The Issue The issues in these two cases are whether Respondent violated provisions of chapter 475, Florida Statutes (2015),1/ regulating real estate sales brokers, as alleged in the Administrative Complaints, by (1) failing to return a rental deposit to a potential tenant; (2) serving as the qualifying broker for Friendly International Realty, Inc. (“Friendly”), but failing to actively supervise Friendly’s operations and/or sales associates; failing to preserve Friendly’s transaction records and escrow account documents; and (4) acting in a manner that constitutes culpable negligence or a breach of trust. If there was a violation, an additional issue would be what penalty is appropriate.
Findings Of Fact Parties The Department is the state agency that regulates the practice of real estate pursuant to section 20.165, and chapters 455 and 475, Florida Statutes. Ms. King is a licensed real estate broker registered with the Department (license numbers BK 3203595, 3261628, 3293588, 3306619, 3335771, 3354773, and 3363985). Ms. King is registered with the Department as the qualifying broker for 16 brokerages located throughout the state of Florida. At all times relevant to this case, Ms. King’s registered address with the Department was 4430 Park Boulevard North, Pinellas Park, Florida 33781. Friendly International Realty, LLC Friendly was a Florida licensed real estate corporation, holding license number CQ 1040825. Records reflect that James Berthelot was the registered agent for Friendly at the time of incorporation, June 2011. At all times relevant, Mr. Berthelot was a licensed Real Estate Sales Associate (license number SL 3226474) registered with Friendly. In May 2014, Respondent drafted and entered into a Limited Qualifying Broker Agreement (“Broker Agreement”) with Friendly and its owner, Ivania De La Rocha.2/ Friendly and Ms. King entered into the Broker Agreement, “in order to comply with the requirements of the Florida Department of [Business and] Professional Regulation.” Under the terms of the Broker Agreement, Respondent was not paid by Friendly per transaction. Rather, Respondent agreed to serve as the “Corporate Broker of Record” in exchange for a payment of $300 a month “as a flat fee for any and all real estate business conducted by [Friendly].” The Broker Agreement also provided for a “late fee” penalty if Friendly was delinquent in this monthly payment. Section 1.1 of the Broker Agreement outlined Respondent’s duties to Friendly, requiring her to: (1) keep her and Friendly’s licenses active and in good standing under Florida law; (2) keep her other business interests separate from those involving Friendly’s interests; and (3) provide Friendly notice of any governmental inquiry involving her serving as Friendly’s broker. There was no mention in the Broker Agreement of either Respondent’s or Friendly’s responsibilities regarding oversight of transactions, training for sales associates, or day-to-day operations. Regarding document retention, the Broker Agreement provided: Section 9.0 AUDIT & REVIEW RIGHT: Broker shall have the right to enter [Friendly’s] offices upon reasonable advance written notice to verify compliance with the real estate laws of the State of Florida. There was no evidence that Ms. King ever provided Friendly with the kind of notice described in section 9.0 of the Broker Agreement. Although the Broker Agreement did not prohibit Friendly from holding funds or assets on behalf of third parties, section 10.0 (Miscellaneous) explicitly prohibited Friendly from operating an escrow account. (g) Escrow and Ernest Money Accounts. [Friendly] shall not be permitted to hold any escrow account(s). On July 31, 2014, Ms. King was registered with the Florida Department of State, Division of Corporations, as “manager” of Friendly. Ms. King was the qualifying broker for Friendly (license number BK3303898) from August 6, 2014, through September 30, 2015, and November 4, 2015, through January 13, 2016.3/ During the time Ms. King served as the qualifying broker, Friendly operated from a number of addresses in Miami- Dade County, including 11900 Biscayne Boulevard, Suite 292, Miami, Florida 33181; and 2132 Northeast 123rd Street, Miami, Florida 33181. The office door of the Friendly office located on Northeast 123rd Street was painted in large letters, “FRIENDLY INTERNATIONAL REALTY” and “ALICIA KING” painted underneath. At the hearing, when asked about Friendly’s address, Ms. King could only confirm that when she became the broker the office was “on Biscayne.” The Biscayne Boulevard address is the one listed on the Broker Agreement. At the hearing, Ms. King was wrong about when the Friendly office had moved from the Biscayne Boulevard to the Northeast 123rd Street location, insisting it was over the Christmas holidays in 2015. Records establish Friendly moved from the Biscayne Boulevard location to the Northeast 123rd Street location sometime between April and July 2014. In January 2016, Ms. King believed the office was still on Biscayne Boulevard. In reality, it had been over a year since the office had relocated to that location. At the hearing, when asked by her own counsel how many transactions a month Friendly handled, Ms. King replied, “That’s hard to say. It was not many at all. Ten, maybe.” Respondent could not give the exact number of employees or sales associates affiliated with Friendly; when asked, she stated she could not remember the exact amount, but knew it was “very limited.” Respondent did not have any agreements or documentation related to how many sales associates were registered under her broker’s license. Respondent could not name any other sales associates affiliated with Friendly while she was the qualifying broker, except for Mr. Berthelot. While she was Friendly’s qualifying broker, Respondent did not perform any of the training for the sales associates at Friendly. Respondent did not have any face-to-face meetings with any Friendly sales associates, except for Mr. Berthelot. Respondent did not have phone or e-mail contact with any of the Friendly sales associates, except for Mr. Berthelot. Respondent did not have copies of any forms, handbooks, reports or files related to Friendly. All of these documents were in paper form and kept in the Friendly office. Respondent had no access or signatory authority for any of Friendly’s bank accounts. Natalie James was a registered real estate sales associate affiliated with Friendly for approximately five months, from November 2015 through March 2016. Ms. James worked out of the Friendly office and was physically present at the office at least three or four times a week. Ms. James was involved in several rentals and one sales transaction while at Friendly. For each transaction she assembled a file, which was kept in the Friendly office. For rental transactions, Ms. James would negotiate and facilitate lease agreements. When she represented potential tenants, she received deposit funds that she deposited with Friendly. Ms. James attended meetings at Friendly; Ms. King was not present at any of them. Ms. James never had any telephonic, electronic, personal, or other contact with Respondent. While at Friendly, neither Mr. Berthelot nor any of Ms. James’ co-workers mentioned Ms. King to Ms. James. Although Ms. King’s name was on the door of Friendly’s office, Ms. James was unaware Ms. King was Friendly’s broker. There was conflicting testimony as to how often Respondent visited the Friendly office. Ms. King’s testimony at the hearing was at odds with the Department’s evidence and testimony regarding this issue. Ms. King insisted that while she was Friendly’s broker, she would travel from Pinellas Park to the Friendly office once or twice a week. This was not believable for a number of reasons. First, had Ms. King visited Friendly’s office as often as she stated, she would have known about the change in location; she did not. Second, Ms. King could not give one concrete date or detail about her travels to the Friendly office. Third, and most compelling, was the testimony of Ms. James (who worked at Friendly for at least two months while Ms. King was its broker) that she had never seen, communicated with, or heard mention of Ms. King while at Friendly. Ms. James’ unbiased and compelling testimony alone supports a finding that Ms. King did not visit the Friendly office as frequently as she indicated. Ms. King was aware that Friendly and Mr. Berthelot provided rental or “tenant placement” services.4/ Friendly collected security deposits and other move-in funds from potential renters and held them in an escrow account. Ms. King was not aware Friendly had an escrow account until January 2016 when she was contacted by the Department in an unrelated case. On January 13, 2016, Respondent resigned with the Department as the qualifying broker for Friendly effective that same day. On January 14, 2016, Respondent filed a complaint with the Department against Mr. Berthelot for operating an escrow account and collecting deposit funds without her knowledge. Facts Related to the Viton Case In November 2015, during the time Ms. King was Friendly’s qualifying broker, Christian Viton signed a lease agreement to rent an apartment located in Miami at 460 Northeast 82nd Terrace, Unit 8 (“Viton transaction”). The Viton lease agreement listed Friendly as the holder of the deposit monies and required Friendly to transfer the deposit and move-in funds to the owner of the property. Pursuant to the terms of the Viton lease agreement, Mr. Viton remitted an initial deposit of $500, and received a written receipt from Friendly dated November 2, 2015. Mr. Viton gave Friendly a second deposit of $380, and received a written receipt dated November 4, 2015. Mr. Viton never moved into the apartment and demanded a refund of his deposit from Friendly. On December 8, 2015, Friendly issued a check to Mr. Viton in the amount of $530. Three days later, Friendly issued a stop-payment order on the $530 check to Mr. Viton. On February 29, 2016, Mr. Viton filed a complaint with the Department seeking a return of the $880 he had given to Friendly. As a result, the Department initiated an investigation into Mr. Viton’s complaint and contacted Respondent. Upon learning about the Viton complaint, Ms. King contacted Mr. Berthelot who admitted Friendly had stopped payment on the $530 refund check, but had reissued the full amount of the deposit to a third-party not named on the lease. There is no evidence Mr. Viton ever received a refund of his $880 deposit. Facts Related to Dorestant Case In June 2015, during the time Ms. King served as Friendly’s qualifying broker, Cindy Dorestant entered into a lease agreement to rent a condominium located at 1540 West 191 Street, Unit 110 (“Dorestant transaction”). In the lease, Friendly was listed as the “broker” and holder of the deposit; TIR Prime Properties (“TIR”) was listed as the owner’s agent. The Dorestant lease agreement required Friendly to transfer the deposit and move-in funds collected from Ms. Dorestant to TIR. Pursuant to the terms of the Dorestant lease agreement, Ms. Dorestant gave Friendly $1,050 as an initial deposit, and received a written receipt dated June 24, 2015. In late July 2015, Ms. Dorestant contacted TIR’s property manager and sales agent to ask for information about the status of her move into the condominium. TIR explained to Ms. Dorestant that Friendly had not conveyed any of monies collected from Ms. Dorestant to TIR. Both Ms. Dorestant and TIR attempted to contact Friendly, but Friendly was non-responsive. The TIR sales associate relayed this information to TIR’s broker, Mariano Saal, who in turn tried to reach Friendly to resolve the issue. Eventually, TIR was told by Mr. Berthelot that Friendly would release the move-in funds to TIR and that Mr. Berthelot would schedule the move-in. TIR did not receive any funds from Friendly, nor did Mr. Berthelot facilitate Ms. Dorestant’s move into the condominium. On August 31, 2015, Mr. Saal contacted Mr. Berthelot and informed him that if TIR did not receive the move-in funds for the Dorestant transaction by 5:00 p.m. that day, it would be required to find another tenant. Ms. Dorestant did not move into the condominium and demanded a refund from Friendly and TIR. On September 14, 2015, Mr. Saal sent an e-mail to what he believed was Respondent’s address, demanding the $1,050 from Friendly because it considered Ms. Dorestant’s failure to move into the property a default of the lease agreement. Respondent, however, did not have access to Friendly’s e-mails. The e-mail was also sent to Mr. Berthelot, and Ms. De La Rocha. TIR did not receive any funds from Friendly for the Dorestant transaction. After discovering she could not move into the condominium because Friendly had not transferred the deposit to TIR, Ms. Dorestant demanded a refund of her deposit monies from Friendly. She did not receive it. On February 10, 2016, Mariano Saal, TIR’s qualifying broker, filed a complaint against Mr. Berthelot and Friendly with the Department regarding the Dorestant transaction. Ms. Dorestant initially did not receive a refund from Friendly and, therefore, filed a police report against Mr. Berthelot and sued him in small claims court. Eventually, Mr. Berthelot refunded Ms. Dorestant her deposit monies. Department Investigations of Friendly Upon receiving the Viton complaint, the Department assigned the case (DPBR Case No. 2016018731) to Erik Lluy, an Investigator Specialist II in the Miami field office. Similarly, on or around the same time the Department received the Dorestant complaint; it was also assigned to Mr. Lluy (DPBR Case No. 2016018069). On April 25, 2016, Mr. Lluy officially notified Ms. King of each of the complaints. On May 25, 2016, the Department transferred both the Viton and Dorestant complaints from Mr. Lluy to Percylla Kennedy. Ms. King provided a written response to both complaints via e-mail to Mr. Lluy on May 26, 2016. At that time, Mr. Lluy indicated the case had been transferred to Ms. Kennedy and copied Ms. Kennedy on the response. Ms. Kennedy was familiar with Friendly, Mr. Berthelot and Ms. King. In January 5, 2016, she had conducted an investigation of Friendly in an unrelated complaint filed against Friendly by Borys Bilan (“Bilan complaint”). As part of the investigation into the Bilan complaint, Ms. Kennedy arrived at the Friendly office address registered with the Department on Biscayne Boulevard to conduct an official office inspection. When she arrived, however, she found the office vacant. As a result, that same day Ms. Kennedy contacted the registered qualifying broker for Friendly–-Ms. King-–by phone. During that call, Ms. Kennedy asked Ms. King where Friendly’s office was located, but Ms. King did not know. Eventually, Ms. Kennedy determined the Friendly office had relocated to the Northeast 123rd Street location. Ms. Kennedy testified that during this call, Ms. King admitted to her that she had not been to the Northeast 123rd Street location. Respondent testified she did not tell Ms. Kennedy this and as proof insisted that the January call was inconsequential and “a very short call.” The undersigned rejects Respondent’s version of events and finds Ms. Kennedy’s testimony and report regarding the January 2016 interview more reliable. First, although Ms. King describes the conversation as occurring on January 7, 2016, both Ms. Kennedy’s testimony and the Inspection Report establish the conversation occurred on January 5, 2016. Second, Respondent’s characterization of the call as inconsequential contradicts her own May 26, 2016, written response to the Department in which Ms. King outlines a number of substantive issues discussed during this phone conversation, including: the nature of Friendly’s practice, whether Friendly had an escrow account, the type of payment accepted by Friendly, and the address of Friendly’s office. After speaking with Ms. King about the Bilan complaint, Ms. Kennedy conducted the inspection at Friendly’s Northeast 123rd Street location. Respondent was not present when Investigator Kennedy conducted the office inspection. Ms. Kennedy then e-mailed the Office Inspection form to Respondent. As a result of the January 5, 2016, phone conversation with Ms. Kennedy, Ms. King contacted Mr. Berthelot about the Bilan complaint. On January 13, 2016, Mr. Berthelot provided Ms. King with the transaction file related to the Bilan complaint. When Ms. King reviewed the lease agreement, she realized that Friendly was holding deposit funds in escrow. As a result, on December 13, 2016, Ms. King filed a resignation letter with the Department explaining she was no longer the qualifying broker for Friendly. Ms. King did not ask Mr. Berthelot or anyone else at Friendly for any other transaction records at this time, nor did she make any effort to review any of Friendly’s transaction files to determine whether Friendly had obtained other deposit funds or conducted other transactions similar to the one that was the subject of the Bilan complaint. After having knowledge of the Bilan complaint and transaction, and suspecting Friendly had been operating an escrow account, Ms. King made no immediate effort to access the operating or escrow bank accounts or reconcile the escrow account. After resigning as Friendly’s qualifying broker with the Department, Ms. King filed a complaint with the Department against Mr. Berthelot for unlicensed activity involving an escrow deposit.5/ Despite no longer being Friendly’s qualifying broker, on January 21, 2016, Ms. King executed and sent back to Ms. Kennedy the Inspection Report related to the Bilan complaint. Five months later, on or around May 25, 2016, Ms. Kennedy notified Ms. King she was taking over the investigation into the Viton and Dorestant cases. Ms. Kennedy testified that as part of her investigation into the Viton and Dorestant complaints, she interviewed Respondent again. Respondent denies she was interviewed by Ms. Kennedy regarding the Viton and Dorestant complaints, and instead insists she was only interviewed in January 2016 in connection with the Bilan complaint. Ms. King testified she believed Ms. Kennedy lied about interviewing her more than once because Ms. Kennedy was “lazy.” The undersigned rejects this assertion. Ms. Kennedy’s testimony was specific, knowledgeable, and credible, unlike Ms. King’s testimony, which was intentionally vague. Moreover, Ms. Kennedy specifically attributes her findings to specific sources such as Ms. King’s written response, her interview with Ms. King relating to the Viton and Dorestant transactions, and to her previous conversation with Ms. King during the Bilan investigation. The citations to information gleaned from the January 5, 2016, call were marked by the following sub-note. SUBJECT was previously interviewed by this Investigator in January 2016 for the unrelated complaint and was unaware that FRIENDLY INTERNATIONAL REALTY LLC had moved from license location 11900 Biscayne Blvd.[,] Suite 292 Miami, FL 33181 to 2132 NE 123ST[,] Miami, FL 33181 (See Ex. 9). At that time, SUBJECT was unable to provide the transaction file. Ms. Kennedy would have no reason to fabricate the source of the conclusions she reached in her report or the number of times she contacted Ms. King. Ms. Kennedy submitted her original investigative report to the Department for the Viton complaint on October 31, 2016. Per the Department’s request, Ms. Kennedy interviewed Mr. Viton and submitted a supplemental report on December 13, 2016. In this report, Ms. Kennedy determined that on February 25, 2016, Friendly issued a check in the amount of $875 to a person who was not listed on either the lease agreement, the receipts Friendly issued to Mr. Viton, or any other paperwork. Similarly, Ms. Kennedy submitted her original investigative report to the Department for the Dorestant complaint on October 31, 2016. Per the Department’s request, Ms. Kennedy interviewed Ms. Dorestant and submitted a supplemental report on December 13, 2016, indicating Ms. Dorestant did eventually receive a refund. During the course of the Viton investigation, Mr. Lluy and Ms. Kennedy requested that Respondent provide the Department with the file related to the Viton transaction, and documentation for Friendly’s escrow account. Although Respondent provided the Department a response (consisting of a written explanation with a copy of the Bilan file and some communications between Mr. Berthelot and herself from May 2016), she did not provide the Department with the transaction file related to the Viton transaction or Friendly’s escrow account documentation. During the course of the Dorestant investigation Mr. Lluy and Ms. Kennedy requested that Respondent provide the Department with the file related to the Viton transaction, and documentation for Friendly’s escrow account. Although Respondent provided the Department a response (consisting of a written explanation with a copy of the Bilan file and some communications between Mr. Berthelot and herself from May 2016), she did not provide the Department with the transaction file related to the Dorestant transaction or Friendly’s escrow account documentation. Professional Standards Mr. Saal, TIR’s qualifying broker, testified he had served as a broker for approximately ten years. As TIR’s qualifying broker, he kept the documentation related to the transactions handled by TIR’s six sales associates. The testimony of the TIR sales associate and property manager established that they relied on Mr. Saal for advice and to resolve issues. For example, when Ms. Dorestant began contacting TIR’s sales associate and property manager regarding the move-in and then for a refund of her deposit, the sales associate went to Mr. Saal to discuss the situation. Mr. Saal then attempted to resolve the issue by attempting to communicate with Friendly, Mr. Berthelot and Ms. King. Mr. Trafton, an experienced real estate broker and expert in brokerages, reviewed the Department’s investigative files and reports relating to the Viton and Dorestant complaints, as well as applicable Florida Statutes and rules. Mr. Trafton’s testimony and report established that in Florida the usual and customary standard applicable to brokers is that they must promptly deliver funds in possession of the brokerage that belong to others. Petitioner showed that Mr. Viton was entitled to a refund of his deposit from Friendly and that Respondent erred in not ensuring he received this refund. Mr. Trafton also testified that the standard of care applicable to a broker in supervising sales associates requires active supervision. “Active supervision” is not defined by statute or rule, but by usual and customary practices exercised statewide. “Active supervision” requires a broker to: have regular communications with all sales associates, not just communicating when there is a complaint; be aware of problems, issues and procedures in the office and among sales associates; have access to and signatory power on all operating and escrow accounts; hold regular scheduled office/sales meetings; conduct in–person training meetings; provide guidance and advice for sales associates; be intimately involved in how transaction forms and other documents are stored and retrieved; and be available to provide advice and direction on short notice. In other words, a broker should set the tone at the brokerage by overseeing her sales associates’ conduct of transactions. Ms. King failed to manage, direct, and control her real estate sales associate, Mr. Berthelot, to the standard expected of a qualifying broker in both the Viton and Dorestant transactions, if not all of Friendly’s transactions. She did not actively supervise Mr. Berthelot as a sales associate. Mr. Trafton also testified that a broker, not the brokerage, is ultimately responsible for preserving transaction files, forms related to transactions, and other related documents. Although less certain than Mr. Trafton about whether a broker or the brokerage firm is responsible for preservation of transaction files, Mr. Saal testified “the broker is responsible for the . . . transactions. It’s [the broker’s] client at the end of the day.” Ms. King failed to preserve accounts and records relating to Friendly’s accounts, the files related to the Viton and Dorestant rental transactions, or any other documents related to Friendly. Petitioner also clearly established that Respondent was guilty of either “culpable negligence” or “breach of trust” in the Viton or Dorestant transaction. As Investigator Kennedy testified, and as corroborated by cost summary reports maintained by the Department, from the start of the investigation of the Viton complaint through September 14, 2017, the Department incurred $1,625.25 in costs, not including costs associated with an attorney’s time. As Investigator Kennedy testified, and as corroborated by cost summary reports maintained by the Department, from the start of the investigation of the Dorestant complaint through September 14, 2017, the Department incurred $1,608.25 in costs, not including costs associated with an attorney’s time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission: Case No. 17-3989 Finding Respondent Alicia Faith King in violation of sections 475.25(1)(d)1., 475.25(1)(u), 475.25(1)(e), and 475.25(1)(b), as charged in Counts I through IV of the Administrative Complaint in the Viton case. Imposing an administrative fine totaling $2,500 ($500 fine per count for Counts I, II and III; and $1,000 fine for Count IV). Imposing license suspension for a total period of nine months (one-month suspensions each for Counts I, II, and III; and a six-month suspension for Count IV). Imposing costs related to the investigation and prosecution of the case in the amount of $1,625.25. Case No. 17-3961 Finding Respondent Alicia Faith King in violation of sections 475.25(1)(u), 475.25(1)(e), and 475.25(1)(b), as charged in Counts I through III of the Administrative Complaint in the Dorestant case. Imposing an administrative fine totaling of $2,000 ($500 fine per count for Counts I and II; and $1,000 fine for Count III). Imposing license suspension for a total period of eight months to be imposed consecutive to the suspension in Case No. 17-3989 (one-month suspensions each for Counts I and II; and a six-month suspension for Count III). Imposing costs related to the investigation and prosecution of the case in the amount of $1,608.75. DONE AND ENTERED this 25th day of January, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2018.
