STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SMITH AND THOMPSON, P.A., )

)

Petitioner, )

)

and )

)

KNOWLES AND RANDOLPH, )

)

Intervenor, )

)

vs. ) CASE NO. 92-6440BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on November 19 and 20, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioner: W. Crit Smith, Esquire

Susan S. Thompson, Esquire 1530 Metropolitan Boulevard

Tallahassee, Florida 32308

For Intervenor: Harold M. Knowles, Esquire

Roosevelt Randolph, Esquire

528 East Park Avenue Tallahassee, Florida 32301

For Respondent: Susan P. Stephens, Esquire

Kimberly J. Tucker, Esquire John A. Rimes, III, Esquire Department of Legal Affairs The Capitol, Suite 1502

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

The issue is whether respondent acted fraudulently, arbitrarily, illegally, or dishonestly in rejecting all proposals and withdrawing its solicitation of offers to provide legal services and representation of HRS in matters involving child support enforcement cases in the Second Judicial Circuit.

PRELIMINARY STATEMENT

This matter began on September 18, 1992, when petitioner, Smith and Thompson, P.A., a law firm, filed its notice of intent to protest a decision by respondent, Department of Health and Rehabilitative Services (HRS), to reject all proposals, withdraw its solicitation of offers to provide certain legal services for HRS in the Second Judicial Circuit, and to provide said services with in-house personnel as part of a pilot program.

The matter was eventually referred by respondent to the Division of Administrative Hearings on October 28, 1992, with a request that a hearing officer be assigned to conduct a formal hearing. However, the agency's order of transmittal stated that the matter was not a bid case, and the narrow issue to be resolved was "whether or not the agency abused its discretion in determining to supply its need for legal counsel through the institution of a pilot project in the Second Judicial Circuit".

By notice of hearing dated October 29, 1992, a final hearing was scheduled on November 10, 1992, in Tallahassee, Florida. At respondent's request, the final hearing was rescheduled to November 19 and 20, 1992, at the same location. On November 10, 1992, the law firm of Knowles and Randolph was authorized to intervene as a party in this cause.

At final hearing, petitioner presented the testimony of W. Crit Smith, William H. Davis, Mario Paul Seay, William J. McEvoy, John T. Davis, John S. Slye, Anne Francis Donovan, Dottie Howell and Harold L. Lewis. In addition, it offered petitioner's exhibits 1-13. All exhibits were received in evidence.

Respondent presented the testimony of Robert B. Williams, William G. Marvin, Susan S. Thompson, Charles T. Collette and William J. McEvoy. Also, it offered respondent's exhibits 1-6. All exhibits were received in evidence.

The transcript of hearing (three volumes) was filed on November 25, 1992. Proposed findings of fact and conclusions of law were filed by petitioner and respondent on December 7, 1992. A ruling on each proposed finding of fact is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. On July 15, 1992, respondent, Department of Health and Rehabilitative Services (HRS), issued a document entitled "Solicitation of Offers For Legal Service Contracts-Child Support Enforcement Program" inviting legal firms or attorneys to submit proposals for providing legal services and representation of HRS in matters involving child support enforcement cases throughout the State of Florida for a nine-month period beginning on October 1, 1992, and ending on June 30, 1993. Although the solicitation was for services in all counties of the State, this case involves only the solicitation of services for representation in those counties within HRS District II that comprise the Second Judicial Circuit (Circuit). They include Franklin, Gadsden, Jefferson, Leon, Liberty and Wakulla Counties. The solicitation provided that three contracts would be awarded within the Circuit, one for Gadsden and Liberty Counties, the second for Leon and Jefferson Counties, and the third for Franklin and Wakulla Counties. The solicitation called for written offers to be filed with the HRS District II

      office in Tallahassee by August 17, 1992, and for all such offers to be opened the following day. Thereafter, the offers would be evaluated by a review committee whose role was to make a recommendation to the District II administrator. The administrator would then have the responsibility of making a "final decision" to accept an offer and award a contract with an anticipated award date of September 1, 1992. Finally, in paragraph XVIII of the document, HRS reserved the right "to reject any or all offers received, or to cancel this solicitation, regardless of evaluation, if it is determined to be in the best interest of the department."

