00-001783BID Burns International Guard Services, Inc., Of Florida, D/B/A Nyco vs. Department Of Transportation Status: Closed Recommended Order on Tuesday, August 22, 2000.

Summary: Each Request for Proposals is de novo; potential bidders cannot rely on a prior course of dealing if advertisement meets rule requirements. Redundant background checks are contrary to competition, if not contrary to statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BURNS INTERNATIONAL GUARD )

SERVICES, INC., OF FLORIDA, )

d/b/a NYCO, )

)

Petitioner, )

) Case No. 00-1783BID

vs. )

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

This cause came on for a disputed-fact hearing on June 5,

2000, in Tallahassee, Florida, before Ella Jane P. Davis, a duly-

assigned Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Michael E. Kinney, Esquire

N. Wes Strickland, Esquire

Fol ey & Lardner

300 East Park Avenue

Tallahassee, Florida 32301-1514

For Respondent: Kelly A. Bennett, Esquire

Scott Matthews, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

Petitioner protests the method by which Respondent

Department of Transportation (DOT) advertised RFP-DOT-99/00-3002

and RFP-DOT-99/00-3003 and the specifications contained in the

RFP's SCOPE OF SERVICES, Sections 1.7.2, 2.0-A, 14.0-A, 14.0-B,

and 14.0-C.

PRELIMINARY STATEMENT

Petitioner Burns International Guard Services, Inc., of

Florida, d/b/a NYCO (NYCO) timely-filed its Notice of Intent to

File a Formal Written Protest and Formal Written Protest.

The case was referred to the Division of Administrative

Hearings by Respondent DOT on or about April 27, 2000. Potential

intervenors were notified.

By stipulation of the parties, the disputed-fact hearing was

scheduled for June 5, 2000.

At hearing, the parties stipulated to some facts.

Petitioner presented the oral testimony of Kenothy (Ken)

Chandler, Joseph (Joe) Huff, and Mark Thomas, and had Exhibit P-3

admitted in evidence.

Respondent presented the oral testi mony of Richard Norris

and Alan Reese, and had Exhibit R-10 admitted in evidence.

Exhibit R-10 is the deposition of Constance Crawford.

Joint Exhibits 1-4 were admitted in evidence.

A Transcript of the proceedings was filed on July 18, 2000.

The partie s had agreed to file their proposed recommended

orders within five days of the filing of the Transcript.

Respondent's Proposed Recommended Order was timely filed on July

24, 2000.

Petitioner's Proposed Recommended Order was filed one day

late on July 25, 2000.

Respondent moved to strike Petitioner's Proposed Recommended

Order as untimely. No response in opposition has been filed by

Petitioner. However, the undersigned detects no advantage gained

by Petitioner nor prejudice to Respondent to have occurred due to

the late filing, and Section 120.57(3), Florida Statutes,

provides for 10 days in which to file proposals. Therefore, the

Motion is denied. Petitioner's proposal has been considered

simultaneously with Respondent's proposal.

FINDINGS OF FACT

1. The subject Requests for Proposal (RFPs) are RFP-DOT-

99/00-3002 and RFP-DOT-99/00-3003, commonly referred-to as the

2000 RFPs.

2. These RFPs seek suppliers of security guards for rest

areas and welcome centers maintained by DOT in its District III.

That District currently is administered by "east" and "west"

segments of Interstate Highway 10, with "east" corresponding to

RFP 3003 and "west" corresponding to RFP 3002.

3. NYCO is a supplier of security guard services for

industrial, health care, general, and retail establishments in

Florida, Alabama, and Mississippi.

4. Ken Chandler is Administrator and Operational Manager

for NYCO.

5. Since 1994, NYCO has bid on DOT RFPs for the same

project and has provided security guard services for District

III.

6. Generally speaking, security guards are non-skilled

persons who work at or near minimum wage. Higher standards for

its security guards imposed by prior DOT contracts requiring law

enforcement training and certification have resulted in NYCO

paying off-duty law enforcement officers at a considerably

higher rate of pay to work at DOT's facilities.

7. The 2000 RFPs constitute "contractual services

contracts" governed by Chapter 287, Florida Statutes. They also

are "standard scope of services contracts," which means they are

developed on a statewide basis with District input.

8. NYCO's first contract with DOT was awarded July 1,

1994, for two years. The second was awarded July 1, 1996, for

two years. For the first contract, specifications were mailed

to Mr. Chandler three months in advance of the bid submittal

date. For the second contract, NYCO, as the incumbent contract

holder, was notified that specifications were ready for pick-up.

NYCO had to submit a written request for the RFP package.

9. The 1999 RFP was advertised on the Florida Communities

Network (FCN) and, according to Richard Norris, DOT District III

Contract Administrator, RFP packages also were sent to all

proposers for the prior contract because he had promised to do

so when that set of bids had all been rejected. Apparently, no

such promise was made for the 2000 RFPs. (TR-103).

10. FCN is a website maintained by the Florida Department

of Management Services for the purpose of advertising public

contracts.

11. During the course of NYCO's most recent contract, NYCO

employee Joe Huff regularly checked with DOT personnel to ensure

that the security which NYCO was already providing was going

along well. Both Mr. Chandler and Mr. Huff assumed NYCO would

be alerted during these conversations as to when it could

request the specifications for the next round of contracts, the

2000 RFPs.

12. DOT employee Lloyd Tharpe submitted technical aspects

of the 2000 RFPs to Richard Norris on or about December 23,

1999.

13. Mr. Huff testified that he made contact with DOT

personnel, including Mark Thomas, Tom Williams, Charlie Ward,

Rufus Baron, and Milton Blake, on February 7, February 14,

February 15, February 21, and February 29, 2000. While Mr. Huff

maintained that on nearly every occasion he asked if the DOT

employee to whom he was speaking knew when the new RFP

specifications would be ready, his testimony on the precise

contents of these conversations is a little vague. He based his

recollection on notes in his day planner which merely listed the

name of a city, and he then assumed that he spoke with whomever

he usually contacted in that city. He could not recall the

exact content of these conversations.

14. None of the foregoing DOT employees corroborated that

they had been asked about the 2000 RFP specifications by

Mr. Huff.

15. It was not established that any of Mr. Huff's contacts

were with DOT's procurement office, which Mr. Huff knew

advertises the RFPs.

