STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OPTIPLAN, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-4560BID

) THE SCHOOL BOARD OF BROWARD COUNTY, ) FLORIDA. )

)

Respondent, )

and )

) VISION CARE, INC., d/b/a VISION ) SERVICE PLAN, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case on October 19, 20 and 24, 1995, at Fort Lauderdale, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mitchell Berger, Esquire

Holiday Russell, Esquire Berger & Davis

100 Northeast 3rd Avenue, Number 400 Fort Lauderdale, Florida 33301

For Respondent: Edward J. Marko, Esquire

Broward County School Board

1401 East Broward Boulevard, Number 201 Post Office Box 4369

Fort Lauderdale, Florida 33338

For Intervenor: Leonard A. Carson, Esquire

Rosa H. Carson, Esquire Carson & Adkins

2873 Remington Green Circle, Suite 101

Tallahassee, Florida 32308 STATEMENT OF THE ISSUES

The basic issue in this case is whether the School Board of Broward County, Florida, acted in a fraudulent, arbitrary, illegal, or dishonest manner in determining to award the Group Vision Care contract under RFP 96-029S to Vision

Care, Inc., d/b/a Vision Service Plan. The Petitioner described the following subsidiary issues in its unilateral Proposed Pretrial Stipulation:

1. That the School Board's and the Insurance Committee's scoring of the cost, willing and

   able, and M/WBE sections of RFP No. 96-029S was illegal, arbitrary, and capricious, for reasons including, but not limited to, the fact that the scoring was conducted based upon VSP's proposed rate which is inadequate under Florida law governing prepaid limited health organizations.

2. That Vision Service Plan's ("VSP") response to RFP No. 96-029S without making a rate filing with the Florida Department of Insurance ("DOI") and without DOI's approval of the proposed rate was illegal, fraudulent, and dishonest.

3. RFP No. 96-029S is illegal insofar as it relies upon minority based classifications in violation of the Florida and United States Constitutions, and that the RFP is fraudulent and illegal insofar as it does not disclose that union or collective bargaining agent participants on the Insurance Committee could overrule the Insurance Committee's scoring and choice of a vision care provider by demanding impact bargaining.

PRELIMINARY STATEMENT

On August 10, 1995, Optiplan, Inc. (Optiplan) filed a formal written protest. This protest was heard and rejected by the School Board of Broward County, Florida, (The School Board) on September 5, 1995. On September 15, 1995, this case was referred to the Division of Administrative Hearings for a formal hearing upon Optiplan's request that the formal written protest be referred to the Division of Administrative Hearings.

Vision Care, Inc., d/b/a Vision Service Plan (VSP) filed a Petition to Intervene on September 21, 1995, which was granted by an order of September 26, 1995, subject to proof of standing at the final hearing. At the hearing, the parties stipulated to VSP's standing.

At the beginning of the formal hearing, Optiplan filed a Motion To Conform Pleadings to the Evidence; the School Board made an oral Motion in Limine in which VSP joined; and the School Board filed an objection to a discovery request by Optiplan.

Optiplan's Motion to Conform Pleadings to the Evidence was denied on the following grounds. The statutory scheme regulating bid protest proceedings requires that all issues or reasons for the protest be stated with particularity within the statutory time frames for filing a formal protest. Section 120.53(5)(b), Florida Statutes, does not permit material amendments or additions of new issues beyond the statutory time period for filing a formal protest. The issues described in Optiplan's Motion To Conform Pleadings to Evidence are not raised with particularity in the formal written protest document. Accordingly, the motion was denied.

The School Board's objection to production of documents was granted.

Optiplan's request for production requested documents which were not relevant to issues raised in the formal protest.

The Motion in Limine was granted to the extent that, consistent with Section 120.53(5)(b), Florida Statutes, the issues would be limited to those raised with particularity in the formal written protest.

The parties then stipulated to a number of facts. The stipulated facts were memorialized in the record and taken as established without need of further proof.

At the formal hearing, the Petitioner presented the testimony of Joseph Antal, Howard Braverman, Walter Collymore, Nicholas Baccile, James McKinley, Richard Knierem, Frank Petruziello, Richard Thomas, Lois Wexler, Robert Parks, Allen Garrett, Ray Adkins, Anthony Gentile, and Jan Kaplan. Petitioner's Exhibits 1 through 15 and 17 through 19 were admitted into evidence.

Petitioner's Exhibit 16 was withdrawn.

The School Board presented the testimony of Walter Browne and Sharon Swan and had two exhibits admitted into evidence. VSP presented no witnesses, and had three exhibits admitted into evidence.

At the conclusion of the hearing the parties requested, and were granted, twelve days from the filing of the transcript within which to file their proposed recommended orders. The transcript of the formal hearing was filed with the Hearing Office on November 6, 1995. Thereafter, on Monday, November 20, 1995, all parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The Petitioner also filed a memorandum of law in support of its proposed recommended order, as well as a proffer of excluded evidence.

The parties' proposed recommended orders have been carefully considered during the preparation of this Recommended Order. Specific rulings on all proposed findings of fact submitted by all parties are contained in the Appendix to this Recommended Order. In the formulation of the Findings of Fact and Conclusions of Law which follow, the Hearing Officer has drawn extensively from the proposed findings and conclusions submitted by the Intervenor.

FINDINGS OF FACT

Stipulated facts

1. The School Board issued a Request for Proposals (RFP No. 96-029S) March 24, 1995, to solicit bids for its group vision care.

   
   

2. The RFP requires parties to file a notice of intent to protest the conditions of the RFP within 72 hours of receipt of the RFP. Optiplan did not file a protest of the conditions of the RFP.

   
   

3. Optiplan and VSP, among others, submitted proposals which constituted offers.

   
   

4. The Superintendent formed an Insurance Committee of fourteen individuals, consisting, among others, of School Board members, School Board employees, representatives of the three employee unions, and public representatives to review proposals submitted pursuant to the RFP.

5. The Insurance Committee met a total of twelve times, beginning on February 17, 1995, and ending on July 25, 1995. Each meeting lasted between 3 and 10 hours.

   
   

6. The Insurance Committee conducted its scoring on the various proposals using a score sheet prepared by Siver on the "Ready and Willing" category at the July 25, 1995, meeting.

   
   

7. The scores were divided into three categories: Price [45 points], Ready and Willing [45 points], and Minority/Women Business Enterprise (M/WBE) [10 points] at the July 25, 1995, meeting.

   
   

8. The Insurance Committee voted on July 25, 1995, and recommended that VSP be awarded the RFP. VSP was the highest ranked proposal on the evaluation.