The Issue The issue to be determined is whether Respondent violated Section 475.25(1)(b), Florida Statutes (2006), as alleged in the Administrative Complaint and if so, what penalties should be imposed?
Findings Of Fact Petitioner is the agency responsible for licensing and regulation of real estate brokers, pursuant to Section 20.165 and Chapters 455 and 475, Florida Statutes. At all times relevant to these proceedings, Respondent Maria V. King, has been a licensed Florida real estate broker, issued license number 662452 in accordance with Chapter 475, Florida Statutes. Her address with the DBPR is 900 Cesery Boulevard, Suite 107, Jacksonville, Florida 32211. Charles Wettstein was the listing broker for the property located at 3216 Randall Street, Jacksonville, Florida 32205 (subject property) for the owner/seller, Abdul R. Elsharif. The subject property was listed on the MLS for $269,900. A representative of Developing Entrusted Capital Counseling, LLC (DECC or buyer), came to the Respondent’s office and indicated that she wanted to purchase the subject property. On or about December 2, 2006, Respondent, on behalf of DECC, forwarded an offer to Wettstein for the property with a purchase price of $410,000. The offer was contingent on the following conditions: (1) buyer to choose closing agent; (2) an appraised value of $410,000; (3) satisfactory WDO and 4 point inspection; (4) assignable contract; and (5) an acceptance of a (legal) addendum between the buyer and seller only. In the cover letter sent by Respondent to Wettstein, Respondent states that there will be an assignment fee comprising the difference between the appraised value and sale price ($410,000 and $269,900). The cover letter also states that the MLS will need to be changed to the contract price of $410,000, which is usually done after an appraisal of the property, and that the appraisal would be paid for by the buyer and done immediately after the contract is signed. Respondent advised the buyer's representative that she was offering much more than the listing price for the property. Respondent testified that the buyer represented to her that the buyer was aware of the listing price, but that she had done her homework and she knew what she was doing in offering the price of $410,000. Respondent also testified that the proposed addendum to the contract and the assignment documents were given to her by the buyer. The buyer represented to Respondent that she had legal counsel who had advised her regarding the assignment and other stipulations in the contract. All documents given to her by the buyer, including the addendum to the contract, were not concealed from the seller and were in fact, submitted with the offer to the listing agent, Wettstein. Respondent was not involved in obtaining a mortgage for the buyer or doing an appraisal of the subject property, and did not intend to perform either function. Respondent did not benefit from this transaction, other than the potential commission based upon a sale price of $410,000, as opposed to the listed price of $269,900. Respondent had concerns about the purchase price but was following the instructions of her buyer. Respondent sent all documents, including the addendum and the assignment documents, to the seller because she was aware that he had an attorney who would be looking at the information sent. Respondent informed the buyer that she would submit all documents to the listing agent and her reasons for doing so. She also informed the buyer that she would only do the contract for the purchase of the subject property. Respondent did not think that the subject property would appraise for $410,000 as required by the conditions of the contract. In other words, Respondent doubted the actual sale would go through. The offer communicated by the Respondent to Wettstein, was presented to the seller and rejected. A mortgage loan was not obtained and an appraisal was not completed on the subject property in connection with the offer by DECC. Any appraisal of the subject property would have been arranged by the lending institution as opposed to Respondent, and would not have been performed by Respondent. Respondent was aware that the MLS for Duval County documents a history of the MLS listing prices. Respondent testified that based on her understanding of Duval County policy, the listing price of the subject property can only be increased if a legal, legitimate appraisal is submitted or seen by MLS. Therefore, if the subject property appraised for $410,000, and the listing price was changed as a result, the MLS would show the property’s previous listing price of $269,900.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Real Estate Commission enter a Final Order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 24th day of February, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 24th day of February, 2010. COPIES FURNISHED: Daniel Villazon, Esquire Daniel Villazon, P.A. 1420 Celebration Boulevard, Suite 200 Celebration, Florida 34747 Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Thomas W. O'Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent was licensed by the State of Florida as a real estate broker, having been issued license number 0521991. Respondent's last license issued was as a broker c/o Stellings Realty, Inc., 2368 Saratoga Bay Drive, West Palm Beach, Florida. Beginning on or about March 1, 1998, until August 31, 1998, Respondent had an Exclusive Right of Sale Listing Agreement (Agreement) with Judy Cominse (Seller) for real property, owned by the Seller, located at 4397-B Woodstock Drive, West Palm Beach, Florida. Respondent represented the Seller as a transaction broker and owed her certain duties pursuant thereto. A Brokerage Relationship Disclosure statement was provided to the Seller by Respondent. Another broker, Robert Berman, was the referring agent and was personally known by the Seller. Respondent was of the opinion that Berman was to receive a referral fee of 25 per cent in the event of a sale. The listing was problematic for Respondent. Respondent encountered problems due to restrictions placed on the showing of the property by the Seller and her tenants, who were the Seller's son and daughter-in-law. Respondent contemplated not continuing with the listing. He even mentioned discontinuing the listing with the Seller, but he did not discontinue it. A contract for sale of the Seller's property was entered into by the Seller and Evelyn Swinton (Buyer Swinton). Buyer Swinton signed the contract on June 1, 1998, and the Seller signed it on June 3, 1998. The contract provided, among other things, for an escrow deposit of $1,500 to be held by Sun Title, located in Lake Worth, Florida. The $1,500 was paid and held in escrow by Sun Title. The transaction for the sale of Seller's property failed to close. By a Release and Cancellation of Contract for Sale and Purchase form (Release and Cancellation) dated July 28, 1998,1 both the Seller and Buyer Swinton agreed, among other things, that the $1,500 escrow deposit would be disbursed to the Seller. On July 30, 1998, Sun Title prepared an escrow check in the amount of $1,500, made payable solely to the Seller. The check was forwarded to Respondent sometime after July 30, 1998; the evidence presented was insufficient to show when Sun Title forwarded the check to Respondent.2 On August 6, 1998, Respondent prepared an addendum (Respondent's Addendum) to the Agreement that he had with the Seller. Respondent's Addendum was dated and signed by Respondent on this same date. Respondent's Addendum provided, among other things, the following: This contract [Agreement] will be extended from August 31, 1998 until March 1, 1999; if necessary.3 * * * Stellings Realty, Inc. will receive 7% of the total purchase price. In addition 25% commission of the listing side will be given to Berman Realty as a referral fee. If the Seller should cancel this listing the cancelation fee would be $1000.00. Judy Cominse [Seller] will receive $1500.00 by mail upon acceptance. Paragraph numbered 5 of Respondent's Addendum indicates that, upon the Seller accepting Respondent's Addendum, the Seller will receive $1,500, which was the escrow deposit, by mail. The Seller did not accept Respondent's Addendum although the Seller was of the opinion that the only way for her to obtain the $1,500 was to agree to an addendum to the contract that she had with Respondent. With the assistance of her sister, who was a licensee, licensed by Petitioner,4 the Seller negotiated a change of terms to Respondent's Addendum. The seller prepared and executed an addendum (Seller's Addendum) on August 6, 1998, and forwarded it to Respondent. The Seller's Addendum provided, among other things, the following: This listing agreement [Agreement] will be extended six months (i.e., from August 31, 1998 until February 28, 1999). * * * Stellings Realty, Inc. will receive 7% of the total selling price (if sold at full listing price), otherwise negotiable; however, no lower than 6%. Additionally, $533.75 to the listing agency (Stellings Realty), which amount will not be subject to the referral fee due and payable to Robert A. Berman Real Estate, the referring broker to the listing agency. If the seller should cancel this listing, the cancellation fee would be $788.75 ($250.00 cancellation fee, plus $533.75). Judy Cominse [Seller] will receive $1,500.00 (100% of the escrow deposit relinquished by the buyer [Buyer Swinton]) by mail upon acceptance. Paragraph 5 of Seller's Addendum indicates that, upon Respondent's accepting the Seller's Addendum, the Seller will receive $1,500, which was the escrow deposit, by mail. Respondent executed the Seller's Addendum on August 11, 1998, and faxed it to her on this same date. Respondent accepted the Seller's Addendum on August 11, 1998. Prior to August 11, 1998, Berman had contacted Respondent on behalf of the Seller. Berman was requested by the Seller to make an attempt to obtain the escrow deposit of $1,500 for her. Berman contacted Respondent who indicated to Berman that, as soon as the escrow check was received, he would contact Berman. Sometime after July 30, 1998, Berman contacted Sun Title and was informed that the escrow check had been prepared and forwarded to Respondent. On or about August 11, 1998, Respondent contacted the Seller and informed her that the escrow check had been received by him. On or about August 11, 1998, Respondent also contacted Berman regarding the receipt of the escrow check. At the request of the Seller, Berman went to Respondent's office, obtained the escrow check, and forwarded it to the Seller via express delivery. Based upon the required proof, the evidence fails to demonstrate that Respondent refused to relinquish the $1,500 escrow deposit to the Seller in order to force or pressure the Seller to agree to an addendum to their Agreement. Respondent continued to represent the Seller. The Seller's property was sold on November 3, 1998. Subsequently, Respondent sued the Seller in the County Court of West Palm Beach, Florida for $533.75, based on the Seller's Addendum. The Seller had refused to pay Respondent the $533.75, pursuant to the Seller's Addendum, and Respondent sued the Seller to recoup the monies. On or about January 4, 1999, the court suit was settled. Before the end of 1998, Respondent paid Berman the referral fee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate enter a final order and therein dismiss the Administrative Complaint filed against Leon Stellings. DONE AND ENTERED this 31st day of July, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 31st day of July, 2000.
The Issue The issue in this case is whether Respondent is guilty of dishonest dealing by trick, scheme or device in any business transaction in violation of Subsection 475.25(1)(b), Florida Statutes (2008),1 and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for issuing real estate sales associate licenses and monitoring compliance with all statutes, rules, and regulations governing such licenses. Respondent was at all times relevant to this proceeding a licensed real estate sales associate in the State of Florida and held License No. 3115665. In March 2006, Respondent was introduced to Willie Belle Lewis (Lewis) by a mutual acquaintance. Lewis was interested in selling her house, and Respondent agreed to work for Lewis in that regard. On March 13, 2006, Lewis and Respondent entered into an Exclusive Right of Sale Listing Agreement (the "Agreement"). Under the Agreement, Respondent was to act as Lewis' sales agent for sale of the house. Pursuant to paragraph 7 of the Agreement, Respondent was to receive a commission of six percent of the purchase price. Respondent initially requested a seven percent commission which was the ordinary and customary amount at that time, but agreed to six percent in deference to Lewis' request (and due to the fact that Lewis had recently lost her grandmother and Respondent empathized with her, having just lost her mother). In one version of the Agreement admitted into evidence, there is a notation that any cooperating real estate agent (presumably a buyer's agent) would receive a commission equal to three percent of the purchase price, i.e., one-half of Respondent's six percent commission. Another version of the Agreement admitted into evidence did not address sharing the commission with a cooperating agent. At some point in time (which was not clearly defined during testimony at final hearing) Lewis and Respondent re-negotiated the amount of Respondent's commission.2 Lewis maintains that the re-negotiated commission was three percent; Respondent says the re-negotiated commission was four percent. Respondent's testimony was more credible on this point. The amount of the new commission was not reduced to writing or indicated on either version of the Agreement. There is no indication, for example, what Respondent's commission would have been if a cooperating agent had been involved. It is highly unlikely that Respondent or any other agent would agree to a two percent commission, i.e., one-half of four percent (or 1.5 percent, one-half of three percent). Once the Agreement was signed, Respondent immediately began efforts to sell the Lewis house. Respondent invited Lewis to her (Respondent's) house and offered Lewis plants and flowers from Respondent's yard. Respondent and Lewis dug up various plants and transferred them to Lewis' yard to generate some "curb appeal," i.e., to dress it up for potential buyers. Within days, a potential buyer was found. A Contract for Sale and Purchase (the "Contract") was entered into between Lewis and Mrs. Bibi Khan. Respondent was listed as the seller's agent; no agent was indicated for the buyer. In fact, Respondent agreed to act as buyer's agent as well, performing services as both an agent and a broker. Again, there were two versions of the sales Contract admitted into evidence. On one version, Respondent's signature included only her first name; on the other it included her first and last name. On one version of the Contract, there appears to be "white-out" on Respondent's signature line. Contained and legible under the whited-out portion of the signature is the phrase "3%." Respondent admits she whited out the three percent figure, but that it was done after the closing occurred. The three percent figure appearing at that place in the Contract is confusing. It only makes sense if that was meant to represent Respondent's portion of a six percent commission split between a buyer's agent and a seller's agent. Respondent explained that she whited out the figure because it was not written in both places it was supposed to be. Rather than going through the process of re-doing the entire Contract and re-distributing it to all pertinent parties, she whited it out in one place. The explanation is plausible. However, it seems an unnecessary action inasmuch as the closing had already occurred. When the parties arrived at closing on April 17, 2006, the closing documents--including the HUD Settlement Statement-- indicated a six percent commission for Respondent (as originally stated on the Agreement). Lewis vehemently objected to the commission, saying that it should be three percent as verbally agreed to by her and Respondent.3 Respondent acquiesced at closing and, in front of witnesses, said the commission should be three percent. She asked that a letter be drafted by the closing agent reflecting a three percent commission. In effect, Respondent re-negotiated her commission at that time. She rues having done so and says she was confused, but she did so nonetheless. The closing was only the third closing Respondent had taken part in since becoming licensed. She was not very experienced with the process and seemed to be thinking she was getting a four percent commission, even when three percent was being discussed.4 It is clear, however, that Respondent did verbally agree to a three percent commission during the closing. The closing agent told Lewis to return on Monday and she would re-calculate the commission and provide Lewis with a final check in the appropriate amount. Meanwhile, Respondent attempted to contact Lewis over the weekend to discuss the discrepancy. Respondent wanted to remind Lewis they had agreed on four percent despite what she said at the closing. All attempts at communication with Lewis over the weekend were futile. When Lewis returned to the closing office on the following Monday, she found the check to still be in error as it reflected a four percent commission instead of a three percent commission. Apparently when Respondent advised the closing agent about her mistake regarding the amount of the commission, Respondent still maintained that the verbal agreement was for four percent. This was contrary to her statements during the closing and is not substantiated by any written documentation. Respondent directed the closing agent to issue a check reflecting a four percent commission, instead of the six percent commission reflected on the Agreement. Lewis ultimately, under protest, accepted her $74,264.92 check reflecting a four percent commission to Respondent. The check contained a shortage of $1,600, if a three percent commission had been applied. Lewis continued to seek repayment of the $1,600 she believed she was entitled to receive. Subsequently, Respondent discussed the entire dispute with her sales team and decided that the disputed amount ($1,600) was not worth fighting about. A check was then sent to Lewis in that amount.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Real Estate, imposing a fine of One Thousand Dollars ($1,000) against Respondent, Marian Lemon Coaxum. DONE AND ENTERED this 26th day of November, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 November, 2009.