      
      

   2. A total of seven law firms in the Circuit filed proposals in response to the solicitation. They included petitioner, Smith and Thompson, P.A., and intervenor, Knowles and Randolph, both of whom are minority firms located in Tallahassee, Florida. Petitioner and intervenor filed proposals for each of the three pairs of counties within the Circuit although intervenor's proposal for Gadsden and Liberty Counties was technically nonresponsive and was therefore not considered. Both petitioner and intervenor have previously provided services for HRS under similar contracts and both are considered to be technically competent to perform the work.

      
      

   3. By certified letters dated September 2, 1992, HRS advised each of the law firms filing proposals that it had decided to reject all offers and instead to implement a pilot program to provide in-house legal services in the Second Judicial Circuit. No other explanation was given. The letter granted each firm a point of entry to contest that decision. Thereafter, petitioner and intervenor timely filed notices of intent to protest the decision. However, by letter dated September 10, 1992, HRS advised petitioner and intervenor that its prior letter was in error and that instead "the decision of the department to reject all the responses to our recent solicitation of offers for the 2nd Judicial Circuit cannot be the subject of a protest". Even so, on September 18, 1992, petitioner filed a written protest and request for a hearing. This request was ultimately forwarded by HRS to the Division of Administrative Hearings (DOAH). On November 10, 1992, intervenor was authorized to participate herein as a party.

      
      

   4. In its order of October 27, 1992, transmitting the request for hearing to DOAH, HRS stated in part that:

   
   

   Since there was no bid award ... there can be no protest of an award.

   Neither can a right to a bid protest proceeding be created by mistake, whether by HRS or otherwise.... Simply put, no bid protest can be permitted under these circumstances.

   
   

   The action of the agency in rejecting all offers and deciding instead to provide legal services through in-house employees rather than through contract attorneys is agency action as that term is understood in the context of Chapter

   120. Petitioner may be entitled to a determination as to whether or not that action was an appropriate exercise of agency discretion. For this reason the pleading filed by petitioner (bid protest) will be considered to be a request for an administrative hearing under the provisions of Section 120.57(1), Florida Statutes, for the purpose of testing that determination.

   
   

2. Prior Contracts for Child Support Services

   
   

   1. To place this controversy in perspective, it is necessary to review certain events surrounding the award of the contracts in prior years. Petitioner, or individual members of the firm, had held the HRS contract to

      provide child support enforcement services in Leon and Gadsden Counties during the years 1979 to 1989. The firm is considered to be competent and reliable and was characterized by one District employee as being the "best" of all contract firms in the state. In May 1989, HRS solicited proposals for the following fiscal year and in July 1989 received three proposals, including ones from petitioner and the law firm of Welch, Munroe and Whitley (WMW). In September 1989, the contract was awarded to WMW. It is fair to draw an inference that because Whitley was a former law partner and roommate of the Governor's general counsel, Munroe's wife was the Governor's chief cabinet aide, and an HRS employee had helped the firm complete its bid package, there may have been some favoritism in awarding the contract to that firm. The contract ran from October 1, 1989, through June 30, 1990. Because of problems by WMW in fulfilling the terms of the contract, the contract was terminated by HRS in April 1990. By then, Whitley had become a member of another Tallahassee law firm, Barrett, Bajoczky, Hoffman and Harper (BBHH).

      
      

   2. Just prior to terminating the contract, HRS found a serious backlog of cases and knew that, in order to process this backlog, an experienced law firm would have to provide the services for the remainder of the contract year. Accordingly, HRS requested that petitioner provide such services. At the same time, however, the HRS program administrator insisted that, as a condition to receiving the contract, petitioner must sign a joint venture agreement with BBHH wherein it agreed to share its fees with that firm because of Whitley's association. Petitioner reluctantly agreed to do so and executed such an agreement on May 7, 1990. The contract was then awarded to petitioner. Under the terms of the agreement, petitioner was obligated to give 26% of total attorney and paralegal fees to BBHH in return for BBHH providing "secondary legal services required by the child support contract". During the remainder of the contract, all warrants were issued to petitioner who deposited the warrants and then issued a check to BBHH pursuant to their agreement. As it turned out, however, BBHH was never sent any case files and performed no work under the contract to earn its fees.