   
   

9. Optiplan filed a timely formal protest to the School Board's recommendation.

   
   

10. Optiplan has standing in this bid protest proceeding to protest the award of the proposed contract.

    
    

11. VSP as the successful proposer has standing in these proceedings as an Intervenor.

    
    

12. VSP filed a timely Motion for Leave to Intervene and was granted intervention by the Hearing Officer.

    
    

13. The Broward County VSP office is a marketing and/or sales office. VSP has only one employee in its Broward County Office. That one employee is a white male.

    
    

    The parties

    
    

14. Respondent, the School Board of Broward County, Florida, operates the second largest school system in Florida; and the seventh largest system in the United States. It has approximately 21,000 eligible employees.

    
    

15. Petitioner, Optiplan, is a managed vision care program which has been in operation for over eight years. Optiplan's proposal to provide a Group Vision Care plan for the School Board was the second highest ranked proposal.

    
    

16. Intervenor, VSP is a not-for-profit Florida corporation which provides group vision service plans. VSP is the incumbent provider and has provided group vision care to the School Board since October 1987.

    
    

    The Insurance Consultant and

    The Superintendent's Insurance Committee

    
    

17. Siver Insurance Management Consultants (the Insurance Consultant or Consultant) acted as independent risk and insurance management consultants for the RFP process, including the RFP development and proposal evaluation.

    
    

18. The Superintendent of the School Board formed a committee (the Insurance Committee) to develop requests for proposals for multiple group insurance plans for School Board employees, to develop evaluation factors, to

    evaluate the proposals submitted, and to make recommendations to the School Board for the award of the insurance contracts.

    
    

19. Optiplan had a team of paid lobbyists who met with Insurance Committee members outside of Committee meetings, provided information to Committee members, and represented Optiplan at Committee meetings.

    
    

20. Committee Member Brown, President of the Federation of Public Employees, did not like or respect Jack Tobin, one of the Optiplan lobbyists. Mr. Brown did not score the proposals or vote on any of the vision issues. Mr. Brown's alternate, Jim Silvernale, was responsible for voting on the proposals. Mr. Brown's instructions to Mr. Silvernale were that in voting on the subject proposals, Mr. Silvernale should vote his own conscience based on the information presented to the Committee members.

    
    

    The Request for Proposals

    
    

21. The Insurance Committee developed the RFP and the School Board issued Request for Proposal No. 96-029S (the RFP), March 24, 1995, to solicit proposals for provision of group vision care to School Board employees and their dependents.

    
    

22. The RFP reserved the right of the School Board to reject any or all proposals with or without cause, and to accept the proposal which in its judgment would be in its best interest.

    
    

23. The RFP gave the Insurance Committee and the School Board very broad discretion to consider and evaluate vendor proposals and to select the proposal which would best serve the School Board's needs.

    
    

24. The RFP provided a description of the current vision group plan, and directed proposers to submit proposals which would meet or exceed current plan coverage, benefits, and plan provisions.

    
    

25. Further, the RFP requested an "alternate" proposal which would increase the frequency (from the current plan's frequency of once every 24 months) of the "Frames Only" coverage to once every 12 months.

    
    

26. In an addendum to the RFP, the School Board clarified that it was seeking both a proposal for a plan that would include "Frames only" coverage every 12 months and a proposal for a plan that would include "Frames Only" coverage every 24 months.

    
    

27. The RFP stated that proposals would initially be evaluated in accordance with the criteria set forth in the RFP and advised that proposers should structure their proposals in a manner to properly address each of the evaluation criteria.

    
    

28. The Proposal Forms section of the RFP required proposers to complete forms to provide information on the proposer's identification and address, group representative or account representative and address, administrative and claims payment facility, experience, proposed plan benefits, providers, M/WBE participation and certification, employee statistics, and willingness to provide the RFP's requested Model Program, as well as additional information.

    
    

29. Proposal Forms were provided to solicit information which would be used in the application of the evaluation criteria to the proposal. However,

    proposers were admonished that the Proposal Forms may not address all, or may not fully address some, of the criteria. Proposers were solely responsible for addressing each of the evaluation criteria.

    
    

30. At the April 18, 1995, meeting of the Insurance Committee, the Insurance Committee voted to make the minutes of its March 20, 1995, meeting an addendum to the RFP's to clarify for proposers the concern and intentions of the Insurance Committee relating to evaluating the M/WBE component. In this way, the Insurance Committee clarified and/or amended the RFP to clearly provide that remuneration was not the determinative factor for M/WBE participation evaluation.

    
    

    RFP Evaluation Criteria

    
    

31. The "Evaluation Criteria and Selection Factors" section of the RFP states:

    
    

    The School Board reserves the right to select that proposal, if any, which in its judgment will be in its best interest. The Insurance Committee will rank all responsive proposals in accordance with listed evaluation criteria. The following factors will be considered in evaluating and ranking the responsive proposals:

    1. Projected cost and rate guarantee period - 0 to 45 points.

    2. Extent to which Proposer is willing and able to provide products and services as specified in the RFP - 0 to 45 points. For the purposes of evaluating criteria, the primary factors may be:

       1. Degree of relevant experience of the Proposer with respect to comparable clients located in Florida; and

       2. Degree to which Proposer matches the current plan provisions, coverages and services required; and

       3. Capability of network to provide proposed care and services.

    3. Extent to which minorities and women will participate in the providing of services -

       0 to 10 points. For the purposes of evaluating this criteria, the primary factors may be:

       1. Degree to which minorities and women participate in the services to be performed; and

       2. Estimated amount of remuneration to qualified M/WBE. [Emphasis supplied.]

       
       

32. The RFP, additionally contained a section entitled, "Minority/Women Business Enterprise Participation" which advised proposers that the School Board has a

    specific goal of at least 20 percent minority participation in the delivery of services for which the RFP addresses. M/WBE participation is part of the evaluation criteria.

    * * *

    Proposer shall also provide a detailed state- ment of its Affirmative Action and M/WBE Prog- rams, its commitment to these programs at both the corporate and local level, and a detailed statement concerning the staffing of the Proposer's Broward County office(s) that will be responsible for the administration of the contract. A greater amount of evaluation credit will be given to Proposers with a Broward County office(s) whose employee composition by ethnicity and gender reflects the Broward County population as defined by the 1990 census. Less evaluation credit will be given to Proposers with administrative

    office(s) located outside Broward County and/or whose office(s) do not have the employee composition by ethnicity and gender that reflects the Broward County population as defined by the 1990 census. . . .

    [Emphasis supplied.]

