STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMEX ENTERPRISES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 87-1684BID

)

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in this case on May 6, 1987, in Tallahassee, Florida. The issue for determination is whether Petitioner's failure to include the Chief Elected Official (CEO) Concurrence Statement in its response to Respondent's Job Training Partnership Act (JTPA) Title I, Request for Proposal, dated December 1, 1986, mandates a non-responsive rating by Respondent resulting in no further consideration of Petitioner's response.

APPEARANCES

For Petitioner: Thomas E. Skinner, Jr.

Qualified Representative Amex Enterprises, Inc.

Post Office Box 47035 Jacksonville, Florida 32247-7035

For Respondent: Carolyn Cummings, Esquire

Florida Department of Labor and Employment Security

Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657

BACKGROUND

By letter dated March 6, 1987, Respondent notified Petitioner that its response to the JTPA, Title I, Request for Proposals (RFP) dated December 1, 1986, had been rated non-responsive due to Petitioner's failure to include the CEO Concurrence Statement in the response and that the response was being returned to Petitioner without further consideration. Petitioner timely protested Respondent's action and this hearing ensued.

In support of its position, Petitioner presented the testimony of John A. Griffith, III, Charles J. Magellan and Joseph M. Brannon. Petitioner's exhibits

1 through 15 were admitted into evidence. Respondent presented the testimony of

Richard K. Meik, Thomas E. Skinner, Jr. and Charles J. Magellan. Respondent's exhibits 1 and 2 were admitted into evidence.

The parties submitted posthearing proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix of this Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. The Respondent, Department of Labor and Employment Security, is the agency responsible for carrying out the duties and responsibilities assigned by the Governor of Florida under the Job Training Partnership Act, Public Law, 97- 300, as amended.

   
   

2. In administering the JTPA, Respondent provided Petitioner, along with others, a RFP, which among other things, solicited proposals for programs to provide training and employment for older individuals as provided for by Section 124, JTPA, Title I.

   
   

3. Paragraphs 111(1-7) of the RFP lists the requirements that must be addressed in the proposal and be judged affirmatively by Respondent in order for the proposal to be designated responsive and subject to further review and scoring. One of the requirements is the review by, and concurrence of, the CEO prior to submitting the proposal. The purpose of requiring CEO and Private Industry Council (PIC) Concurrence Statements at time of submission is to insure that no applicant uses State approval to "arm twist" the local PIC and CEO into approval.

   
   

4. Petitioner submitted its proposal to the appropriate PIC for review and concurrence, thinking that the CEO Concurrence Statement would be obtained by the PIC. Upon return of the proposal by the PIC, there was no executed CEO Concurrence Statement included and, upon inquiry, Petitioner was informed by Joseph M. Brannon, Executive Director, PIC, that a CEO Concurrence Statement was not required for a JTPA Title I Program. At this point, Petitioner did not inquire of Respondent as to the need for the executed CEO Concurrence Statement even though the RFP indicated that the CEO Concurrence Statement was required at the time of submission.

   
   

5. Joseph M. Brannon is not an agent of the Respondent and had no authority to change any of Respondent's RFP requirements.

   
   

6. Although the proposal had been reviewed by, and had the concurrence of, the local PIC, the proposal, as timely submitted by the Petitioner on February 6, 1987, did not contain the CEO Concurrence Statement. The CEO, Harry H. Waldon, did execute, after the fact, a CEO Concurrence Statement dated January 14, 1987, which is the same date of the PIC Concurrence Statement and this CEO Concurrence Statement was transmitted to the Respondent by Mr. Brannon on March 6, 1987, some sixteen (16) days after the deadline of 3:00 p.m. on February 18, 1987. The evidence is insufficient to show that the CEO reviewed and concurred in the proposal prior to submission even though he was present at the meeting when the local PIC reviewed and concurred in the proposal.

   
   

7. Even though Thomas E. Skinner, Jr. is the Executive Director of the Private Industry Council of Service Area 6, his testimony, which I find

   credible, was that his staff handled these matters and he was not aware of the necessity of CEO Concurrence Statement for a JTPA, Title I program. However, on this occasion, Mr. Skinner was acting on behalf of the Petitioner and it was his responsibility to submit a proposal that was responsive to Respondent's RFP, notwithstanding the conflicting advice from Joseph Brannon concerning the executed CEO Concurrence Statement.