16. DOT District Maintenance Engineer Mark Thomas stated

that he only became aware on or about February 29, 2000, that

the 2000 RFP was being advertised.

17. Mr. Huff was told on February 29, 2000, by Mark Thomas

that the 2000 RFPs were "on the street" and that the mandatory

pre-bid conference would be held March 2, 2000.

18. NYCO attended the mandatory pre-bid conference for the

2000 RFPs on March 2, 2000.

19. On March 3, 2000, NYCO timely filed its Notice of

Intent to Protest the specifications of the 2000 RFPs.

20. The deadline for submitting proposals in response to

the 2000 RFPs was March 9, 2000. NYCO submitted a bid proposal

timely, but found it difficult to prepare in such a short time

frame.

21. On March 13, 2000, NYCO timely filed its Formal

Written Protest of certain specifications of the 2000 RFPs.

22. The specifications challenged in this case were

developed by the Department's State Maintenance Office. They

read as follows:

1.7.2 Qualifications of Key Personnel

Those individuals (as identified in Section

12 of Exhibit "A" Scope of Services) who will

be directly involved in the project should

have demonstrated experience in the areas

delineated in the scope of work. Individuals

whose qualifications are presented will be

committed to the project for its duration

unless otherwise excepted by the Department's

Contract Manager. Where State of Florida

registration, certification, or license is

deemed appropriate, as identified in Exhibit

"A" Scope of Services, a copy of the

registration, certificate, or license shall

be included in the proposal package.

2.0-A Services to be Provided by Contractor

A. Provide uniformed, armed Security

Officers licensed pursuant to F.S. 493, to

provide security services.

14.0 Eligibility Criteria

All Security Officers and Contract

Supervisors employed by the Contractor under

this Contract are required to meet the

following requirements.

A. Training Requirements :

Must be a graduate of a certified United

States federal, state, county, or local law

enforcement agency training program, a

correctional officer training program, a

military police training program, or an

equivalent training program, which presented

the individual with the appropriate

certificate or diploma stating eligibility

for employment as a Law Enforcement or

Correctional Officer. Law Enforcement

Officer and Correctional Officer shall be

defined in Sections 943.10(1) and (2),

Florida Statutes.

The Contractor is encouraged to seek services

of security guards licensed pursuant to

Chapter 493, F.S., who are former members of

the armed forces of the United States and

have been affected by military downsizing or

base closures, and shall be further

encouraged to contact community colleges or

other educational institutions which provide

training for security guards for candidates

meeting these qualifications.

B. Licensing Requirements :

Contract Supervisors and Security Officers,

while on duty, must possess upon their person

and present to Department personnel upon

request the following:

1) State of Florida Class "D" License

(security guard license).

2) State of Florida Class "G" License

(license authorizing individual to bear a

firearm).

3) State of Florida Driver's License or

other State Driver's License which permits

the individual to operate a vehicle in the

State of Florida.

4) No Security Officer will be permitted to

work under this contract using an

Acknowledgement Card from the Department of

State.

C. A Security Officer or Contract Supervisor

employed as a Law Enforcement Officer or

Correctional Officer must have documentation

showing proof of current employment and

approval from his/her employing agency or

department to carry a firearm during off-duty

hours in his/her capacity as Security Officer

and Contract Supervisor.

23. The manner of advertising the 2000 RFPs also was

challenged.

24. For the 2000 RFPs, DOT did not advertise in newspapers

or the Florida Administrative Law Weekly and did not mail

specifications to incumbent contractors or to a list of

potential bidders.

25. DOT only advertised the 2000 RFPs via FCN from

approximately February 1, 2000 to March 6, 2000.

26. According to Richard Norris, the Department is

required by statute to advertise projects on FCN. He cited

neither statute nor rule to support his conclusion. He stated

that there are many other or additional ways DOT may advertise a

project and that advertisement by FCN is only the minimum

requirement. He was not aware of any current statutory or rule

requirement that DOT directly notify potential bidders for this

type of RFP. However, he stated that if he were approached

directly by a potential bidder, he would tell that potential

bidder about the RFP over the phone.

27. To develop scope of services contracts such as the

2000 RFPs, Alan Reese, the Department's State Contracts and

Agreements Manager, directs the gathering of information from

the Department's Districts or other sources, develops a draft,

receives input from each District as to the draft, and the draft

is reviewed throughout the Department, including its legal

office, until finally the State Maintenance Engineer signs-off

on it.

28. In this instance, the bid specifications were intended

to create a uniform and consistent statewide system that was

understandable to the bidders.

29. Lloyd Tharpe and his staff were responsible for

mailing out the RFP packages as they were requested by potential

bidders after the first advertisement approximately February 1,

2000.

30. No active intent or effort by DOT staff to obscure

NYCO's opportunity to bid was proven.

31. The 2000 RFPs require that to be a security guard of

DOT facilities, one must be qualified to be hired as a law

enforcement officer or correctional officer as defined in

Subsections 943.10(1) and (2), Florida Statutes. (RFP Section

14.0-A).

32. The training qualifications to be hired as a law

enforcement officer under Chapter 943 are higher than those

imposed by a Class "D" security guard license from the

Department of State pursuant to Chapter 493, Florida Statutes.

33. The 2000 RFP specifications also require that to be a

security guard of DOT facilities one must have a Class "D" or

Class "G" (if a gun is carried) license from the Department of

State, pursuant to Chapter 493, Florida Statutes (RFP Section

4.0-B.1 and 2).

34. DOT interprets the foregoing RFP requirements to mean

that even currently employed Florida law enforcement officers

and correctional officers must also be licensed by the Florida

Department of State as Class "D" or Class "G" security officers.

35. DOT is aware of an exemption in Chapter 493, Florida

Statutes, permitting law enforcement officers to act as security

guards without obtaining a Class "D" license from the

Department. As far as the 2000 RFPs are concerned, the

exemption may not be exercised.

36. A 1996 DOT Inspector General's internal audit report

identified individuals with questionable backgrounds working for

security firms which had already contracted with DOT. The

report concluded that the background checks that the then-

existing contracts required the contract security firms to

perform had been unsatisfactory. The report recommended that

the security firms do more extensive background checks on their

employees.

37. DOT did not want anybody guarding tourists, especially

women and children tourists, who had not gone through a thorough

background check.

