The Issue The issue is whether two persons were employees or independent contractors of Respondent, pursuant to Chapter 440, Florida Statutes, and, if employees, an additional issue is the penalty that Petitioner should impose against Respondent for his failure to obtain workers’ compensation coverage for the two employees.
Findings Of Fact At the time in question, Respondent was in the business of erecting enclosures for swimming pools. On most of these jobs, Respondent served as a subcontractor of Commercial Residential Construction. On April 7, 1998, Respondent was providing labor and materials, as a subcontractor to Commercial Residential Construction, on a screened-enclosure job located at 2242 Otter Creek Lane in Sarasota. Commercial Residential Construction supplied the aluminum and screen used for this job. For this job, Respondent hired two individuals who had worked for Commercial Residential Construction or other independent contractors in the construction business. Respondent did not have workers’ compensation coverage for the two individuals working with him on this job. Respondent’s agreement with these two persons was to pay them, on a weekly basis, a specified percentage of the total price that Respondent was to receive for the work. If the contractor refused to pay Respondent due to unsatisfactory work, then Respondent would not pay the two individuals. The two individuals had to supply their own tools. Sometimes they transported themselves to the job site; sometimes, as a matter of convenience, Tom Dybalski, the owner of Respondent, transported them or was transported by them. The two individuals did not testify. Petitioner called Mr. Dybalski as a witness; otherwise, Petitioner’s witnesses consisted exclusively of staff and investigators. However, these witnesses were unable to establish the statements of the two putative employees because of hearsay. The findings of fact contained in this recommended order are derived from Mr. Dybalski’s testimony or admissions made to one of Petitioner’s investigators. However, the administrative law judge has not relied on hearsay testimony, which is admissible under the exception for admissions against interest, that Mr. Dyblaski admitted that the two individuals were employees. Mr. Dyblaski is an aluminum contractor, not an attorney, and his “concession” concerning a complex matter, especially given his obvious ignorance of the applicable legal criteria, is not entitled to any weight. Admissible evidence does not establish whether the two individuals had exemptions from workers’ compensation. Mr. Dybalski testified that he did not know whether they did. The two individuals did not testify, so it is impossible to determine from this source whether they had exemptions. The record is similarly devoid of competent evidence establishing Respondent’s contention that the two individuals were employees of Commercial Residential Construction while working on the subject job.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation enter a final order finding Respondent guilty of failing to obtain workers’ compensation coverage to two employees and imposing a penalty in the amount of $1000. DONE AND ENTERED this 9th day of September, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1998. COPIES FURNISHED: Louise T. Sadler Senior Attorney Division of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 A. Brent McPeek Attorney 3986 South Tamiami Trail Venice, Florida 34293 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
The Issue Pursuant to Section 120.57(3)(f), Florida Statutes (2009), the issue is whether Respondent Agency for Health Care Administration (AHCA) properly determined that Petitioner Maximus Health Services, Inc.'s (Maximus) reply to Invitation to Negotiate 0904 (ITN 0904) was non-responsive for failure to meet mandatory criteria.
Findings Of Fact Beginning in 2006, the Florida Legislature required the AHCA to implement Medicaid Reform. Medicaid Reform was intended to empower consumers to take an active role in their health care decisions. To serve that purpose, the Legislature required the AHCA to contract with a choice counseling/enrollment broker to provide Medicaid services in Broward, Duval, Nassau, Clay, and Baker counties. ITN 0904 sought to procure an enrollment broker for a three-year contract. It was released on March 9, 2009. The resulting contract is worth in excess of $30 million dollars from June 1, 2009, through June 30, 2011. ITN 0904 consisted of a series of attachments, including the following in relevant part: (a) Attachment C contained “Special Conditions"; (b) Attachment E provided “Evaluation Criteria”; and (c) Attachment G set forth "Required Certifications." The mandatory requirements of ITN 0904 were announced at Section C.7 of ITN 0904 as follows: C.7 Mandatory Requirements: The State has established certain requirements with respect to responses submitted to competitive solicitations. The use of "shall", "must", or "will" (except to indicate futurity) in this solicitation, indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with the solicitation requirement, provides an advantage to one respondent over another, or has a potentially significant affect of the quality of the response or on the cost to the state. Material deviations cannot be waived. The words "should" or "may" in this solicitation, indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such desirable feature (sic) will not in itself cause rejection of a response. Section C.13 set forth the required certifications as follows in pertinent part: Required Certifications: The following certifications, contained in Attachment G, are required and must be submitted with the response: * * * Certification Regarding Terminated Contracts - certifying the vendor (including its subsidiaries and affiliates) has not unilaterally and willfully terminated any previous state or federal contracts for cause within the past five (5) years. FAILURE TO SUBMIT ATTACHMENT G, REQUIRED CERTIFICATIONS, SIGNED BY AN AUTHORIZED OFFICIAL WITHOUT EXCEPTIONS OR CAVEATS, WILL RESULT IN THE REJECTION OF A PROSPECTIVE VENDOR'S RESPONSE. Section C.14 described the proposal guarantee as follows in relevant part: Proposal Guarantee: The original technical response must be accompanied by a proposal guarantee payable to the State of Florida in the amount of $260,000. The respondent must be the guarantor. Section C.38 contains general instructions for response preparation and submission as follows in pertinent part: The solicitation response shall consist of the following parts: A. Transmittal Letter This letter is mandatory . . . . The following documentation shall also be included with the transmittal letter: Proposal Guarantee, as required in Section C.14. Signed Attachment G, Required Certifications, as required in Section C.13. Signed Attachment L, Attestation of No Conflict, attesting that the vendor has no conflict of interest as described in Section C.31. FAILURE TO SUBMIT THE MANDATORY TRANSMITAL LETTER, INCLUDING ITEMS 1-3 ABOVE, WILL RESULT IN REJECTION OF THE PROPOSAL. In Attachment E of ITN 0904, AHCA set forth the evaluation criteria it would use to assess the merits of responses. In Section E.1, the Agency announced that it would review mandatory criteria as follows: E.1 Review of Mandatory Criteria The Procurement Office will evaluate responses to this solicitation against the mandatory criteria found in Part I, Mandatory Criteria. Responses failing to comply with all mandatory criteria will not be considered for further