    
    

    Establishment by the Insurance Committee of Evaluation Factors and The Initial Evaluation and Ranking of the Proposals

    
    

33. While the RFP established the evaluation criteria, the Insurance Committee established the factors which would be considered in determining whether and to what extent the evaluation criteria had been met.

    
    

34. The factors for scoring the "Willing and Able" criterion were selected at the May 15, 1995, meeting. The Insurance Consultant suggested the factors, and the Committee accepted the factors with some revisions.

    
    

35. Attachment Number 3 to the Insurance Committee meeting of May 15, 1995, included the following language: "Maximum Suggested Points means that points may be awarded up to the stated maximum for each criteria." This reflected the consensus of the Insurance Committee that in scoring each of the criteria each Committee member could award points anywhere within the range of points assigned to each of the criteria.

    
    

36. The Insurance Committee initially scored and ranked the vision proposals on June 9, 1995. The proposals were analyzed by the Insurance Consultant prior to evaluation by the Committee. The Insurance Committee accepted the analysis and recommended scoring of the Insurance Consultant on the Cost and Willing and Able Criteria, and adopted the scoring as its own without individual scoring by Committee members.

    
    

37. At the June 9, 1995, scoring of the proposals, the Insurance Consultants recommended that VSP receive the Insurance Committee's recommendation. The reasons for the recommendation included: lowest overall cost for current plan; lowest proposed family rate for current plan; employee satisfaction reported to be high; and there appeared to be no compelling reason to change.

38. At the June 9, 1995, meeting, the M/WBE Office staff suggested factors to be considered in evaluating the M/WBE RFP component and presented her preliminary analysis of the proposals' submitted M/WBE data. The Committee reviewed the suggested factors, and requested modifications based upon what the Committee thought the factors should be.

    
    

39. At the June 9, 1995, meeting of the Insurance Committee, Ms. Dudley handed out documents entitled, "Evaluation Criteria," "M/WBE Participation Analysis," and "Workforce Environment Analysis."

    
    

40. The Insurance Committee members had a number of questions concerning the criteria used by Ms. Dudley. Ms. Dudley agreed to return to her office to expand her M/WBE participation analysis to include additional scope of services information.

    
    

41. When Ms. Dudley returned, she presented her Workforce Environment evaluation which showed Optiplan and VSP with 4 points.

    
    

42. Ms. Dudley was uncomfortable making a recommendation on the M/WBE Participation section. She felt there was a disparity in the nature of the M/WBE companies (one company had 2 employees; another company had 35 employees.) There was considerable discussion relating to the amount of remuneration and the related value of services. The Insurance Committee finally voted to give all proposers 4 points across the board.

    
    

43. There is no reflection in the minutes of the Insurance Committee meetings that the Insurance Committee voted to accept Ms. Dudley's June 9, 1995, evaluation factors for determining whether the RFP's M/WBE criteria had been met.

    
    

    Rescoring of the Proposals

    
    

44. After the initial scoring of the proposals by the Insurance Committee, Optiplan representatives and lobbyists met with the Superintendent to object to the evaluation and recommendation of VSP. After the meeting, Optiplan sent a letter dated June 16, 1995, to the Superintendent stating its objections.

    
    

45. After Optiplan objected to the initial scoring, the Insurance Committee voted to re-score the proposals.

    
    

46. At the July 25, 1995, meeting, the Insurance Committee re-scored the vision proposals.

    
    

47. For the re-scoring, the Insurance Consultant reviewed the Optiplan objections and presented the Insurance Committee with a "Revised Comparison of Proposals - Willing and Able to provide Products and Services."

    
    

48. The Insurance Committee conducted its scoring on the various proposals using a score sheet prepared by Siver (the Insurance Consultant) on the "Ready and Willing" category at the July 25, 1995, meeting.

    
    

49. At the July 25, 1995, meeting, Ms. Dudley handed out a tally sheet as well as evaluation criteria for the M/WBE component. This was the only material handed out concerning the M/WBE evaluation that day. The materials were the same as those previously prepared for the health plan proposals.

50. Ms. Dudley advised that the Workforce Environment analysis was the same as was provided in the earlier meeting. She had added the location of administrative offices. The third sheet was a summation of the M/WBE remuneration and the scope of work proposers had identified.

    
    

51. The Insurance Committee voted to change the point allocation from 5 points for Workforce Environment and 5 points for M/WBE Participation to 3 points and 7 points respectively.

    
    

52. Mr. Gentile asked whether there was clarification on which firm VSP had selected. Mr. Thomas advised that McKinley Financial Services had been selected.

    
    

53. The Insurance Committee did not, either by vote or consensus, set a threshold amount of M/WBE remuneration for awarding points.

    
    

54. The RFP did not dictate to the Insurance Committee that proposals with the greatest amount of remuneration of M/WBE firms receive the maximum points or greater points. The Insurance Committee did not determine that maximum remuneration, or meeting a threshold of in excess of $40,000, meant that a maximum of 7 points would be assigned.

    
    

55. The Insurance Committee considered both the amount of remuneration and the scope of M/WBE work in providing services under the contract.

    
    

56. The Insurance Committee scored on a range of points up to a maximum of

    7 points for M/WBE Participation.

    
    

57. Upon re-scoring of the RFP on July 25, 1995, VSP was again declared the winner of the contract with a score of 43.58 points for the Cost component of the RFP, 39.74 points for the RWA component, and 8.67 points for the M/WBE component, for a total score of 91.98 points. Optiplan was awarded the second highest score with a score of 45.00 points for the Cost component, 36.37 points for the RWA component, and 8.30 points for the M/WBE component, for a total score of 89.68 points. Of 100 possible points, VSP and Optiplan were separated by only 2.30 points.

    
    

    Analysis of the Optiplan Protest by the School Board

    
    

58. The Insurance Consultant was asked to review and to respond to Optiplan's protest. The Insurance Consultant performed an analysis of the vision RFP evaluation in accordance with each of the points raised in Optiplan's protest. This analysis was provided to the School Board for its consideration of the Optiplan protest.

    
    

59. In performing its analysis of the vision RFP evaluation, the Insurance Consultant changed some of the scoring in light of Optiplan's protest assertions, in order to give Optiplan the benefit of the doubt. The Insurance Consultant concluded and advised that the results did not change, and that VSP would still be ranked higher than Optiplan.

    
    

60. The Insurance Consultant advised the School Board that there was no basis for rejecting the Insurance Committee's recommendation of VSP over Optiplan.