      
      

   3. Recognizing that it could obtain the new contract for 1990-91 only by continuing to split fees with BBHH, petitioner made a "business decision" to submit a joint response with BBHH to the new solicitation. The previously executed joint agreement remained in effect. In July 1990, a proposal for the contract year 1990-91 was filed in the name of both firms, and the contract for Leon and Gadsden Counties was thereafter awarded to petitioner and BBHH. Petitioner submitted invoices for work performed to HRS and all warrants were thereafter issued by HRS in the names of both firms. However, after obtaining BBHH's endorsement, the checks were deposited in petitioner's bank account, and petitioner then issued a check to BBHH. Although BBHH was supposed to provide "secondary legal services" to earn its 26% of fees, the firm was never sent any case files and it performed no services during the year. Even so, petitioner was obligated to pay $80,000 to BBHH pursuant to their agreement. It should be noted, however, that petitioner exceeded the goals established by HRS under the contract and performed all work in a competent and professional manner. Further, there is no evidence that HRS paid more than was required for the services performed by petitioner. Rather, petitioner's income was reduced by the amount of payments made to BBHH. Petitioner has never taken any legal action against BBHH for failing to perform under the contract.

      
      

   4. When BBHH declined to perform any work under the contract, petitioner began voicing oral (but no written) complaints about its arrangement to various HRS personnel, all at the District program administrator level or lower, but received no help. It was told by one District employee that he was sorry but it

      was something they would have to live with given the circumstances. When a new administration took office in January 1991, which was midway through the contract year, petitioner again complained and eventually its complaints caught the ear of the new Governor's inspector-general. It also asked that the joint contract be terminated. After an investigation was conducted by the inspector- general, in which petitioner fully cooperated, a highly critical report was issued on May 29, 1991, and the HRS program administrator was immediately terminated from employment. The matter was then referred to the Federal Bureau of Investigation (FBI) for possible federal criminal violations, and thereafter the FBI launched an investigation of the contracts. The federal investigation still remains pending. Although petitioner is not now a target or subject of the investigation, it was once a subject of the investigation and is still a part of the overall investigation. In addition, its members have been given use immunity for their testimony. There has also been fairly widespread newspaper coverage of the investigation, and it is fair to say the investigation gained some public notoriety. Even so, petitioner was allowed to complete the contract year and since July 1991 has continued to provide services for HRS in Leon and Gadsden Counties under an interim contract scheduled to expire on December 1, 1992.

      
      

3. Post-1991 Events Leading Up to the 1992-93 Contract

   
   

   1. As early as the spring of 1991, the HRS Secretary had recommended to the Governor that HRS be allowed to consider an in-house program as an alternative to using contract attorneys. There was also a desire to make the competitive process more cost-effective, free of political considerations, and open to minority participation. This desire was reinforced by the findings in the inspector-general's report. In December 1991 the Governor first expressed an interest in HRS conducting an in-house pilot program and to compare the results of that program with the results being obtained under the various contracts. This interest was founded at least in part on financial considerations since the program involves total annual federal and state expenditures of more than $18 million.

      
      

   2. At the direction of the Governor and HRS Secretary, in January 1992 a blue ribbon committee began exploring the possibility of HRS performing legal services in-house, and, as noted previously, to develop a new solicitation that was more cost-effective, competitive, free of conflict of interest, and open to minority participation. However, due to a press of time, the committee was unable to sufficiently study the in-house issue so as to incorporate that into the 1992-93 solicitation. Even so, there were on-going, informal discussions by various HRS personnel, including the Secretary, regarding an in-house pilot program prior to the solicitation of offers in dispute here. Further, based on several conversations with the Governor, the Secretary was under the impression that the Governor was "adamant" about implementing such a program.

      
      

   3. HRS often uses District II as a location for pilot programs because of its proximity to the Tallahassee headquarters and its ideal urban-rural mix. In addition, the Second Judicial Circuit is the only judicial circuit wholly within District II. This meant that HRS would be dealing with only one "set" of judges and thus better results could be obtained in a pilot study. Finally, the excellent work rendered by petitioner on prior contracts provided a good point of comparison for a pilot program.

