed. In fact, the Department had commented positively on the quality of counseling services being provided. The Department terminated its contract with New Hope in early December 1995. On December 4, 1995, after terminating the contract, the Department removed the children from New Hope. Ten days later, New Hope was notified by the Department that its license was being revoked.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner, Department of Health and Rehabilitative Services, rescind its action issuing the second provisional license to New Hope Youth Homes, Inc. The Provisional License No. 10951906 issued to Respondent, New Hope Youth Homes, Inc., with effective dates of October 19, 1995 through October 19, 1996, be considered null and void. DONE and ENTERED this 1st day of July, 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0393 To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5 Accepted and incorporated, except to the extent not subordinate or unnecessary. Accepted, except in some instances, recommendations had been implemented. Accepted and incorporated to the extent not subordinate or unnecessary. Second, third, and fourth sentences accepted and incorporated except to extent subordinate or unnecessary. First sentence rejected as to characterization of policies and procedures. Last two sentences rejected as not supported by the record. As to what was reviewed with Respondent after this incident, the record shows that Petitioner used this as justification for twenty-four hour awake supervision. Accepted and incorporated except to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate and unnecessary. Second sentence rejected as not supported by the record. Accepted and incorporated, except statement that items (d) and (e) were not resolved is rejected as not supported by the record. 13.-15 Accepted and incorporated except to the extent not subordinate or unnecessary. First three sentences accepted and incorporated except to the extent not subordinate or unnecessary. The remaining part of paragraph is rejected as not supported by the record. Accepted and incorporated except to the extent not subordinate or unnecessary. First three sentences accepted. The last sentence is rejected as not supported by the evidence. Accepted and incorporated except to the extent not subordinate or unnecessary. Statement in last sentence that earlier statement is "contrary to Gwen Whitaker's representation" is rejected as argument. Accepted and incorporated except to the extent not subordinate or unnecessary. Second sentence rejected as not supported by the record. Accepted and incorporated except to the extent not unnecessary, irrelevant, or immaterial. Accepted and incorporated, except some deficiencies were noted during operational reviews. Accepted and incorporated. COPIES FURNISHED: Eugenie G. Rehak, Esquire Department of Health and Rehabilitative Services Post Office Box 60085 Fort Myers, Florida 33906 Al Pompey, Pro Se Executive Director New Hope Youth Homes, Inc. 2395 North Tuttle Avenue Sarasota, Florida 34234 Gregory D. Venz Agency Clerk Department of Health and Rehabilitative Services Building One, Suite 204 F 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent T and J Sod Service, Inc. (T and J Sod) is indebted to Petitioner for agricultural products (the sale of sod represented by Trip Tickets 11902 and 11917), and, if so, the amount of the indebtedness. Whether Respondent Great American Insurance Company is liable to Petitioner for any unpaid indebtedness owed Petitioner by T and J Sod.
Findings Of Fact At all times relevant to this proceeding, Harmon Sod was a producer of agricultural products within the meaning of Subsection 604.15(9), Florida Statutes.1 Sod is an agricultural product within the meaning of Subsection 604.15(1), Florida Statutes.2 At all times relevant to this proceeding, T and J Sod was a “dealer in agricultural products” within the meaning of Subsection 604.15(2), Florida Statutes.3 At all times relevant to this proceeding, T and J Sod was licensed as a dealer in agricultural products by the Department. At all times relevant to this proceeding, Great American Insurance Company served as surety for T and J Sod. At all times relevant to this proceeding, T and J Sod was a customer of Harmon Sod. T and J Sod purchased sod from Harmon Sod and thereafter resold and installed the sod to T and J Sod’s customers. Harmon Sod sold to its customers sod on wooden pallets. An integral part of each transaction involved the pallet. If a customer did not give Harmon Sod an empty pallet when it purchased a pallet of sod, Harmon Sod charged the customer for the sod and an additional $5.00 for the pallet. There was a dispute whether T and J Sod purchased the sod