Findings Of Fact ICF Kaiser Engineers, Inc. is a foreign corporation authorized to do business in Florida. KE Realty Services, Inc. is a Florida corporation which has its principal place of business in Fort Lauderdale, Florida. On February 26, 1993, the Department issued a RFP to solicit offers on the SR 7 contract. This RFP was identified as RFP-DOT-92-93-4008. Proposals submitted in response to the request were to be opened March 26, 1993, and the bid tabulations were to be posted on April 29, 1993. Four vendors submitted proposals in connection with the subject RFP: the Petitioners; Gulf Coast Property Acquisition, Inc. (Gulf Coast); The Urban Group; and Keith and Schnars, P.A. Each proposal was scored based upon four criteria: technical plan; price; certified DBE; and executive judgment. The points available for each were preset and known to all vendors. The technical plan could receive a maximum of 75 points, price could receive 20 points, and each of the other criteria could receive 5 points. Obviously, the technical plan portion was the more weighted criterion. The technical plan portion of each vendor's proposal was evaluated by a Technical Review Committee (TRC). This committee consisted of Claire Tronel, Kevin Szatmary, Steve Gonot, Lynda Parsons, Van Neilly, and Cheryl Balogh. The membership of the TRC was not kept secret and Petitioners knew, and perhaps other vendors as well, who would be evaluating the proposals. Each member of the TRC scored the proposals independently. The average of all of the independent scores for each proposal was then computed as the technical plan score. The vendors received the following technical plan scores: Petitioners a 67.42; Gulf Coast a 56.79; The Urban Group a 36.42; and Keith & Schnars a 29.71. To determine the price score, the lowest priced proposal received the maximum number of points (20). The other proposals received a fraction of the twenty points available based upon the relation of their price to the lowest price. According to the formula, Keith & Schnars received the highest price score (20), then The Urban Group (17.20), Gulf Coast (15.60), and finally, Petitioners (10.60). Petitioners received the lowest price score because it submitted the highest priced proposal. The ratio of its price with the lowest priced proposal multiplied by 20 resulted in the 10.60 score. The scores for the DBE criterion are not in dispute but were assigned as follows: Petitioners, 5.0; Gulf Coast, 5.0; The Urban Group, 0.0; and Keith & Schnars, 2.0. The TRC did not know the prices submitted with the proposals until it had completed the technical scores for each vendor. The final criterion, executive judgment, was determined by the Selection Committee which consisted of: Rick Chesser, James Wolfe, and Joseph Yesbeck. This committee considered two factors in assigning its five points. First, the vendor's ability to do the work; and second, the cost of the work. The scores for executive judgment were: 0 for The Urban Group and Keith & Schnars because their technical proposals were poor; 1 for Petitioners because, while their technical proposals were good, their price was high; and 5 for Gulf Coast. Following tabulation of all criteria scores, the vendors were ranked as follows: Petitioners with 84.02; Gulf Coast with 82.39; The Urban Group with 53.62; and Keith & Schnars with 51.71. On April 29, 1993, the Department posted the foregoing tabulation and its intent to award the SR 7 contract to Petitioners on May 3, 1993. Thereafter, allegations of impropriety and/or conflict of interest were raised by an unsuccessful vendor. The claims were: that members of the TRC had family members who were either employed by or under contract to Petitioners; that Petitioners had conversations with Department employees prior to the submission of the proposals regarding a revised Department budget for the SR 7 contract; and that an employee of the Department served as the registered agent for Petitioners. Gulf Coast met with the Department and alleged that improprieties had occurred or conflicts of interests existed that had affected the technical evaluation of the bids. Based upon the allegations, the Selection Committee decided to avoid the appearance of any impropriety and to rescind the intent to award to Petitioners and to reject all proposals submitted. The decision reached by the Selection Committee was hurried as the Department believed it was bound, by law, to reach such decision before 8:00 a.m., May 4, 1993. A complete investigation into the truthfulness of the charges was not finished prior to the imposed deadline. On May 5, 1993, the Department posted its formal notice of its intent to reject all proposals. The basis for such decision was "perceived improprieties in the selection process and possible conflict of interest." There were no actual conflicts of interest in the review of the subject proposals. Further, there were no actual improprieties in the proposal review or scoring. With regard to the allegations related to family members employed by Petitioners, no such conflict existed. Claire Tronel's husband has a contract with Petitioners unrelated to any of the issues of this case. Such contract is well-known in the industry and was known to the vendors prior to the assessment of these proposals. Further, the Department knew of such relationship prior to Ms. Tronel being selected for membership on the TRC. Mr. Tronel is not an officer, partner, director, or proprietor of either Petitioner. Nor does he have a direct or indirect ownership interest in more than a five percent of the total assets or capital stock of either company. Ms. Tronel had refrained from serving as a scoring member of earlier technical review committees because of her husband's contractual relationship. Ms. Tronel's supervisor was aware of the relationship Mr. Tronel had to Petitioners and did not consider his limited business relationship to be a conflict. Ms. Tronel was chosen to serve on the TRC because of her experience in right-of-way services, and the relative lack of experience of some of the other committee members. Before serving on the TRC, Ms. Tronel consulted with the district general counsel in order to determine whether her participation would violate Florida Statutes or the Department's ethical standards. After receiving advice and making same known to her supervisors, it was decided Ms. Tronel should serve as a committee member. The contractual relationship between Mr. Tronel and Petitioner did not effect Claire Tronel's evaluation of the proposals. In fact, if the scores assigned by Ms. Tronel to the technical plans of each proposal were subtracted from the average scores, the margin between Petitioners' technical score and the next highest score would widen. Ms. Tronel showed no favoritism or bias in favor of Petitioners. Gulf Coast did not complain about improper conflicts related to their proposal yet Michael Sheridan, the son of TRC member Linda Parsons, is employed by O.R. Colan, an appraisal firm which was listed as a subcontractor in Gulf Coast's proposal. Perhaps Gulf Coast did not complain about Ms. Parsons' membership on the TRC because Ms. Parsons' relationship to Michael Sheridan is also widely known in the vendor community. Petitioners knew of such relationship but did not dispute the accuracy or fairness of Ms. Parsons. If Ms. Parsons' score were deleted from the scoring, Gulf Coast would have received the highest score. Ms. Parsons, who is the chief review appraiser, generally serves on the technical review committee for projects which include appraisal services. Since her son became an employee of O.R. Colan, Ms. Parsons has served on technical review committees which evaluated proposals submitted by O.R. Colan and those submitted by vendors who listed O.R. Colan as a subcontractor. Michael Sheridan is not an officer, partner, director, or proprietor of either Gulf Coast or O.R. Colan and does not own, either directly or indirectly, more than five percent of the total assets or the capital stock of either company. While Ms. Parsons has been instructed not to serve on technical review committees in the future when her son is reflected as a participant in one of the proposals, she has not been instructed to refrain from participating whenever her son's employer participates in a proposal. Ms. Parsons showed no favoritism toward Gulf Coast in her evaluation of the proposals. The facts do not support even an appearance that Ms. Parsons showed any favoritism toward Gulf Coast. Ms. Tronel and Ms. Parsons did not disregard their public duties in favor of a private interest. Therefore, no impropriety by reason of their participation resulted. The Department's decision to rescind the award to Petitioners and to reject all bids was also premised, in part, on concerns regarding contacts between Petitioners and the Department employees before proposals were submitted. Petitioners contacted the Department to ask questions because during the course of preparing its proposal an issue of pricing became apparent. An inconsistency between the amounts that they were developing for the project and the amounts reflected in the Department's work program budget for the project became obvious. Because of the disparity between the Department's budget for the project and the prices that Petitioners developed, Mr. Thomas became concerned that he was misinterpreting the RFP. Mr. Thomas called the Department and spoke, first, to Van Neilly and, subsequently, to Claire Tronel about his concerns. Ms. Tronel confirmed that all services, including appraisal, were to be included in the proposals submitted. Ms. Tronel did not tell Mr. Thomas that the Department intended to revise its budget for the project, nor did Mr. Thomas tell Ms. Tronel or Mr. Neilly what Petitioners' price for the SR 7 proposal would be. Subsequently, the Department did revise its budget for the SR 7 contract by forty to fifty percent. The revised budget exceeds the price bid by Petitioners. The Department's work program budget is a public document which lists all of the projects planned by the Department for a five-year period and includes the Department's price estimate for each project. Petitioners submit bids for Department projects and normally submit proposal prices which exceed the Department's budget. Petitioners normally submit proposals which are highly ranked for their technical quality. It was not improper for Petitioners to ask the question regarding the inclusion of appraisal services and it was not improper for a Department employee to confirm that appraisal services were to be included in the project. It is common practice for vendors to call Department employees before the submittal of proposals. However, vendors are warned not to rely upon information which is not provided to them in writing. In addition, it would be improper for a Department employee to share information with one vendor, which could be advantageous to that vendor, without also providing the information to all other vendors. Petitioners received no information which gave them an advantage over the other vendors. Rick Conner is a Department employee who was, until recently, the resident agent for KE Realty Services, Inc. Mr. Conner served in this position without compensation. He was not involved in any way in the RFP or the evaluation of the subject proposals. His role as resident agent had no effect on the scoring of proposals, and was not a factor in the Department's decision to rescind the award to Petitioners. There was no evidence offered at the hearing to suggest that the relationship between Rick Conner and KE Realty gave the appearance of impropriety. Petitioners expended approximately $40,000 in the preparation of the proposal; and, if there is a rebid, will incur additional amounts to prepare a new proposal. Petitioners hired additional employees for the SR 7 contract, so that it could report in its proposal that it had the staff on hand to begin work immediately. If the SR/7 Contract is not rebid until late 1993 or early 1994, the opportunity to recoup the overhead expenses associated with these additional employees will be lost. In addition, Petitioners' ability to rebid is adversely affected by the Department's decision since Gulf Coast made a copy of the proposal and may now benefit from the technical ideas and suggestions developed by Petitioners.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Transportation enter a final order awarding job no. 86100-3576/2508 for the SR 7 project to Petitioners. DONE AND RECOMMENDED this 17th day of September, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3034 Rulings on the proposed findings of fact submitted by the Petitioners: 1. Paragraphs 1 through 23, 25, 26, 28, 29, 31 through 48, 50, 51, and 53 through 61 are accepted. Paragraph 24 is rejected as a statement of law, not fact. Paragraph 27 is rejected as irrelevant. The first sentence of paragraph 30 is accepted; the remainder rejected as irrelevant. Paragraph 49 is rejected as irrelevant. Paragraph 52 is rejected as argument or comment. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1 through 17, 21, and 22 are accepted. While paragraphs 18 through 20 accurately state the rationale expressed by the selection committee (one member of which changed his opinion after a thorough review of the facts), the ultimate facts expressed by the paragraphs (for example, that there was an appearance of impropriety) are rejected as not supported by the weight of the credible evidence. Not one person from the public or from the other vendors testified. The Department took the unfounded allegation of an unsuccessful bidder (not even corroborated at trial) as proof that an appearance of impropriety existed. Paragraph 23 is rejected as argument, conclusion of law, or contrary to the weight of credible evidence. Paragraph 24 is rejected as contrary to the weight of credible evidence. Paragraph 25 is rejected as irrelevant or argument. Paragraph 26 is rejected as irrelevant or argument. The first two sentences of paragraph 27 are accepted; the remainder rejected as irrelevant or argument. Paragraphs 28 and 29 are rejected as argument. Paragraph 30 is rejected as contrary to the weight of the credible evidence. Paragraph 31 is rejected as argument and contrary to the weight of the credible evidence. Paragraph 32 is rejected as argument. COPIES FURNISHED: Paul Sexton Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Martha Harrell Chumbler CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P.A. First Florida Bank Building 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302 Ben G. Watts, Secretary Department of Transportation ATTN: Eleanor F. Turner, Mail Station 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent Conoco meets the statutory definition of an "employer" within the meaning of Section 760.02, Florida Statutes. Petitioner, Marlan D. Williams, who is black, is a member of a class protected by this statute. Petitioner began work at Conoco on January 4, 1990, as a sales associate and was discharged from his employment on May 27, 1992. When Mr. Williams was hired on January 4, 1990, he was required to sign a new employee agreement. Section 3 of that agreement explains to new employees the importance of good customer relations. After reading the employment contract, Mr. Williams signed the agreement. Mr. Williams testified that he understood the importance of good customer relations. Mr. Williams also testified that he understood that he could be terminated for multiple customer complaints and was aware of a white employee who had been terminated for customer complaints. Conoco's personnel policies and procedures regarding termination state in relevant part that, "involuntary terminations occur for a reason, such as when an employee's performance does not meet acceptable standards, if the employee violates Company policy, or when there is no work available for the individual." The details of Conoco's policy were left up to each sales district's manager. In this case, the district manager was Tammy Hunter. Her policy was that three complaints involving customers would result in termination. Ms. Hunter was not concerned with the truth behind these complaints, but only with the fact of multiple complaints. In the past, Conoco, through Ms. Hunter, has consistently applied its termination policy to employees receiving complaints involving customers in a nondiscriminatory manner. In fact, there was no evidence presented at the hearing that the policy was not applied in a nondiscriminatory or had unintended discriminatory impact. 1/ Over the term of his employment Mr. Williams received at least three complaints. Two of the complaints were made by customers directly to Ms. Hunter. One complaint was reported by management to Ms. Hunter and involved a very heated and nasty argument between Mr. Williams and a manager trainee in front of customers. Numerous other incidences of nonspecific poor customer relations involving employees and poor attitude were noted by the store manager, Julia Meuse. Mr. Williams received informal verbal and written counseling regarding his poor behavior towards customers, from his store manager and two assistant store managers. Conoco accordingly discharged Mr. Williams for violation of the Company policy regarding acceptable performance standards in customer relations and customer complaints. The evidence did not demonstrate these reasons were pretextual. Petitioner failed to present any evidence that he was replaced by a person not from a protected class. Therefore Petitioner has not established a prima facie case of discrimination. Finally, the decision to discharge Mr. Williams was made in good faith, for legitimate nondiscriminatory business reasons, and was based upon the objective application of Conoco's policies. Since Petitioner has failed to prove by a preponderance of the evidence that the reasons given by the Respondent for discharging him were a mere pretext to cover up discrimination on the basis of race, Petitioner has failed to establish he was discriminated against and therefore the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his race in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 2nd day of June, 1994, in Tallahassee, Florida. DIANE CLEAVINGER 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 2nd day of June, 1994.