4. The Evaluation Process

   
   

   1. After the proposals were filed, on August 18, 1992, an HRS evaluation committee opened the proposals and began its evaluation. The proposals were evaluated on both a technical and cost (but not ethical) basis, and a total score was given to each bidder. Pursuant to the terms of the solicitation, the firm with the highest score would be ranked first.

      
      

   2. The evaluation committee was made up of four District II employees. After reviewing the proposals, the committee voted to recommend that petitioner be awarded the contracts for all six counties since petitioner's proposals had a higher total score than those submitted by the other firms. Intervenor was ranked second in Leon, Jefferson, Franklin and Wakulla Counties. However, its proposed cost was around 25% higher than that of petitioner. The rankings and scores are reflected on petitioner's exhibit 5 received in evidence. The committee's recommendation, including those for the other counties within the District, was reduced to writing in the form of a report and was given to Dr. John M. Awad, District II administrator.

      
      

   3. On August 27 and 28, 1992, or after the committee report was prepared, meetings were held in the HRS general counsel's office regarding the contract in issue. Four HRS lawyers attended the meeting. There was a concern over the fact that even though petitioner was the highest ranked contractor, it was a part of the FBI investigation. In addition, one attorney represented to the others that he had been told by the Governor that the contract should not be awarded to petitioner because of that investigation and the Governor's desire to implement an in-house program. The same attorney expressed the view, although unsubstantiated, that petitioner may have had inside information in preparing its proposal. Accordingly, the attorneys discussed alternatives available to the agency in the event it decided not to award the contract to petitioner. One attorney concluded that the agency would not be able to give a valid reason for refusing to award the contract to petitioner, the highest ranking contractor, and thus it should reject all offers and go with a pilot program. Accordingly, it may be inferred that HRS legal counsel's subsequent recommendation to reject all bids was based primarily on legal counsel's inability at that point in time to articulate a valid reason for rejecting petitioner's proposal. These concerns were then presented to Dr. Awad.

      
      

   4. After he received the committee's recommendations, Dr. Awad awarded contracts for all counties except those within the Circuit. As to those counties within the Circuit, he did not sign off on the recommendation and execute a contract since he says he desired to first ascertain whether the agency intended to implement an in-house pilot program within the Circuit. Although he did not say so, it can be inferred that Dr. Awad's decision to not award the contract was based at least in part on his conversations with District counsel and his awareness that the top bidder was associated with contracts under active federal investigation. Accordingly, he called a meeting for Tuesday, September 1, 1992, to address this issue at the District level. Also, on August 31, 1992, Dr. Awad instructed Mr. William J. McEvoy, the District program administrator, to prepare cost figures for doing an in-house pilot program in the Second Judicial Circuit. This was the first knowledge that Mr. McEvoy had that HRS was considering a pilot program for the 1992-93 contract year. Using information derived from the various proposals as a benchmark, Mr. McEvoy developed a proposed first year cost based on the assumption that HRS could perform the work by hiring three staff attorneys and six support staff. This study, which was prepared over the course of an afternoon, was then given to Dr. Awad on September 1, 1992. It reflected an annualized cost in the first

      year of $402,599.00 but projected lower costs in the following years. These costs approximated or were slightly lower than the costs proposed by petitioner and were 25% lower than the next highest bidders. However, until the pilot program is actually run, a true comparison of costs cannot be made.

      
      