    
    

    VSP's Underwriting Loss and Financial Viability

61. Since the inception of its contract with the School Board through the end of March 1995, VSP had experienced an overall underwriting loss of approximately $483,300 on the School Board contract. VSP acknowledged this in its proposal. $293,135.00 of the loss were monies held in reserve to service claims.

    
    

62. VSP President Allen Garrett advised the School Board that VSP was willing to stay with the School Board, and even enhance benefits, even though it had lost money because VSP was a nationwide concern with 15 million insured, and a contract with the second largest fully accredited school board in the nation was desirable and good for VSP business.

    
    

63. Prior to the School Board's decision to reject Optiplan's protest and to award the contract to VSP, it was advised by its Insurance Consultant that VSP's willingness to continue to provide the group vision care program at the prices proposed was "neither unusual nor unexpected." This advice was based upon the Insurance Consultant's belief that

    
    

    VSP, and other vendors, could hope and expect that, by having a large employee base and resulting network, they would be able to lever- age their ability to serve other clients on a profitable basis.

    
    

64. VSP's proposal included a Balance Sheet which clearly demonstrates that VSP is a financially viable company with assets as of December 31, 1994, of

    $10,256,448, an increase from $7,752,255 in December 1993; Net Income of

    $2,393,136; and a Fund Balance and General Reserves of $8,369.020. Eye exam appointment waiting time

65. The RFP required proposals to provide eye exam appointments within 3 weeks.

    
    

66. Optiplan's proposal stated that the average waiting time for an eye exam appointment is two weeks.

    
    

67. VSP's proposal stated that the average waiting time for eye exam appointments for VSP patients is 1-3 days. VSP's authorization process is described in its proposal. The Insurance Consultant's analysis used by the Insurance Committee for re-scoring the proposals noted, in abbreviated fashion, that members first telephoned for a benefit form to be sent by mail; then obtained appointments within 1-3 days after calling for an appointment.

    
    

68. Insurance Committee members could score proposals on a range from zero to a maximum of 3 points for the average waiting period for an eye exam appointment.

    
    

69. Optiplan did not propose two separate plans for the frequency of the "Frames Only" coverage as requested by the RFP, but instead proposed the alternate plan only. Employees would be able to obtain a "frame only" benefit every 12 months for $55.00. Optiplan stated this as a benefit enhancement.

    
    

70. The Optiplan proposal also allowed employees to elect a specific brand of contact lenses, Prosite, in lieu of eye glass benefits, without additional

    co-payments. Optiplan stated this as a benefit enhancement.

71. The Insurance Consultant's Revised Comparison notes the Optiplan "enhancements."

    
    

72. VSP's proposals provided the following plan enhancements:

    
    

    1. Credit of $293,135.00 IBNR reserves already established as a result of the current contract.

    2. Improved frame availability by increasing the frame allowance 56 percent from the current frame allowance.

    3. Panel doctors will accept a 10 percent discount for total cost of covered elective contact lenses after applying the $85.00 flat allowance.

    
    

73. Insurance Committee members could score proposals on a range from zero to a maximum of 5 points based upon their evaluation of how and to what extent proposals exceeded the current plan's benefits and exclusions.

    
    

    Membership satisfaction surveys

    
    

74. VSP performs member satisfaction assessments by mailing satisfaction questionnaires to every 25th patient. The Insurance Consultant's Revised Comparison notes this method of assessment of VSP.

    
    

75. The scoring factors for Criterion No. 11 were as follows:

    
    

    Frequency of employee satisfaction Maximum points assessments

    
    

    1. Point of service +2

    2. Monthly/quarterly +1

    3. Semi-annually/annually 0

    4. No assessments -2

    
    

76. VSP's methodology for satisfaction assessments does not fit neatly into any of the scoring factors itemized above. Inasmuch as VSP does have an assessment methodology, it would appear to be inappropriate to score it as a -2 on this criterion. Viewed on a frequency basis, a satisfaction assessment survey of every 25th patient would, depending on the number of patients seen, result in an assessment frequency more frequent than annually and perhaps as frequent as daily. Accordingly, it would appear to be within the discretion of the Insurance Committee members, depending on how they interpreted VSP's satisfaction assessment methodology, to have scored VSP on this criterion anywhere within a range from +0.1 points to +2 points.

    
    

    Proposers' experience/references

    
    

77. Although Optiplan could not state exactly, it estimated that in excess of 200 employers receive Optiplan benefits.

    
    

78. Volusia County, a reference provided by Optiplan, rated Optiplan "5-6" (on a ten point scale).

    
    

79. Optiplan did not have a contract with a comparable size government group.

80. Optiplan's proposal provided references indicating that it provides vision services to several HMO's with memberships of as high as 60,000.

    
    

81. VSP has satisfactorily provided group vision care services to the School Board since October 1987. VSP also has contracts with 442 employers in Florida, including contracts to provide group Vision care to at least five other school boards in Florida.

    
    

82. VSP's references gave it high ratings of "8-9" and "10." Local offices

83. Optiplan has offices in Broward County.

    
    

84. VSP clearly indicated in its proposal that its corporate headquarters are in Tampa. It clearly indicated that it had a Broward County office where its Group Representative or Account Executive for the School Board contract was located. VSP's administration and claims payment facility is located at its Tampa location.

    
    

85. All materials provided to the Insurance Committee to be used in scoring proposals accurately stated the locations of VSP's offices.

    
    

    M/WBE RFP Component

    
    

86. Prior to the due date for submission of proposals, the Insurance Committee discussed the M/WBE component of the RFP's and evaluation factors several times. The Insurance Committee discussed the M/WBE component of the health and vision care RFP's at length during the March 20, 1995, Insurance Committee meeting, which took place during the development process of the RFP's and prior to the issuance of the Group Vision Care RFP. The Committee was concerned that if the points available for the M/WBE component were inflated, proposers conceivably would subcontract with minority firms for questionable services, thus increasing costs. The discussion included comments that the past practice was to require insurance carriers to bid directly without agents and to furnish salaried service representatives for open enrollment and continuing in- house service. There had been a recent newspaper expose dealing with agent commissions within the county government group.

    
    

87. At the April 18, 1995, meeting, the Insurance Committee voted to make the minutes of its March 20, 1995, meeting an addendum to the RFP's to clarify for proposers the concern and intentions of the Insurance Committee relating to evaluating the M/WBE component. In this way, the Insurance Committee clarified and/or amended the RFP to clearly provide that amount of remuneration was not the determinative factor for the M/WBE participation evaluation.

    
    

    M/WBE Workforce Environment

    
    

88. The RFP requested proposers to complete a chart to provide employment statistics on the proposer's workforce. This chart provided for the submission of data from "Corporate, Home Office, Regional Office, Local Office." The chart did not limit proposers to supplying information only on Broward County Offices.