Findings Of Fact As the parties stipulated, DOR "seeks to lease warehouse and office space in the City of Tallahassee in a privately owned building, and issued a request for proposals ('RFP') to seek competitive proposals. Four offerors responded with proposals; three of these were deemed responsive by the Department, and were evaluated by the Department on a variety of weighted evaluation criteria, only one of which was rental rate. . . . The Department proposes to award the lease to the Fregley/Oertel/Skelding Partnership ('F/O/S')." North of Gun Club, South of Springsax By unrecorded warranty deed dated January 2, 1989, Petitioner's Exhibit No. 1, Richard L. Pelham, individually, conveyed to petitioner Equity Resources, Inc., property fronting on Springhill Road in Tallahassee, Florida, on which a warehouse stands. The north boundary of petitioner's property inter-sects the western edge of the Springhill Road right-of-way at a point south of the intersection Springsax Street (which is a paved road) forms when it dead ends into Springhill Road. Petitioner's property does not abut the intersection. The distance between the northeast corner of petitioner's property and the Springsax Street intersection was variously put at "a few feet," (T.189), 100 feet, 100 to 200 feet, and 335 feet. The south boundary of petitioner's property intersects the western edge of the Springhill Road right-of-way at a point some distance north of the intersection between Springhill Road and a dirt road known as Gun Club Road. Specifications Disseminated Richard L. Pelham, who is president of petitioner Equity Resources, Inc., read in the newspaper about respondent's intention to lease office and warehouse space. At his request, Karen Allen, an employee of Universal Equities, Inc., another company with which Mr. Pelham is affiliated, picked up a copy of the request for proposal and bid proposal submittal form at a DOR office. The request for proposal and bid proposal submittal form package which Ms. Allen picked up included a paragraph describing the geographical boundaries of the service area in which DOR hoped to lease space. The paragraph states: Space to be located within or abutting the boundaries starting at the corner of U.S. 90 W. and Capital Circle Southwest (263) proceed South on Capital Circle to Orange Avenue to Springhill Road, South on Springhill to Springsax, East on Springsax to Northridge Road, South on Northridge to Ridge Road, East on Ridge Road to State Road 61 (Crawfordville Hwy), North on SR 61 to U.S. 27, North on U.S. 27 to West Tharpe Street, West on Tharpe Street to Capital Circle NW, south on Capital Circle to Tennessee Capital Boulevard, Southwest on Tennessee Capital Boulevard to U.S. 90 and East on U.S. 90 to Capital Circle Southwest (263). (See Map Attachment B) Petitioner's Exhibit No. 2, p. 8. Devoid of any markings purporting to represent boundaries, the map attached to the bid package Ms. Allen picked up depicted much of Tallahassee, including large areas outside the boundaries the quoted paragraph specified. Many of the request for proposal and bid proposal submittal form packages DOR distributed did include maps on which the area described in paragraph 14A on page eight was outlined. The map in the master package showed boundaries, but they had to be replicated manually on copies. For outlining, DOR employee(s) used an implement that leaves a yellow mark which most copying machines do not reproduce. Mr. Pelham asked Richard Gardner, who may or may not have been at the time an officer or employee of Equity Resources, Inc. (T.62), but who testified he was an officer as of the time of the hearing (T.63), to attend a preproposal conference. Mr. Gardner did attend without, however, taking with him either the request for proposal and bid proposal submittal form package Ms. Allen had obtained or his eyeglasses. After the conference concluded, he asked for a copy of the request for proposal and bid proposal submittal form package. Michael S. Partin, a senior management analyst for DOR, asked another DOR employee to make a copy. When this effort proved unsuccessful (the paper jammed and half pages were produced), he did it himself. After consulting the master bid package, Mr. Partin used a yellow marker to outline on the map he gave Mr. Gardner the area described in the request for proposals. Confusion Feigned Petitioner's Exhibit No. 4 is a copy of a map included in a bid package as Attachment B to a request for proposals. On it, somebody has drawn, with a yellow marker, a boundary that differs from the boundary drawn on the master map, but only in the vicinity of petitioner's property: instead of tracing Springhill Road south to Springsax Street and turning east, the boundary represented on Petitioner's Exhibit No. 4 proceeds south on Springhill Road, past petitioner's property, to Gun Club Road, and turns east there. Mr. Gardner testified that Petitioner's Exhibit No. 4 was the map given to him as part of the package he received after the preproposal conference. But Mr. Partin's contrary testimony that Petitioner's Exhibit No. 4 is not the map he gave Mr. Gardner has been credited. The map he gave Mr. Gardner "look[ed] like [Petitioner's] Exhibit No. 5." T.166. Petitioner's Exhibit No. 5 unambiguously depicts the boundary turning east from Springhill Road onto Springsax Street, in complete consonance with the verbal description. Mr. Gardner also testified that he understood from discussions with Mr. Partin that the boundary went south to Gun Club Road before turning, but this testimony has not been credited. Both Mr. Partin and Barbara Foster Phillips, who was present during the conversation, testified that nothing that was said could reasonably have been understood to mean this. The latter account has been accepted as truthful. Mr. Pelham's testimony that he relied on (a) map(s) as establishing (a) boundar(ies) inconsistent with the boundary clearly described in paragraph 14A on page eight of the request for proposal has not been credited. After determining the location of petitioner's property, DOR did not evaluate petitioner's proposal further, even though petitioner offered to lease space for significantly less than any other offeror, and even though petitioner's property was closer to other DOR facilities than many points within or abutting the boundaries set out in the request for proposals. Surprise at Hearing On the master map itself, Petitioner's Exhibit No. 5, because of the width of the marker as it turned the corner from Springhill Road onto Springsax Street, yellow extends down Springhill Road far enough south of Springsax Street that at least some of petitioner's property fronts on the yellowed portion of Springhill Road. Not until final hearing, however, did any bidder see the master map.
Recommendation It is, accordingly, RECOMMENDED: That respondent reject petitioner's proposal for lease No. 730:0106 as nonresponsive. DONE and ENTERED this 9th day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 9th day of November, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 4 and 13 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 1, 2, 7, 8, 9, 10 and 12 have been rejected as unsupported by the weight of the evidence. With respect to petitioner's proposed findings of fact Nos. 5 and 6, no bidder saw the "master map" before the final hearing in the present case. Although the breadth of the marker yellowed Springhill Road below the intersection with Springsax Street, the turn onto Springsax Street is unambiguously depicted on the master map. With respect to petitioner's proposed finding of fact No. 3, unavailability of the legal description was not proven. With respect to petitioner's proposed findings of fact Nos. 11 and 14, the lease was to last five, not ten years. Respondent's proposed findings of fact Nos. 1, 2, 4, 5, 6 through 20, 22, 23, and 25 through 29 have been adopted, in substance. With respect to respondent's proposed finding of fact No. 3, the evidence did not establish that DOR "determined a boundary area they felt offered the optimum number of properties." With respect to respondent's proposed finding of fact No. 21, Pelham testified both that the property did and that it did not abut the intersection. With respect to respondent's proposed finding of fact No. 24, the distance depends on the method of measurement. With respect to respondent's proposed findings of fact Nos. 30 and 31, Mr. Partin's subjective views are immaterial. Intervenor's proposed findings of fact Nos. 1 through 4, 7 through 13 and 16 through 24 have been adopted, in substance, insofar as material. With respect to intervenor's proposed findings of fact Nos. 5 and 6, Mr. Partin's subjective intent is immaterial. With respect to intervenor's proposed findings of fact Nos. 14 and 15, the distance depends on the method of measurement. Copies furnished: Gene T. Sellers, Esquire Department of Revenue Tallahassee, FL 32399-0100 William A. Friedlander, Esquire Equity Resources, Inc. 424 East Call Street Tallahassee, FL 32301 Kenneth G. Oertel, Esquire Oertel/Fregley/Sheldon Partnership 2700 Blairstone Road Tallahassee, FL 32301 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 William D. Moore, General Counsel Department of Revenue The Capitol, LL-10 Tallahassee, FL 32399-0250
The Issue The issue in this proceeding is whether the Respondent's intended award of Invitation to Negotiate (ITN) 13/14-01 was contrary to the Department's governing statutes, rules or policies; contrary to the solicitation specifications; and was clearly erroneous, contrary to competition, arbitrary or capricious.
Findings Of Fact The Department is designated by section 409.2257, Florida Statutes (2014), as the Title IV-D agency for the State of Florida. As such, it is responsible for the administration of the Child Support Enforcement program that is required in all states by the Federal Social Security Act. See § 409.2577, Fla. Stat. As part of its duties under chapter 409, the Department is authorized to solicit proposals from, and to contract with, private contractors to develop, operate, and maintain a state disbursement unit (SDU). The SDU is responsible for processing, collecting and disbursing payments for most child support cases in Florida. The current contractor for the SDU is Xerox whose contract will expire on February 28, 2015. In general, Florida procurement law provides a continuum of competitive procurement processes running from invitations to bid, through requests for proposals, to invitations to negotiate. Invitations to bid are used where specifications can be stated with certainty with the primary issue being price. Invitations to negotiate, on the other end of the procurement spectrum, are used to purchase services when state agencies need to "determine the best method for achieving a specific goal or solving a particular problem." § 287.057(1)(c), Fla. Stat. (2014). In essence, an ITN contains the process a state agency follows in awarding a contract and the criteria to which a vendor should reply in order to be considered responsive to the ITN. Under an invitation to negotiate and even though a reply must be responsive to the invitation, specifications generally are more fluid and less mandatory. Price, while important, is negotiable. Indeed, an agency may "reply shop" the terms, including price, of one vendor's reply against a competitor's reply in seeking revisions to that vendor's reply. As such, contract price is a more fluid concept under an ITN and is not the primary consideration in an ITN. In this case, the Department was seeking a solution for processing, collecting and paying child support payments based on a negotiated per transaction rate resulting from such SDU services plus negotiated service costs associated with the operation of the SDU. In fact, contracting for a transaction- rate-based price was one of the prime considerations under this ITN because the Department felt it could gain significant contract savings by utilizing a transaction-rate-based pricing scheme in its negotiations. Towards that end, the Department issued Invitation to Negotiate 13/14-01 on August 27, 2013, soliciting service solutions for the operation of the SDU. Prior to receiving replies to the ITN, the Department issued seven addenda to the ITN, provided several replacement pages to the ITN and answered numerous vendor questions regarding the ITN. After the release of the ITN and the seven addenda, there was no protest filed pursuant to section 120.57, Florida Statutes, regarding the ITN's specifications. As such, any objection to those specifications was waived by Petitioner and Intervenor. In this case, the ITN required a vendor's reply to be in a particular format. Specifically, the ITN required that a vendor's reply consist of two components presented in two multiple-tabbed binders: the Administrative/Technical Reply (Technical Reply) and the Cost Data Reply (Cost Reply). Technical Replies were to contain non-cost information such as corporate capability, proposed solution technical components, quality assurance and monitoring, and a variety of attachments. Cost Replies were to contain a vendor's Transaction Rate, Baseline Compensation, Reimbursable Costs, and other cost-related information as specified by the ITN. Vendors were not permitted to disclose any cost information in the Technical Reply. Additionally, the ITN required that a 15-page "Requirements Response Location Form" be completed and provided by the vendor in its ITN reply. The form listed the section numbers of the essential criteria of the ITN and the pages of the ITN on which each criterion could be found. The form also contained blank spaces adjacent to each referenced criteria where the vendor was to list the sections and pages of the vendor's reply that responded to each of the referenced criteria in the requirements response form. Relevant to this case, Section 1 of ITN 13/14-01 contained general definitions of terms used in the ITN. Under Section 1, a "Responsive Reply" was defined as "[a] Reply submitted by a responsible Vendor that conforms in all material respects to the solicitation." A "Minor Irregularity" was defined as "[v]ariations of terms and conditions from the Invitation to Negotiate which do not affect the price of the Reply or give the Vendor an advantage or benefit not enjoyed by the other Vendors or do not adversely impact the interests of the State." Additionally, the Department reserved the right to waive minor irregularities in a vendor's reply. ITN Section 2.4 provided: "The FDOR intends to negotiate with one or more Vendors who are compliant with the mandatory compliance items identified throughout this document." ITN Section 2.5 addressed Desired vs. Mandatory Requirements and Actions: Within the ITN the use of "shall" or "must" indicates a mandatory requirement or mandatory action. The FDOR may consider failure to meet a mandatory requirement to be a material deficiency, in which case the FDOR may reject the Reply and not consider it further, or FDOR may have the option to score that requirement with a zero (0). (emphasis added). The use of "should" or "may" indicates a desired requirement. The FDOR will not reject a Reply just because it fails to meet a desired requirement and may result in a lower score for that requirement. Clearly under the ITN, the mandatory nature of a requirement did not result in the criteria also being material since the Department could consider failure to meet a mandatory requirement to be a material deficiency or allow the vendor to move to the evaluation phase with the materiality of such criteria to be addressed by the evaluators during scoring. ITN Section 3.1.9, titled "Material Requirements Compliance Review," addressed the ITN's pro-forma review for responsiveness and provided: Each Vendor shall submit a Reply that conforms in all material respects to this solicitation. Material requirements of the ITN are those set forth as mandatory or those that affect the competitiveness of Replies. All Replies will be reviewed to determine if they are responsive. The FDOR will conduct a Material Requirements Compliance Review of all Replies submitted in response to this ITN. This review does not assign scores, but is simply a pass/fail review. Replies that do not meet all material requirements of this ITN; fail any of the mandatory requirements in this ITN; fail to timely respond to Reply Qualification Requests (see Section 3.1.10); fail to provide the required/requested information, documents, or materials in the Reply and/or during the Reply Qualification Process; or include language that is conditional, or takes exception to terms, conditions and requirements, shall be rejected as non-responsive and not considered further. The FDOR reserves the right to determine whether a Reply meets the material requirements of the ITN. Additionally, Section 3.1.10 of the ITN provided that the Department was to initially review each reply "to determine a Vendor's compliance with the requirements of the ITN not directly related to the Technical Specifications and Cost Data of the ITN." (emphasis added). A checklist titled "Material Requirements Compliance Review" was used to determine the responsiveness of a reply. The checklist items are not at issue here. Importantly, per the ITN criteria, the material responsiveness review was a review of the form of a reply and not a review of the substance of the same. Indeed, deficient replies could be cured as part of the "Reply Qualification Process." After the responsiveness review, an Evaluation Committee chosen by the Department would score the Administrative/Technical Volume for each vendor in accordance with the evaluation criteria in the ITN. Towards that review, the vendor was required to complete and submit the "Requirements Response Location Form" as part of its reply. As indicated earlier, the response location form listed the section numbers of the essential criteria of the ITN and the pages of the ITN on which each criterion could be found. The form's criteria references matched the criteria references in the score sheets to be used by the individual evaluators to score a vendor's reply. Further, the evaluation committee used the location form to locate information within a vendor's reply. In evaluating replies, the committee members were not expected to hunt down information in a vendor's reply outside what was provided by a vendor on its response location form. Thus, the form is a very good indication of the materiality or importance of a particular ITN criteria since those criteria were the ones on which a vendor's reply was to be evaluated. Relevant to this case, Section 7.13.1.1 of the ITN required that a letter of commitment for a surety bond be submitted with a vendor's cost reply. There was no prescribed format or wording for this letter. Additionally, Section 12 of the ITN contained a table titled "Attachments and Submittals." According to Section 12, the table listed a variety of documents "to be completed and included in Volume One: Administrative/Technical as indicated[.]" However, the table clearly listed documents that the ITN, in other sections, required to be in Volume Two, the Cost Data Reply. In fact, the table itself only indicated who should complete a document. It did not indicate whether a document was required, for responsiveness purposes, to be submitted with a reply. The "as indicated" language, referenced above, referred to other sections within the ITN to determine if such documents should be submitted and in what volume they should be submitted. Other than referral to other sections of the ITN, Section 12 did not require that any document listed in its table be attached to the ITN. Two of the documents listed in Section 12 of the ITN were "Incident Control Policy and Procedures" and "Change Management Policy and Procedures." In the column of the table titled "Attachment" these two documents were listed as "Vendor's Documents." However, unlike the other documents listed in the Section 12 table, these two documents had no attendant requirement in other sections of the ITN stating that the two documents should be provided or where in a vendor's reply the two documents should be placed. The Department's responses to October 24, 2014, vendor questions 18 and 19 regarding these documents were that the two documents referred to the vendor's corporate documents and that a copy of such documents were required to be submitted with a vendor's "proposal." Except for the Department's responses, there were no written addenda amendments to the ITN document making such submission mandatory or indicating in what section of the vendor's multi-tabbed response the documents should be included. Further, no addenda amendments were made to the response location form to cover these documents. Similarly, no addenda amendments were made to the evaluator's score sheets to cover or evaluate these documents. Thus, despite the use of the word "required" in the Department's response to questions 18 and 19 and in view of the lack of any amendments to the ITN in relation to these responses, the evidence demonstrated that submission of these two documents with a vendor's reply was only desired by the Department and was not mandatorily required under the ITN for purposes of responsiveness. Section 12 of the ITN also listed Attachment G, "Individual Contractor Security and Agreement Form." The form was to be "completed" by the vendor and subcontractors. As discussed above, inclusion in the Section 12 table did not indicate whether a document was required for responsiveness purposes to be submitted with a reply. Those criteria were found elsewhere in the ITN. Notably, the provision of the standard contract which would emerge from this ITN required the security form be executed by subcontractors within five days of signing the contract. More importantly, Section 6.6 of the ITN stated that Attachment G "should" be executed and submitted with a vendor's reply. As such, the document's attachment was not mandatorily required for responsiveness purposes, but was only desired by the Department at this point in the ITN process since the winning vendor and its subcontractor's must provide the document within five days of signing the contract. The ITN further provided in Section 10.3.2 that upon completion of the Administrative/Technical evaluation, the Cost Data Volume would be publicly opened and scored. Relevant to this case, the ITN addressed renewal cost and renewal of any future contract in Section 7.4 of the ITN. Section 7.4 stated, in pertinent part: RENEWALS The FDOR reserves the right to renew any Contract resulting from this ITN. Renewals shall be subject to the terms and conditions set forth in the original Contract and subsequent amendments, . . . Vendors shall include the cost of any contemplated renewals in their Reply, . . . In substance the section tracked the language of section 287.057(13), Florida Statutes, making any renewal subject to the same terms and conditions, including price, as the original contract. The statute also requires that the "price" of any "services to be renewed" be provided in a vendor's reply. However, if a separate renewal price was not provided in a vendor's reply, any renewals would be at the price of the original contract since under the ITN the original price would be the renewal price for section 287.057(13) purposes. On the other hand, Section 7.4 of the ITN deviated from the statute's language and required that the "cost" of any "contemplated renewals" be included in the vendor's reply. Such cost information was not part of the criteria requirements listed for the ITN on the "Requirements Response Location Form" and was not part of the requirements to be evaluated by the evaluation committee. Question 39 posited by SMI on September 18, 2013, asked about the handling of renewal cost information in the vendor replies to the ITN. The Department's response to question 39 was that "renewal rate information" "should" "please" be provided in summary form in the cost volume of the vendor's reply to the ITN. Additionally, the Department's response stated that renewal cost information was not to be "scored" as part of the transaction rate. Clearly, the Department in its response viewed this "rate information" as related to the transaction rate, which was one of several costs used to calculate total compensation under the ITN. The Department's explanation or interpretation of Section 7.4 has a reasonable basis since renewal of the contract was statutorily restricted to the same terms and conditions of the original contract, making such renewal cost information immaterial. Additionally, the renewal information was not part of the scoring criteria that permitted a vendor to move through the negotiation process under the ITN and was not required in order for a vendor to be responsive to the ITN. In essence, the Department's response made the provision of renewal cost information a non- essential criteria of the ITN. Non-compliance with such criteria can be waived by the Department as a minor irregularity.2/ ITN Section 10.3.2.1.4 provided: Only cost submitted in the prescribed format will be considered. Alternate cost models will not be considered for scoring purposes. Vendors selected for negotiations will be provided the opportunity to present alternate costing structures. "Alternate cost models" referred to models that did not use a transaction-based rate such as a fixed price model or did not use the format for calculating compensation required by the ITN. Part of the format for vendor cost replies included Attachments K (Transaction Rate Cost Form), L (Baseline Compensation Form), M (Reimbursable Cost Form), N (Unknown, Unanticipated, and Unspecified Tasks Cost Form), and O (Total Compensation Form). Additionally, after questions posed by the vendors, the Department supplied an estimate of the number of transactions it predicted might be processed by the SDU under the contract. The estimate provided by the Department was 69,425,110 transactions and was based in part on an assumed percentage increase in actual transactions that occurred under the current contract in 2012. Attachment K was the form used by a vendor to explain and report the per-transaction rate that the vendor would charge the Department for each transaction it processed through the SDU. The form required disclosure of the costs the vendor included in determining its transaction rate. The form was required to be signed by a representative who could bind the vendor. Relative to Attachment K under the ITN, neither the method used nor the costs included by a vendor to calculate its transaction rate was prescribed by the ITN criteria. There was no requirement that the Department's estimated number of transactions of 69,425,110 be used in calculating the vendor's transaction rate. The Department only supplied such estimates as information to the vendor. In fact, a vendor was free to use its own assumptions regarding the estimated number of transactions that might be processed through the SDU in its calculation of its transaction rate. The method of rate calculation did have to be explained. However, once calculated, the