38. DOT apparently felt it could not rely on the security

firms to do background checks on their employee-guards. DOT

determined that it did not have authority or ability to do its

own background checks, so it decided to rely on the Department

of State, which did have authority and ability to do background

checks.

39. Mark Thomas understood that once an application for a

Class "D" or "G" license has been received by the Secretary of

State, an FDLE criminal background check is conducted by the

Florida Department of Law Enforcement (FDLE), and an

acknowledgment card is sent by the Department of State to the

applicant which states that the applicant may perform security

guard services while carrying the card. However, Mr. Thomas

ultimately admitted that he did not know anything at all about

Department of State background checks. His "understanding" was

not corroborated by Ms. Constance Crawford.

40. Constance Crawford is the Bureau Chief for the Bureau

of Licensing, Department of State. She handles the

administrative responsibilities associated with the review of

security guard applications pursuant to Chapter 493, and

Sections 790.06 and 849.094, Florida Statutes. According to

her, the Department of State will issue Class "D" and Class "G"

security guard licenses to law enforcement officers.

41. Ms. Crawford provided no information about the

Department of State's security guard background checks.

42. In developing the 2000 RFPs, DOT decided not to accept

Department of State acknowledgement cards because DOT staff

believed that acknowledgment cards were issued by the Department

of State to applicants before a national background check (also

called an NCIC check) was completed through the Federal Bureau

of Investigation (FBI).

43. No DOT witness ha d knowledge of how Department of

State, FDLE, or FBI background checks are performed.

44. Mr. Chandler testified that NYCO's problem with the

RFPs' requirement for law enforcement officers to have Class "D"

and/or Class "G" licenses before they are employed at DOT's

interstate facilities was due to the time it takes to get Class

"D" and "G" licenses issued by the Department of State, which

can be anywhere from a few weeks to several months, and because

it is very difficult for NYCO to retain potential employees for

that long before they are placed on the jobsite. He testified

that NYCO would have no problem if the employees could be

certified in three days.

45. Mr. Chandler testified that the letters of

authorization required by DOT in specification 14.0-C differed

from the language employed in Chapter 493, Florida Statutes, and

that many law enforcement agencies had refused to sign the form

letter provided by DOT because those law enforcement agencies

interpreted the letters to make the law enforcement agencies

liable for anything done by the law enforcement officer, on or

off-duty.

46. DOT's approved form letter reads:

Dear Sirs:

________ is an employee of this Department

and _________ has the approval of this

Department to carry a fire arm during off-

duty hours in his/her capacity as a Security

Officer and/or Contract Supervisor at the

Florida Department of Transportation Rest

Areas/Welcome Centers within the Third

District.

Sincerely,

Name

Title

CONCLUSIONS OF LAW

47. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Subsections 120.57(1) and (3), Florida Statutes.

48. In order to prevail herein, NYCO has the duty to go

forward and the burden of proof to establish that the

specifications at issue are contrary to DOT's governing statutes,

rules, or policies or are clearly erroneous, contrary to

competition, arbitrary, or capricious.

49. Petitioner NYCO's protest is based on four concepts.

50. Petitioner first claims an equitable estoppel based on

DOT's failure to advertise and publicize the 2000 RFPs as it had

advertised and publicized prior RFPs. The reasons for this

theory are NYCO's belief that DOT had an obligation to continue a

past course of dealing and NYCO's belief in an intentional and

active DOT camouflage of the 2000 RFPs, a DOT failure to disclose

to NYCO the 2000 RFPs, or a DOT delay in disclosing to NYCO the

2000 RFPs.

51. Rule 60A-1.002(4)(a), Florida Administrative Code,

requires DOT to advertise its RFPs in either the Florida

Administrative Weekly or FCN, no less than 28 days prior to the

proposal opening. There is no dispute that DOT complied with

this rule. 1 Petitioner has demonstrated no contrary statutory or

rule authority.

52. It is axiomati c that each RFP is de novo . Petitioner

had no right to rely on DOT's methods of advertising and

publicizing prior RFPs.

53. Mr. Huff's testimony falls short of establishing any

departmental conspiracy or intent to obscure from NYCO the

opportunity to bid.

54. There is no guarantee that every potential bidder will

have a full 28 days in which to prepare its proposal, only that

28 days of advertising will take place. In this situation, NYCO

actually did bid in a timely manner, despite a delay in becoming

aware of the opportunity.

55. Petitioner secondly asserts that the form letter

provided at the pre-bid conference is contrary to specification

14.0-C and/or contrary to Chapter 493, Florida Statutes.

56. Specification 14.0-C requires off-duty law enforcement

officers and correctional officers to have written proof of

current employment as such officers and employer authorization to

carry firearms when off-duty and working as security guards. It

is logical and reasonable that DOT would want such assurance in

writing if only to account for weapons, insulate DOT from

liability, and ensure that officers maintain law enforcement

proficiencies and good character as required by their regular

employers.

57. On this second issue, Petitioner has offered no

satisfactory legally-based reason why DOT cannot develop and

require specification 14.0-C (see Finding of Fact No. 22) and the

form letter, which is an integral part of the specification (see

Finding of Fact No. 46). When the specification and the form

letter are compared, they are clearly "in sync." The form letter

does not abrogate, alter, or expand on the written specification.

58. However, in comparing specification 14.0-C to Chapter

493, Florida Statutes, one must perforce consider Section

493.6102(1), Florida Statutes, which is a statutory basis for the

Department of State to require an authorization from the

superiors of off-duty officers.

59. Petitioner's theory with regard to Section 493.6102(1),

Florida Statutes, seems to be that if, with law enforcement

agency employer authorization, an officer may be exempted from

having to get a security guard license from the Department of

State, then DOT also must be barred from requiring such

authorization from the officer's law-enforcement agency employer.

Such reasoning is convoluted and illogical.

60. Section 493.6102(1), Florida Statutes, provides:

Inapplicability of parts I through IV of this

Chapter. -

This chapter shall not apply to:

(1) Any individual who is an "officer" as

defined in s. 943.10(14) or is a law

enforcement officer of the United States

Government, while such local, state or

federal officer is engaged in her or his

official duties or when performing off-duty

security activities approved by her or his

superiors.

61. Section 9 43.10(14), Florida Statutes, provides:

"Officer" means any person employed or

appointed as a full-time, part-time, or

auxiliary law enforcement officer,

correctional officer, or correctional

probation officer.