    
    

89. VSP provided employee statistics as required by the RFP. It clearly identified that the statistics were for its "Corporate," "Home Office," and for

    its "Local Office." The "Local Office" was identified as a sales office with two non-Hispanic white males.

    
    

90. VSP's minority statistics revealed that it has at least 80 percent women/minority employees in its offices.

    
    

91. While VSP's administrative office is located outside of Broward County, it's offices have a high percentage of women/minorities as employees.

    
    

    M/WBE Participation

    
    

92. The RFP requested proposers to "identify the M/WBE firm or firms who will be working with you on this engagement." The RFP also required proposers to

    
    

    Indicate . . . the extent and nature of the M/WBE's work with specificity, as it relates to Service Requirements detailed in Section III, including the percentage of total engagement cost/fee/commission which will

    be received by the M/WBE firm in connection

    with the work to be performed on this engagement.

    
    

93. In response to the RFP M/WBE information request, Optiplan identified More Financial Services, Inc., as its M/WBE firm, and attached a document outlining the extent and nature of work that More Financial would be performing under the contract. More Financial was to receive 3 percent of all employee premiums.

    
    

94. The amount of estimated remuneration to Optiplan's M/WBE firm was calculated to be approximately $47,163 per year for the life of the contract.

    
    

95. VSP identified a printing firm as one of its M/WBE firms with total amount of remuneration to be "$17,568 (3 yr. estimate) depending on volume printed per job."

    
    

96. VSP also identified More Financial Services, Inc., or McKinley Financial Services, Inc., as another M/WBE firm. It clearly indicated that it would be More Financial Services, Inc., or McKinley Financial Services, Inc. Either one of these companies, if selected as the M/WBE contractor, would perform the same services for VSP and would receive the same amount of remuneration. The estimated remuneration was stated to be "$31,200 (3 yr. estimate) based on 3/4 of 1 percent of annualized premium."

    
    

97. By letter of July 6, 1995, Allen Garrett notified Richard Thomas, The School Board Benefits Director, that VSP had selected McKinley Financial Services, Inc. as the VSP M/WBE participant. The letter was copied to Anthony Gentile, Chairman, Insurance Committee.

    
    

98. The extent and nature of work to be performed by More Financial Services, Inc., for either Optiplan or VSP, as stated in the Optiplan and VSP proposals, was the same.

    
    

99. Mr. Collymore, President of More Financial Services, Inc., prepared the work statements which were included in the proposals of each of the three firms he contacted.

100. After the June 9, 1995 scoring of the proposals and before the July 25, 1995 re-scoring, Mr. Collymore wrote to the Insurance Committee Chairman, Anthony Gentile, to "urge the Members of the Insurance Committee to use the total M/WBE dollar remuneration as the measure when allocating points based on remuneration."

     
     

101. Mr. Collymore explained to the Insurance Committee that the actual work to be performed might be more. He provided examples of why the remuneration might be more for the different proposals. Mr. Collymore wrote the letter because there was a discussion on June 9, 1995, by Shelia Dudley of the EEO Office that the scope of work was the same for all the proposals, but the remuneration was different. Copies of Mr. Collymore's July 10, 1995, letter were passed out to Insurance Committee members at the July 25, 1995, meeting.

     
     

102. Optiplan's selection as the contractor would be the most advantageous selection for Mr. Collymore due to the larger amount of remuneration.

     
     

103. The RFP does not specify that proposers must provide the type of services which Mr. Collymore testified he would provide for Optiplan.

     
     

104. VSP had discussions with minority vendors concerning the provision of services contingent upon an award of the group vision contract. VSP had contacted vendors and had estimated the amount of remuneration.

     
     

105. After VSP was initially recommended for the award of the contract, it executed a Commission Agreement with McKinley Financial Services, Inc. The remuneration under this agreement was the same amount as quoted in the VSP proposal.

     
     

     Some general observations

     
     

106. The evidence in this case is sufficient to show that at least a few of the members of the Insurance Committee made a few scoring decisions on the basis of mistakes in their understanding of the facts. Those few scoring decisions made on the basis of mistaken understanding of the facts have not been described in detail in these Findings of Fact because the impact of those few scores on the average scores is de minimus. If all of the average scores were to be recalculated to take into account the few scores that were proved to be based on mistake, there would be no significant change in the ranking of the parties.

     
     

107. There were some scores by some members of the Insurance Committee that, on the record in this case, appear to be what can best be described as unexplained aberrations. Because they are unexplained, the evidence is insufficient to establish that these apparent aberrations were based on arbitrary considerations. It is possible they were merely honest mistakes. It is possible there is some logical explanation for some or all of the apparent aberrations, which explanation is not part of the record in this case because the members who made those scores were not called as witnesses or, if called, were not asked about those scores. Unexplained aberrations are an insufficient basis upon which to conclude that a bidding process is arbitrary.

     
     

     CONCLUSIONS OF LAW

     
     

108. The Division of Administrative Hearings has jurisdiction of this matter pursuant to Sections 120.53(5) and 120.57(1), Florida Statutes.

109. The parties to this proceeding have standing.

     
     

110. In a bid protest such as this, the sole responsibility of the hearing officer is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly. Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988):

     
     

111. The standard for review in a bid protest proceeding involving evaluation by a committee was established in Scientific Games, Inc. v. Dittler Brothers, Inc., 586 So.2d 1128 (Fla. 1st DCA 1991), as follows:

     
     

     The Hearing Officer need not, in effect, second guess the members of the evaluation committed to determine whether he and/or other reasonable and well-informed persons might have reached a contrary result. Rather, a "public body had wide discretion" in the bidding process and "its decision, when

     based on an honest exercise" of that discretion, should not be overturned "even

     if it may appear erroneous and even if reason- able persons may disagree." Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912, 913 (Fla. 1988) (quoting Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505 (Fla. 1982). [Emphasis in original].

     
     

     Scientific Games, at 1131.

     
     

112. In order to prevail in a case of this nature, the Petitioner must prove by a preponderance of the evidence that the School Board and/or the Insurance Committee acted fraudulently, arbitrarily, illegally, or dishonestly in some material aspect of its evaluation of proposals submitted in response to the RFP or in the decision as to which vendor is to be awarded a contract pursuant to the RFP. Optiplan has failed to meet this burden.

     
     

113. There was no evidence introduced to show that the School Board or the Insurance Committee engaged in fraud, illegality, or dishonesty either in the evaluation process, the recommendation of VSP, or the award of the contract.