evaluation. Part I is entitled Technical Response Mandatory Criteria. It is a checklist of some of the mandatory requirements of ITN 0904 and states as follows in relevant part: This evaluation sheet will be used by the Agency for Health Care Administration to designate proposals as "responsive" or "non- responsive". If the answer to any of the questions in the table below falls in to the "No" column, the proposal will be designated as "non-responsive" and will not be considered for further evaluation. QUESTIONS YES NO A. Does the response include a transmittal letter, signed by an individual having authority to bind the vendor, containing the following information, as outlined in Section C.38.A? The proposal guarantee, as specified in Section C.15 (sic)of this solicitation; ? A signed Attachment G, Required Certifications, as specified in Section C.13 of this solicitation; ? Attachment G is a form for all required certifications, including but not limited to the following: Certification Regarding Terminated Contracts I hereby certify that my company (including its subsidiaries and affiliates) has not unilaterally or willfully terminated any previous contract prior to the end of the contract with a state or the federal government and has not had a contract terminated by a state or the federal government for cause, prior to the end of the contract, within the past five years. Signature of Authorized Official Date On July 30, 2008, after receiving questions from interested vendors, AHCA issued an Addendum No. 1 to ITN 0904. The purpose of the addendum was to provide clarification and additional information, to make changes to certain attachments, and provide AHCA's response to questions received from prospective vendors. The addendum included the following statement: To the extent this Addendum gives rise to a protest, failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes. The following pertinent questions and answers were included in Addendum No. 1: Question 1: Pursuant to Attachment A.9 and Attachment C.13, please clarify whether the certification relates to the vendor terminated a contract or the government agency terminated a contract, or two different certifications. Answer: Please see Attachment G, Required Certifications, as referenced in Attachment C.13. This certification relates to the vendor (including its subsidiaries and affiliates) unilaterally or willfully terminating any previous contract prior to the end of the contract with a state or the federal government, and to the vendor having a contract terminated by a state or the federal government for cause prior to the end of the contract, within the past five years. * * * Question 8: Attachment C.13 - Please clarify whether the bidder will be disqualified if there is even one instance where a government contract was terminated for cause in the past 3 years. Answer: Respondents must submit a signed certification (Attachment G) in order to be considered responsive. Maximus admits that it asked Question 8 and received the answer set forth above. Maximus did not challenge any of the specifications in ITN 0904 after issuance of Addendum No. 1. Bruce Caswell, the President and Chief Executive Officer of Maximus, signed the required certifications on Attachment G on August 24, 2009. On the following page, Mr. Caswell included information about a terminated contract involving its parent company, Maximus, Inc., as set forth below. AHS, Maximus, and Policy Studies, Inc. (PSI) submitted replies to ITN 0904 on or about August 24, 2009. AHCA opened the replies that same day and forwarded them to AHCA's Procurement Officer, Barbara Vaughan. Ms. Vaughan had the responsibility to determine compliance with ITN 0904's "Technical Response Mandatory Criteria," using the checklist set forth above. Ms. Vaughan has been AHCA's Procurement Administrator since April 2009. She does not have knowledge and experience in all the technical areas for which AHCA may procure services. During the hearing, Ms. Vaughan did not know what an enrollment broker service is. She did not read the technical responses to ITN 0904. She only examined whether the responses included the mandatory items on the checklist. Sometime in September 2009, Ms. Vaughan determined that Maximus had submitted a non-responsive proposal because it included information regarding a contract that the State of Connecticut terminated with Maximus, Inc. Specifically, Maximus included the following additional information following its certification on Attachment G: ADDITIONAL INFORMATION FOR ITN ATTACHMENT G As noted in the form on the previous page, we certify that MAXIMUS Health Services has not terminated any contract or been terminated prior to the end of the contract term during the past five years. Since, MAXIMUS Health Services is a subsidiary of MAXIMUS, Inc. we offer information about the parent company with respect to this certification. Of the thousands of contracts held by MAXIMUS, Inc. during the past five years, there is one incident of relevance. In this situation, in 2007, a MAXIMUS, Inc. contract to provide an updated criminal justice information system was terminated by the State of Connecticut prior to the end of the contract term after the primary subcontractor of MAXIMUS, Inc. abandoned the project. MAXIMUS, Inc. is disputing the State's termination and has sued its primary subcontractor. Mr. Caswell decided to include the forgoing exception or caveat following his certification because he understood that Maximus, Inc., as Maximus' parent company, was an affiliate and he did not want any misunderstanding. Mr. Caswell's interpretation of the word "affiliate" is consistent with the definition applied by AHCA in its review of the Technical Response Mandatory Criteria. At the hearing, Mr. Caswell, testified regarding the Connecticut contract. According to Mr. Caswell, Maximus, Inc., found itself in a position where it was unable to deliver on a contract for an integrated criminal justice solution with the State of Connecticut due to the mal-performance of its subcontractor. Mr. Caswell stated that Maximus, Inc., then moved to terminate the contract for convenience pursuant to the contract's terms; however, the State of Connecticut rejected Maximus' termination for convenience. Mr. Caswell admitted that the State of Connecticut then terminated the contract for cause and filed suit against Maximus, Inc., in approximately November 2007. Maximus is defending itself and suing its former sub-contractor in that on-going litigation. The State of Connecticut has alleged damages of $6.5 million dollars in their claim against Maximus, Inc. As a company listed on the New York Stock Exchange, Maximus, Inc., had annual revenues of approximately $717 million during the most recent fiscal year. The company has no debt and $87 million of cash on hand. The Connecticut dispute is less than one percent of the company's annual revenues. The following facts are undisputed: (a) Maximus has performed thousands of contracts without cancellation; Maximus is a wholly-owned subsidiary of Maximus, Inc.; Maximus, Inc., is a leading provider of health and human services and consulting and program management services primarily to state governments; (d) Maximus, Inc., offers Medicaid-managed care enrollment brokerage services for thirteen states around the country, serving nearly 15 million Medicaid beneficiaries; and (e) Maximus performs enrollment broker contracts for several states. These facts do not make the Connecticut litigation immaterial considering AHCA's clear intent