   5. A second meeting concerning the contract was held on September 1, 1992. Attendees were Dr. Awad, the HRS Secretary, four HRS staff attorneys, and perhaps an HRS assistant secretary. At that time, a concern was expressed to the Secretary that petitioner was a part of an investigation by the FBI. One HRS attorney advised the participants that, because of the pending investigation of the HRS contracts and petitioner's association with those contracts, and a desire to implement an in-house program, the Governor did not wish the contract to be awarded to petitioner. The participants also discussed the cost and feasibility of implementing an in-house program, the time frame for doing so, and the perameters of the program. At that point, the driving force to go in- house with the services was the fact that the highest ranking contractor was associated with prior contracts being investigated by the FBI. A decision was then made by the Secretary to reject all proposals, withdraw the solicitation, and implement an in-house pilot program within the Circuit beginning on December 1, 1992. As stated by him at hearing, the Secretary rejected petitioner's offer because of his concern with not only the contractor's integrity, but also the integrity of the process as a whole. More specifically, he was concerned with the fact that $80,000 of state funds had been paid to BBHH for doing no work and he questioned the propriety of awarding a contract to a firm under active investigation by the FBI. The associated decision to reject all offers and initiate a pilot program was premised on the notion that (a) the second highest ranking firms submitted proposals having substantially higher costs than petitioner, (b) projected first year in-house costs were equal to or less than that proposed by petitioner, and (c) the Governor had asked that an in-house program be given priority. Accordingly, the Secretary decided to reject all bids and withdraw the solicitation of offers. It is noted that under paragraph 10.b., Part 74, Appendix G of Chapter 45, Code of Federal Regulations, HRS is required to give consideration to the "contractor integrity" in making an award. Thus, even though HRS did not correlate its concern over the contractor's integrity with the above federal regulation until this point in the process, the reliance on the regulation as a reason to reject a contractor was still valid and appropriate. In other words, since there was always a concern with the federal investigation, the fact that HRS did not initially discover that a federal regulation supported its theory was not a fatal flaw in the decision- making process. Finally, the undersigned has rejected as being unsubstantiated the contention by petitioner that an HRS attorney favored another contractor obtaining the award and thus improperly influenced the agency's decision.

      
      

5. Is the Solicitation a Bid?

1. The contract in question is funded primarily with federal funds and is thus subject to relevant federal regulations, one of which requires that the contract be awarded through a competitive process. Therefore, even though HRS is exempt from the competitive sealed bid and proposal requirements of Chapter 287, Florida Statutes, when procuring outside legal services, the federal regulations require a competitive process. Accordingly, in soliciting offers from law firms, HRS was obliged to use a competitive process akin to that required under chapter 287. In that vein, it prepared a document which called for sealed competitive bids (offers) from prospective contractors, provided for a competitive evaluation and ranking by an independent committee, and further provided that the contract would be awarded to the highest ranking contractor. In addition, paragraph IX of the solicitation of offers provided that in the

   event a participant wished to file a protest to an award, it must do so within seventy-two hours after receiving "notice of contract award or intended contract award" and must then file a "formal written notice of protest" within ten days thereafter. The same document also provided that if protests were filed, the agency would seek to informally resolve the dispute within seven calendar days, and if a protest was not resolved by mutual agreement, the protestant was entitled to a formal hearing before DOAH. These procedures essentially track the procedures for resolving bid disputes that are codified in Subsection 120.53(5), Florida Statutes. Therefore, the undersigned has rejected the contention by HRS that the process used herein does not fall within the ambit of a bid dispute.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1991).

   
   

3. Initially, it is necessary to resolve the issue of whether the solicitation of offers was so akin to an invitation for bids or request for proposals as to be subject to the requirements governing a bid dispute. Because the evidence shows clearly that the agency has used a competitive process here which is almost identical in substance, if not form, to a request for proposal, see Subsection 287.012(15), F. S., the undersigned concludes that the principles governing bid disputes are applicable. This is true even though HRS is statutorily exempt from competitive bidding requirements when it contracts for private legal services, Subsection 287.059(3)(a), F. S., because once HRS elects to use the competitive process, it is bound by the procedures established in the solicitation.

   
   

4. In view of this conclusion, the scope of inquiry in this proceeding is limited to determining "whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly" in rejecting all bids, withdrawing its solicitation, and opting to use in-house personnel to provide the needed services. Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912, 914 (Fla. 1988). Thus, the undersigned is required to honor the rule that a public body has "wide discretion" in the bidding process and its decision, when based on an honest exercise of the discretion, should not be overturned "even if it may appear erroneous and even if reasonable persons may disagree". Id. at 1131. At the same time, the agency is responsible "for ensuring that the integrity of the competitive bidding process is maintained," Procacci v. State, Department of Health and Rehabilitative Services, 603 So.2d 1299, 1301 (Fla. 1st DCA 1992), and "(t)here is a very strong public interest in favor of saving tax dollars in awarding public contracts." Intercontinental Properties, Inc. v. Department of Health and Rehabilitative Services, 17 FLW D2030, D2033 Fla. 3d DCA, September 1, 1992). Finally, as the parties challenging the agency's action, petitioner and intervenor must prove by a preponderance of the evidence that HRS's decision was unlawful for one of the reasons cited in Groves-Watkins.