represented by Trip Ticket 19902 or by Trip Ticket 11917. Mr. Gonzalez testified that his driver did not sign for the sod on either Trip Ticket and that he did not receive the pallets of sod represented by either Trip Ticket. As to Trip Ticket 11902, the greater weight of the credible evidence established that on Friday, April 25, 2008, Harmon Sod had six extra pallets of Bahia sod. Tommy Wuchte wanted to sell the sod so it would not sit on the pallets over the weekend. Tommy Wuchte testified, credibly, that he called Mr. Gonzalez and asked if could use the sod. Mr. Gonzalez agreed to purchase the six pallets of sod. Tommy Wuchte thereafter delivered the six pallets of sod to T and J Sod and signed his name on the Trip Ticket 11902. As to Trip Ticket 11902, T and J Sod is indebted to Harmon Sod in the amount of $148.50 plus tax in the amount of $9.65 (at the rate of 6.5 percent) for six pallets of sod and $30.00 for six pallets at $5.00 per pallet, for a total of $188.15. As to Trip Ticket 1197, the greater weight of the evidence established that on Tuesday, April 29, 2008, Mr. Gonzalez called Tommy Wuchte and told him that he was sending a contract driver to pick up 18 pallets of Bahia sod. Mr. Gonzalez told Tommy Wuchte that he had fired his regular driver. On April 29, 2008, a contract driver came to the sod farm where Harmon Sod was cutting sod, and told Ronald Wuchte that he was picking up the 18 pallets of sod for T and J Sod. Ronald Wuchte loaded the 18 pallets of sod on the driver’s truck and had the driver sign Trip Ticket 1197. As to Trip Ticket 1197, T and J Sod is indebted to Harmon Sod in the amount of $445.50 plus tax in the amount of $28.96 (at the rate of 6.5 percent) for the 18 pallets of sod and $90.00 for 18 empty pallets at $5.00 per pallet, for a total of $564.46. Harmon Sod had to pay a $50.00 filing fee to file this claim, for which it is entitled to reimbursement from T and J Sod pursuant to Subsection 604.21(1)(a), Florida Statutes. T and J Sod is indebted to Harmon Sod in the total amount of $802.61.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Pursuant to Subsection 604.21(7), Florida Statutes, T and J Sod should be ordered to pay to Harmon Sod the sum of $802.61 within 15 days of the entry of the Final Order. Pursuant to Subsection 604.21(8), Florida Statutes, Great American Insurance Company, as surety, should be ordered to pay to Harmon Sod the sum of $802.61 should T and J Sod fails to timely make that payment. DONE AND ENTERED this 5th day of March, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2009.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the stipulation of facts entered into among the parties, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The name and address of the Petitioner is Golden Eagle Engineering Construction, Inc. (Golden Eagle) 1302 Northwest 33rd Street, Pompano Beach, Florida. The name and address of the Respondent is State of Florida, Department of Transportation, 605 Suwannee Street, Haydon Burns Bldg., Tallahassee, Florida. The name and address of the Intervenor is Toppino's, Inc. (Toppino's) Post Office Box 787, Key West, Florida. The Petitioner timely submitted a bid with regard to state project SR-5 (U.S-1), from the North end of State Bridge No. 900001 to Kennedy Drive in Key West, Budget Item No. 6116637, State Job No. 90010-3519 in Monroe County. The Petitioner was the apparent low bidder with a bid in the amount of $386,017.43. The Intervenor timely submitted a bid in regard to the same state road project (State Job No. 90010-3519). The Intervenor was the second low bidder with a bid in the amount of $398,132.10. The bid specifications required that bids submitted by contractors were to include a designation of at least fifteen percent (15 percent) of work to be performed by certified disadvantaged business enterprises (D.B.E.'s). The bid documents provided a separate form entitled "D.B.E./W.B.E. Utilization Form No. 1" on which the designation of work to the chosen D.B.E. was to be listed. The Respondent "certifies" DBE's in accordance with the standards and procedures set forth in Rule 14-78, Florida Administrative Code. Along with project specifications and other information concerning the proposed job, the Respondent provides hopeful contractors with a D/WBE Directory which lists qualified DBE and WBE businesses. The latest directory prior to the bid opening on the contract at issue here was published by D-O-T in October of 1986. Respondent's Bureau of Minority Programs maintains a current register and will advise any bidder so requesting whether or not a firm qualifies as a DSE or WBE. The invitation to bid provided that the contractor's bid submission must include the following information: The names