     
     

114. The allegations of Optiplan concerning the Insurance Committee's alleged improper evaluation of the proposals appears to be based in large part on Optiplan's misunderstanding about what the RFP required. Further, most of Optiplan's arguments are based upon a mistaken belief and interpretation of how the proposals were to be evaluated.

     
     

115. The RFP gave the Insurance Committee and/or the School Board very broad discretion to consider and evaluate vendor proposals and to select the proposal which would best serve the School Board's needs.

     
     

116. The persuasive evidence is insufficient to support Optiplan's contention that the selection criteria and point allocations for scoring the proposals were biased or unreliable so as to cause the evaluation of the proposals to be arbitrary. The required evaluation criteria were set out in the RFP as (1) Projected cost and rate guarantee period - 0 to 45 points; (2) Extent to which Proposer is willing and able to provide products and service as

     specified in the RFP - 0 to 45 points; and (3) Extent to which minorities and women will participate in providing of services - 0 to 10 points. The Insurance Committee did not establish new evaluation criteria after receipt of the proposals.

     
     

117. The determination of the factors to be used for evaluating how or whether the evaluation criteria were met, was within the discretion of the Committee. While the RFP provided possible "primary factors" which may be used to determine if the criteria were met, it indicated that these "primary factors" were factors which "may" be used. If this aspect of the RFP was unclear to Optiplan, it had an opportunity prior to submitting its proposal to seek a clarification by submitting written questions. Optiplan did not timely protest these or any conditions of the RFP, and has waived any protest of the evaluation criteria.

     
     

118. The RFP provided discretion to the Committee to determine the factors used to evaluate whether and to what extent proposers met the evaluation criteria of the RFP. The RFP provided discretion to the Committee to determine how the range of points assigned to each evaluation criteria would be allocated among the factors used to determine whether and to what extent the RFP evaluation criteria had been met. The Committee used the criteria set out in the RFP, and properly exercised its discretion to determine the weight to be given factors in each criterion category. The persuasive evidence is insufficient to support a finding that the Committee acted arbitrarily in exercising this discretion.

     
     

119. The persuasive evidence is insufficient to show that the factors used to determine whether and to what extent the RFP evaluation criteria were met or that the allocation of points within the RFP ranges were biased or unreliable. The fact that these determinations may have been made after receipt of the proposals does not in and of itself demonstrate bias.

     
     

120. In general, Optiplan erroneously asserts that there were mandatory scores to be assigned for the factors which were used to determine whether proposals met the RFP criteria. It asserts (as to certain factors) that since its proposal included information to support a finding that it met the factors, that it was entitled to all of the points. For example, Optiplan asserts that it proposed enhanced benefits, and therefore it should have received the total maximum points available for exceeding plan benefits. However, the Insurance Committee had the discretion to evaluate and weigh the benefits which Optiplan proposed as enhancements, and to assign a score within the range for that factor, which each individual Committee member felt was warranted. Each individual Committee member had the discretion to score Optiplan less than the maximum depending on the value or weight the individual member placed on the "enhancements". The individual Committee members were even free to decide that the enhancements were not truly enhancements, and score Optiplan a "0".

     
     

121. The persuasive evidence is insufficient to show that Optiplan and VSP were erroneously scored on "Waiting Time for Eye Exam". VSP's proposal stated there was a 1-3 day waiting period. Optiplan concedes that the Committee discussed VSP's authorization process. Further, the Insurance Consultant's analysis of the proposals pointed out the VSP authorization process for the July 25, 1995 voting. The Insurance Committee appears to have had adequate information before it to consider whether VSP should receive fewer points due to its authorization process. The Insurance Committee members had the discretion to award a range of points based on their individual evaluation and analysis of the proposals.

122. There was no requirement that Optiplan receive the maximum 3 points for "Workforce Environment". There was no requirement for VSP to receive less than 2 points for "Workforce Environment". Again, Optiplan appears to misunderstand the requirements of the RFP and the Committee's discretion in evaluating the proposals. VSP had a higher percentage of women/minorities in its workforce than Optiplan. It has an administrative office (clearly indicated and known to be in Tampa) which meets the women/minority percentage goal specified in the RFP. Also, VSP had a local office in which the Group Representative for the School Board was located. There is a logical basis for the scoring on this category.

     
     

123. Optiplan incorrectly interprets the RFP as requiring that a proposer's administrative office be in Broward County in order for the proposer to receive maximum points. The RFP requires less evaluation credit only if a proposer does not have an administrative office in Broward County and/or whose employee composition by ethnicity and gender does not reflect the Broward County population.

     
     

124. Optiplan also apparently believes that the amount of remuneration to be paid to M/WBE firms was determinative of whether proposers received maximum points for the M/WBE Participation factor. Optiplan asserts that the Insurance Committee set a $40,000 threshold for receipt of the maximum points. While the committee considered and scored based upon remuneration, it also considered and scored based upon the scope of work to be performed for that remuneration and the firms involved. The Insurance Committee possessed the discretion to evaluate in this manner.

     
     

125. The RFP does not require executed contracts with minority vendors at the time of submission of proposals. Any agreement to enter into a contract would necessarily be contingent upon the award of the School Board contract. It would be illogical for proposers to execute contracts before receiving the award.

     
     

126. Although at the time VSP submitted its proposal, it had not made a final selection between More Financial and McKinley Financial, it met the requirements of the RFP by discussing potential contracts with minority vendors; identifying the M/WBE firms and the scope of work; and estimating the amount of remuneration. It was not arbitrary for the Insurance Committee to consider the amount of remuneration and the scope of work to be performed by the VSP M/WBE vendors.

     
     

127. It was not arbitrary for individual Committee members to consider the fact that VSP had selected McKinley Financial. The Committee heard presentations from both More Financial and McKinley Financial; and it received additional information from Optiplan's M/WBE vendor, lobbyists, and representatives at various times. Optiplan submitted additional information to the Committee more than once. The persuasive evidence is insufficient to show that the Committee's consideration of the fact that VSP had selected McKinley Financial gave VSP an unfair advantage over Optiplan or over any other bidder. The consideration of post-proposal information is a practice that is usually best avoided, but in the context of this particular case the post-proposal information has not been shown to have been unfair. Further, this issue does not appear to have been raised with specificity in the formal protest and is, therefore, waived.

128. The issue as to whether Committee member Brown was biased against Optiplan was not raised with specificity in the formal protest and is, therefore, waived. In any event, the evidence is insufficient to show that the scoring of the proposals was tainted by Mr. Brown's attitude towards Optiplan or its representatives.