in drafting ITN 0904 relative to terminated contracts. The mandatory requirement for a certification regarding terminated contracts, without exceptions or caveats, was a reasonable specification because, as Mr. Caswell testified, disputes like the one between Connecticut and Maximus, Inc., are common in the industry. Ms. Vaughan correctly interpreted the language of ITN 0904 when she concluded that no explanation of a terminated contract involving a vender or its affiliates was allowed by the solicitation. Therefore, Ms. Vaughan did not forward Maximus' proposal for scoring by the evaluation team. In comparing Maximus' submission to the mandatory requirement for a proposal guarantee to the checklist included in Attachment E, Ms. Vaughan determined that Maximus' submission was responsive. She reached this conclusion even though Maximus' proposal guarantee was not in its own name as required by Section C.14. Instead, Maximus included a "Bid Bond" guaranteed by Maximus, Inc. The bond identifies Maximus, Inc., as Principal, Travelers Casualty and Surety Company of America, as Surety, and AHCA, as Obligee. The bond erroneously states that Maximus, Inc., has submitted a bid for Solicitation Number AHCA ITN 0904, Florida Medicaid Enrollment Broker Services. The bond then goes on to describe its terms and conditions. There is no mention of the Surety guaranteeing performance by any subsidiary or affiliate of Maximus, Inc., or specifically by Maximus. Ms. Vaughan made her decision to reject Maximus’ bid just a week or two after bid openings, sometime in September 2009. However, AHCA did not announce its bid decision as it related to Maximus at that time. Instead, AHCA announced the rejection of Maximus after it announced the intended award of contract to AHS. The notice of Maximus' rejection followed an evaluation of responses by AHS and PSI, a negotiation session with AHS and PSI, and a subsequent negotiation session with AHS, who then provided the best and final offer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the protest. DONE AND ENTERED this 26th day of January, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2010. COPIES FURNISHED: Seann M. Frazier, Esquire Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32302-7742 Rachic Avanni Wilson, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 David W. Nam, Esquire Agency for Health Care Administration Fort Knox Building III, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 William E. Williams, Esquire Gray Robinson, P.A. 301 South Bronough Street, Suite 600 Tallahassee, Florida 32301 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Thomas W. Arnold, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308
The Issue Whether the Petitioner demonstrated that she was employed by Respondent, the “employer” identified in her Petition for Relief, thus allowing her to proceed with her claim that she was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Workforce Florida, Inc. (WFI), is a not-for-profit corporation created by the Legislature as the policy organization for the state of Florida charged with implementing the federal Workforce Investment Act of 1998, Pub. L. No. 105-220. WFI was administratively housed within the Agency for Workforce Innovation (AWI) but was not subject to its control, supervision, or direction.1/ WFI provides oversight and policy direction to ensure the proper administration of a number of job counseling, placement, and training programs funded by the federal government. The Alachua-Bradford Regional Workforce Board d/b/a FloridaWorks (Board) is one of 24 regional workforce boards established by law to provide ongoing oversight related to administrative costs, duplicated services, career counseling, economic development, equal access, compliance and accountability, and performance outcomes, and to oversee the “one-stop” delivery system in its local area. The regional boards are chartered by WFI upon a determination that the membership and workforce development plans are consistent with state law and the overall state workforce development strategy. The members of the Board are appointed by the county commissions of Alachua and Bradford Counties. The Board itself has no employees. “One-stop” services include a variety of services related to employment, career counseling, education, skills training, and support services. Certain federally-funded services provided at one-stop service centers, including Wagner-Peyser Act labor exchange services, are required to be administered by state employees, rather than local or contracted providers. For those services, AWI places AWI employees at the one-stop centers. The Florida Institute for Workforce Innovation (FIWI) is the Board’s contracted one-stop delivery system operator. Employment services offered in Alachua and Bradford Counties are provided through the one-stop delivery system, under the guidance of FIWI. FIWI is the “hands on” service provider responsible for the day-to-day operation of the service programs. Respondent is the Board’s contracted administrative entity responsible for program compliance, quality assurance, and monitoring. Respondent provides administrative services to the Board itself, and is responsible for the Board’s fiscal activities and disbursements to contracted providers. Respondent does not perform any human relations or personnel evaluations, supervision, or oversight for the Board or for any entity operating from the one-stop center. In addition to responsibilities prescribed by statute, the descriptions and delineations of authority under which AWI and the Board operate are established in the “Master Cooperative Agreement Between FloridaWorks and the Agency for Workforce Innovation (AWI).” The Master Agreement “sets forth the terms and conditions that FloridaWorks . . . agrees to [for] the receipt of federal workforce funds from [AWI].” Exhibit “A” to the Master Agreement consists of a “Memorandum of Understanding between FloridaWorks and the Agency for Workforce Innovation for the Delivery of Wagner-Peyser Funded Employment Services and Other Workforce Program Services Provided by the Agency.” The purpose of the Memorandum of Understanding is to “establish an organizational framework to integrate the delivery of Agency program services into the One-Stop delivery system established by the Board.” The Memorandum of Understanding further provides that “[a]lthough the One-Stop system operator or managing partner shall have overall authority for directing agency staff assigned to One-Stop centers, personnel matters, such as hiring and discipline, shall remain under the ultimate authority of the agency.” Finally, the Memorandum of Understanding provides that: AWI staff assigned to the local One-Stop centers shall deliver [AWI] program services listed in Section I of this Agreement. The delivery of these services shall be done in compliance with all applicable Federal and State laws, including equal opportunity and non-discrimination laws. [AWI] shall be responsible for funding, directing, controlling, and delivering the workforce services provided by the AWI staff consistent with Federal guidelines and consistent with the direction provided by the Board. The organizational chart in the Memorandum of Understanding identified Petitioner as an AWI staff member assigned to deliver AWI program services. Petitioner was employed by FIWI from 2001 to 2002. In 2002, Petitioner accepted employment with AWI. As an employee of AWI, Petitioner received pay and benefits as an employee of the state of Florida, including