and addresses of certified DBE and WBE firms that will partici- pate in the contract. Only DBEs and WSEs certified by the Department at the time the bid is submitted may be counted toward DBE and WBE goals. * * * (4) If the DBE or WBE goal is not met sufficient information to demonstrate that the contractor made good faith efforts to meet the goals. The DBE's utilized by the Petitioner to satisfy the requirements of the bid were as follows: (a) Millit $8,972.60 Highway Concrete Corporation $45,330.60 A. Falero Trucking, Inc. $21,500.00 The Petitioner's Bidder's Utilization Form disclosed an apparent 19.5 percent DBE participation. The Petitioner honestly believed that its bid proposal met and exceeded the DBE participation goals specified for the contract. The sealed bids were opened on October 29, 1986. The Respondent, in its initial review of Petitioner's bid, discovered that A. Falero Trucking, Inc., (Falero) was not a certified DBE. On October 31, 1986, Ms. Heather Calligan, majority shareholder of Golden Eagle, wrote Respondent a letter in which she stated that the owners of Falero had assured Golden Eagle that Falero was a certified DBE firm, that they had a current DBE certification letter and that their exclusion from the D/WBE Directory was an oversight on the part of Respondent. Ms. Calligan further advised Respondent that she believed Falero's assertion that the firm was DBE certified because her company is W.B.E. certified and had been omitted from the D/WBE Directory in error in the recent past. Further, Ms. Calligan stated that she had been acquainted with the owners of Falero on a personal and business basis for several years and did not believe that they would mislead her. On November 3, 1986, Ms. Calligan wrote another letter to Respondent wherein she stated that she had contacted Falero concerning their certification and that Falero could not locate their certification letter. Ms. Calligan requested that Golden Eagle be allowed to substitute F.R.E. Construction Company (F.R.E.), a DBE certified company for Falero, should Falero not substantiate its claim of being currently DBE certified. At all times material hereto, Amable Falero and Jose M. Rodriquez owned 100 percent (50 percent each) of the stock of Falero and 70 percent (35 percent each) of the stock of FRE. Falero and FRE, although independent companies, operate from the same business location, have the same management and office staff and use some of the same employees interchangeably. On November 5, 1986, the Respondent received a letter from Mr. Rodriquez, co-owner of Falero. Mr. Rodriquez stated that he personally advised Golden Eagle that Falero was a certified DBE firm and that he had a letter in his files substantiating his claim. Mr. Rodriquez advised Respondent that he had made this representation to Golden Eagle in error. When Respondent discovered that Falero was not a certified DBE, the bid documents were forwarded to its Good Faith Efforts Review Committee for a determination of Petitioner's good faith efforts. The Good Faith Efforts Committee was formed in 1984 and its primary responsibility is to make an objective evaluation of good faith efforts of prime contractors who submit bids to D-O-T. Rule 14-78.03(2)(b)4, F.A.C. lists several factors that the Respondent is required to consider in evaluating a contractor's good faith efforts. (Those factors are enumerated in detail in the Conclusions of law Section herein). The Respondent's practice and procedure is that it will conduct a limited review of the good faith evaluative criteria listed in the Rule even where the contractor has not included a "good faith efforts package" in its bid submission demonstrating good faith efforts. In such cases, the Respondent usually finds the bid non-responsive because of failure to provide documentation of good faith efforts. However, circumstances could exist where the Good Faith Efforts Committee may find good faith in the absence of any good faith efforts documentation specifically submitted by the contractor in its bid proposal. Thus, pursuant to the practice of the Good Faith Efforts Committee, the absence of information demonstrating good faith efforts within the bid proposal does not preclude its evaluation of the contractors' good faith efforts to achieve the goals. The Good Faith Efforts Committee completed a report form entitled "Good Faith Efforts Evaluation" in regard to Petitioner's bid. All of the required statutory criteria was listed on the form. In response to criteria IV ("whether the DBE or WBE goal was met by other bidders") the Respondent entered: "Goal met by other bidder." In response to criteria VII ("whether the contractor elected to sub-contract types of work that match the capabilities of