     
     

129. No evidence was introduced that VSP "has absolutely no incentive to excel at performing a contract on which VSP was losing substantial amounts of money." There was no evidence that VSP is financially troubled. To the contrary, there is evidence that VSP has satisfactorily performed the contract since 1987, and in spite of its losing money on the School Board contract, VSP's financial statement included in its proposal shows that, on the whole, VSP is making money and is financially stable. Thus, the Committee's award of points to VSP in the "Willing and Able" criterion category is not arbitrary. The School Board's decision to award the contract to VSP even though VSP had lost money on the contract is not arbitrary where VSP is a financially viable company and has satisfactorily served School Board employees since 1987. The decision of the School Board is also logical in light of the cost savings of the contract to the School Board.

     
     

130. Optiplan failed to prove by a preponderance of the persuasive, credible evidence that the evaluation of the Group Vision Care proposals and the award of the contract to VSP was arbitrary.

     
     

131. While it is possible that some of the scoring decisions about which Optiplan complains may have been arbitrary, there is no persuasive competent substantial evidence in the record of this case to establish that such is the case. Further, on the record in this case there is no way in which the impact of any such possible arbitrary scoring can be quantified. Absent quantification it cannot be shown that any such possible arbitrary scoring resulted in any substantial injury to the Petitioner's interests.

     
     

132. A great deal of the Petitioner's argument appears to be based on the notion that an unexplained deviation from an expected scoring result constitutes proof that the unexpected result was the result of some arbitrary action by one or more Committee members. Such is not the case. Deviations from expectations can result from any number of different reasons. In order to demonstrate entitlement to relief from unexpected results, the Petitioner must present evidence of the reason for the results and must prove that the reason constituted an arbitrary, illegal, fraudulent, or dishonest act. Absent such proof, relief must be denied.

     
     

133. The Division of Administrative Hearings does not have jurisdiction to address the Petitioner's claim that the M/WBE criteria utilized by the School Board in scoring the RFP was unconstitutional. See, e.g., Myers v. Hawkins, 362 So.2d 926, 928 (Fla. 1978).

     
     

134. Even if the Petitioner had a valid constitutional claim, the Petitioner waived its right to contest the School Board's use of the M/WBE criteria because it did not contest the relevant portion of the RFP within 72 hours as required by the RFP itself.

     
     

135. In brief conclusion, the evidence in this case is an insufficient basis for granting the relief sought by the Petitioner. The few instances of mistaken scoring that were actually proved were too few in number to have any material impact on the average scores. Unexplained aberrations are an

insufficient basis upon which to conclude that a bidding process is arbitrary. Accordingly, the Petition and Formal Protest should be dismissed and all relief requested in the Petition should be denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order dismissing the Formal

Written Protest filed by Optiplan, Inc.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of December 1995.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December 1995

APPENDIX

The following are the specific rulings on all proposed findings of facts submitted by all parties:

Proposed findings submitted by Petitioner:

Paragraphs 1 through 8: Accepted in whole or in substance.

Paragraph 9: Rejected as consisting of subordinate and unnecessary details and as not fully consistent with the greater weight of the evidence.

Paragraphs 10 and 11: Accepted in substance.

Paragraph 12: Rejected as consisting of subordinate and unnecessary details.

Paragraph 13: Rejected as consisting of subordinate and unnecessary details and of argument.

Paragraphs 14 through 19: Accepted in whole or in substance.

Paragraphs 20 and 21: Rejected as subordinate and unnecessary details, or as irrelevant, because the Insurance Committee did not use the sub- classifications in Petitioner's Exhibit 3 during their re-scoring on July 25, 1995.

Paragraph 22: Rejected as subordinate and unnecessary details and as, in any event, not fully consistent with the greater weight of the evidence.

Paragraph 23: Rejected as consisting primarily of argument.

Paragraph 24: The first two sentences of this paragraph are rejected as consisting of subordinate and unnecessary details. The last sentence is rejected as irrelevant because it is inconsistent with the scope of services described in the Optiplan response to the RFP.

Paragraph 25: Rejected as consisting primarily of argument; specifically, argument which is inconsistent with the greater weight of the evidence.

Paragraphs 26 through 28: Rejected as subordinate and unnecessary details or as irrelevant, because the Insurance Committee did not use the Dudley sub- classifications proposed in Petitioner Exhibit 3 when it scored the proposals on July 25, 1995.

Paragraph 29: Rejected as consisting of subordinate and unnecessary details and as argument.

Paragraph 30: Rejected as consisting of subordinate and unnecessary details and as not fully supported by the greater weight of the evidence.

Paragraph 31: Rejected as consisting of subordinate and unnecessary details and as argument.

Paragraph 32: Accepted.

Paragraph 33: Accepted up to the word "organizations." The remainder is rejected as a proposed conclusion of law, rather than a proposed finding of fact.

Paragraphs 34 through 39: Accepted in whole or in substance, with some unnecessary editorial comments deleted.

Paragraph 40: Accepted in substance that Optiplan and More Financial Services had some form of understanding about the terms on which the latter would provide services if Optiplan received the subject contract. The evidence is insufficient to show that an enforceable contract was entered into.

Paragraph 41: Accepted.

Paragraphs 42 and 43: Rejected as contrary to the greater weight of the evidence; the cover letter is part of the response.

Paragraphs 44 through 46: Accepted.

Paragraph 47: Rejected as consisting of subordinate and unnecessary details.

Paragraph 48: The portion from the beginning to the second comma is rejected as subordinate and unnecessary details. The remainder is accepted.

Paragraph 49: Rejected as consisting of subordinate and unnecessary details.

Paragraph 50: Rejected as consisting of subordinate and unnecessary details and as argument.

Paragraph 51: Rejected as consisting of subordinate and unnecessary details.

Paragraph 52: Rejected as argument.

Paragraph 53: First sentence accepted in substance. The remainder is rejected as irrelevant; the RFP did not require contracts with proposed M/WBE firms.

Paragraphs 54 through 57: Rejected as consisting of subordinate and unnecessary details or as irrelevant.

Paragraph 58: First sentence accepted. The remainder is rejected as consisting of subordinate and unnecessary details.

Paragraphs 59 and 60: Rejected as consisting of subordinate and unnecessary details or as irrelevant.

Paragraph 61: Accepted.

Paragraphs 62 through 64: Rejected as consisting of subordinate and unnecessary details or as irrelevant.

Paragraph 65: Rejected as comprised primarily of argument, rather than proposed findings of fact.

Paragraphs 66 and 67: Accepted in whole or in substance.

Paragraphs 68 through 72: Rejected as consisting of subordinate and unnecessary details or as irrelevant in view of the re-scoring.