62. Regardless of the effect Sections 493.6 102(1) and

943.10(14), Florida Statutes, may have on activities of the

Department of State, no legitimate theory of statutory

construction permits them to be read so as to bar DOT, which is

not specifically "governed" by them, from requiring written

authorization on DOT's established form from the superiors of

off-duty law enforcement officers and correctional officers who

want to work for NYCO as security guards on a DOT facility.

63. Petitioner's third point of protest also is based on

Section 493.6102(1), Florida Statutes. Petitioner asserts that

Section 493.6102(1), Florida Statutes, exempts law enforcement

and correctional officers from having to be simultaneously

licensed by the Department of State in order to work as security

guards.

64. DOT's witnesses factually acknowledged, and DOT's

Proposed Recommended Order legally acknowledges that such a

statutory exemption exists. DOT's position is that although the

Chapter 493 exemption is normally available, the fact that

Ms. Crawford testified that the Department of State will still

issue Class "D" and "G" licenses to active law enforcement

officers who apply for such licenses, is sufficient to uphold

specifications 1.7.2, 2.0-A, and 14.0-B. 1 and 2.

65. Simplified, the third issue to be resolved is: does the

Department of State's statutory exemption bar DOT's

specifications 1.7.2, 2.0-A, and 14.0-B. 1 and 2, or

alternatively, are these DOT specifications clearly erroneous,

contrary to competition, arbitrary, or capricious?

66. On this issue, NYC O also cites Rule 1C-3.100, Florida

Administrative Code, which provides in pertinent part:

The Division of Licensing (Division)

Department of State (Department) is

statutorily empowered with the authority to

ensure that the public is protected from

private investigation, security, and

repossession services by individuals who have

a criminal history, or are insufficiently or

improperly trained in the field, or are

unlicensed, or by agencies that are

improperly insured, or are managed in a

manner which does not assure compliance with

the law and these rules by its licensed

employees.

* * *

(3) Definitions. In addition to the

definitions contained in Section 493.6101,

Florida Statutes, the following terms shall

mean:

(b) The term, "certified law enforcement

officer" means a sworn law enforcement or

corrections officer who has received

certification from the Florida Criminal

Justice and Training Commission.

67. As a fourth point of protest, Petitioner asserts that

specification 14.0-B.4, stating that the Department of State's

acknowledgement cards are insufficient to qualify security guards

to work on a DOT contract, constitutes a violation of Chapter

493, Florida Statutes, is outside DOT's statutory authority, and

is arbitrary, capricious, and unreasonable. In this context,

Petitioner asserts that the DOT specification forbidding the use

of acknowledgment cards, which are the functional equivalent of

temporary Class "D" security guard licenses with no expiration

dates, amounts to DOT acting in excess of its delegated authority

and infringing upon the regulatory authority of the Department of

State pursuant to that agency's governing statute, Chapter 493,

Florida Statutes.

68. The Department of State permits security guards to work

while carrying only the acknowledgement card. Section

493.6105(9), Florida Statutes, provides:

(9) Upon submission of a complete

application, a Class "CC," Class "D," Class

"EE," Class "E," Class "M," Class "MA," Class

"MB," or Class "MR" applicant may commence

employment or appropriate duties for a

licensed agency or branch office. However,

the Class "C" or Class "E" applicant must

work under the direction and control of a

sponsoring licensee while his or her

application is being processed. If the

department denies application for licensure,

the employment of the applicant must be

terminated immediately, unless he or she

performs only unregulated duties.

69. The Class "D" license or acknowledgment card from the

Department of State permits the qualified security guard to work

in his chosen field, but neither item requires an employer of

security guards to hire such a person. If DOT were a private

employer, DOT could elect to employ a fully licensed security

guard over one who merely holds an acknowledgment card.

70. However, the fourth issue with respect to

acknowledgement cards is moot if the third protest point (that

law enforcement and correctional officers may not be required to

also get security guard licenses) is decided in Petitioner's

favor.

71. Therefore, returning to the third protest point, since

DOT has asserted that its only reason for requiring security

guard licenses is to ensure that there is an adequate background

check, the background checks of law enforcement officers and of

security guards should be compared.

72. Part I of Chapter 493, Florida Statutes, at Sections

493.6105(1) through (3), and (6), provide for application

disclosures to the Department of State for Class "D" and "G"

security guard licenses as follows:

493.6105 Initial application for license -

(1) Each individual, partner, or principal

officer in a corporation, shall file with the

department a complete application accompanied

by an application fee not to exceed $60,

except that the applicant for a Class "D" or

"G" license shall not be required to submit

an application fee. The application fee

shall not be refundable.

(a) The application submitted by any

individual, partner, or corporate officer

shall be approved by the department prior to

that individual, partner or corporate officer

assuming his or her duties.

(b) Individuals who invest in the ownership

of a licensed agency, but do not participate

in, direct, or control the operations of the

agency shall not be required to file an

application.

(2) Each application shall be signed by the

individual under oath and shall be notarized.

(3) The application shall contain the

following information concerning the

individual signing same:

(a) Name and any aliases.

(b) Age and date of birth.

(c) Place of birth.

(d) Social security number or alien

registration number, whichever is applicable.

(e) Present residence address and his or her

residence addresses within the 5 years

immediately preceding the submission of the

application.

(f) Occupations held presently and within

the 5 years immediately preceding the

submission of the application.

(g) A statement of all convictions.

(h) A statement whether he or she has ever

been adjudicated incompetent under Chapter

744.

(i) A statement whether he or she has ever

been committed to a mental institution under

Chapter 394.

(j) A full set of fingerprints on a card

provided by the department and a fingerprint

fee to be established by rule of the

department based upon costs determined by

state and federal agency charges and

department processing costs. An applicant

who has, within the immediately preceding 6

months, submitted a fingerprint card and fee

for licensing purposes under this chapter

shall not be required to submit another

fingerprint card or fee.

(k) A personal inquiry waiver which allows

the department to conduct necessary

investigations to satisfy the requirements of

this chapter.

(l) Such further facts as may be required by

the department to show that the individual

signing the application is of good moral

character and qualified by experience and

training to satisfy the requirements of this

chapter.