vendor's transaction rate was carried over to line "B" on Attachment L which, as discussed below, ultimately filtered through to a contract price and commensurate price of services that might be renewed in Attachment O. Attachment L was the form used to calculate the baseline compensation cost for the vendor. The initial form did not require that the Department's estimate of 69,425,110 transactions be used in the calculation of the baseline compensation cost. After questions from the vendors and internal discussions within the Department, Attachment L was revised to require that the Department's estimated number of transactions be used on that form. Notably, the Department did not revise Attachment K to require the use of the estimate when it revised Attachment L. The formula used to calculate Projected Baseline Compensation on Attachment L required the vendor to multiply its transaction rate from Attachment K by the Department's estimated transactions of 69,425,110. The requirement to use the Department's estimated number of transactions on Attachment L normalized the vendors' baseline compensation calculation so that an apples-to-apples comparison of baseline compensation could be made between vendors. Once calculated, the projected baseline compensation cost calculation was carried over to a line item in Attachment O, which form calculated the total projected SDU compensation, the cost factor used in awarding points to evaluate a vendor's reply. Attachment M was the form on which a vendor was to submit estimates of actual costs the vendor anticipated it would expend for performing the contract. Although not specified, presumably the costs listed by the vendor on Attachment M would be those not used in the vendor's Attachment K transaction rate calculation. Additionally, ITN specifications Sections 7.10.4.3 and 10.3.2.3 provided that all vendors "shall execute and submit Attachment M: Reimbursable Costs." The term "execute" simply means to complete. Within Attachment M, a list of several anticipated cost categories (facilities rent/lease, postage, e-disbursement, post office box fees, etc.) were provided by the Department. There were also several blank fields for additional cost categories contained on the form. The specifically-listed cost categories were those categories the Department, in its experience, anticipated a vendor might incur and for which it would reimburse a vendor. The use of the phrase "will reimburse" in relation to these anticipated cost categories did not make the reporting of such costs mandatory given the format of Attachment M and the instructions later provided on the form discussed below. Such anticipation only indicated interest by the Department in those expense categories but did not create a requirement that those specific expenses were required to be estimated by a vendor for purposes of responsiveness to the ITN in order to move forward in the evaluation and negotiation process.3/ Indeed, such costs or expenses were intentionally negotiable under the ITN. Following this list, a box to provide the amount of each reimbursable cost and ultimate total was provided at the end of Attachment M. Notably, except for two of the anticipated cost categories, the box did not include any of the anticipated costs listed earlier in Attachment M. The two cost categories that were listed in the reimbursable cost box were "Facilities Rent/Lease" and "CSR Salary Expenses." Both these cost categories had blank fields where the vendor was required to fill in an amount in the reimbursable cost box at the end of Attachment M. Additionally, the instructions for executing the box clearly stated that amounts for these two categories must be provided. As indicated, the other anticipated costs contained on Attachment M were not specifically listed in the reimbursable cost box. Only blanks, labeled as "(other)," where amounts for vendor "proposed" costs could be reported were contained within the box. Given the format of this form and the instructions at the top of the reimbursable cost box, amounts for anticipated cost categories listed in Attachment M, other than the two required cost categories in the box, were not required to be proposed by the vendor in completing Attachment M and, as indicated earlier, such amounts were not required in order for a reply to be responsive to the ITN. As with the other forms, the total from the reimbursable cost box was carried over to a line item in Attachment O. Attachment O was the form used to calculate the total projected SDU compensation that constituted the vendor's proposed contract price. The proposed price was also the price for services which may be renewed since, unless the vendor proposed a different renewal price, this was the original price proposed as a term of the initial contract. Section 10.3.2 sets forth the formula for scoring the Cost Data Volume of a vendor. The formula was: Total Available Cost Points x Amount of Lowest Response Cost/Vendor's Reply Cost (emphasis in original). The ITN further stated: "Each Vendor's Cost Data points will be added to their Administrative/Technical score to obtain the Vendor's Total Reply Score. The Vendor's Total Reply Score will be used to determine which Vendors the FDOR will Negotiate with." Thus, the vendor with the lowest cost would receive the maximum points available for its Cost Data Volume with all other vendors receiving a portion of the total available Cost Data points proportionate to the difference between their proposed cost and that of the vendor with the lowest cost. Notably, lower cost points did not disqualify a vendor from selection for negotiation. Similarly, a lower Total Reply Score did not disqualify a vendor from selection for negotiation because the goal in an ITN procurement is to develop a range of vendor replies for negotiation. The ITN, in Section 11.3, provided broad discretion to the Department regarding the manner in which negotiations would be conducted, including obtaining revised offers from vendors. The section reserved to the Department the right to: negotiate with one or more, all, or none of the vendors; eliminate any vendor from consideration during negotiations as deemed to be in the best interest of the State; and conduct negotiations sequentially, concurrently, or not at all. Sections 3.1.19.1 and 11.5 of the ITN provided that at the "conclusion" of negotiations, the Department would post a Notice of Intended Agency Decision, as determined to be in the best interest of the State. However, this language must be read in conjunction with Section 11.4 of the ITN that authorized the Department's negotiation team to request a Best and Final Offer (BAFO) from one or more vendors with which the Department concluded negotiations. The section reserved to the Department the right to "request additional BAFO; reject submitted BAFO; and/or move to the next vendor" after a BAFO had been submitted and negotiations concluded. Additionally, Section 2.6.9 contemplates that discussions, i.e. negotiations, regarding the form and language of the final contract would continue after the Notice of Intent to Award was posted. Section 2.6.9 states: The FDOR anticipates initially addressing any contract terms and conditions or concerns during the Negotiation process and then continue discussions post award. Given this language, the Department, in its judgment and acting in the best interest of the state, may post an intended award prior to the complete conclusion of negotiations and finalization of the contract with a vendor. In this case, SMI and Xerox both timely submitted a reply to the ITN. Each reply contained a Volume I: Administrative/Technical; and a Volume II: Cost Data. Both vendors submitted a completed Requirements Location Response Form and had information contained in their reply relative to the references contained in that form. As indicated earlier, under the ITN's pro forma responsiveness review, the substance of each vendor's reply was not a determining factor in whether a vendor's reply was responsive to the ITN for purposes of being accepted and moving forward in the ITN process. John Kinneer was a purchasing analyst with the Department. He served as the procurement officer and as a negotiator with respect to the ITN. Mr. Kinneer reviewed the technical replies submitted by Xerox and SMI for pro-forma responsiveness to the ITN sufficient to move forward in the ITN process. In compliance with the ITN, he checked the Material Requirements form for both vendors and checked that each vendor had some information in its technical reply relative to the response form. Per the ITN, he did not check the substance of that information. In this case, the evidence demonstrated that both replies met the preliminary responsiveness requirements of the ITN and properly moved forward in the ITN process to the evaluation phase. The Department appointed an evaluation team of seven persons to evaluate and score the Technical Replies. The Committee consisted of Shannon Herold, Barbara Johnson, Connie Beach, Stan Eatman, Beth Doredant, Mark Huff, and Craig Curry. Under the ITN, the evaluation team was tasked with analyzing the substance of each reply and scoring them accordingly with any issues regarding the quality or responsiveness of a vendor's reply to be addressed in that evaluator's scoring. Each evaluator reviewed and independently scored each vendor's reply according to the criteria listed in the "Requirements Response Location Form." In this case, both replies contained a surety letter of commitment as required by Section 7.13.1.1 of the ITN. SMI's letter was from OneBeacon, the apparent bonding agent in the letter. Indeed, there was no evidence that OneBeacon was not a bonding company. The letter indicated that OneBeacon intended to provide a bond to SMI and that SMI qualified for such a bond in an amount sufficient to meet the requirements of the ITN. Xerox's letter of commitment was also from an apparent bonding company and stated only that the bonding company was "prepared to write the required performance bond" in an unspecified amount and "subject to standard underwriting conditions." While one may quibble about the language used in both Xerox's and SMI's letters, the evidence showed that both letters were not simply letters of reference from a bonding company but were letters of commitment from such companies and were intended as such by those bonding agents. Moreover, the language of both letters was acceptable to the Department as meeting the requirements of the ITN. As such, both Xerox and SMI were responsive to the surety commitment requirements of the ITN. Xerox's reply also attached a copy of its Corporate Change Control Policy and Procedures and a copy of its Corporate Incident Control Policy. These documents were developed by Xerox over several years of being in the business of providing SDU services. They were not developed in relation to this ITN and the evidence did not show that Xerox was disadvantaged either monetarily or otherwise by producing these documents for the ITN. On the other hand, SMI did not attach such documents. Instead, SMI summarized the substance of its policy and procedures in Tabs 3, 10 and 13 of its Technical Reply and included a copy of SMI's corporate Security Plan encompassing the incident and control policies of SMI. The quality of SMI's reply was evaluated by the evaluation committee members and scored according to the criteria relevant to the ITN. Further, the evidence demonstrated that failure to attach these two documents would not adversely affect any vendor or impair the procurement process since a vendor ultimately was required to agree to adopt the Department's incident control and change management policies and procedures. Moreover, as indicated earlier, the documents were not part of the responsiveness requirements under the ITN. Therefore, SMI's reply was responsive without the attachment of these two documents. However, assuming such documents were required, the evidence demonstrated that the lack of copies of specific documents titled in a certain way was a minor irregularity which the Department reasonably waived since SMI summarized the information relevant to these documents in its reply. Such waiver was not clearly erroneous, contrary to competition, arbitrary, or capricious. Additionally, Xerox submitted with its reply an executed Attachment G, Individual Contractor Security Agreement Form, for both itself and its proposed subcontractors. SMI submitted an executed Attachment G for itself but did not submit the attachment for its proposed subcontractors. The form was not submitted for SMI's proposed subcontractors because its subcontractors could not access the Department's online procurement library to determine what they would be agreeing to by signing the form. The inaccessibility of the procurement library was not the fault of SMI or its subcontractors but was due to the Department's failure to provide the policies referenced. Additionally, the Department's Standard Contract required Attachment G to be provided within five business days of contract execution. The evidence did not demonstrate that SMI's failure to include an executed Attachment G for its subcontractors constituted a material deviation from the ITN. Further, as indicated above, Attachment G was not a mandatory provision of the ITN for responsiveness purposes. As such, SMI's reply was responsive on this criterion. However, even assuming Attachment G was required under the ITN, the quality of SMI's reply was evaluated by the evaluation committee members under the relevant criteria. The evidence did not demonstrate that SMI obtained an unfair competitive advantage by not including this form in its reply since any subcontractor would have to submit the executed form after contract execution as required by the Department's Standard Contract. Additionally, the evidence did not demonstrate that the procurement process was undermined by the lack of a subcontractor Attachment G in SMI's reply. Therefore, the lack of such a document in SMI's reply was reasonably waived by the Department as a minor irregularity and such waiver was not clearly erroneous, contrary to competition, arbitrary, or capricious. The evaluation team completed scoring of the vendor's technical replies around January 17, 2014. Xerox scored 969 points and SMI scored 943 points. The difference of 26 points was not shown by the evidence to be significant since both vendors were experienced and well qualified to perform the services required to operate the child support State Disbursement Unit. After the technical replies were evaluated and scored, the initial Cost Data replies of each vendor were opened and the total costs read aloud at a public meeting. The initial cost replies were reviewed by Mr. Kinneer to ensure the replies were mathematically accurate and that the cost forms were used. He did not review or consider the substance of the cost numbers included on those forms or the narratives in the cost replies. The substance of the cost replies was left for consideration by the negotiation team. Xerox's proposed total compensation for years 1 through 5 of the contract was $84,920,072.00. SMI's proposed total compensation for the same period was $47,996,387.00, approximately $36 million less than Xerox's proposed compensation. Neither vendor submitted a separate price for renewal of the SDU services contract. Therefore, for purposes of section 287.057(13), Florida Statutes, the "price" for the "services to be renewed" was the amount stated above for that vendor. Both Xerox and SMI were responsive for purposes of the statutory requirement of section 287.057(13). Xerox also submitted a brief summary of renewal cost in its introductory letter to its cost reply. In essence, Xerox did not anticipate any renewal cost associated with future renewal of the contract. SMI, also, did not anticipate any renewal cost associated with future renewal of the contract, but did not submit a statement to that effect. However, as discussed above, such cost information was not part of the criteria requirements listed for the ITN on the "Requirements Response Location Form" and was not part of the requirements to be scored by the Department for purposes of the cost reply. The evidence demonstrated that the information was immaterial to the Department in evaluating these replies. Further, the evidence did not demonstrate that failure to summarize such renewal cost information would adversely affect any vendor or impair the procurement process. Under this ITN and the facts of this case, the failure to provide such non-essential cost information constituted a minor irregularity and was appropriately waived by the Department. The Department's action in that regard was not unreasonable and was not clearly erroneous, contrary to competition, arbitrary, or capricious. The evidence showed that both vendors filled out Attachments K, L, M, N, and O. Relative to Attachment K, Transaction Rate, both vendors completed the form based on their unique assumptions regarding the appropriate transaction rate. Neither vendor used the Department's estimated transaction amount of 69,425,110 transactions. Xerox claimed that its assumptions took into consideration the Department's estimate and that such consideration was buried in its ultimate calculation. However, Xerox's mathematical explanation of its transaction rate calculation on its Attachment K does not reflect that it used the Department's estimate in its calculation. In general, the explanation of its transaction rate contained in its reply reflects that Xerox based its transaction rate on the current contract price minus the annualized costs contained in its Attachment M, divided by the actual number of transactions Xerox processed in 2012 and discounted by 12% to produce a transaction rate of 1.150 for the ITN. Clearly, Xerox did not use the Department's estimate in its calculation and, instead, based its transaction rate on the current contract price, a method the Department warned vendors against using. Similarly, SMI did not use the Department's estimated transaction number in its calculation of its transaction rate on Attachment K. SMI based its proposed rate of .497 on its own historical transaction volumes from other states. The estimated number of transactions used by SMI was 45,066,694 transactions. For unknown reasons, the detailed explanation of the amount of transactions used by SMI was placed on Attachment L. However, the explanation was not used on Attachment L and did not impact the calculation contained on Attachment L. Such misplacement was immaterial to the ITN and had no impact on the ultimate result in Attachment O. As such, the misplaced explanation did not render SMI's Attachment K non-responsive to the ITN and both Xerox and SMI were responsive to the ITN regarding Attachment K. Likewise, the misplaced explanation of SMI's transaction volume did not render SMI's Attachment L non- responsive to the ITN since it was immaterial to that Attachment. Further, the evidence demonstrated that both Xerox and SMI used the Department's estimated transaction volume on Attachment L as required by the ITN. Therefore, both Xerox and SMI were responsive to the ITN regarding Attachment L. Relative to Attachment M, Reimbursable Costs, both vendors supplied cost amounts for rent and CSR salaries as required by Attachment M. However, neither vendor supplied all of the cost amounts listed in Attachment M's list of anticipated costs. SMI did not supply amounts for postage associated with certain services, post office box fees, foreign bank fees, and hand-signed paper check stock costs. Xerox did not supply amounts associated with SDU mass mailings as listed in cost category two for postage-related items on Attachment M and did not submit an amount for telecommunications cost. As discussed earlier, except for two of the anticipated cost categories of rent and CSR salaries, the ITN did not require that amounts be supplied for those categories in order for a reply to be responsive to the ITN. Therefore, both Xerox and SMI were responsive to the ITN regarding Attachment M. Both Xerox and SMI submitted a responsive Attachment O which included line items from Attachments K through N. Attachment O formed the basis for awarding points based on the lowest cost. As indicated earlier, Xerox's proposed total compensation for years 1 through 5 of the contract was $84,920,072.00. SMI's proposed total compensation for the same period was $47,996,387.00. Under the ITN, the cost replies were scored according to the ITN specifications in Section 10.3.2 and the formula contained therein. SMI received a total of 660 points as the low cost reply. As the second lowest cost reply, Xerox received 376 points as a proportion of the total 660 points received by SMI. Both vendors' scores were added to their technical scores. SMI received a combined Total Reply score of 1603 points for its reply. Xerox received a combined Total Reply Score of 1346 points for its reply. As responsible and responsive vendors, both Xerox and SMI were selected to participate in the negotiation phase of the ITN, where, under the ITN, the criteria and terms of the ITN became negotiable. Further, the evidence did not demonstrate that either the evaluation scores or the Total Reply Scores impacted the ITN process beyond qualifying the vendors to participate in the negotiation process. The Department formed a Negotiation Team consisting of Thomas Mato, Clark Rogers, Nancy Luja, Max Smart, Steve Updike, John Kinneer, and Bo Scearce. Several meetings of the Negotiation Team were held during which the team evaluated Xerox's and SMI's replies, posed written questions to the vendors and discussed technical issues with technical experts. Face to face negotiating sessions between the team and the vendors were also held, as well as meetings to discuss technical issues with the parties. Additionally, two rounds of separate demonstrations of a vendor's proposed system and solution were given to the Negotiation Team by Xerox and SMI. The Negotiation Team only observed the demonstration of each vendor in the first such meeting. During the second demonstration by each vendor, the Negotiation Team observed the demonstration and asked questions of the vendor. Based on these demonstrations and meetings, the team elected to request revised replies from both vendors. At some point prior to submission of the revised offers and per the ITN, the team communicated to Xerox that, if it wished to stay competitive in the ITN process, it should bring its price closer to that of SMI. The team also communicated its desire to SMI that costs from the anticipated cost list on Attachment M that SMI had not included in its initial reply should be included on that form. With that information from the Negotiation Team, Xerox and SMI submitted revised cost replies. Xerox's Total Projected SDU Compensation dropped from $84,920,072.00 to $48,200,000.00. Its transaction rate was reduced from $1.150 to $.525. Its Attachment M cost estimate increased from $5,081,195.50 to $9,926,119.00. SMI's Total Projected SDU Compensation increased from $47,996,387.00 to $49,500,000.00. Importantly, its transaction rate remained the same at $.497. Its Attachment M cost decreased from $13,492,107.00 to $12,433,125.00. After reviewing the revised replies, the Negotiation Team elected to continue to conduct negotiations with SMI first. Such vendor selection was appropriate under the ITN since its transaction rate remained lower than Xerox's transaction rate and the team preferred SMI's solution for a variety of legitimate reasons to Xerox's solution. Additional negotiations were conducted with SMI, resulting in additional terms and conditions. After several such negotiation meetings, the evidence showed that the substantive part of the negotiations, including price and scope of work, had concluded with only final contractual language remaining. As such, the Negotiation Team requested a Best and Final Offer (BAFO) from SMI. On May 14, 2014, SMI submitted its BAFO. SMI's Total Projected SDU Compensation increased from $49,500,000.00 to $50,700,000.00. Its transaction rate dropped slightly to $.495 and its Attachment M cost increased from $12,433,125.00 to $13,740,152.09. The BAFO was acceptable to the negotiation team and would, along with SMI's technical reply, become part of the Department's standard contract under the ITN. The team reasonably concluded SMI's management team was superior, and its solution was more customer friendly, intuitive, efficient, and innovative. The Negotiation Team documented its reasons for selecting SMI in a memorandum to the procurement file. On May 19, 2014, the Department posted its Notice of Intended Award to SMI. The evidence did not demonstrate that the award violated section 287.057, Florida Statutes, since that section only requires that negotiations be "conducted" prior to an intended award of a contract. Notably, the award is only intended and is not final since the Department under Sections 3.1.19.2 and 7.3 is not required to enter into a contract if such a document cannot be finalized. Indeed, the statutory language of section 287.057(4) and the ITN in Section 2.6.9 permit continued negotiation and finalization of a contract after the Notice of Intended Award. In this case, the evidence demonstrated that the negotiations between the negotiation team and SMI resulted in a meeting of the minds regarding the services that SMI would be performing and the price for those services. Further, the evidence showed that the negotiations had concluded in all substantial respects prior to posting of the Notice of Intent to Award the contract to SMI. What remained for the Department and SMI to accomplish was the finalization of the contract assembly by inserting the BAFO, Technical Reply, and price into the contract language; insertion of a start date; and work on implementation issues such as invoices and background screening of employees. Given these facts, the evidence demonstrated that the point at which the Department elected to post its Notice of Intended Award was reasonable since the substantive parts of the negotiations were complete. Ultimately, the evidence in this case did not demonstrate that the ITN process followed by the Department was fundamentally flawed or gave an advantage to one vendor over another. Further, the actions of the Department in this procurement were not contrary to the Department's statutes; contrary to the Department's rules or policies; or contrary to a reasoned interpretation of the ITN specifications. Finally, the evidence did not demonstrate that the Department's actions were clearly erroneous, contrary to competition, arbitrary, or capricious. Given these facts, the protest filed by Petitioner should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Respondent, Florida Department of Revenue, enter a final order dismissing the protest of Petitioner, Xerox State and Local Solutions, Inc., and approving the award of the contract to Intervenor, Systems and Methods, Inc. DONE AND ENTERED this 18th day of February, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 February, 2015.