Paragraph 73: Rejected as consisting of subordinate and unnecessary details about status of the record.

Paragraphs 74 through 76: Accepted in whole or in substance.

Paragraphs 77 through 81: Rejected as consisting primarily of argument and as, to the extent it proposes facts, as contrary to the greater weight of the evidence.

Paragraph 82: Rejected as contrary to the greater weight of the evidence.

Paragraph 83: Rejected as consisting of subordinate and unnecessary details which do not support the inference for which they are offered.

Paragraph 84: Rejected as contrary to the greater weight of the evidence.

Paragraph 85: Rejected as consisting of subordinate and unnecessary details or as irrelevant.

Paragraph 86: Rejected as consisting of subordinate and unnecessary details and as not fully supported by the evidence.

Paragraph 87: Rejected as argument and, to the extent it proposes facts, as being contrary to the greater weight of the evidence.

Paragraph 88: Rejected as consisting of subordinate and unnecessary details or as irrelevant.

Paragraph 89: Rejected as consisting primarily of argument.

Paragraph 90: Rejected as consisting of subordinate and unnecessary details.

Paragraph 91: First sentence is accepted in substance. Second sentence is rejected as contrary to the greater weight of the evidence; there were no thresholds in effect at the July 25 re- scoring of the M/WBE criteria.

Paragraph 92: Rejected as argument; specifically, argument based on incorrect facts.

Paragraph 93: Rejected as in part irrelevant and in part not fully supported by the persuasive evidence.

Paragraph 94: Rejected as irrelevant because the description of the proposed services to be performed by More Financial Service is the same in the proposals submitted by Optiplan and VSP.

Paragraphs 95 and 96: Rejected as argument; specifically, argument not supported by the greater weight of the evidence.

Paragraph 97: Accepted in substance.

Paragraphs 98 and 99: Rejected as consisting primarily of argument.

Paragraphs 100 and 101: Rejected as primarily argument and as not fully supported by the persuasive evidence.

Paragraphs 102 and 103: Rejected as primarily argument and as consisting of subordinate and unnecessary details.

Paragraph 104: Rejected as argument.

Paragraph 105: Rejected as consisting of subordinate and unnecessary details and as argument; specifically, argument in support of a conclusion that is not warranted by the greater weight of the evidence.

Paragraph 106: Rejected as argument; specifically, argument in support of a conclusion not fully supported by the greater weight of the evidence.

Paragraphs 107 through 118: Rejected as irrelevant because the issue to which the proposed facts relate was not raised with specificity in the formal protest. (Several of these paragraphs are also rejected as being primarily argument.)

Paragraphs 119 through 132: Rejected as consisting of subordinate and unnecessary details and as argument not fully warranted by the greater weight of the evidence. Also rejected as irrelevant because the issue to which the proposed facts relate was not raised with specificity in the formal protest.

Paragraphs 133 and 134: Accepted in substance.

Paragraphs 135 through 147: Rejected as consisting primarily of argument regarding issues that were not raised with specificity in the formal protest.

Paragraphs 148 through 150: Accepted in substance.

Paragraph 151: First sentence accepted in substance. Second sentence rejected because the Insurance Committee members had discretion to award more or

less than one point depending on their interpretation of VSP's satisfaction assessment methodology.

Paragraph 152: Rejected as consisting of subordinate and unnecessary details. Also rejected as not fully supported by the evidence.

Paragraph 153: Rejected as argument; specifically, argumentnot warranted by the greater weight of the evidence.

Paragraphs 154 through 158: These paragraphs are rejected as consisting of subordinate and unnecessary details and as irrelevant because they address issues not raised with specificity in the formal protest.

Paragraphs 159 through 174: These paragraphs are rejected for several reasons. First, they are irrelevant because the issue of whether Committee member Brown was biased against Optiplan was not raised in the formal protest. Second, even if relevant, most of the facts proposed would be subordinate and unnecessary details because Mr. Brown did not participate in the July 25 re- scoring of the proposals and the evidence is insufficient to show that Mr.

Silvernale's scoring was tainted by Mr. Brown's attitude towards Optiplan or its representatives.

Paragraphs 175 through 179: Rejected as irrelevant because the proposed facts relate to an issue that was not raised in the formal protest.

Paragraphs 180 through 184: Rejected as irrelevant because the proposed facts relate to an issue that was not raised in the formal protest. Also irrelevant because the facts proposed, even if accepted, would not warrant the inference for which they are offered.

Paragraphs 185 through 188: Accepted in substance that the evaluation factors were adopted after the responses to the RFP were distributed to the Committee members. The conclusion that this was in and of itself improper is rejected.

Paragraphs 189 through 200: Rejected as consisting primarily of argument about the weight of the evidence, rather than proposed findings of fact.

Paragraphs 201 through 216: Rejected as constituting primarily argument about legal issues or proposed conclusions of law, rather than proposed findings of fact.

Proposed findings submitted by Respondent:

Paragraph 1 (including its subparts) through 43: Accepted in whole or in substance.

Paragraphs 44 and 45: Reject as being comprised primarily of legal argument or proposed conclusions of law, rather than proposed findings of fact.

Paragraph 46: Accepted.

Proposed findings submitted by Intervenor:

Paragraph 1 through 23: Accepted in whole or in substance. Paragraph 24: Rejected as subordinate and unnecessary details. Paragraph 25 through 50: Accepted in whole or in substance.

Paragraph 51: First sentence accepted. Second sentence rejected as irrelevant.

Paragraph 52 through 67: Accepted in whole or in substance. Paragraph 68: Rejected as subordinate and unnecessary details. Paragraph 69 through 85: Accepted in whole or in substance.

Paragraph 86: Rejected as an over-simplification or as subordinate and unnecessary details.

Paragraphs 87 through 103: Accepted in whole or in substance.

COPIES FURNISHED:

Edward J. Marko, Esquire Broward County School Board

1401 East Broward Boulevard, Number 201 Post Office Box 4369

Ft. Lauderdale, Florida 33338

Mitchell Berger, Esquire Holiday Russell, Esquire Berger & Davis

100 Northeast 3rd Avenue Suite 400

Ft. Lauderdale, Florida 33301

Leonard A. Carson, Esquire Rosa H. Carson, Esquire Carson & Adkins

2873 Remington Green Circle, Suite 101

Tallahassee, Florida 32308

Frank R. Petruzielo, Superintendent Broward County School Board

600 Southeast 3rd Avenue

Fort Lauderdale, Florida 33301-3125

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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 contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-004560BID

Orders for Case No: 95-004560BID