* * *

(6) In addition to the requirements outlined

in subsection (3), an applicant for a Class

"G" license shall satisfy minimum training

criteria for firearms established by rule of

the department, which training criteria shall

include, but is not limited to, 28 hours of

range and classroom training taught and

administered by a Class "K" licensee;

however, no more than 8 hours of such

training shall consist of range training. If

the applicant can show proof that he or she

is an active law enforcement officer

currently certified under the Criminal

Justice Standards and Training Commission or

has completed the training required for that

certification within the last 12 months, or

if the applicant submits one of the

certificates specified in paragraph (7)(a),

the department may waive the foregoing

firearms training requirement.

73. Section 493.6106, establishes the Class "D"

and "G" security guard license requirements of the

Department of State as follows:

493.6106 License requirements; posting -

(1) Each individual licensed by the

department must:

(a) Be at least 18 years of age.

(b) Be of good moral character.

(c) Not have been adjudicated incapacitated

under s. 744.331 or a similar statute in

another state, unless her or his capacity has

been judicially restored; not have been

involuntarily placed in a treatment facility

for the mentally ill under Chapter 394 or a

similar statute in any other state, unless

her or his competency has been judicially

restored; and not have been diagnosed as

having an incapacitating mental illness,

unless a psychologist or psychiatrist

licensed in this state certifies that she or

he does not currently suffer from the mental

illness.

(d) Not be a chronic and habitual user of

alcoholic beverages to the extent that her or

his normal faculties are impaired; not have

been committed under Chapter 397, former

Chapter 396, or a similar law in any other

state; not have been found to be a habitual

offender under s. 856.011(3) or a similar law

in any other state; and not have had two or

more convictions under s.316.193 or a similar

law in any other state within the 3-year

period immediately preceding the date the

application was filed, unless the individual

establishes that she or he is not currently

impaired and has successfully completed a

rehabilitation course.

(e) Not have been committed for controlled

substance abuse or have been found guilty of

a crime under Chapter 893 or a similar law

relating to controlled substances in any

other state within a 3-year period

immediately preceding the date the

application was filed, unless the individual

establishes that she or he is not currently

abusing any controlled substance and has

successfully completed a rehabilitation

course.

(f) Be a citizen or legal resident alien of

the United States or have been granted

authorization to seek employment in this

country by the United States Immigration and

Naturalization Service.

74. Part I, Section 49 3.6108, Florida Statutes, provides

for the Department of State background check for Class "D" and

"G" licenses:

493.6108 Investigation of applicants by

Department of State -

(1) Except as otherwise provided, prior to

the issuance of a license under this chapter,

the department shall make an investigation of

the applicant for a license. The

investigation shall include:

(a)1. An examination of fingerprint records

and police records. When a criminal history

analysis of any applicant under this chapter

is performed by means of fingerprint card

identification, the time limitations

prescribed by s.120.60(1) shall be tolled

during the time the applicant's fingerprint

card is under review by the Department of Law

Enforcement or the United State Department of

Justice, Federal Bureau of Investigation.

2. If a legible set of fingerprints, as

determined by the Department of Law

Enforcement or the Federal Bureau of

Investigation, cannot be obtained after two

attempts, the Department of State may

determine the applicant's eligibility based

upon a criminal history record check under

the applicant's name conducted by the

Department of Law Enforcement and the Federal

Bureau of Investigation. A set of

fingerprints taken by a law enforcement

agency and a written statement signed by the

fingerprint technician or a licensed

physician stating that there is a physical

condition that precludes obtaining a legible

set of fingerprints or that the fingerprints

taken are the best that can be obtained is

sufficient to meet this requirement.

(b) An inquiry to determine if the applicant

has been adjudicated incompetent under

Chapter 744 or has been committed to a mental

institution under Chapter 394.

(c) Such other investigation of the

individual as the department may deem

necessary.

(2) In addition to subsection (1), the

department shall make an investigation of the

general physical fitness of the Class "G"

applicant to bear a weapon or firearm.

Determination of physical fitness shall be

certified by a physician currently licensed

pursuant to Chapter 458, Chapter 459, or any

similar law of another state or authorized to

act as a licensed physician by a federal

agency or department. Such certification

shall be submitted on a form provided by the

department.

(3) The department shall also investigate

the mental history and current mental and

emotional fitness of any Class "G" applicant,

and may deny a Class "G" license to anyone

who has a history of mental illness or drug

or alcohol abuse.

75. Part I, Subsections 493.6113(1), (2), and (3)(b),

Florida Statutes, provide for biennial renewal of Class "D" and

"G" licenses by the Department of State as follows:

493.6113 Renewal application for licensure -

(1) A license granted under the provisions

of this chapter shall be renewed biennially

by the department except for Class "A", Class

"B", Class AB", Class "R", and branch agency

licenses, which shall be renewed every 3

years.

(2) No less than 90 days prior to the

expiration date of the license, the

department shall mail a written notice to the

last known residence address for individual

licensees and to the last known agency

address for agencies.

(3) Each licensee shall be responsible for

renewing his or her license on or before its

expiration by filing with the department an

application for renewal accompanied by

payment of the prescribed license fee.

* * *

(b) Each Class "G" licensee shall

additionally submit proof that he or she has

received during each year of the license

period a minimum of 4 hours of firearms

recertification training taught by a Class

"K" licensee and has complied with such other

health and training requirements which the

department may adopt by rule. If proof of a

minimum of 4 hours of annual firearms

recertification training cannot be provided,

the renewal applicant shall complete the

minimum number of hours of range and

classroom training required at the time of

initial licensure.

76. Section 943.11, Florida Statutes, creates a Criminal

Justice Standards and Training Commission (CJSTC) within the

Florida Department of Law Enforcement (FDLE), which does

training, background checks, and certifications of law

enforcement officers and correctional officers.

77. Section 943.10, Florida Statutes, defines "law

enforcement officer" and "correctional officer" for purposes of

Chapter 943, Florida Statutes, the statute governing such

officers:

(1) "Law enforcement officer" means any

person who is elected, appointed, or employed

full time by any municipality or the state or

any political subdivision thereof; who is

vested with authority to bear arms and make

arrests; and whose primary responsibility is

the prevention and detection of crime or the

enforcement of the penal, criminal, traffic,

or highway laws of the state. This

definition includes all certified supervisory

and command personnel whose duties include,

in whole or in part, the supervision,

training, guidance, and management

responsibilities of full-time law enforcement

officers, part-time law enforcement officers,

or auxiliary law enforcement officers but

does not include support personnel employed

by the employing agency.