solicited DBE's of WBE's"), the Respondent entered: "Bidder used quotes from three (3) areas." In response to criteria IX ("whether the contractor has on other contracts within the past six (6) months utilized DBE's and WBE's") the Respondent entered: "No projects in the last six (6) months." In response to all of the other criteria, the Respondent entered: "bidder did not submit any documentation", "no documentations", "did not provide documentation" or simply "none submitted". During the Good Faith Efforts Committee review of the Petitioner's bid, the committee was aware that Falero had been a certified DBE in the past, that the Petitioner's bid included an apparent 19.5 percent DBE participation with Falero and that without Falero the Petitioner achieved over 90 percent of the DBE participation goals. Based on the information which it had, the Good Faith Efforts Committee was apparently satisfied that such information did not establish good faith efforts and recommended that the bid be declared non-responsive based on the Petitioner's failure to include good faith efforts documentation with its bid proposal. On November 12, 1986, the report of the Good Faith Efforts Committee was forwarded to the Technical Awards Committee, and based on that report, the Technical Awards Committee voted unanimously to reject the Petitioner's bid as non-responsive and to recommend awarding the contract to Intervenor. Respondent's Final Review Committee, the Contract Awards Committee then decided to declare Petitioner's bid non- responsive and to award the contract to Intervenor. On November 18, 1986, the Respondent mailed a Notice of Switch in Apparent Low Bidder to all parties indicating that Golden Eagle, the apparent low bidder, had been declared non-responsive due to failure to meet DBE requirements and proposing to award the contract to Intervenor, the second low bidder. GOLDEN EAGLE'S HONEST MISTAKE While compiling its bid, one of Petitioner's employees noted that Falero was not listed in the D/WSE Directory. The Petitioner contacted Falero and was informed by one of Falero's owners that Falero was a certified DBE and had a current certification letter. Ms. Heather Calligan, the Petitioner's majority stock holder, was satisfied in her belief that Falero was a certified DBE for several reasons. First, Ms. Calligan was personally acquainted with the owners and knew them to have been DBE certified by Respondent in the past. In addition, Golden Eagle has been a WBE since 1979 and Ms. Calligan was aware that her company's name had been occasionally left off of the D/WBE Directory during times it was certified and should have been included. Based on those factors, the Petitioner honestly believed that Falero was DBE certified and did not call the Department's Minority Programs office to verify Falero's DBE status nor request that Falero produce its letter of certification. FALERO'S STATUS Falero was certified by the Respondent on April 4, 1983, as a minority business enterprise for a period of one year. On May 14, 1984, the company was re-certified for another one year period. On November 20, 1985, the Respondent received an application for re- certification as a disadvantaged business enterprise from Falero. After an initial review of the application, the Respondent wrote Falero a letter dated December 3, 1985 requesting that the company provide: The current financial statement or a breakdown of current assets and liabilities and, Copies of the registration of all vehicles owned by the company. The policy of the Respondent with regard to incorrect or incomplete information submitted by DBE's is to acknowledge receipt of the information and to advise the DBE as to what information should be submitted. The file is then placed in an "abeyance" status pending receipt of the requested information. In October of 1986, Falero had still not fully responded to the Respondent's letter of December 3, 1985 with the complete information requested. After its initial request for additional information, the Respondent made no further request for additional information from Falero with regard to the November 20, 1985 application for re-certification. Falero finally supplied all of the information requested in the December 3, 1985 letter to Respondent in December 1986 in conjunction with a new application for certification. Thereafter, Falero was certified as a DBE in January 1987. Between May 1985 and January 1987 Falero was not a certified DBE and was not included on any of the D/WBE directories prepared by the Respondent during that period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that: The bid of Golden Eagle Contractors, Inc. on State Project No. 90010- 3519 be declared non-responsive; The contract for