group health insurance and contributions to the State Retirement System. Petitioner performed her job duties at the Alachua- Bradford one-stop service center as an AWI employee. The alleged discriminatory acts were directed at Petitioner by Ms. Betty Holmes, Petitioner’s supervisor and an employee of AWI.2/ The adverse employment practice that resulted from the alleged discriminatory acts, i.e. the termination of Petitioner, was accomplished by a termination letter issued by AWI, and signed by Tom Clendenning, AWI’s Assistant Director. Respondent did not hire Petitioner. Respondent did not directly supervise Petitioner. Respondent did not evaluate Petitioner’s performance as an employee. Respondent did not have decision-making authority as to where Petitioner physically worked. Respondent was not responsible for Petitioner’s pay or benefits. Respondent was not involved in the decision to eliminate Petitioner’s position or otherwise terminate Petitioner from employment. In short, Respondent exhibited no indicia of being Petitioner’s employer. Ms. Pate was not advised of any discriminatory acts by Ms. Holmes or otherwise. Although Ms. Pate indicated that she had an open door policy, attended regular meetings of one-stop center personnel, and frequently walked the corridors of the one- stop center building, none of which Petitioner disputed, Petitioner indicated that she would not intrude on a person without a specific reason and an appointment. Petitioner did not make any such appointment with Ms. Pate, nor does the record reveal that information regarding Ms. Holmes’ alleged discriminatory acts was ever conveyed to any employee of Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 14th day of September, 2011, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2011. 1/ The AWI was subject to extensive governmental reorganization in 2011, which resulted in its dissolution, with its duties and responsibilities transferred to the Department of Economic Opportunity. All acts material to this proceeding occurred while AWI was still an agency of the state of Florida. 2/ Although the organizational chart received in evidence shows Petitioner’s supervisor to be Arelis Rosario, an employee of FIWI, both Petitioner and Ms. Pate considered Ms. Holmes to be Petitioner’s direct supervisor. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carla D. Franklin, Esquire Carla D. Franklin, P.A. 204 West University Avenue, Suite 3 Gainesville, Florida 32601 Georgie M. Breville 2678 Southwest 14th Drive Gainesville, Florida 32608 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's Final Determination be approved and that Respondent be required to repay $1,753 in grant funds expended in a manner inconsistent with Department regulations. DONE and ENTERED this 16th day of February, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1982. COPIES FURNISHED: Sonja P. Mathews, Esquire Suite 117-Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Robert L. Davis Post Office Box 350 Apalachicola, Florida 32320
The Issue Whether Respondent committed the violations alleged in the agency action letter dated June 21, 2018.
Findings Of Fact Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove and suspend its employees, and fix their compensation within the guidelines of Escambia County Civil Services Rules. ECUA’s mission statement specifies that the Board and employees of ECUA “are committed to providing the highest quality service” and that “ECUA will always provide cost-effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct. During the relevant time period, ECUA employed Mr. Page as the utility service worker in the patch services division (“the patch crew”). Mr. Page acknowledged on October 10, 2016, that a copy of the Manual was made available to him. The patch crew normally works from 7:00 a.m. to 3:30 p.m., with a 30-minute lunch break. The patch crew also receives two 15-minute breaks each day. Mr. Page would normally begin each workday by reporting to an ECUA building on Sturdevant Street where the patch crew’s trucks are maintained. The patch crew would use one or more of those vehicles to complete the day’s assignments and return them to the Sturdevant Street location at the end of each day. ECUA’s management received information in May of 2018, that members of the patch crew were leaving work early without authorization. This information led ECUA’s management to initiate an investigation. Part of that investigation involved the installation of tamper-proof global positioning devices (“GPS”) in ECUA vehicles. Those devices transmit a vehicle’s precise location to ECUA at two-minute intervals. The GPS devices also inform ECUA whether a vehicle is moving, idle, or stopped. ECUA’s management also hired a private investigator, Terry Willette, to observe and record the activities of the patch crew. Findings Regarding the Allegations from May 10, 2018 On May 10, 2018, Mr. Page received at least four assignments to fill holes at locations in Pensacola. Mr. Page recorded in ECUA’s work tracking system that he spent two hours completing two of those jobs and one hour completing the other two. Mr. Willette followed Mr. Page that day, and his observations contradict those time entries. Mr. Willette observed Mr. Page driving all over Pensacola, stopping on several occasions, and performing significant work at only one location. ECUA has proven by a preponderance of the evidence that Mr. Page wasted an excessive amount of time on May 10, 2018. Findings Regarding the Allegations from May 11, 2018 The May 11, 2018, GPS report for truck #1624 indicates that it stopped at or near Mr. Page’s residence from approximately 9:21 a.m. to 9:28 a.m. It is possible that Mr. Page used one of his 15-minute breaks to stop at his residence, and there is no evidence that ECUA expressly prohibits employees from stopping at their homes. The preponderance of the evidence does not demonstrate that Mr. Page violated any Manual provisions on May 11, 2018. Findings Regarding the Allegations from May 24, 2018 The patch crew employees use an electronic timekeeping system to record the amount of hours they work each day. The Manual specifies that every ECUA employee is responsible for verifying the accuracy of those time entries. Mr. Page’s entry for May 24, 2018, indicates he worked eight hours that day. Mr. Willette observed Mr. Page leaving work at 12:59 p.m. on May 24, 2018. Also, one of the ECUA trucks often utilized by Mr. Page was in use from 7:01 a.m. until 12:57 p.m. on May 24, 2018, and was not used again that day. The preponderance of the evidence demonstrates that Mr. Page failed to verify the accuracy of his time entry for May 24, 2018.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Tadarel S. Page violated Section B-3, attendance records; Section B-13 A (4), conduct unbecoming an ECUA employee; Section B-13 A (13), falsification of records; Section B-13 A (18), loafing; Section B-13 A (21), neglect of duty; Section B-13 A (26), substandard quality and/or quantity of work; and Section B-13 A (33), violation of ECUA rules or guidelines or state or federal law. DONE AND ENTERED this 18th day of September, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 18th day of September, 2018.
The Issue Whether the Department of Corrections? action to withdraw its Intent to Award and to reject all replies to ITN 12-DC-8396 is illegal, arbitrary, dishonest, or fraudulent, and if so, whether its Intent to Award is contrary to governing statutes, rules, policies, or the solicitation specifications.