(2) "Correctional officer" means any person

who is appointed or employed full time by the

state or any political subdivision thereof,

or by any private entity which has contracted

with the state or county, and whose primary

responsibility is the supervision,

protection, care, custody, and control, or

investigation, of inmates within a

correctional institution; however, the terms

"correctional officer" does not include any

secretarial, clerical, or professionally

trained personnel.

78. Section 943.13, Florida Statutes, provides minimum

certification requirements for law enforcement officers and

correctional officers as follows:

943.13 Officers' minimum qualifications for

employment or appointment -

On or after October 1, 1984, any person

employed or appointed as a full-time, part-

time, or auxiliary law enforcement officer or

correctional probation officer; and on or

after October 1, 1986, any person employed as

a full-time, part-time, or auxiliary

correctional officer by a private entity

under contract to the Department of

Corrections, to a county commission, or to

the Correctional Privatization commission

shall:

(1) Be at least 19 years of age.

(2) Be a citizen of the United States,

notwithstanding any law of the state to the

contrary.

(3) Be a high school graduate or its

"equivalent" as the commission has defined

the term by rule.

(4) Not have been convicted of any felony or

of a misdemeanor involving perjury or a false

statement, or have received a dishonorable

discharge from any of the Armed Forces of the

Untied States. Any person who, after July 1,

1981, pleads guilty or nolo contendere to or

is found guilty of any felony or of a

misdemeanor involving perjury or a false

statement is not eligible for employment or

appointment as an officer, notwithstanding

suspension of sentence or withholding of

adjudication. Notwithstanding this

subsection, any person who has pled nolo

contendere to a misdemeanor involving a false

statement, prior to December 1, 1985, and has

had such record sealed or expunged shall not

be deemed ineligible for employment or

appointment as an officer.

(5) Have documentation of his or her

processed fingerprints on file with the

employing agency or, if a private

correctional officer, have documentation of

his or her processed fingerprints on file

with the Department of Corrections or the

Criminal Justice Standards and Training

Commission. If administrative delays are

caused by the department or the Federal

Bureau of Investigation and the person has

complied with subsections (1)-(4) and (6)-

(9), he or she may be employed or appointed

for a period not to exceed 1 calendar year

from the date he or she was employed or

appointed or until return of the processed

fingerprints documenting noncompliance with

subsections (1)-(4) or subsection (7),

whichever occurs first.

(6) Have passed a physical examination by a

licensed physician, based on specifications

established by the commission.

(7) Have a good moral character as

determined by a background investigation

under procedures established by the

commission.

(8) Execute and submit to the employing

agency or, if a private correctional officer,

submit to the appropriate governmental entity

an affidavit-of-applicant form, adopted by

the commission, attesting to his or her

compliance with subsections (1)-(7). The

affidavit shall be executed under oath and

constitutes an official statement within the

purview of s.837.06. The affidavit shall

include conspicuous language that the

intentional false execution of the affidavit

constitutes a misdemeanor of the second

degree. The affidavit shall be retained by

the employing agency.

(9) Complete a commission-approved basic

recruit training program for the applicable

criminal justice discipline, unless exempt

under this subsection. An applicant who has:

(a) Completed a comparable basic recruit

training program for the applicable criminal

justice discipline in another state or for

the Federal Government; and

(b) Served as a full-time sworn officer in

another state or for the Federal Government

for at least one year is exempt in accordance

with s.943.131(2) from completing the

commission-approved basic recruit training

program.

(10) Achieve an acceptable score on the

officer certification examination for the

applicable criminal justice discipline.

(11) Comply with the continuing training or

education requirements of s.943.135.

79. Section 943.133(3), Florida Statutes, provides

background checks for law enforcement officers and correctional

officers:

(3) The commission shall adopt rules that

establish procedures for conducting

background investigations. The rules must

specify a form for employing agencies to use

to document the findings of the background

investigation. Before employing or

appointing any officer, the employing agency

must conduct a thorough background

investigation in accordance with the rules.

The background information should include

information setting forth the facts and

reasons for any of the applicant's previous

separations from private or public employment

or appointment, as the applicant understands

them. For the purposes of this subsection,

the term "separation from employment or

appointment" includes any firing,

termination, resignation, retirement, or

voluntary or involuntary extended leave of

absence from any salaried or nonsalaried

position. The employing agency must maintain

the original background investigation form,

which must be signed by the administrator of

the employing agency or his or her designee.

80. A rule has been adopted by CJSTC at 11B-27.011,

Florida Administrative Code, which defines good moral character

for officers more strictly than do the Department of State's

statutes governing security guard license applicants:

11B-27.011 Moral Character -

(1) For the purpose of certification,

employment, or appointment, pursuant to

procedures established by Rule

11B-27.002(1)(g) and 11B-27.00225, F.A.C.,

the employing agency is responsible for

conducting a thorough background

investigation, to determine the moral

character of an applicant pursuant to Section

943.13(7), F.S.

(2) The unlawful use of any controlled

substances pursuant to Rule 11B-27.00225,

F.A.C., by an applicant for certification,

employment, or appointment, at any time

proximate to the submission of application

for certification, employment or appointment,

conclusively establishes that the applicant

is not of good moral character pursuant to

Section 943.13(7), F.S. The unlawful use of

any controlled substances specified in Rule

11B-27.00225, F.A.C., by an applicant may or

may not conclusively establish that the

applicant is not of good moral character

pursuant to Section 943.13(7) F.S., depending

upon the type of controlled substance used,

the frequency of use, and the age of the

applicant at the time of use. Nothing in

this rule chapter is intended to restrict the

requirements of Section 943.13(7), F.S. to

controlled substance use only.

(3) Upon written request and submission of

materials, as specified in Criminal Justice

Standards and Training Commission Policies

and Procedures Manual, revised January 1999,

hereby incorporated by reference, the

Commission shall evaluate the qualification

of an applicant to determine compliance with

"good moral character," pursuant to this rule

section.

(4) For the purposes of the Commission's

implementation of any of the penalties

specified in Section 943.1395(6) or (7),

F.S., a certified officer's failure to

maintain good moral character required by

Section 943.13(7), F.S., is defined as:

(a) The perpetration by an officer of an act

that would constitute any felony offense

whether criminally prosecuted or not.