State Project No. 90010-3519 be awarded to Intervenor; and The protest of Golden Eagle Contractors, Inc. be DISMISSED. DONE and ORDERED this 18th day of March, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0250BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 2. Adopted in Finding of Fact 1. Adapted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Findings of Fact 7 and 10. Adopted in Finding of Fact 10. Adopted in Finding of Fact 5. Adopted in Finding of Fact 11. Adopted in Finding of Fact 24. Addressed in Procedural Background Section. Addressed in Procedural Background Section. Addressed in Procedural Background Section. Addressed in Procedural Background Section. Addressed in Procedural Background Section. Adopted in Finding of Fact 14. Adopted in Finding of Fact 25. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 29. Adopted in Finding of Fact 31. Adopted in Finding of Fact 14. Rejected as subordinate. Adopted in Finding of Fact 13. Rejected as not supported by the weight of the evidence. Adopted in Finding of Fact 14. Adopted in Finding of Fact 27. Rejected as subordinate. Rejected as subordinate. Adopted in substance in Findings of Fact 26 and 27. Rejected as subordinate. Adopted in Finding of Fact 19. Rejected as subordinate. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 4 and 7. Adopted in Findings of Fact 5, 10 and 11. Addressed in Procedural Background Section. Adopted in substance in Findings of Fact 19, 20 and 21. Adopted in substance in Findings of Fact 9 and 24. Adopted in substance in Findings of Fact 20 and 21. Adopted in substances in Finding of Fact 19. Adopted in substance in Findings of Fact 17, 18, 19 and 20. Adopted in substance in Finding of Fact 21. Adopted in substances in Finding of Fact 21. Adopted in substance in Findings of Fact 13 and 14. Rejected as a recitation of testimony. Rulings on Proposed Findings of Fact Submitted by the Intervenor Adopted in substance in Findings of Fact 7, 9 and 24. Adopted in substance in Finding of Fact 7. Adopted in substance in Findings of Fact 7 and 9. Addressed in Conclusions of Law Section. Adopted in substance in Findings of Fact 10, 11 and 14. Adopted in substance in Findings of Fact 25 and 31. Adopted in substance in Findings of Fact 24 and 31. Adopted in substance in Finding of Fact 26. Partially adopted in Finding of Fact 30. Matters not included therein are rejected as argument and/or subordinate. Addressed in Conclusions of Law Section. Adopted in substance in Findings of Fact 11, 12, 20 and 21. Adopted in substance in Finding of Fact 21. Rejected as argument. Partially adopted in Finding of Fact 24. Matters not contained therein are rejected as argument. Partially adopted in Findings of Fact 13 and 14. Matters not contained therein are rejected as argument. Rejected as argument. COPIES FURNISHED: Melissa Fletcher Allaman, Esquire Post Office Box 1170 Tallahassee, Florida 32302-1170 Jay O. Barber, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 John O. Williams, Esquire 1343 E. Tennessee Street Tallahassee, Florida 32308 Kaye N. Henderson Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301 A. J. Spalla, Esquire Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
The Issue The issue is whether Certified Armored Service, Inc. is the lowest responsible bidder.
Findings Of Fact On or about July 1, 1991, the Respondent published a Request for Bid seeking bids for a courier service to pick up funds from various district school sites and deliver them to a specified bank. The cover page of the Request for Bid, in the first paragraph, stated that: "any bid accepted or contract awarded shall be to the lowest responsible bidder meeting the requirements of law and State Board of Education Regulations". The Respondent received no protest of the specifications for this bid. (Joint Exhibit 1; Testimony of G. Long; T-10). The courier service contemplated under Bid No. 346 is of the same nature and scope as the Respondent has received in the previous years, provided most recently by the Petitioner. (Testimony of G. Long and E. Caudell). Six (6) bids were received by the Respondent. The bids were stated as cost per pick-up per day. From the lowest to the highest, the first four (4) bids were: Wells Fargo ($3.25); Sun Courier ($4.40); Certified Armored Service, Inc. ($4.50); and Pro-Run Courier Service ($5.00). (Joint Exhibits 2, 3 , 4, 5 and 8). The bid from Wells Fargo was deemed to be incomplete because it did not include specific prices for the additional cost, if any, of pick-up and delivery of activity funds to a bank other than Sun Bank. Accordingly, the bid of Wells Fargo was rejected. (Joint Exhibits 2 and 8; Testimony of G. Long). The next lowest bid was by Sun Courier, who was recommended