Findings Of Fact The DOC is an agency of the State of Florida that is responsible for the supervisory and protective care, custody, and control of Florida?s inmate population. In carrying out this statutory responsibility, the Department provides access to inmate telephone services. On April 15, 2013, the DOC issued the ITN, entitled “Statewide Inmate Telephone Services, ITN 12-DC-8396,” seeking vendors to provide managed-access inmate telephone service to the DOC. Responses to the ITN were due to be opened on May 21, 2013. The DOC issued Addendum #1 to the ITN on April 23, 2013, revising one page of the ITN. The DOC issued Addendum #2 to the ITN on May 14, 2013, revising a number of pages of the ITN, and including answers to a number of vendor questions. EPSI, GTL, and Securus are providers of inmate telephone systems and services. Securus is the incumbent contractor, and has been providing the Department with services substantially similar to those solicited for over five years. No party filed a notice of protest to the terms, conditions, or specifications contained in the ITN or the Addenda within 72 hours of their posting or a formal written protest within 10 days thereafter. Replies to the ITN were received from EPSI, GTL, Securus, and Telmate, LLC. Telmate?s reply was determined to be not responsive to the ITN. Two-Part ITN As amended by Addendum #2, section 2.4 of the ITN, entitled “ITN Process,” provided that the Invitation to Negotiate process to select qualified vendors would consist of two distinct parts. In Part 1, an interested vendor was to submit a response that described certain Mandatory Responsiveness Requirement elements, as well as a Statement of Qualifications, Technical Response, and Financial Documentation. These responses would then be scored using established evaluation criteria and the scores would be combined with cost points assigned from submitted Cost Proposals. In Part 2, the Department was to select one or more qualified vendors for negotiations. After negotiations, the Department would request a Best and Final Offer from each vendor for final consideration prior to final award decision. The ITN provided that the Department could reject any and all responses at any time. High Commissions and Low Rates Section 2.5 of the ITN, entitled “Initial Cost Response,” provided in part: It is the Department?s intention, through the ITN process, to generate the highest percentage of revenue for the State, while ensuring a quality telephone service with reasonable and justifiable telephone call rate charges for inmate?s family and friends similar to those available to the public-at- large. Section 2.6 of the ITN, entitled “Revenue to be Paid to the Department,” provided in part that the Department intended to enter into a contract to provide inmate telephone service at no cost to the Department. It provided that, “[t]he successful Contractor shall pay to the Department a commission calculated as a percentage of gross revenues.”1/ The commission paid by a vendor is the single largest expense in the industry and is an important aspect of any bid. Contract Term Section 2.8 of the ITN was entitled “Contract Term” and provided: It is anticipated that the initial term of any Contract resulting from this ITN shall be for a five (5) year period. At its sole discretion, the Department may renew the Contract in accordance with Form PUR 1000 #26. The renewal shall be contingent, at a minimum, on satisfactory performance of the Contract by the Contractor as determined by the Department, and subject to the availability of funds. If the Department desires to renew the Contracts resulting from this ITN, it will provide written notice to the Contractor no later than thirty days prior to the Contract expiration date. Own Technology System Section 3.4 of the ITN provided in part: The successful Contractor is required to implement its own technology system to facilitate inmate telephone service. Due to the size and complexity of the anticipated system, the successful Contractor will be allowed a period of transition beginning on the date the contract is executed in which to install and implement the utilization of its own technology system. Transition, implementation and installation are limited to eighty (80) days. The Department realizes that some "down time" will occur during this transition, and Respondents shall propose an implementation plan that reduces this "down time" and allows for a smooth progression to the proposed ITS. GTL emphasizes the language stating that the successful contractor must implement “its own” technology system, and asserts that the technology system which EPSI offers to install is not owned by it, but by Inmate Calling Solutions, LLC (ICS), its subcontractor. However, EPSI demonstrated that while the inmate telephone platform, dubbed the “Enforcer System,” is owned by ICS now, that EPSI has a Master User Agreement with ICS and that an agreement has already been reached that before the contract would be entered into, a Statement of Work would be executed to create actual ownership in EPSI for purposes of the Florida contract. GTL alleges that in EPSI?s reply, EPSI relied upon the experience, qualifications, and resources of its affiliated entities in other areas as well. For example, GTL asserts that EPSI?s claim that it would be providing 83 percent of the manpower is false, since EPSI has acknowledged that EPSI is only a contracting subsidiary of CenturyLink, Inc., and that EPSI has no employees of its own. While it is clear that EPSI?s reply to the ITN relies upon the resources of its parent to carry out the terms of the contract with respect to experience, presence in the state, and personnel, EPSI demonstrated that this arrangement was common, and well understood by the Department. EPSI demonstrated that all required capabilities would be available to it through the resources of its parent and subcontractors at the time the contract was entered into, and that its reply was in conformance with the provisions of the ITN in all material respects. EPSI has the integrity and reliability to assure good faith performance of the contract. Call Recording Section 3.6 of the ITN, entitled “Inmate Telephone System Functionality (General),” provided in part: The system shall provide the capability to flag any individual telephone number in the inmate?s „Approved Number List? as „Do Not Record.? The default setting for each telephone number will be to record until flagged by Department personnel to the contrary. Securus alleges that section 3.6 of the ITN implements Department regulations2/ and that EPSI?s reply was non-responsive because it stated that recording of calls to specific telephone numbers would be deactivated regardless of who called that number. Securus alleges that this creates a security risk because other inmates calling the same number should still have their calls recorded. EPSI indicated in its reply to the ITN that it read, agreed, and would comply with section 3.6. While EPSI went on to say that this capability was not connected to an inmate?s PIN, the language of section 3.6 does not mention an inmate?s PIN either. Read literally, this section requires only the ability to “flag” any individual telephone number that appears in an inmate?s number list as “do not record” and requires that, by default, calls to a telephone number will be recorded until it is flagged. EPSI?s reply indicated it could meet this requirement. This provision says nothing about continuing to record calls to that same number from other inmates. Whether or not this creates a security risk or is what the Department actually desired are issues which might well be discussed as part of the negotiations, but this does not affect the responsiveness of EPSI?s reply to section 3.6. Furthermore, Mr. Cooper testified at hearing that EPSI does have the capability to mark a number as “do not record” only with respect to an individual inmate, at the option of the Department. EPSI?s reply conformed to the