The Issue Whether Respondent Department of Transportation’s intended decision to conduct negotiations with Xerox State and Local Solutions, Inc., under ITN-DOT-13/14-8001-SM is contrary to the Department’s governing statutes, rules, or policies or to the solicitation specifications.
Findings Of Fact The ITN The Department is an agency of the State of Florida charged with planning, acquiring, leasing, constructing, maintaining, and operating toll facilities and cooperating with and assisting local governments in the development of a statewide transportation system. § 334.044(16)-(22), Fla. Stat. (2013).1/ The Department is authorized to enter contracts and agreements to help fulfill these duties. See §§ 20.23(6) and 334.044(7), Fla. Stat. FTE is a legislatively created arm of the Department and is authorized to plan, develop, own, purchase, lease, or otherwise acquire, demolish, construct, improve, relocate, equip, repair, maintain, operate, and manage the Florida Turnpike System. § 338.2216(1)(b), Fla. Stat. FTE is also authorized to cooperate, coordinate, partner, and contract with other entities, public and private, to accomplish these purposes. Id. The Department has the express power to employ the procurement methods available to the Department of Management Services under chapter 287, Florida Statutes.2/ § 338.2216(2), Fla. Stat.; see also Barton Protective Servs., LLC v. Dep’t of Transp., Case No. 06-1541BID (Fla. DOAH July 20, 2006; Fla. DOT Aug. 21, 2006). OOCEA (now known as the Central Florida Expressway Authority), MDX, and THEA are legislatively created or authorized agencies of the State with the power to fix, alter, charge, establish, and collect tolls, rates, fees, rentals, and other charges for the services and facilities system. §§ 348.0003(1)- .0004(2)(e), Fla. Stat. Each of these authorities has the power to enter contracts and to execute all instruments necessary or convenient for the carrying on of its business; to enter contracts, leases, or other transactions with any state agency or any other public body of the State; and to do all acts and things necessary or convenient for the conduct of its business and the general welfare of the authority in order to carry out the powers granted to it by law. § 348.0004(2)(g), (h), (k), Fla. Stat. On November 1, 2013, the Department advertised the ITN, soliciting proposals from vendors interested in participating in competitive negotiations for the award of a contract to provide a CCSS and associated operations and maintenance. The ITN was issued pursuant to section 287.057, Florida Statutes. The purpose of the ITN is to replace the existing customer service center systems of FTE, OOCEA, THEA, and MDX with a CCSS that can be expanded over time to include other tolling and transit agencies in the State of Florida. The CCSS is expected to process nearly all electronic toll transactions in Florida. The successful vendor will enter a contract directly with the Department. The Department will then enter agreements with the other authorities to address coordinated and joint use of the system. Generally, the ITN sets forth a selection process consisting of two parts. Part one involves: (a) the pre- qualification, or shortlisting, of vendors in order to determine a vendor’s eligibility to submit proposals; and (b) the proposal submission, evaluation, and ranking. Part two is the negotiation phase. The instant proceeding relates only to part one. Part two -- negotiations -- has yet to occur. The TRT and Selection Committee – The Evaluators Cubic alleges that “not all of the members of either [the Technical Review or Selection Committee] teams had the requisite experience or knowledge required by section 287.057(16)(a)1., Florida Statutes.” Accenture alleges that “the Selection Committee did not collectively have expertise in all of the subject areas covered by th[e] ITN.” Section 287.057(16)(a) provides in part that the agency head shall appoint “[a]t least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought.”3/ In accordance with the requirements of section 287.057(16)(a), the ITN established a Technical Review Team (TRT) that would be “composed of at least one representative from each Agency and may include consultant (private sector) staff.” The ITN also provided for a Selection Committee that would be “composed of executive management at the Agencies.” Each agency executive director appointed two individuals from their agency to the TRT. Each agency director was familiar with the background and qualifications of their appointees, who had experience in various aspects of tolling operations including tolling, software, finance, and procurement. The following individuals were appointed to serve on the TRT. Bren Dietrich, a budget and financial planner for FTE, has an accounting degree and has worked at FTE for 12 years in budget and financial planning. Mr. Dietrich has been a technical committee member for seven or eight procurements. Mohamed Hassan, a senior operations manager for FTE, has been in information technology for nearly 40 years and with FTE for 22 years handling all aspects of software development and maintenance for the state’s largest tolling authority. Mr. Hassan’s expertise is in software development and maintenance. Mr. Hassan oversees staff that is responsible for maintaining the database application systems, hardware, communications coming in and going out of the customer service center, and any development projects such as transaction processing or account management system upgrades. Steve Andriuk is a deputy executive director for MDX and oversees all tolling operations within MDX’s jurisdiction. Mr. Andriuk’s tolling background goes beyond his tenure at MDX, as he previously was an executive director at Chesapeake Bay Bridge Authority. Jason Greene, MDX’s comptroller of financial controls and budget manager, has a background in finance and accounting and in project management. Mr. Greene has been with MDX for 11 years. Lisa Lumbard, who has been with OOCEA for 16 years, is the interim chief financial officer and previously was the manager of accounting and finance. Ms. Lumbard runs OOCEA’s finance and accounting office and has both procurement experience and substantial experience in the financial aspects of back- office tolling. David Wynne is the director of toll operations of OOCEA and is responsible for the overall collection of all tolls and for the violation enforcement process. Mr. Wynne has held some iteration of this position for approximately 11 years and worked for OOCEA for 16. He also has both procurement and substantial tolling experience. Robert Reardon, THEA’s chief operating officer, is responsible for THEA’s day-to-day operations, including tolls. Mr. Reardon has been with THEA for six years and has experience as a technical evaluator for public procurements. Rafael Hernandez is THEA’s manager of toll operations and oversees all toll operations within THEA’s jurisdiction. The TRT members collectively have the requisite knowledge and experience in tolling, software, finance, and procurement. The following individuals constituted the Selection Committee. Diane Gutierrez-Scaccetti has been FTE’s executive director since 2011 and worked for the New Jersey Turnpike Authority for over 20 years, the last two as executive director and the previous 14 as deputy executive director. Laura Kelley is OOCEA’s deputy director over finance administration and the interim executive director. Ms. Kelly has 30 years’ experience in transportation finance and management, 15 of which occurred at the Department and eight of which occurred at OOCEA overseeing information technology, finance, and procurement. Javier Rodriguez, MDX’s executive director, oversees all MDX operations, including planning, finance, operations, and maintenance functions. Mr. Rodriguez has been with MDX for seven years and was with the Department for over 15 years prior to his employment with MDX. Joseph Waggoner has been THEA’s executive director for approximately seven years. Prior to joining THEA, he was with the Maryland Department of Transportation for nearly 30 years, six of which were in tolling operations. ITN section 2.6.2 provides as follows: Following Proposal Oral Presentations by all short-listed Proposers (see section 2.25 Proposal Oral Presentations for additional details) the Technical Review Team members will independently evaluate the Proposals based on the criteria provided in Section 2.5.2 and will prepare written summary evaluations. There will then be a public meeting of the Selection Committee at the date, time and location in Table 1-2 Procurement Timeline. The Technical Review Team’s compiled written summary evaluations will be submitted to the Selection Committee. The Technical Review and Selection Committee will review and discuss the individual summary evaluations, and the Selection Committee will come to consensus about ranking the Proposers in order of preference, based on their technical approach, capabilities and best value. In addition to the Technical Review Team, the Selection Committee may request attendance of others at this meeting to provide information in response to any questions. The ITN is structured such that both the TRT and the Selection Committee have shared responsibility for evaluating proposals, with the Selection Committee having ultimate responsibility for ranking the Proposers for the negotiations stage of the procurement process. Combining the eight members of the TRT with the four members of the Selection Team means that there were a total of 12 individuals tasked with the responsibility of evaluating the proposals prior to the negotiations stage of the process. Pre-Qualification and Rankings In the pre-qualification portion of the ITN, interested vendors initially submitted reference forms to demonstrate that the vendors met the minimum project experience set forth in the ITN. Vendors meeting this requirement were invited to give a full-day Pre-Qualification Oral Presentation to the TRT in which each vendor was given the opportunity to demonstrate its proposed system. Under ITN section 2.6.1, A Technical Review Team will attend the Pre- Qualification Oral Presentations and will develop scores and written comments pertaining to the reviewed area(s) identified in Section 2.5.1. The Technical Review Team will be composed of at least one representative from each Agency and may include consultant (private sector) staff. The scores provided by each Technical Review Team member for each area of the Pre- Qualification Oral Presentations will be totaled and averaged with the scores of the other Technical Review Team members to determine the average score for an area of the Pre-Qualification Oral Presentation. The average score for each area of a Pre- Qualification Oral Presentation will then be totaled to determine a total Pre- Qualification Oral Presentation score. Each vendor’s Pre-Qualification Oral Presentation was then scored based on criteria set forth in ITN section 2.5.1. Any vendor that received a score of 700 or higher was “short- listed” and invited to submit proposals. Put differently, those receiving a score of at least 700 were deemed qualified to submit formal proposals. ITN section 2.5.1 provides that the “review/evaluation of the Pre-Qualification Oral Presentations will not be included in decisions beyond determining the initial short-list of Proposers to proceed in the ITN process.” Accordingly, the scores assigned in the pre-qualification phase were irrelevant after the short-listing. Six vendors submitted pre-qualifications responses, including Xerox, Accenture, and Cubic. On January 21, 2014, the Department posted its short-list decision, identifying that all six vendors, including Xerox, Accenture, and Cubic, were deemed qualified to submit formal written proposals to the ITN (the “First Posting”). As required by section 120.57(3)(a), Florida Statutes, the posting stated, “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.” This posting created a point of entry to protest, and no vendor initiated a protest. After the First Posting, short-listed vendors submitted technical and price proposals and made Proposal Oral Presentations. ITN section 2.24 provides detailed instructions for technical and price proposal preparation and submission. ITN section 2.25 (as amended by Addendum 8) sets forth the process for short-listed vendors to make Proposal Oral Presentations to the TRT. Short-listed Proposers will each be scheduled to meet with the Technical Review Team for Proposal Oral Presentations of their firm’s capabilities and approach to the Scope of Work and Requirements within the time period identified in Table 1-2 Procurement Timeline. Short-listed Proposers will be notified of a time and date for their Proposal Oral Presentation. Proposal Oral Presentation sessions are not open to the public. The Selection Committee will attend these Presentations. In advance of the Proposal Oral Presentations Proposers will be given detailed instructions on what the format and content of the Proposal Oral Presentation will be, including what functionality shall be demonstrated. The Department may also provide demonstration scripts to be followed. Proposers should be prepared to demonstrate key elements of their proposed System and Project approach and to respond to specific questions regarding their Proposals. These Proposal Oral Presentations will be used to present the Proposer’s approach and improve understanding about the Department’s needs and expectations. The Technical Review Team will participate in all Proposal Oral Presentations. After each Oral Presentation, each individual on the Technical Review Team will complete a written summary evaluation of each Proposer’s technical approach and capabilities using the criteria established in Section 2.5.2 in order to assure the Technical Proposal and Oral Presentations are uniformly ranked. The evaluation will consider both the Technical Proposal and the Oral Presentations. ITN section 2.5.2 is titled “Best Value Selection” and provides as follows: The Department intends to contract with the responsive and responsible short-listed Proposer whose Proposal is determined to provide the best value to the Department. “Best value,” as defined in Section 287.012(4), F.S., means the highest overall value to the state, based on objective factors that include but are not limited to . . . . ITN section 2.5.2 goes on to delineate seven “objective factors,” or evaluation criteria, on which proposals would be evaluated: Company history Project experience and qualifications Proposed Project approach to the technical requirements Proposed approach to the Project plan and implementation Proposed approach to System Maintenance Proposed approach to Operations and performance Price ITN section 2.6.2 explains the process for evaluation of technical proposals and Proposal Oral Presentations and states that: Following Proposal Oral Presentations by all short-listed Proposers (see Section 2.25 Proposal Oral Presentations for additional details) the Technical Review Team members will independently evaluate the Proposals based on the criteria provided in Section 2.5.2 and will prepare written summary evaluations. There will then be a public meeting of the Selection Committee at the date, time and location in Table 1-2 Procurement Timeline. The Technical Review Team’s compiled written summary evaluations will be submitted to the Selection Committee. The Technical Review Team and Selection Committee will review and discuss the individual summary evaluations, and the Selection Committee will come to consensus about ranking the Proposers in order of preference, based on their technical approach, capabilities and best value. In addition to the Technical Review Team, the Selection Committee may request attendance of others at this meeting to provide information in response to any questions. Of the six short-listed vendors, five submitted proposals and gave Proposal Oral Presentations, including Xerox, Accenture, and Cubic. The Department then undertook a ranking using the evaluation criteria delineated in ITN section 2.5.2. To perform this ranking, TRT members individually evaluated the proposals and prepared detailed, written evaluations that tracked the evaluation criteria factors. The TRT’s evaluations, together with proposal summaries prepared by HNTB, were provided to the Selection Committee in preparation for a joint meeting of the TRT and Selection Committee on April 9, 2014. At the April 9th meeting, the TRT and Selection Committee members engaged in an in-depth discussion about the bases for and differences between the individual TRT members’ rankings and evaluations. Thereafter, the Selection Committee made its ranking decision. On April 10, 2014, the Department posted its ranking of vendors, with Xerox first, Accenture second, and Cubic third (the “Second Posting”). The Second Posting also announced the Department’s intent to commence negotiations with Xerox as the first-ranked vendor.4/ If negotiations fail with Xerox, negotiations will then begin with second-ranked vendor Accenture, then Cubic, and so on down the order of ranking until the Department negotiates an acceptable agreement. Accenture and Cubic each timely filed notices of intent to protest the Second Posting and timely filed formal written protest petitions and the requisite bonds. Negotiations are not at Issue ITN section 2.26 provides: Once Proposers have been ranked in accordance with Section 2.6.2 Proposal Evaluation, the Department will proceed with negotiations in accordance with the negotiation process described below. Proposers should be cognizant of the fact that the Department reserves the right to finalize negotiations at any time in the process that the Department determines that such election would be in the best interest of the State. Step 1: Follow the evaluation process and rank Proposals as outlined in Section 2.6 Evaluation Process. Step 2: The ranking will be posted, in accordance with the law (see Section 2.27), stating the Department’s intent to negotiate and award a contract to the highest ranked Proposer that reaches an acceptable agreement with the Department. Step 3: Once the posting period has ended, the Negotiation Team will undertake negotiations with the first-ranked Proposer until an acceptable Contract is established, or it is determined an acceptable agreement cannot be achieved with such Proposer. If negotiations fail with the first-ranked Proposer, negotiations may begin with the second-ranked Proposer, and so on until there is an agreement on an acceptable Contract. The Department reserves the option to resume negotiations that were previously suspended. Negotiation sessions are not open to the public and all negotiation sessions will be recorded by the Department. Step 4: The Negotiation Team will write a short plain statement for the procurement file that explains the basis for Proposer selection and how the Proposer’s deliverables and price will provide the best value to the state. Step 5: The Department will contract with the selected Proposer. As Accenture and Cubic protested the decision by the Department to enter negotiations with Xerox (and because of the automatic stay provision of section 120.57(3), Florida Statutes) the negotiation phase of the procurement never commenced. Thus, this proceeding concerns the Department’s actions up to the Second Posting, and not what may happen during future negotiations. Second Posting and Intended Award Section 1.2 of the ITN sets forth the procurement timeline for the CCSS project. The ITN originally indicated that the “Posting of Ranking/Intended Award” would occur on March 31, 2014. By addendum issued on February 13, 2014, the date for “Posting of Ranking/Intended Award” was changed to April 10, 2014. Section 1.3.1 of the ITN provides an agenda for the April 10, 2014, “Meeting to Summarize and Determine Ranking/Intended Award.” Section 2.27 of the ITN is labeled “POSTING OF RANKING/INTENDED AWARD.” Section 2.27.1, Ranking/Intended Award, provides that “[t]he Ranking/Intended Award will be made to the responsive and responsible Proposer that is determined to be capable of providing the best value and best meet the needs of the Department.” Section 2.27.2 is labeled “Posting of Short- list/Ranking/Intended Award” and provides in part that “[a]ny Proposer who is adversely affected by the Department’s recommended award or intended decision must . . . file a written notice of protest within seventy-two hours after posting of the Intended Award.” Joint Exhibits 10 and 12 are copies of forms used to announce the rankings of the Proposers. It is not clear from the record if these forms are a part of the ITN. Nevertheless, the forms are identical in format. Each form has three boxes that follow the words “TYPE OF POSTING.” The first box is followed by the word “Shortlist,” the second box is followed by the word “Ranking,” and the third box is followed by the words “Intended Award.” The form also has three columns that coincide with the three boxes previously referenced. The three columns are respectively labeled, “X indicates shortlisted vendor,” “ranking of negotiations,” and “X indicates intended award.” With