   
   

5. Petitioner recognizes the applicability of the Groves-Watkins case to this proceeding and the judicially-limited role of the hearing officer in a bid dispute. Nonetheless, it contends that HRS acted arbitrarily, dishonestly, and illegally in rejecting all bids and withdrawing the solicitation within the Circuit, particularly since contracts were executed for all other counties within the District. It suggests that once HRS learned that petitioner was the highest ranked bidder, it then manufactured a reason (contractor integrity and the desire to implement a pilot program) to justify its action. In resolving

this contention, the undersigned notes that the federal regulations relating to a contractor's integrity were not initially identifed as the specific reason for rejecting petitioner's proposal. However, once HRS began considering its options, it discovered the federal regulation, correlated that regulation with its concern over the federal investigation, and then articulated a legitimate reason for rejecting petitioner's proposal. Such a procedure, while admittedly unusual, was nonetheless permissible. Cf. Caber Systems, Inc. v. Department of General Services, 530 So.2d 325, 338 (Fla. 1st DCA 1988)(no error in agency, upon discovering a valid reason for doing so, to reject all bids even after an award had been made). Therefore, because a contractor's integrity was a valid concern in this type of contract, HRS's decision to reject petitioner's offer to "ensure the integrity of the competitive bidding process" was not arbitrary, dishonest or illegal, even if petitioner was not the target or subject but was merely a part of the overall investigation. As to the rejection of all offers, HRS's interest in "saving tax dollars in awarding public contracts" by implementing an in-house pilot program was likewise not arbitrary, dishonest or illegal, particularly since the agency had been given direction by the Governor to implement such a program, and the contract itself provided that "HRS reserved the right to reject any and all offers received, and to cancel this solicitation if it is determined to be in the best interest of the department." While to some the agency's decision "may appear erroneous", and "reasonable persons may disagree" as to its correctness, it nonetheless is an honest exercise of discretion within the meaning of Groves-Watkins and should not be disturbed.

Therefore, the protest should be dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by respondent dismissing the

protests of petitioner and intervenor.

DONE AND ENTERED this 17th day of December, 1992, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 December, 1992.

APPENDIX TO RECOMMENDED ORDER CASE NO. 92-6440BID

Petitioner:

29. Rejected as being contrary to the evidence. 30-32. Partially adopted in finding of fact 15.

1. Partially adopted in finding of fact 16.

2. Rejected as being irrelevant.

3. Partially adopted in finding of fact 10.

4. Partially adopted in finding of fact 15. 37-42. Partially adopted in finding of fact 3.

43. Rejected as being unnecessary.

Respondent:

33-37. Partially adopted in findings of fact 9 and 10.

1. Partially adopted in finding of fact 16.

2. Partially adopted in finding of fact 10.

3. Partially adopted in finding of fact 11.

4. Partially adopted in finding of fact 16.

5. Partially adopted in finding of fact 11. 43-44. Partially adopted in finding of fact 16.

45. Rejected as being unnecessary.

1. Partially adopted in findings of fact 15 and 16.

2. Partially adopted in finding of fact 8.

3. Partially adopted in finding of fact 13.

4. Rejected as being unnecessary.

92-93. Partially adopted in finding of fact 17.

94. Partially adopted in findings of fact 16 and 17. 95-96. Partially adopted in finding of fact 2.

97. Partially adopted in finding of fact 16. 98-99. Partially adopted in finding of fact 2. 100-101.Partially adopted in finding of fact 13.

1. Partially adopted in finding of fact 15.

2. Rejected as being unnecessary.

3. Partially adopted in finding of fact 8. 105-106.Rejected as being unnecessary.

107. Rejected as being cumulative.

Note - Where a proposed finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, not supported by credible, persuasive evidence, subordinate, or a conclusion of law.

COPIES FURNISHED:

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services Building One, Room 407 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

John S. Slye, Esquire Building One, Room 407 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

W. Crit Smith, Esquire

1530 Metropolitan Boulevard

Tallahassee, FL 32308

Harold M. Knowles, Esquire

528 East Park Avenue Tallahassee, FL 32301

Susan P. Stephens, Esquire Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, FL 32399-1050

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE AGENCY WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 92-006440BID

Orders for Case No: 92-006440BID