call-recording provisions of section 3.6 of the ITN in all material respects. Call Forwarding Section 3.6.8 of the ITN, entitled “System Restriction, Fraud Control and Notification Requirements,” provided that the provided inmate telephone services have the following security capability: Ability to immediately terminate a call if it detects that a called party?s telephone number is call forwarded to another telephone number. The system shall make a “notation” in the database on the inmate?s call. The system shall make this information available, in a report format, to designated department personnel. In response to an inquiry noting that, as worded, the ITN did not technically require a vendor to have the capability to detect call-forwarded calls in the first place, the Department responded that this functionality was required. Securus alleges that EPSI is unable to comply with this requirement, citing as evidence EPSI?s admission, made some months before in connection with an RFP being conducted by the Kansas Department of Corrections, that it did not yet have this capability. EPSI indicated in its reply to the ITN that it read, agreed, and would comply with this requirement. As for the Kansas solicitation, EPSI showed that it now possesses this capability, and has in fact installed it before. EPSI?s reply conformed to the call-forwarding provisions of section 3.6.8 of the ITN in all material respects. Keefe Commissary Network Section 5.2.1 of the ITN, entitled “Respondents? Business/Corporate Experience,” at paragraph e. directed each vendor to: [P]rovide and identify all entities of or related to the Respondent (including parent company and subsidiaries of the parent company; divisions or subdivisions of parent company or of Respondent), that have ever been convicted of fraud or of deceit or unlawful business dealings whether related to the services contemplated by this ITN or not, or entered into any type of settlement agreement concerning a business practice, including services contemplated by this ITN, in response to a civil or criminal action, or have been the subject of any complaint, action, investigation or suit involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. The Respondent shall identify the amount of any payments made as part of any settlement agreement, consent order or conviction. Attachment 6 to the ITN, setting forth Evaluation Criteria, similarly provided guidance regarding the assessment of points for Business/Corporate Experience. Paragraph 1.(f) provided: “If any entities of, or related to, the Respondent were convicted of fraud or of deceit or unlawful business dealings, what were the circumstances that led to the conviction and how was it resolved by the Respondent?” Addendum #2. to the ITN, which included questions and answers, also contained the following: Question 57: In Attachment 6, Article 1.f. regarding respondents “convicted of fraud, deceit, or unlawful business dealing . . .” does this include associated subcontractors proposed in this ITN? Answer 57: Yes, any subcontractors you intend to utilize on this project, would be considered an entity of and related to your firm. As a proposed subcontractor, ICS is an entity of, or related to, EPSI. There is no evidence to indicate that ICS has ever been convicted of fraud or of deceit or unlawful business dealings. There is no evidence to indicate that ICS has entered into any type of settlement agreement concerning a business practice in response to a civil or criminal action. There is no evidence to indicate that ICS has been the subject of any complaint, action, investigation, or suit involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. The only evidence at hearing as to convictions involved “two individuals from the Florida DOC” and “two individuals from a company called AIS, I think that?s American Institutional Services.” No evidence was presented that AIS was “an entity of or related to” EPSI. Conversely, there was no evidence that Keefe Commissary Network (KCN) or anyone employed by it was ever convicted of any crime. There was similarly no evidence that KCN entered into any type of settlement agreement concerning a business practice in response to civil or criminal action. It was shown that KCN “cooperated with the federal government in an investigation” that resulted in criminal convictions, and it is concluded that KCN was therefore itself a subject of an investigation involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. However, KCN is not an entity of, or related to, EPSI. KCN is not a parent company of EPSI, it is not a division, subdivision, or subsidiary of EPSI, and it is not a division, subdivision, or subsidiary of EPSI?s parent company, CenturyLink, Inc. EPSI?s reply conformed to the disclosure requirements of section 5.2.1, Attachment 6, and Addendum #2 of the ITN in all material respects. Phases of the ITN Section 6 describes nine phases of the ITN: Phase 1 – Public Opening and Review of Mandatory Responsiveness Requirements Phase 2 – Review of References and Other Bid Requirements Phase 3 – Evaluations of Statement of Qualifications, Technical Responses, and Managed Access Solutions3/ Phase 4 – CPA Review of Financial Documentation Phase 5 – Review of Initial Cost Sheets Phase 6 – Determination of Final Scores Phase 7 – Negotiations Phase 8 – Best and Final Offers from Respondents Phase 9 – Notice of Intended Decision Evaluation Criteria in the ITN As amended by Addendum #2, the ITN established scoring criteria to evaluate replies in three main categories: Statement of Qualifications (500 points); Technical Response (400 points); and Initial Cost Sheets (100 points). It also provided specific guidance for consideration of the commissions and rates shown on the Initial Cost Sheet that made up the pricing category. Section 6.1.5 of the ITN, entitled “Phase 5 – Review of Initial Cost Sheet,” provided in part: The Initial Cost Proposal with the highest commission (percentage of gross revenue) to be paid to the Department will be awarded 50 points. The price submitted in Table 1 for the Original Contract Term, and the subsequent renewal price pages for Table 1 will be averaged to determine the highest commission submitted. All other commission percentages will receive points according to the following formula: (X/N) x 50 = Z Where: X = Respondents proposed Commission Percentage to be Paid. N = highest Commission Percentage to be Paid of all responses submitted. Z = points awarded. * * * The Initial Cost Proposal with the lowest telephone rate charge will be awarded 50 points. The price submitted in Table 1 for the Original Contract Term, and the subsequent renewal price pages for Table 1 will be averaged to determine the highest commission submitted. All other cost responses will receive points according to the following formula: (N/X) x 50 = Z Where: N = lowest verified telephone rate charge of all responses submitted. X = Respondent?s proposed lowest telephone rate charge. Z = points awarded. The ITN as amended by Addendum #2 provided instructions that initial costs should be submitted with the most favorable terms the Respondent could offer and that final percentages and rates would be determined through the negotiation process. It included the following chart:4/ COST PROPOSAL INITIAL Contract Term 5 years ONE Year Renewal TWO Year Renewal THREE Year Renewal FOUR Year Renewal FIVE Year Renewal Initial Department Commission % Rate Proposed Initial Blended Telephone Rate for All Calls* (inclusive of surcharges) The ITN, including its Addenda, did not specify selection criteria upon which the determination of best value to the state would be based. Allegation that EPSI Reply was Misleading On the Certification/Attestation Page, each vendor was required to certify that the information contained in its reply was true and sufficiently complete so as not to be misleading. While portions of its reply might have provided more detail, EPSI did not mislead the Department regarding its legal