respect to the last two columns, explanatory comments appearing at the bottom of the form read as follows: ** Ranking: The Department intends to negotiate separately and will award a contract to the highest ranked vendor that reaches an acceptable agreement with the Department. The Department will commence negotiations with the number one ranked vendor until an acceptable contract is agreed upon or it is determined an acceptable agreement cannot be reached with such vendor. If negotiations fail with the number one ranked vendor, negotiations may begin with the second-ranked vendor, and so on down the order of ranking until the Department is able to negotiate an acceptable agreement. *** Intended Award: “X” in the Intended Award column indicates the vendor whom the Department intends to award the contract to, but does not constitute an acceptance of any offer created by the vendor’s proposal or negotiations. No binding contract will be deemed to exist until such time as a written agreement has been fully executed by the Department and the awarded vendor. If irregularities are subsequently discovered in the vendor’s proposal or in the negotiations or if the vendor fails to submit required [b]onds and insurance, fails to execute the contract, or otherwise fails to comply with the ITN requirements, the Department has the right to undertake negotiations with the next highest vendor and continue negotiations in accordance with the ITN process, reject all proposals, or act in the best interest of the Department. On April 10, 2014, the Department issued a posting wherein the “Ranking” box was checked and the “Intended Award” box was not. According to Sheree Merting, it was a mistake to have only checked the “Ranking” box because the box labeled “Intended Award” should have also been checked. Petitioners contend that by not simultaneously checking both the “Ranking” and “Intended Award” boxes that the Department materially changed the process identified in the ITN. Protesters’ arguments as to this issue appear to be more related to form than substance. In looking at the plain language of the ITN, it reasonably appears that the Department intended to simultaneously announce the “Ranking” and “Intended Award.” The fact that the Department failed to combine these two items in a single notice is of no consequence because neither Cubic nor Accenture have offered any evidence establishing how they were competitively disadvantaged, or how the integrity of the bidding process was materially impaired as a consequence of the omission. In other words, Sheree Merting’s confessed error of not checking the “Intended Award” box contemporaneously with the “Ranking” box is harmless error. See, e.g., Fin. Clearing House, Inc. v. Fla. Prop. Recovery Consultants, Inc., Case No. 97-3150BID (Fla. DOAH Nov. 25, 1997; Dep’t of Banking & Fin. Feb 4, 1998)(applying harmless error rule to deny protest where agency initially violated provisions of section 287.057(15), Florida Statutes, by selecting two evaluators instead of three required by statute, but later added required evaluator). Sequential Negotiations As previously noted, section 2.26 of the ITN provides that following the ranking of the short-list proposers, the “Negotiation Team will undertake negotiations with the first- ranked Proposer until an acceptable Contract is established . . . [and] [i]f negotiations fail with the first-ranked Proposer, negotiations may begin with the second-ranked Proposer, and so on until there is an agreement on an acceptable Contract.” Petitioners assert that the Department has abandoned the sequential negotiation process set forth in section 2.26 and has announced “that it will conduct the procurement negotiations only with Xerox as the number one ranked proposer” and that the process of negotiating with only one proposer is contrary to the law because section 287.057(1)(c) “requires that the Department negotiate with all proposers within the competitive range.” Diane Gutierrez-Scaccetti testified as follows (T: 1119): Q: Now, you understand that as a result of the rankings that were posted on April 10th, negotiations under this ITN are to proceed with only a single vendor, is that right? A: I believe the ITN provided for consecutive negotiations starting with the first-ranked firm and then proceeding down until we reached a contract. Contrary to Petitioners’ assertions, the evidence establishes that the Department intends to follow the negotiation process set forth in section 2.26. Petitioners’ contention that section 287.057(1)(c) does not authorize sequential negotiations is a challenge to the terms, conditions, and specifications of the ITN and should have been filed within 72 hours after the posting of the solicitation as required by section 120.57(3)(b). Petitioners have waived their right of protest with respect to this issue. Petitioners’ waiver notwithstanding, section 287.057(1)(c) does not preclude the type of sequential negotiation process set forth in section 2.26 of the ITN. Section 287.057(1)(c) provides in part that “[t]he invitation to negotiate is a solicitation used by an agency which is intended to determine the best method for achieving a specific goal or solving a particular problem and identifies one or more responsive vendors with which the agency may negotiate in order to receive the best value.” (Emphasis added). Section 287.057(1)(c)4. provides that “[t]he agency shall evaluate replies against all evaluation criteria set forth in the invitation to negotiate in order to establish a competitive range of replies reasonably susceptible of award [and] [t]he agency may select one or more vendors within the competitive range with which to commence negotiations.” (Emphasis added). The opening paragraph of section 287.057(1)(c), which is essentially the preamble portion of the ITN provisions, expresses the purpose for which the ITN process was developed, to wit: “to determine the best method for achieving a specific goal or solving a particular problem.” In furtherance of the stated purpose, the Legislature instructs, in the preamble, that the process should “identif[y] one or more responsive vendors with which the agency may negotiate in order to receive the best value.” If the preamble is read in statutory isolation, then one could reasonably conclude that if the agency identifies more than one responsive vendor then the agency should negotiate with each of the vendors “in order to receive the best value.” Arguably, the preamble merely looks at vendor “responsiveness” as the guidepost for determining with whom the agency shall negotiate. Mere “responsiveness” however, is clearly not the only standard for selecting a vendor through the ITN process and illustrates why this portion of the statute cannot be read in isolation. As previously noted, subparagraph four of section 287.057(1)(c), provides that the agency “shall . . . establish a competitive range of replies reasonably susceptible of award,” and once this is done, “[t]he agency may select one or more vendors within the competitive range with which to commence negotiations.” (Emphasis added). By using the word “may” in subparagraph four, the Legislature is authorizing agencies to exercise discretion when selecting vendors with whom to negotiate. In exercising its discretion, agencies can decide to negotiate with a single vendor or with multiple vendors. An agency’s exercise of its discretion is not absolute and the “check” on the exercise of its discretion, in the context of the instant case, is a bid protest whereby an unsuccessful bidder can attempt to prove that the procurement process was impermissibly tainted. Contrary to Petitioners’ allegations, the sequential negotiation process utilized by the Department in the present case does not run afoul of section 287.057. Petitioners forcefully argue that they have been shutout of the negotiation process because neither of them was ranked first. This assertion mischaracterizes the nature of the sequential negotiation process used by the Department. The evidence shows that if the Department fails to come to terms with Xerox, then negotiations may begin with the second-ranked vendor, and so on down the order of ranking until the Department negotiates an acceptable agreement. The truth of the matter is that neither of the protesters has been shutout of the negotiations. It is simply the case that neither occupies the preferred position of being the highest ranked, short-listed vendor. Petitioners also argue that the Florida Department of Transportation Commodities and Contractual Services Procurement Manual – 375-040-020, prohibits sequential negotiations. For invitations to negotiate, the manual provides: There are two general negotiation methods used: Competitive Method A – Vendors are ranked based on technical qualifications and negotiations are conducted commencing with the first ranked vendor. Competitive Method B – Vendor qualifications are evaluated and vendors may be short-listed. Negotiations of scope and price will be conducted with short-listed or all vendors. An award is made to the vendor with the best combination of proposal, qualifications, and price. According to Petitioners, the ITN does not comport with either Method A or Method B. Again, Petitioners failed to timely challenge the ITN specifications regarding sequential negotiations and thus have waived this argument. Even if the merits of the argument are considered, Petitioners’ argument fails. The methods described in the manual are not the only methods available to the Department; in fact, the manual, by stating that “there are two general negotiation methods used (emphasis added),” recognizes that the methods are subject to refinement or modification as the Department deems best to meet the perceived needs of a particular solicitation as long as the final method complies with section 287.057(1), Florida Statutes. Further, the procurement manager for the ITN, Sheree Merting, testified that the shell, or template, provided by the Department’s central office, and used when drafting an invitation to negotiate, contains a combination of the manual’s methods A and B, which is referred to as A/B. The order of negotiations provided for in the ITN and reiterated in the First and Second Postings is not, therefore, inconsistent with the Department’s policies or procedures. Best Value Decision Petitioners contend that the Department, via the Second Posting, has already (and improperly) determined which vendor will provide the best value to the State even though negotiations have not yet occurred. This contention is not supported by the evidence. ITN section 2.5.2 states the Department’s intent to contract with the vendor whose proposal is determined to provide the best value and sets forth the statutorily mandated objective factors, or criteria, on which proposals will be evaluated. ITN section 2.6.2 provides that the TRT and Selection Committee will review and discuss the TRT members’ individual summary evaluations and the Selection Committee “will come to consensus about ranking the Proposers in order of preference, based on technical approach, capabilities and best value.” The evidence reflects that the evaluation factors were applied during the evaluation process to formulate a best value ranking, but the question of which vendor ultimately provides the best value to the State will not be conclusively determined until after negotiations are concluded. See § 287.057(1)(c)4., Fla. Stat. (“After negotiations are conducted, the agency shall award the contract to the responsible and responsive vendor that the agency determines will provide the best value to the state, based on the selection criteria.”). As testified by Ms. Gutierrez- Scaccetti, “[t]he Selection Committee agreed upon the ranking of firms. It has not made an award.” This is consistent with the ITN and Florida law, which require award to the best value proposer after negotiations. Evaluation Criteria Properly Followed As explained above, ITN section 2.5.2 sets forth the evaluation factors that the TRT and Selection Committee were to use in evaluating proposals. Petitioners allege that the TRT and Selection Committee did not follow the ITN and based their evaluations and rankings on factors other than those listed in ITN section 2.5.2. The evidence establishes that the TRT did in fact use these factors, as evidenced by the detailed evaluation summaries prepared by each of the eight TRT members, which almost uniformly tracked these factors. Seven of these summaries are organized by headings that mirror the seven criteria of section 2.5.2. The remaining summary, prepared by TRT member Mohamed Hassan, was formatted in terms of pros and cons, but nonetheless addressed all of the section 2.5.2 evaluation criteria. Reflective of the TRT’s approach, TRT member David Wynne prepared detailed, typed proposal summaries that are four pages long and single-spaced for each proposal. Mr. Wynne’s summaries capture his deliberate thought process in ranking the proposals and include headings that directly tie back to the evaluation criteria in the ITN. His summaries include specific details from each proposal justifying his qualitative assessment of the proposals. For example, he discusses the benefits of Xerox’s Vector 4G tolling platform, Xerox’s proposed project schedule, and maintenance. Mr. Wynne even included a breakdown of the pricing and his thoughts on how the pricing compared to the other vendors. The other TRT members had equally detailed summaries. When read as a whole, these summaries demonstrate that the TRT engaged in a rational, deliberative, and thoughtful evaluation of the proposals based on the ITN criteria. Additionally, the TRT members testified that they applied the ITN section 2.5.2 factors in conducting their evaluations. Thus, the evidence demonstrates that the TRT members did as instructed in the ITN and evaluated proposals based on ITN section 2.5.2’s factors. There is no credible basis to find that the section 2.5.2 criteria were not the bases of the TRT’s evaluations, rankings, and narratives. The evidence also establishes that the Selection Committee applied ITN section 2.5.2 factors in reaching its decision. The Selection Committee reviewed the TRT summaries, along with a detailed notebook prepared by HNTB, the Department’s consultant. The HNTB notebook was a comprehensive summary of information compiled from the vendors’ voluminous proposals and organized in a digestible format to aid the Selection Committee’s review, including helpful summaries providing head-to-head objective comparisons of vendor pricing, software development, and vendors’ exceptions and assumptions. The HNTB notebook of materials objectively compiled the content taken directly from the vendors’ own proposals and included no editorial comments or opinions by the Department’s consultants. Moreover, the HNTB notebook contained a chart summarizing the TRT’s rankings by TRT member, along with copies of each TRT member’s detailed written summaries. It also contained a detailed, 36-page pricing summary that pulled price information directly from the vendors’ proposals and summarized the information in a manner that allowed for easy side-by-side comparison. The notebook also included a systems matrix summary that was prepared by taking proposed systems information directly from the vendors’ proposals and combining it in a format that could be easily processed. In fact, the notebook even included pages copied directly from the proposals. Armed with the comprehensive TRT summaries and the HNTB notebook, the Selection Committee then engaged the TRT in a thoughtful and detailed discussion and analysis of the qualitative merits of each vendor’s proposal -- all within the bounds of the section 2.5.2 criteria. Petitioners contend that during the TRT and Selection Committee’s discussions, issues such as risk were improperly considered. Although “risk” was not a separately labeled criterion under section 2.5.2 (“risk of solution” is, however, referenced as a sub-bullet), risk is inherently a significant consideration in each of the evaluation factors. Stated differently, the concept of risk is integral to the ITN section 2.5.2 factors, and the Department properly considered such risks. For example, a vendor’s prior project experience -- whether it has successfully completed similar projects before -- was a listed criterion, which is directly relevant to the risk the Department would take in selecting a vendor, that is, the risk that the vendor’s experience is or is not sufficient to assure a timely project completion and quality services under the ITN. Indeed, section 287.057(1)(c) requires that the Department consider prior experience. Another example of risk considered by at least one Selection Committee member was the potential that Accenture’s project manager would not be assigned solely to this project, but might be shared with Accenture’s Illinois tolling project (“local presence commitment” is referenced as a sub-bullet in section 2.5.2). The evidence shows that Accenture stopped short of saying without qualification that its project manager would be released from Illinois and solely assigned to CCSS. This uncertainty raised a risk concern whether the critical project implementation would be properly managed. Considerations such as these are rational and reasonable. There is a Reasonable Basis for the Department’s Ranking Petitioners further contend that there was no reasonable basis for the Department’s intended decision to begin negotiations with Xerox. However, as explained above, the evidence demonstrates the opposite as the TRT and Selection Committee collectively discussed and considered the evaluation criteria and the Selection Committee reached consensus on moving forward to negotiations with Xerox. Moreover, there is ample evidence that the Selection Committee’s decision was rational and reasonable. The TRT and Selection Committee’s discussion at the April 9, 2014, meeting where the ranking decision was reached, demonstrates the studied analysis by which the evaluations were conducted. At the meeting, the four Selection Committee members, who had already reviewed the TRT members’ individual rankings and evaluations, each questioned the TRT members about their assessments of the proposals. Selection Committee members asked about the bases for the differences between the individual TRT members’ evaluations, and the TRT members explained why they ranked the vendors the way they did. The discussion revolved around the top three ranked vendors, Xerox, Accenture, and Cubic, which one TRT member described as being “head and shoulders above the rest” -- that is, above the vendors ranked fourth and fifth. As noted above, the Selection Committee members’ primary focus in these discussions was on risk assessment -- the financial risks, operations risks, and information technology risks that the TRT members believed accompanied each proposal. Major Selection Committee items of discussion included modifications to the existing systems, proprietary versus off- the-shelf software issues, and the vendors’ proximity to Florida. Additional discussion points included the risk associated with Accenture’s use of multiple subcontractors and Cubic’s lack of experience with certain tolling systems. From these discussions, it appears that the overriding factor behind the Selection Committee’s ranking decision at the April 9 meeting was Xerox’s proven experience with other similar and large tolling projects, including some of the country’s largest tolling systems, which Accenture and Cubic simply did not possess.5/ As one Selection Committee member expressed, Xerox brought a “comfort level” that did not exist with Accenture and Cubic. Moreover, Xerox, with 78 percent, is the leader in the evaluative category that looks at the percentage of the company’s existing baseline system that meets the CCSS requirements -- more than Accenture’s and Cubic’s combined percentages. As the percentage of existing baseline system compliance increases, the implementation risks decrease. Selection Committee members Diane Gutierrez-Scaccetti and Joseph Waggoner expressed the importance of this based on their firsthand experience with existing tolling systems in use for their respective agencies. In sum, this analysis and assessment is a valid and reasonable basis for the Department’s decision. Cubic also contends that such analysis is improper because the ITN allowed transit firms to submit proposals, thus making tolling experience an irrelevant evaluative factor. This contention fails because by prequalifying transit firms to bid, the Department was not precluded from considering a vendor’s specific tolling experience as part of the evaluative process. Contrary to Cubic’s allegation, the factors listed in ITN section 2.5.2, including “Project Experience and Qualifications,” contemplate tolling experience as being part of the relevant analysis. Therefore, the Selection Committee was fully authorized under the ITN to consider the benefits of a proven commodity -- a firm with Xerox’s extensive tolling experience. The Selection Committee’s qualitative assessment that, on the whole, Xerox was the better choice for commencing negotiations was supported