(b) The perpetration by an officer of an act

that would constitute any of the following

misdemeanor or criminal offenses whether

criminally prosecuted or not:

1. Sections 316.193, 316.1935, 327.35,

414.39, 741.31, 784.011, 784.03, 784.047,

784.048, 784.05, 790.01, 790.10, 790.15,

790.27, 794.027, 796.07, 800.02, 800.03,

806.101, 806.13, 810.08, 812.014, 812.015,

812.14, 817.235, 817.49, 817.563, 817.565,

817.567, 827.04, 828.12, 831.30, 831.31,

832.05, 837.012, 837.05, 837.06, 839.20,

843.02, 843.03, 843.06, 843.085, 847.011,

856.021, 870.01, 893.13, 893.147, 914.22,

944.35, 944.37, and 944.39, F.S.

2. Any principal, accessory, attempt,

solicitation, or conspiracy pursuant to

Chapter 777, F.S., which had the crime been

committed or completed would have been a

felony offense; or

3. The perpetration of an act in any

jurisdiction other than the State of Florida,

which if committed in the State of Florida

would constitute any offense listed in this

rule section.

(c) The perpetration of an officer of acts

or conduct that constitute the following

offenses:

1. Excessive use of force, defined as a

situation in which an officer uses a "level

of force" inappropriate with the

circumstances presented at the time of the

incident. In the administrative review of

"use of force" for officer disciplinary

cases, the Commission applies the

Commission's Recommended Use of Force and

Levels of Resistance Matrix, January 1999,

hereby incorporated by reference, to evaluate

"use of force" circumstances presented in a

disciplinary case.

2. Misuse of official position, defined by

Section 112.313(6), F.S.

3. Having an unprofessional relationship

with an inmate, detainee, probationer or

parolee, or community controllee. An

unprofessional relationship is defined as:

a. Having written or oral communication with

an inmate, detainee, probationer or parolee,

or community controllee that is intended to

facilitate conduct prohibited by this rule

section; or

b. Engaging in physical contact not required

in the performance of official duties, and is

defined as kissing, fondling of the genital

area, buttocks, or breasts, massaging or

similar touching, holding hands, any other

physical contact normally associated with the

demonstration of affection, or sexual

misconduct as applied to all certifications,

which is defined in Section 944.35(3), F.S.

4. Sexual harassment pursuant to and

consistent with decisions interpreting 29

C.F.R. 1604.11, including unwelcome sexual

advances, requests for sexual favors, and

other verbal or physical conduct of a sexual

nature, when the harassment involves physical

contact or misuse of official position and

when:

a. Submission to such conduct is made either

explicitly or implicitly a term or condition

of an individual's employment, or

b. Submission to or rejection of such

conduct by an individual is used as the basis

for employment decisions affecting such

individual, or

c. Such conduct has the purpose or effect of

unreasonably interfering with an individual's

work performance or creating an intimidating,

hostile, or offensive working environment.

5. Engaging in sex while on duty.

6. False statements during the employment

application process.

7. Conduct that subverts or attempts to

subvert, the State Officer Certification

Examination process pursuant to Rule 11B-

30.009(3), F.A.C.

8. Conduct that subverts or attempts to

subvert the State Officer Certification

Examination process or an employing agency

promotional examination process pursuant to

Rule 11B-30.009(3), F.A.C.

(d) Testing positive for controlled

substances by conducting a urine or blood

test that result in a confirmed nanogram

level pursuant to Rule 11B-27.00225, F.A.C.,

or is consistent with and indicative of the

ingestion of a controlled substance pursuant

to Chapter 893, F.S., and not having a

specific nanogram level listed in Rule 11B-

27.00225, F.A.C., shall be an affirmative

defense to this provision to establish that

any such ingestion was lawful. Any tests of

this kind relied upon by the Commission for

disciplinary action, shall comply with the

requirements for reliability and integrity of

the testing process pursuant to rule 11B-

27.00225, F.A.C.

(5) An employing agency shall forward to

Commission staff an investigation report

pursuant with procedures established in Rule

11B-27.003(2)-(4), F.A.C., when the following

acts or allegations have occurred:

(a) An allegation has been made that an

officer has failed to maintain good moral

character defined in paragraph (4) of this

rule section, and the allegation has been

sustained by the employing agency; or

(b) If an act or conduct by the officer has

resulted in the officer's arrest, the report

shall be forwarded to Commission staff

immediately upon the officer's separation

from employment; or

(c) If the officer is not separated from

employment within 45 days from the date the

allegation is sustained pursuant to this rule

section.

(6) Upon receipt of information pertaining

to an officer's misconduct, including

violations of (4)(b) or (4)(c) of this rule

section, commission staff shall review the

information to determine whether to initiate

a Commission probable cause review, based

upon, but not limited to, the following

conditions:

(a) The severity of the violation.

(b) The existence of any pecuniary benefit

realized by the officer as a result of the

misconduct.

(c) Evidence of any intent by the officer to

harm, deceive, or defraud.

(d) In cases involving false statements the

materiality of the false statements.

(e) The disciplinary action taken by the

employing agency.

81. A rule has been adopted by CJSTC at 11B-

27.002, Florida Administrative Code, providing for an

extensive background check for officers. It

encompasses the more stringent "moral character"

definition.

11B-27.0022 Background Investigations -

(1) The employing agency shall conduct a

thorough background investigation of each

applicant upon certification, employment, or

appointment pursuant to procedures for

conducting background investigations, which

are established in the Criminal Justice

Standards and Training Commission Policies

and Procedures Manual. The agency shall have

on record a summary of the findings signed

and dated by the investigator and the chief

administrator or designee that verifies the

following information:

(a) Information contained in the affidavit

of Applicant form CJSTC-68 is accurate.

(b) Commission staff has been contacted to

verify all prior criminal justice employments

of the applicant and the facts and reasons

for any prior separations of employment.

(c) Processed Applicant Fingerprint Cards

are on file reflecting state and national

criminal history record checks.

(d) A urine sample furnished by the

applicant was analyzed for the presence of

controlled substances or evidence pursuant to

Rule 11B-27.00225, F.A.C.

(e) The applicant is of good moral

character.

(2) The employing agency shall use the

following means to complete its

investigation:

(a) Use neighborhood checks.