structure, affiliations, and subcontractors, or misrepresent what entity would be providing technology or services if EPSI was awarded the contract. EPSI?s reply explained that EPSI was a wholly owned corporate subsidiary of CenturyLink, Inc., and described many aspects of the contract that would be performed using resources of its parent, as well as aspects that would be performed through ICS as its subcontractor. Department Evaluation of Initial Replies The information on the Cost Proposal table was reviewed and scored by Ms. Hussey, who had been appointed as the procurement manager for the ITN. Attempting to follow the instructions provided in section 6.1.5, she added together the six numbers found in the boxes indicating commission percentages on the Cost Proposal sheets. One of these boxes contained the commission percentage for the original five-year contract term and each of the other five boxes contained the commission percentage for one of the five renewal years. She then divided this sum by six, the number of boxes in the computation chart (“divide by six”). In other words, she calculated the arithmetic mean of the six numbers provided in each proposal. The Department had not intended for the commission percentages to be averaged in this manner. Instead, they had intended that a weighted mean would be calculated. That is, they intended that five times the commission percentage shown for the initial contract term would be added to the commission percentages for the five renewal years, with that sum then being divided by ten, the total number of years (“divide by ten”). The Department did not clearly express this intent in section 6.1.5. Mr. Viefhaus testified that based upon the language, Securus believed that in Phase 5 the Department would compute the average commission rate the way that Ms. Hussey actually did it, taking the arithmetic mean of the six commission percentages provided by each vendor, and that therefore Securus prepared its submission with that calculation in mind.5/ Mr. Montanaro testified that based upon the language, GTL believed that in Phase 5 the Department would “divide by ten,” that is, compute the weighted mean covering the ten-year period of the contract, and that GTL filled out its Cost Proposal table based upon that understanding. The DOC posted a notice of its intent to negotiate with GTL, Securus, and EPSI on June 3, 2013. Telmate, LLC, was not chosen for negotiations.6/ Following the Notice of Intent to Negotiate was this statement in bold print: Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. On June 14, 2013, the DOC issued a Request for Best and Final Offers (RBAFO), directing that Best and Final Offers (BAFO) be provided to the DOC by June 18, 2013. Location-Based Services The RBAFO included location-based services of called cell phones as an additional negotiated service, requesting a narrative description of the service that could be provided. The capability to provide location-based services had not been part of the original ITN, but discussions took place as part of the negotiations. Securus contends that EPSI was not a responsible vendor because it misrepresented its ability to provide such location-based services through 3Cinteractive, Inc. (3Ci). EPSI demonstrated that it had indicated to the Department during negotiations that it did not have the capability at that time, but that the capability could easily be added. EPSI showed that due to an earlier call it received from 3Ci, it believed that 3Ci would be able to provide location- based services to it. EPSI was also talking at this time to another company, CTI, which could also provide it that capability. In its BAFO, EPSI indicated it could provide these services, explained that they would require payments to a third- party provider, and showed a corresponding financial change to their offer. No competent evidence showed whether or not 3Ci was actually able to provide that service on behalf of EPSI, either at the time the BAFO was submitted, or earlier. EPSI showed that it believed 3Ci was available to provide that service, however, and there is no basis to conclude that EPSI in any way misrepresented its ability to provide location-based services during negotiations or in its BAFO. Language of the RBAFO The RBAFO provided in part: This RBAFO contains Pricing, Additional Negotiated Services, and Value Added Services as discussed during negotiation and outlined below. The other specifications of the original ITN, unless modified in the RBAFO, remain in effect. Respondents are cautioned to clearly read the entire RBAFO for all revisions and changes to the original ITN and any addenda to specifications, which are incorporated herein and made a part of this RBAFO document. Unless otherwise modified in this Request for Best and Final Offer, the initial requirements as set forth in the Department?s Invitation to Negotiate document and any addenda issued thereto have not been revised and remain as previously indicated. Additionally, to the extent that portions of the ITN have not been revised or changed, the previous reply/initial reply provided to the Department will remain in effect. These two introductory paragraphs of the RBAFO were confusing. It was not clear on the face of the RBAFO whether “other specifications” excluded only the pricing information to be supplied or also the specifications indicating how that pricing information would be calculated or evaluated. It was not clear whether “other specifications” were the same thing as “initial requirements” which had not been revised. It was not clear whether scoring procedures constituted “specifications.” While it was clear that, to the extent not revised or changed by the RBAFO, initial replies that had been submitted -- including Statements of Qualifications, Technical Response, Financial Documentation, and Cost Proposals -- would “remain in effect,” it was not clear how, if at all, these would be considered in determining the best value to the State. In the RBAFO under the heading “PRICING,” vendors were instructed to provide their BAFO for rates on a provided Cost Proposal table which was virtually identical to the table that had been provided earlier in the ITN for the evaluation stage, including a single square within which to indicate a commission rate for the initial five-year contract term, and five squares within which to indicate commission rates for each of five renewal years. The RBAFO stated that the Department was seeking pricing that would provide the “best value to the state.” It included a list of 11 additional services that had been addressed in negotiations and stated that, “in order to provide the best value to the state,” the Department reserved the right to accept or reject any or all of these additional services. It provided that after BAFOs were received, the Negotiation Team would prepare a summary of the negotiations and make a recommendation as to which vendor would provide the “best value to the state.” The RBAFO did not specify selection criteria upon which the determination of best value to the State would be based. In considering commission percentages as part of their determination as to which vendor would receive the contract, the Negotiation Team decided not to consider commissions that had been listed by vendors for the renewal years, concluding that the original five-year contract term was all that was assured, since renewals might or might not occur. On June 25, 2013, the DOC posted its Notice of Agency Decision stating its intent to award a contract to EPSI. Protests and the Decision to Reject All Replies Subsequent to timely filing notices of intent to protest the intended award, Securus and GTL filed Formal Written Protests with the DOC on July 5 and 8, 2013, respectively. The Department considered and compared the protests. It determined that language in the ITN directing that in Phase 5 the highest commission would be determined by averaging the price for the original contract term with the prices for the renewal years