by reason and logic and was wholly consistent with the ITN specifications. Petitioners further argue that the Department’s ranking decision is inconsistent with the pre-qualification scoring, where Accenture and Cubic each scored slightly higher than Xerox. This argument fails as ITN section 2.5.1 expressly provides that the evaluations and scoring of the Pre-Qualification Oral Presentations will not be included in decisions beyond determining the initial short-list. Regardless, these three vendors were essentially tied in that scoring: Accenture’s score was 885.38, Cubic’s was 874.75, and Xerox’s was 874.00. Petitioners also contend that the Selection Committee’s ranking decision is inconsistent with the ranking decision of the TRT majority. The ITN is clear, however, that the Selection Committee would be the final arbiter of ranking. No Demonstrations Were Cancelled The procurement timeline in the original ITN allotted ten business days for Proposal Oral Presentations. The revised timeline in Addendum 8 allotted two days. Cubic asserts that this reduction in presentation time occurred because the Department, without explanation, cancelled planned vendor demonstrations that were to occur during Proposal Oral Presentations, thus placing Cubic at a disadvantage as it was unable to present its demonstrations to Selection Committee members. Cubic also asserts that the cancellation of demonstrations is an indication that the Department had already made up its mind to select Xerox. The ITN and the testimony are unequivocal that no demonstrations were “cancelled.” ITN section 2.25 contemplates that the Department may request demonstrations in the proposal evaluation phase but in no way states that demonstrations will be held. Section 2.25 also provides that if any demonstrations were to be held, they would be as directed by the Department. Thus, the ITN did not guarantee Cubic any presentation, as Cubic suggests. Moreover, all vendors were treated equally in this regard. Further, the evidence reflects that the decision to hold demonstrations only during the Pre-Qualification Presentations was made when the ITN was released and that the Department never planned to have vendor demonstrations at the Proposal Oral Presentations. Indeed, during the mandatory pre- proposal meeting, the Department informed all vendors of the planned process, to include one demonstration at the pre- qualification phase and an oral presentation and question-and- answer session during the proposal and ranking phase. In short, Cubic presented no credible evidence in support of its allegations regarding the alleged cancellation of the demonstrations or any resulting harm. Exceptions and Assumptions were properly considered The ITN required vendors, in their technical proposals, to identify assumptions and exceptions to contract terms and conditions. Significantly, the ITN states that the Department is not obligated to accept any exceptions, and further that exceptions may be considered at the Department’s discretion during the evaluation process. ITN Technical Proposal Section 9 provides, in its entirety: Technical Proposal Section 9: Exceptions and Assumptions If Proposers take exception to Contract terms and conditions, such exceptions must be specified, detailed and submitted under this Proposal section in a separate, signed certification. The Department is under no obligation to accept the exceptions to the stated Contract terms and conditions. Proposers shall not identify any exceptions in the Price Proposal. All exceptions should be noted in the certification provided for in Proposal Section 9. Proposers shall not include any assumptions in their Price Proposals. Any assumptions should be identified and documented in this Section 9 of the Proposal. Any assumptions included in the Price Proposals will not be considered by the Department as a part of the Proposal and will not be evaluated or included in any Contract between the Department and the Proposer, should the Proposer be selected to perform the Work. Failure to take exception in the manner set forth above shall be deemed a waiver of any objection. Exceptions may be considered during the Proposal evaluation process at the sole discretion of the Department. Petitioners allege that the ITN did not clearly set forth how vendors’ exceptions and assumptions would be treated and that the Department accordingly failed to consider such exceptions and assumptions. This is a belated specifications challenge and therefore has been waived. Regardless, the evidence demonstrates that both the TRT and Selection Committee did, in fact, consider the exceptions and assumptions in the evaluation and ranking of proposers. The TRT and Selection Committee were instructed to consider exceptions and assumptions and to give them the weight they deemed appropriate subject to staying within the confines of the ITN’s section 2.5.2 criteria. Consistent with these instructions, some TRT members included comments regarding exceptions and assumptions in those members’ evaluation summaries, reflecting that exceptions and assumptions were considered during the evaluation process. Other TRT members considered the exceptions of minimal significance given that the Department would address them during negotiations and was not bound to agree to any. Indeed, the evidence was that it was the Department’s intent to sort out the exceptions and assumptions in the negotiation process and, again, that the Department need not agree to any exceptions initially set forth by the vendors. Thus, the Department acted rationally and within the bounds of the ITN and its discretion when considering exceptions and assumptions. The Selection Committee Reached Consensus Accenture alleges that the Selection Committee failed to carry out its duty to reach a “consensus” in ranking vendor proposals. The evidence establishes the exact opposite. The ITN provides that the Selection Committee will come to “consensus” about ranking the vendors in order of preference, based on technical approach, capabilities, and best value. A consensus does not require unanimity. According to the testimony of Selection Committee member Javier Rodriguez, who was the only Selection Committee member who voted for Accenture as his first choice, “at the end, Xerox got three votes from the Selection Committee; Accenture got one. So for me, consensus meant: Are we in consensus to move forward with Xerox? And as I said at the selection meeting, I didn’t object. So from a consensus standpoint, we’re moving on to starting negotiations with Xerox, and that was the intent.” Therefore, the unrebutted evidence is that the Selection Committee did, in fact, reach consensus. Subject Matter Experts Accenture contends that the TRT and Selection Committee made use of subject matter experts in the course of the evaluation and ranking in violation of Florida statutory requirements and governing procurement policies. The record, however, is void of any substantial competent evidence in support of these allegations. Tim Garrett is the tolls program manager for HNTB under the General Engineering Consulting contract for FTE. Mr. Garrett was the overall project manager assigned to support FTE in the development and execution of the ITN. He and other HNTB employees, such as Wendy Viellenave and Theresa Weekes, CPA, provided support to both TRT and Selection Committee members in regards to summarizing proposals and defining the process. There is no evidence that any employee of, or sub-consultant to, HNTB communicated qualitative assessments or opinions about any of the competing proposals to TRT or Selection Committee members. Rather, the evidence shows that HNTB facilitated the TRT’s and Selection Committee’s evaluation work by presenting to the committee members data in the form of summaries, charts, and recapitulations pulled from the voluminous technical and price proposals submitted by the five competing vendors. Other than the support provided by HNTB, the record is essentially devoid of evidence that proposal evaluators made use of subject matter experts.6/ But in any event, neither Petitioner has made a showing that the use of subject matter experts is proscribed by governing statutes, rules, policies, or the specifications of the ITN. Although the use of subject matter experts was not addressed in the ITN itself, the Department, before the Pre- Qualification Oral Presentations in early January 2014, issued written “Instructions to Technical Review Committee.” These instructions authorized TRT members to confer with subject matter experts during the procurement process on specific technical questions and subject to certain additional parameters, as follows: Subject Matter Experts Subject matter experts are authorized to support the TRC on specific technical questions that the TRC members may have throughout the procurement process. Subject matter experts may respond to questions on any aspect of the procurement or proposal, but may not be asked to, nor will they support, the evaluation of proposals, which is the responsibility of each TRC member. A subject matter expert can discuss the specific elements of the ITN and a vendor’s proposal with a TRC member, but they cannot meet with more than one TRC member at a time, unless in a public meeting – subject to the Procurement Rules of Conduct stated above. The subject matter experts are fact finders. A subject matter expert cannot disclose the specific questions asked by another TRC member. No evidence has been presented to establish that the Instructions to Technical Review Committee, as to the use of subject matter experts, violated Florida law or the terms of the ITN, or that any subject matter expert -- whether affiliated with HNTB or not -- failed to perform within the parameters set forth in the Instructions.7/ Both Petitioners devoted significant hearing time to the FTE consultancy work of John McCarey, McCarey Consultants, LLC, and John Henneman, an employee of Atkins Engineering, Inc., and sub-consultant to HNTB. There has been no showing by Petitioners that either Mr. McCarey or Mr. Henneman served as a subject matter expert to any member of the TRT or Selection Committee or that either had improper contacts in regards to the evaluation or ranking of the vendors. The undisputed evidence is that Mr. McCarey did not serve as a subject matter expert for any of the evaluators. As for Mr. Henneman, although one TRT member testified in deposition that he “believe[d]” Mr. Henneman was a technical expert or considered one of the subject matter experts, there is no evidence that Mr. Henneman served as a subject matter expert for any of the evaluators -- TRT or Selection Committee. In sum, there is simply no evidence that any of the subject matter experts had any improper influence on the TRT or Selection Committee members.8/ No Improper Contacts, Attempts to Influence, or Bias Cubic alleges that there was improper contact between the Department and Xerox during this protest that violates the statutorily imposed “cone of silence” for procurements. Cubic also asserts that there were attempts by Xerox to influence the evaluations or rankings based on the Department’s, or the other agencies’, past or existing relationships with Xerox or Xerox’s acquired entities. There simply is no record support for the assertions that there was any improper contact or any attempt by any person to influence the Department’s evaluations or rankings based on past or existing relationships between the Department and Xerox or Xerox’s acquired entities. Xerox’s counsel did not have any contact with the TRT or the Selection Committee prior to the filing of the protests and the attendant “stop” of the procurement process pursuant to section 120.57(3)(c), Florida Statutes. The only contact Xerox’s counsel had with TRT or Selection Committee members was as a participant with the Department’s counsel in pre-deposition meetings with some witnesses designated by Petitioners -- all in the context of ongoing litigation following the filing of Accenture’s and Cubic’s protest petitions. This contact is essentially no different than Petitioners’ contact with Department personnel in depositions and the trial, as well as during the section 120.57(3)(d)1., Florida Statutes, settlement conference with the Department. Furthermore, all such contact was after both the TRT’s and the Selection Committee’s work under the ITN was completed and the said contact was of no import to the procurement process. In short, there is no evidence of attempts by Xerox to influence the process, improper contact between Xerox and the Department, or Department bias in favor of Xerox. Responsiveness of Xerox’s Proposal The evidence, at best, is that the Department has yet to fully vet the representations made in the proposals by the respective Proposers, including Xerox. Protesters suggest that such a full vetting is a condition precedent to negotiations. Such an argument, however, ignores ITN section 2.12, which has to be reconciled with ITN section 2.9.1 b). ITN section 2.9.1 b) provides in part that “[t]he Proposer shall have Key Team members with the following experience at the time of Proposal submission.” The section then goes on to list several positions that fall within the “Key Team Personnel” category. Petitioners contend that the Contract Project Manager, Quality Assurance Manager, and Human Resources Manager proposed by Xerox fail to meet the “Qualifications of Key Team Personnel” set forth in ITN section 2.9.1 b), thus rendering the Xerox proposal nonresponsive. ITN section 2.12 provides in part that “[a]fter the Proposal due date and prior to Contract execution, the Department reserves the right to perform . . . [a] review of the Proposer’s . . . qualifications [and that] [t]his review will serve to verify data and representations submitted by the Proposer and may be used to determine whether the Proposer has an adequate, qualified, and experienced staff.” Xerox’s omission, at this point in the process, amounts to a non-material deviation from the ITN specifications given that ITN section 2.12 reserves in the Department the right to review key personnel representations made by Xerox, and any other short-listed Proposer, at any time “prior to Contract execution.” Cubic also contends that Xerox and Accenture submitted conditional Price Proposals rendering their proposals non- responsive under ITN section 2.16. The analysis turns on the provisions of Technical Proposal Section 9: Exceptions and Assumptions, which provides a detailed description of how exceptions and assumptions are to be provided by vendors, and explains that “[e]xceptions may be considered during the Proposal evaluation process at the sole discretion of the Department.” As provided by the ITN, all vendors included a detailed listing of exceptions and assumptions in their Technical Proposal. Consistent with the discretion afforded to the Department under ITN Technical Proposal Section 9 to consider listed exceptions during the Proposal evaluation process, the Department then made the following inquiry of each of the Proposers: Please identify whether your price proposal is based on the Department’s acceptance of the Exceptions in Section 9 of your technical proposal? Please identify whether your price proposal is based on the Department’s acceptance of the Assumptions in Section 9 of your technical proposal? Xerox responded to both inquiries as follows: “The Xerox price proposal is based on the assumptions and general risk profile created by the inclusion of Section 9. We assume the parties will reach mutual agreement on the issues raised in Section 9 without a material deviation in the price proposal.” In addition to providing written answers to the questions, the vendors also addressed these issues in the Proposal Oral Presentations in response to questions by the Department. By the end of the Proposal Oral Presentations, all three vendors had made clear to the Department that resolution of exceptions and assumptions would not affect the proposed price. For example, Xerox’s senior executive in charge of the procurement, Richard Bastan, represented that there is no financial implication to any of the exceptions and that Xerox would honor the terms and conditions and the scope of services in the ITN for the price set forth in the Price Proposal. Accordingly, none of the proposals were improperly conditioned, and Xerox, Accenture, and Cubic were treated equally. Cubic also contends that Xerox’s proposal was nonresponsive as Xerox allegedly failed to meet the stated experience minimums for transactions processed and accounts maintained. There is, however, no credible evidence to support this contention. Indeed, the evidence is that the Department, through its consultant HNTB, verified these requirements by calling the referenced projects. Moreover, Xerox met or exceeded the stated minimums with its New York project reference. The Department’s decision that Xerox was responsive on this issue is logical, reasonable, and supported by the evidence. Price Proposals ITN section 2.5.2 lists “price” as a factor to consider in determining “Best Value.” The vendors’ price proposals were presented to the TRT members for purposes of conducting their evaluations. Price was also an appropriate factor for consideration by the Selection Committee. Accenture argues that “[t]he ITN does not indicate how pricing will be considered by FDOT during the selection process.” Accenture’s contention that the ITN failed to disclose the relative importance of price is a challenge to the terms, conditions, and specifications of the ITN and should have been filed within 72 hours after the posting of the solicitation, as required by section 120.57(3)(b). Accenture has waived its right of protest with respect to this issue. Conflict of Interest Accenture complains that “[n]either Mr. Henneman nor Mr. McCarey submitted conflict of interest forms as required under the Department’s Procurement Manual . . . [because both] were present during the oral presentations made by the vendors in connection with this procurement.” Accenture also complains that Wendy Viellenave never disclosed that her husband works for TransCore, a company that is a subcontractor for Xerox. Ms. Viellenave’s husband currently works for TransCore as a maintenance and installation manager in California and has not worked in Florida in nearly twenty years. There is no credible evidence that Ms. Viellenave, through the relationship with her husband, has any “significant” direct or indirect -- financial or otherwise -- interest in TransCore that would interfere with her allegiance to the Department. The fact that Ms. Viellenave is married to an individual that works for a Xerox subcontractor is insufficient, in itself, to establish a real or potential conflict of interest. Jack Henneman currently runs the back office operation for FTE at its Boca Raton facility. His future role for the CCSS is as project manager for the implementation of the CCSS. Mr. Henneman became aware of the CCSS procurement through his work on a Florida Transportation Commission Report that culminated in 2012. This report documented the cost efficiencies for all of the tolling authorities in Florida. Mr. Henneman attended some of the Pre-Qualification Demonstrations as his schedule would permit because he is the “go-forward” project manager for the CCSS implementation. Mr. Henneman formerly worked for ACS from 2002 – 2009, and met Ms. Gutierrez-Scaccetti during his employment with the company. Mr. Henneman was the transition manager for the transfer of the back office operation of the New Jersey Turnpike from WorldCom to ACS. Mr. Henneman did not have any contact with Ms. Gutierrez-Scaccetti from approximately 2009 to 2012. In his capacity as the “go-forward” project manager, Mr. Henneman reviewed the technical proposals submitted by the vendors in the instant proceeding but he did not have any discussions with the TRT members or the Selection Committee members about the proposals. He reviewed the technical proposals for the purpose of educating himself so that he would be better prepared to carry out his functions as the “go-forward” project manager. John McCarey is a sub-consultant to FTE general engineering contractor, Atkins. Mr. McCarey has a future role as being a part of the negotiations group for the CCSS. Mr. McCarey formerly worked for Lockheed for approximately 25 years and then spent 5 years working for ACS. Mr. McCarey was the chief financial officer for ACS’s State and Local Solutions Group at one time. Mr. McCarey left the employment of ACS in 2006. Mr. McCarey currently assists with various functions, including work on issues with the consolidation of the back office systems of OOCEA and FTE. For approximately 10 years before becoming a sub-consultant, Mr. McCarey had not had any contact with Ms. Gutierrez-Scaccetti. As it relates to the CCSS project, there is no persuasive evidence that Mr. McCarey provided recommendations to the TRT or the Selection Committee.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is recommended that Petitioners’ protests be dismissed. DONE AND ENTERED this 4th day of September, 2014, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 2014.
