STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAYNES SERVICES CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 97-1443BID

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 18, 1997, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kaydell Wright-Douglas, Esquire

The Wright Building

110 North Armenia Avenue, Suite A Tampa, Florida 33609

For Respondent: Scott C. Wright

Assistant General Counsel Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

STATEMENT OF THE ISSUES

Whether the Department of Juvenile Justice (DJJ or Department) acted illegally, arbitrarily, dishonestly or fraudulently in the rejection of all proposals for the Better Outlook Center request for proposals.

PRELIMINARY STATEMENT

This case began on March 7, 1997, when the Department issued a notice to the public announcing it was rejecting all proposals submitted for the Better Outlook Center, RFP #K6P07. The notice further advised the DJJ planned to re-advertise for new proposals. Subsequently, Petitioner, Haynes Services Corporation, the apparent successful bidder, filed a formal protest. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on March 21, 1997. At the hearing, Petitioner presented the testimony of: Eric Stark, a human services program specialist employed by the Department; Peter Parkins, also a DJJ human services program specialist; Frank Manning, the operations consultant manager for the Department’s district 11 office; Jeffrey Haynes, the CEO for Haynes Services Corporation; and Rex Uberman, the DJJ’s deputy secretary for operations. Petitioner’s exhibits numbered 1 and 2

were admitted into evidence.

Frank Manning also testified for the Department. Its exhibits numbered 1, 2 and 3 were admitted into evidence. A transcript of the proceeding has not been filed. The parties were granted ten days within which to file proposed recommended orders. The proposed orders have been considered in the preparation of this recommended order.

FINDINGS OF FACT

1. The Department has responsibility for the custody and treatment of delinquent youth in the State of Florida.

2. As part of that responsibility, the Department sought proposals for a halfway house program to be located in Dade County, Florida (District 11). This program, also known as the Better Outlook Center (BOC), will provide residential beds for twenty-eight male juveniles who are considered a moderate risk to public safety and require a structured residential community.

3. The Department advertised a request for proposal (RFP) for the BOC project, RFP #K6P07, on January 24, 1997.

4. Subsequent to the general mailing of the RFP packet, the Department received twelve proposals for the BOC project. Among those proposals, the Petitioner, Haynes Services Corporation, was awarded the highest score.

5. In a telephone conference call conducted in February, 1997, the Petitioner’s CEO was advised of his apparent highest ranking but was asked to lower the per diem rate. Petitioner agreed to the amendment.

6. Subsequently, upon further review of the matter, the Department determined it had not included criteria which would consider quality assurance performance on similar programs, third party reviews, or past performance. The Department determined that these criteria should be included in all RFP evaluations and

   set about to draft language incorporating these provisions into new RFP instructions. These new criteria would be applicable throughout the state and would be applied to review all applicants for programs awarded through the DJJ.

7. Concern over the new criteria arose because the Department was advised that Petitioner had failed quality assurance requirements at another project. Thus, while the Department had considered Petitioner’s proposal for the subject project well articulated, it became concerned regarding Petitioner’s ability to perform as represented. In order to place all applicants on an even playing field for consideration of this project as well as others where this issue might arise, the Department determined that all applicants should submit records of past performance. The results of past performance and quality assurance ratings would then be a factor to consider before awarding future projects. Accordingly, all proposals which had been submitted for the BOC RFP at issue were rejected.

8. On or about March 7, 1997, all applicants who had submitted proposals for the BOC project were notified that the Department intended to re-advertise the RFP with new criteria.

9. The Petitioner was not awarded a contract for the subject RFP.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of,

    these proceedings.

    
    

11. Section 120.57(3)(f), Florida Statutes, provides, in pertinent part:

    In any bid-protest proceeding contesting an intended agency action to reject all bids, the standard of review by an administrative law judge shall be whether the agency’s intended action is illegal, arbitrary, dishonest, or fraudulent.

    
    

12. In this case the Petitioner’s sole argument is that the Department has acted arbitrarily in rejecting all proposals. No claim has been made that the agency’s intended action is illegal, dishonest, or fraudulent.

13. Agency action is “arbitrary” when it is not supported by facts or logic, or despotic. Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978). In this instance, the Department has expressed a logical basis for reviewing providers to assure that those who receive projects perform in accordance with their RFPs. This will assure that future programs are awarded to entities which have been reviewed using criteria that evaluated not only what is proposed but how well similar work has been done for the DJJ. Consequently, it cannot be concluded that the Department’s decision to reject all proposals was arbitrary.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Juvenile Justice enter a final order dismissing the challenge to the rejection of all bids for RFP #K6P07.

DONE AND ENTERED this 8th day of May, 1997, in Tallahassee, Florida.

J. D. PARRISH Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1997.

COPIES FURNISHED:

Calvin Ross Secretary

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Janet Ferris General Counsel

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Kaydell Wright-Douglas, Esquire The Wright Building

110 North Armenia Avenue, Suite A Tampa, Florida 33609

Scott C. Wright, Esquire Assistant General Counsel Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-001443BID

Orders for Case No: 97-001443BID