was ambiguous and flawed. It determined that use of a table with six squares as the initial cost sheet was a mistake. The Department determined that the language and structure of the RBAFO could be read one way to say that the Department would use the same methodology to evaluate the pricing in the negotiation stage as had been used to evaluate the Initial Cost sheets in Phase 5, or could be read another way to mean that BAFO pricing would not be evaluated that way. It determined that the inclusion in the RBAFO of a table virtually identical to the one used as the initial cost sheet was a mistake. The Department determined that the language and the structure of the RBAFO could be read one way to require further consideration of such factors as the Statement of Qualifications and Technical Response in determining best value to the State, or could be read another way to require no further consideration of these factors. The Department prepared some spreadsheets demonstrating the varying results that would be obtained using “divide by six” and “divide by ten” and also considered a spreadsheet that had been prepared by Securus. The Department considered that its own Contract Manager had interpreted the Phase 5 instructions to mean “divide by six,” while the Department had actually intended the instructions to mean “divide by ten.” The Department had intended that the Negotiation Team give some weight to the renewal-year pricing, and had included the pricing table in the RBAFO for that reason, not simply to comply with statutory requirements regarding renewal pricing. The Department determined that the way the RBAFO was written and the inclusion of the chart required at least some consideration of ten-year pricing, and that vendors had therefore been misled when the Negotiation Team gave no consideration to the commission percentages for the renewal years. Specifically, based upon the Securus protest, the Department determined that the RBAFO language had been interpreted by Securus to require that the Phase 5 calculation of average commission percentage be carried over to evaluation of the pricing in the BAFOs, which Securus had concluded meant “divide by six.” The Department further determined that based upon the GTL protest, the RBAFO language had been interpreted by GTL to require the Department to consider the renewal years in pricing, as well as such things as the Statement of Qualifications and Technical Response in the BAFO stage. The Department determined that had “divide by six” been used in evaluating the BAFOs, Securus would have a computed percentage of 70 percent, higher than any other vendor. The Department concluded that the wording and structure of the ITN and RBAFO did not create a level playing field to evaluate replies because they were confusing and ambiguous and were not understood by everyone in the same way. Vendors naturally had structured their replies to maximize their chances of being awarded the contract based upon their understanding of how the replies would be evaluated. The Department concluded that vendor pricing might have been different but for the misleading language and structure of the ITN and RBAFO. The Department did not compute what the final award would have been had it applied the scoring procedures for the initial cost sheets set forth in section 6.1.5 to the cost elements of the BAFOs. The Department did not compute what the final award would have been had it applied the scoring procedures for the Statement of Qualifications and Technical Response set forth in section 6.1.3 to the BAFOs. Ms. Bailey testified that while she had originally approved the ITN, she was unaware of any problems, and that it was only later, after the protests to the Notice of Intended Award had been filed and she had reviewed the specifications again, that she had come to the conclusion that the ITN and RBAFO were flawed. Following the protests of the intended award by GTL and Securus, on July 23, 2013, the DOC posted to the Vendor Bid System a Notice of Revised Agency Decision stating the DOC?s intent to reject all replies and reissue the ITN. On August 5, 2013, EPSI, GTL, and Securus filed formal written protests challenging DOC?s intended decision to reject all replies. Securus subsequently withdrew its protest to DOC?s rejection of all replies. As the vendor initially notified that it would receive the contract, EPSI?s substantial interests were affected by the Department's subsequent decision to reject all replies. GTL alleged the contract had wrongly been awarded to EPSI and that it should have received the award, and its substantial interests were affected by the Department's subsequent decision to reject all replies. The Department did not act arbitrarily in its decision to reject all replies. The Department did not act illegally, dishonestly, or fraudulently in its decision to reject all replies. EPSI would likely be harmed in any re-solicitation of bids relative to its position in the first ITN, because potential competitors would have detailed information about EPSI?s earlier reply that was unavailable to them during the first ITN. An ITN requires a great deal of work by the Department and creates a big demand on Department resources. The decision to reject all replies was not undertaken lightly. The State of Florida would likely benefit in any new competitive solicitation7/ because all vendors would be aware of the replies that had been submitted earlier in response to the ITN, and bidders would likely try to improve upon those proposals to improve their chances of being awarded the contract.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Corrections issue a final order finding that the rejection of all replies submitted in response to ITN 12-DC-8396 was not illegal, arbitrary, dishonest, or fraudulent, and dismissing all four protests. DONE AND ENTERED this 1st day of November, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2013.
Findings Of Fact The PROVIDER received the FAR that gave notice of PROVIDER’S right to an administrative hearing regarding the alleged Medicaid overpayment. The PROVIDER filed a petition requesting an administrative hearing, and then requested that the case be removed from the docket. Subsequently, the administrative hearing case was CLOSED. PROVIDER sent a check to the Agency, for the total overpayment amount of $13,411.03, which included a fine sanction of $1,000.00. Based on the foregoing, this file is hereby CLOSED. t DONE AND ORDERED this 12 day of Octovw-, 2010, in Tallahassee, Florida. Elizabeth Dudek, Interim! Secretary Agency for Health Care Administration AHCA v. Applied Behavior Solutions, LLC (Case No.: 10-5731MPI; Provider No.: 6854281-96; C. I. No.: 10-1086-600)
Conclusions THIS CAUSE came before me for issuance of a Final Order on a Final Audit Report (“FAR”) dated June 25, 2010 (C.I. No. 10-1086-600). By the Final Audit Report, the Agency for Health Care Administration (“AHCA” or “Agency”), informed the Respondent, APPLIED BEHAVIOR SOLUTIONS, LLC, (hereinafter “PROVIDER”), that the Agency was seeking to recover Medicaid overpayments in the amount of twelve thousand, four hundred eleven dollars and three cents ($12,411.03) and impose a fine sanction in the amount of one thousand dollars ($1,000.00) pursuant to Sections 409.913(15), (16), and (17), Florida Statutes, and Rule 59G- 9.070, Florida Administrative Code, for a total overpayment of thirteen thousand, four hundred dollars and three cents ($13,411.03). The Final Audit Report provided full disclosure and notice to the PROVIDER of procedures for requesting an administrative hearing to contest the alleged overpayment. The PROVIDER filed a petition with the Agency requesting a formal administrative hearing on or about July 9, 2010. The Agency forwarded PROVIDER’S hearing request to the Division of Administrative Hearings (DOAH) for a formal administrative hearing. DOAH AHCA v. Applied Behavior Solutions, LLC (Case No.: 10-5731MPI; Provider No.: 6854281-96; C. I. No.: 10-1086-600)