(b) Use previous employment data obtained

from prior employers, law enforcement

records, and military history checks.

(c) Question the applicant of any history of

prior unlawful conduct.

(d) Question the applicant about any

unlawful drug use pursuant to Rule 11B-

27.0011(2), F.A.C.

(e) Use other means to complete its

investigation, including a job-related

psychological examination and a polygraph

examination.

(f) In cases where an applicant's urine

sample is found to contain a controlled

substance or evidence thereof, upon the

completion of the analysis procedures

pursuant to Rule 11B-27.00225, F.A.C., the

employing agency shall, if requested by the

applicant, permit the applicant to provide to

the employing agency evidence that the

applicant lawfully used or ingested the said

controlled substance.

(3) Upon the effective date of this rule

section, the employing agency completing the

background investigation shall submit to

Commission staff a Registration of Employment

affidavit of Compliance form CJSTC-60. The

information on the CJSTC-60 form may be

electronically submitted via the Commission's

Automated Training Management System (ATMS2),

and the agency shall also submit a completed

original of the Employment Background

Investigative Report form CJSTC-77, revised

October 27, 1998, hereby incorporated by

reference. The information on the CJSTC-77

form may be electronically submitted via the

Commission's ATMS2. The original form CJSTC-

77 that has been signed and dated by the

investigator and the chief administrator or

designee, shall be retained in the

applicant's file.

82. Section 943.133(7), Florida Statutes, provides for law

enforcement or correctional employers to annually update

background and moral character information on currently employed

officers:

943.133 Responsibilities of employing agency,

commission, and program with respect to

compliance with employment qualifications and

the conduct of background investigations;

injunctive relief -

(7) The employing agency must annually

submit information to the commission, as

specified by rule, relating to all certified

officers employed by or appointed to the

employing agency so that the commission may

update its records for al certified officers.

83. From the foregoing comparison and analysis, it cannot

reasonably be concluded that DOT's specifications 1.7.2, 2.0-A,

and 14.0-B. 1 and 2 are in any way contrary to DOT's own

governing statutes, rules, or policies, nor contrary to any of

the foregoing statutes or rules, including but not limited to the

Department of State exemption in Section 493.6102(1), Florida

Statutes. That leaves the question of whether these foregoing

statutes and rules render the DOT specifications contrary to

competition, arbitrary, or capricious.

84. An "arbitrary" decision is one not supported by facts

or logic. A "capricious" action is one taken irrationally,

without thought or reason. Board of Clinical Laboratory

Personnel v. Florida Association of Blood Banks , 721 So. 2d 317,

318 (Fla. 1st DCA 1998), citing Board of Trustees of the Internal

Improvement Trust Fund, v. Levy , 656 So. 2d 1359, 1362 (Fla. 1st

DCA 1995).

85. The only reason given by DOT for specifications 1.7.2,

2.0-A, and 14.0-B. 1 and 2 (licensing by the Department of State)

is the need for an adequate background check of potential

security guards.

86. These DOT specifications amount to requiring that law

enforcement officers and correctional officers who have already

undergone FDLE/CJSTC background checks for their regular

licensure and employment, must again submit to background checks

undertaken by FDLE/CJSTC on behalf of the Department of State in

order to obtain Class "D" and "G" licenses as security guards.

This is redundant and thus, unreasonable, i.e. "capricious." It

creates unnecessary costs for the public and deters new entries

into the marketplace. The FDLE/CJSTC background checks for law

enforcement officers and correctional officers are substantially

similar or exceed the background checks undertaken by FDLE/CJSTC

on behalf of the Department of State for Class "D" and "G"

security guard licenses. Both agencies' systems also involve

limited FBI background checks. The redundancy of such background

checks has been recognized by the Legislature and by the

Department of State in the Section 493.6102(1), Florida Statutes,

exemption.

87. I conclude that the two types of background checks are

so substantially similar as to render specifications 14.0-B. 1

and 2 (and by implication, specifications 1.7.2 and 2.0-A)

contrary to competition, arbitrary, and capricious. This

conclusion renders it unnecessary to further discuss

specification 14.0-B. 4, concerning the use of acknowledgement

cards.

88. In light of the several statutory definitions defining

"officer," "law enforcement officer," and "correctional officer"

as persons employed full time in those capacities and subject to

annual FDLE/CJSTC background checks, I am not persuaded by DOT's

assertion that if its RFP does not require a Class "D" or "G"

license of off-duty officers, the RFP would create an exception

from background checking for some potential security guards, thus

benefiting one bidder over another.

89. The RFP could be redrafted to conform to the exempt ion

already existing in Section 493.6102(1), Florida Statutes, or to

incorporate the statutory definitions of "officer," "law

enforcement officer," and "correctional officer," as persons

employed full-time in those capacities and subject to FDLE/CJSTC

background checks. Then the RFP could permit such law

enforcement and correctional officers currently employed in their

field to qualify for DOT work either with a Department of State

"D" or "G" license or to qualify for DOT work with proof of

current law enforcement or correctional employment (for instance,

by the authorization letter required by specification 14.0-C),

which employment implicitly includes an FDLE/CJSTC background

check and proof of good moral character. Persons who are not

exempted pursuant to Section 493.6102(1), Florida Statutes, could

be permitted to qualify for DOT work with a Class "D" or "G"

license, which means they have also had a background check.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that a final order be entered by the Department

of Transportation which rejects all bids and provides that the

specifications be redrafted in accordance with the foregoing

Findings of Fact and Conclusions of Law.

DONE AND ENTERED this 22nd day of August, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of August, 2000.

ENDNOTE

1/ Rule 60A-1.002(4)(a), Florida Administrative Code, lists

Section 287.042(1), Florida Statutes, as part of its "law

implemented." Respondent DOT asserts that the rule is derived

from this statute. The statute says nothing about FCN but refers

to "Government Services Direct" of which the undersigned assumes

FCN is a subset. Even if FCN is not a subset of Government

Services Direct, the rule is sufficient authority (in the absence

of any contrary statute or a rule challenge) for DOT's procedures

in this bid case.

COPIES FURNISHED:

Michael E. Kinney, Esquire

N. Wes Strickland, Esquire

Foley & Lardner

300 East Park Avenue

Tallahassee, Florida 32301-1514

Kelly Bennett, Esquire

Scott Matthews, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

James C. Myers

Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.