to receive the award and that recommendation was posted on July 16, 1991. At the August 20, 1991 meeting, the Respondent was provided with a copy of a letter dated August 12, 1991 from Dwight Chastain, Supervisor, Division of Licensing, to Nick Chappini of Certified Armored Service, Inc. opining that a courier service, such as the subject of the Respondent's Bid No. 346, was required to be licensed under Chapter 493, Florida Statutes. (Joint Exhibits 9 and 10). At its meeting on August 20, 1991, the Respondent did not award the bid to Sun Courier, but directed that the administration ensure that the lowest responsive bidder meet all certification and licensure requirements. On August 23, 1991, a representative of the Respondent wrote to counsel for the Division of Licensing requesting a legal opinion on whether the proposed courier service would be a security agency subject to licensure under Chapter 493, Florida Statutes. On September 4, 1991, a reply was received from the Division of Licensing opining that such a license would be required. (Joint Exhibits 11 and 12). Following receipt of the legal opinion from the Division of Licensing, representatives of the Respondent contacted the owner of Sun Courier to inquire whether Sun Courier had or would be willing to obtain the necessary security agency license. The owner of Sun Courier indicated that he did not have the license and that, in view of the large fines which can be levied by the Division of Licensing, he was unwilling to assume the duties of courier during the time a license application would be pending. (Testimony of G. Long). On September 6, 1991, a representative of the Respondent wrote to all entities which had submitted bids, informing them that the recommendation for award, of Bid No. 346 was changed from Sun Courier to the Intervenor. The Petitioner received its copy of the letter on September 10, 1991. (Joint Exhibit 13). On September 11, 1991, the Respondent received a notice of protest by the Petitioner of the recommended award to the Intervenor; and on September 12, 1991, the Respondent received a letter from the Petitioner explaining the grounds for its protest. No other bidders, including Sun Courier, protested the intended award to the Intervenor. (Joint Exhibits 14 and 15; Testimony of G. Long). The Intervenor is owned and operated by Robert D'Agostino. The Intervenor was incorporated in 1991. At the time the bids were requested on July 1, 1991, the Intervenor had at least two customers who were receiving courier service. The Intervenor was licensed as a security agency under Chapter 493, Florida Statutes, in June of 1991. Prior to creating Certified Armored Service, Inc., Mr. D'Agostino had been employed by Wells Fargo for eight (8) years in the position of driver, messenger and truck supervisor. The duties of those positions included the pick-up, handling and delivery of funds. Mr. D'Agostino was also previously employed by the Petitioner during the school years 1989-90 and 1990-91 in the capacity of supervisor and driver. While with the Petitioner, Mr. D'Agostino regularly drove a route among eighteen (18) schools in Alachua County and performed the same pick-up and delivery service as is the subject of Bid No. 346. (Testimony of R. D'Agostino, D. Newman). While he was working for the Petitioner, Mr. D'Agostino performed his duties in a manner which was completely acceptable to those school personnel who dealt with him, and no complaints about Mr. D'Agostino or his job performance as courier were received by the school district office. (Testimony of E. Caudell).
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 the School Board of Alachua County enter a Final Order dismissing the bid protest of Pro-Run Courier Service on Bid #346. DONE AND ENTERED this 22 day of January, 1992, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22 day of January, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-7I75BID Alachua County School Board's proposed findings were read, considered, and adopted. Pro Run submitted a letter dated November 15, 1991 which was read and considered. It did not set forth any specific findings. Certified submitted a proposed order which was read and considered. The Board's more proposed findings included those made in Certified's proposed order. COPIES FURNISHED: Dr. Douglas Magann, Superintendent Alachua County School Board 620 E. University Avenue Gainesville, FL 32601 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400 Diane Newman Corporate Representative Pro-Run Courier Service P.O. Box 15143 Gainesville, FL 32604-5143 Thomas L. Wittmer, Esq. School Board of Alachua County 620 East University Avenue Gainesville, FL 32601 Bevin G. Ritch, Esq. P.O. Box 1025 Gainesville, FL 32602
