STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE VILLAGE SOUTH, INC., )

d/b/a THE VILLAGE, )

)

Petitioner, )

)

vs. ) Case No. 97-1966BID

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, Administrative Law Judge for the Division of Administrative Hearings, held a final hearing in the above-styled case on June 4, 1997 in Tallahassee, Florida.

APPEARANCES

For Petitioner: H.B. Stivers, Esquire

Mark S. Levine, Esquire Levine and Stivers

245 East Virginia Street Tallahassee, Florida 32301

For Respondent: Scott C. Wright, Esquire

Theresa A. Marvin, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent’s award of a contract in response to a Request For Proposal (RFP) was clearly erroneous, contrary to competition, arbitrary, or capricious.

PRELIMINARY STATEMENT

On or about February 28, 1997, Respondent’s RFP issued seeking proposals to provide a halfway house program for delinquent male juveniles.

Notice of contract award was made on April 11, 1997, to a provider other than Petitioner. Petitioner, the incumbent provider, timely protested the award on or about April 24, 1997, and requested formal administrative proceedings. Following transfer of the matter to the Division of Administrative Hearings and with the consent of the parties, final hearing was scheduled for June 4, 1997.

At the final hearing, Petitioner’s evidence was presented in the form of 37 exhibits which were admitted into evidence by stipulation of the parties. Respondent presented testimony of one witness and was granted official recognition of purchasing rules of the Department of Management Services, Chapter 60A-1 and Chapter 28-110, Florida Administrative Code, and presently effective provisions of Florida Statutes stemming from legislative enactment of Senate Bill 1066 in the 1997 legislative session of the Florida Legislature.

The transcript of the final hearing was filed on

June 16, 1997. Proposed findings of fact submitted by the parties have been considered in the preparation of this recommended order.

FINDINGS OF FACT

1. Respondent, on or about February 28, 1997, advertised and released RFP K6PO9B in order to procure a halfway house program for delinquent juvenile males. The RFP was written by Eric Stark, a human services program specialist employed by Respondent. An Addendum to the RFP was issued March 17, 1997, which required offerors with prior funding from Respondent to submit copies of their Quality Assurance Report for the past two years with their proposal.

2. As stated in the RFP, the program would "be responsible for the custody and treatment of delinquent youth." The program would be located in Respondent’s facilities in Miami, Florida.

3. Responses to the RFP were timely submitted by eight offerors, including Petitioner, the incumbent provider.

4. Respondent’s employees Robert Rojas, Morris Copeland, and Jean Murat were selected by Respondent to evaluate the responses to the RFP K6PO9B. The evaluation criteria and proposal rating sheet begin on page 29 of RFP K6PO9B. Plainly stated on that page of the RFP is the statement that evaluation of proposals would be based on the specified criteria contained in the following pages of that section of the RFP.

5. In the evaluation process, Respondent’s three employees reviewed the proposals and assigned a value for past performance

   and experience to each provider. For proposals where the offeror had no past performance or experience with Respondent, a formula permitted evaluators to arrive at an approximation of the value to be allocated to a proposal. In some instances under the formula utilized in the evaluation, it was possible for a proposal displaying no past performance or experience to rate higher than some other proposals possessing this qualification.

   In the instant proceeding, however, the evaluation points assigned to past performance are such that if past performance were removed from the RFP, it would have no bearing on the ranking of the top five proposals.

6. Evaluators were not given the proposals all at one time. Instead, the proposals were parceled out to them two, three, or five at a time. The proof fails to establish that the evaluators had available to them at one time all proposals so as to permit them to make a simultaneous comparison of all proposals.

7. One of the evaluators, Robert Rojas, had recently evaluated responses to a similar, but not identical, RFP for Respondent. In the previous evaluation, Rojas was familiar with the entire RFP and had read it. With regard to RFP K6PO9B, however, he had not read the entire RFP and, instead, relied upon his prior experience and the wording of evaluation criteria and proposal scoring sheets, starting on page 29 of the RFP, as he evaluated the proposals. Respondent had used the standard halfway house program model for RFP K6P09B, except the model was

   made more specific to meet needs of the particular program being sought in this instance.

8. As a result of the evaluation by Respondent employees,

   
   

   I-CARE Baypoint Schools (I-CARE), received the highest number of points (1073). Petitioner ranked in sixth place with 900 points. Petitioner offered no evidence at hearing regarding the effect it had on its score as a result of Rojas’ evaluation.

9. Following the evaluation and a subsequent ultimate decision of Joseph Ingraham, a senior juvenile justice manager employed by Respondent, a notice of contract award to I-CARE was made on April 11, 1997.

10. Petitioner timely filed its notice of intent to protest, followed by its Formal Protest Petition and Request for Hearing on or about April 24, 1997. The parties have stipulated to Petitioner’s standing to bring this challenge to Respondent’s proposed contract award.

11. Petitioner views its formal protest as a challenge to the RFP process used by Petitioner "based on the failure of [Respondent] to adopt or promulgate rules and its reliance on incipient agency policy."

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(3), Florida Statutes.

13. Section 120.57(3)(f), Florida Statutes (Supp. 1996), provides:

    In a competitive-procurement protest, no submissions made after the bid or proposal opening amending or supplementing the bid or proposal shall be considered. Unless otherwise provided by statute, the burden of proof shall rest with the party protesting the proposed agency action. In a

    competitive-procurement protest, other than a rejection of all bids, the administrative law judge shall conduct a de novo proceeding to determine whether the agency’s proposed action is contrary to the agency’s governing statutes, the agency’s rules or policies, or the bid or proposal specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious. In any bid protest proceeding contesting an intended agency action to reject all bids, the standard of review by the administrative law judge shall be whether the agency’s intended action is illegal, arbitrary, dishonest, or fraudulent. (emphasis supplied)

14. Section 287.057(15), Florida Statutes, a statute governing Respondent’s purchasing action in the instant case, reads, in pertinent part, as follows:

    For requests for proposals, a selection team of at least three employees who have experience and knowledge in the program areas and service requirements for which contractual services are sought shall be appointed by the agency head to aid in the selection of contractors. . . (emphasis supplied)

15. No credible evidence was presented that the evaluators were deficient in experience or knowledge of program areas for which contractual services were sought.

16. Arguably, Rojas did not read RFP K6P09B in its entirety and could in some particularity have effected the scoring upon which the selection decision was made. No proof, however, was presented regarding effect of deficiencies upon the result of the evaluation team’s efforts, or on Petitioner’s score.

17. As the sixth ranked offeror, or proposal, Petitioner’s entitlement, or standing to obtain relief is an onerous one, despite the stipulation as to Petitioner’s standing to bring this proceeding. Petitioner has failed to establish its "substantial interest" in view of its sixth place standing in the selection process. Award of relief to Petitioner is dependent on proof that Petitioner’s selection, but for errors in the selection process, would have eclipsed the five providers out-ranking it. Petitioner provided no such proof.

18. Additionally, Petitioner failed to show that the agency’s action in making the contract award was clearly erroneous, contrary to competition, arbitrary, or capricious. Challenges to unpromulgated rules of the nature raised by Petitioner in this matter are more appropriately addressed through rule challenge proceedings contemplated by Section 120.54 and Section 120.56, Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered affirming the award to I-CARE.

DONE AND ENTERED this 15th day of July, 1997, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 15th day of July, 1997.

COPIES FURNISHED:

H. B. Stivers, Esquire Levine and Stivers

245 East Virginia Street Tallahassee, Florida 32301

Scott Wright, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32301

Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Janet Ferris, Esquire 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: 97-001966BID

Orders for Case No: 97-001966BID