   
   

8. Although Respondent, independently of the RFP, advised proposal applicants of the necessity of achieving the 75 percent of performance goals in the previous year if requesting continued funding, a requirement for responsive proposals, there was credible evidence that Respondent did not relax the necessity of timely meeting this requirement by the date of proposal submission or relax any other requirement set out in the RFP.

   
   

9. Petitioner's proposal was rated as non-responsive by the Respondent for failure to timely submit an executed CEO Concurrence Statement.

   
   

10. The criteria adopted by the Respondent in the RFP is in accordance with the JTPA and the Governor's goals.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

12. A review of Respondent's RFP shows that it comes within the definition of "Request for proposals" as that term is defined in Section 287.12(11), Florida Statutes, and sets out the seven (7) necessary requirements that "must be addressed and judged affirmatively for the proposal to be further reviewed and scored." On page three (3) at Paragraph III, the RFP further states that "[o]ne or more negative responses will render the proposal as nonresponsive."

    
    

13. Section 287.012(12), Florida Statutes, defines a "responsive offeror" as "a person who has submitted a bid which conforms in all material respects to the . . . . request for proposals. (e.s)

    
    

14. The first of the seven (7) criteria listed in Paragraph III, of the RFP, REQUIREMENTS FOR RESPONSIVE PROPOSALS, is the "Concurrence of the Private Industry Council and Chief Elected Official" and states in pertinent part as follows:

    
    

    All proposals must be reviewed by, and have the concurrence of, the appropriate entities prior to the proposal being submitted.

    
    

    Both the PIC and the CEO come within the definition of "entity" as that term is defined in Sections 4 and 103,(b)(1)(B), Job Training Partnership Act, Public Law 97-300.

    
    

15. Paragraph IV of the RFP, PROPOSAL OUTLINE, sets out the necessary parts of the proposal and their order within the proposal. Subparagraph 3 and 4 state in pertinent part as follows:

    
    

    1. Concurrence by the Local PIC and Chief Elected Official

       All proposals must demonstrate that the proposed project has been reviewed by and has the concurrence of the local private industry council(s) in the area(s) where the project would operate. Review and concurrence by the local chief elected

       official(s) is also required. Proposals

       which are submitted without the required concurrence(s) will be unscored and returned without any further consideration for funding. (e.s.)

       
       

    2. Statement of work

       
       

       . . . Applicants are reminded that concurrence with their proposal is required from both

       the local Private Industry Council and the Chief Elected official(s).

       
       

16. For the Petitioner to be a "responsive offeror" to Respondent's RFP, Petitioner must demonstrate, at the time of submission, that its proposal had been reviewed by, and had the concurrence of, the CEO. To demonstrate this, Petitioner's proposal must contain the CEO Concurrence Statement at the time of submission. Petitioner has failed to show a valid reason for its failure to include an executed CEO Concurrence Statement at the time its proposal was submitted to Respondent.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED that the Respondent enter a Final Order finding Petitioner's proposal as non-responsive and denying Petitioner's request for further review and scoring.

Respectfully submitted and entered this 3rd day of June 1987, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 3rd day of June 1987.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-I684BID

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Finding of Fact 3.

2. Adopted in Finding of Fact 2.

3. Adopted in Findings of Fact 4 and 7.

4. Adopted in Finding of Fact 5.

5. Adopted in Finding of Fact 4.

6. Adopted in Finding of Fact 9.

7. Adopted in Finding of Fact 8.

8. Adopted in Finding of Fact 10.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in Finding of Fact 3.

2. Adopted in Finding of Fact 8 but clarified.

3. Adopted in Finding of Fact 8 but clarified.

4. Adopted in Finding of Fact 4.

5-7. Rejected as immaterial and irrelevant.

1. Adopted in Finding of Fact 4.

2. Adopted in Finding of Fact 6.

3. Rejected as legal argument.

4. Adopted in Finding of Fact 3.

5. Adopted in Findings of Fact 7 and 8.

COPIES FURNISHED:

Hugo Menendez, Secretary

206 Berkeley Building 2590 Executive Center Circle East

Tallahassee, Florida 32399-2152

Thomas E. Skinner, Jr. Qualified Representative Amex Enterprises, Inc.

Post Office Box 47035 Jacksonville, Florida 32247-7035

Carolyn Cummings, Esquire Florida Department of Labor and Employment Security

Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657

Docket for Case No: 87-001684BID

Orders for Case No: 87-001684BID