STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FIRST HEALTH SERVICES OF FLORIDA, INC.,

Petitioner,

vs.

AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent,

and

HEALTH CARE EXCEL, INC.

Intervenor.

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SUMMARY RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case October 25, 2000, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Harry L. Hooper.

APPEARANCES

For Petitioner: Barrett G. Johnson, Esquire

Johnson & Associates, P.A. Post Office Box 1308 Tallahassee, Florida 32302

For Respondent: William Roberts, Esquire

Steven Grigas, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Building Three, Suite 3431 Tallahassee, Florida 32308

For Intervenor: Martha Harrell Chumbler, Esquire

Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A.

Post Office Box 190 Tallahassee, Florida 32302

DISCUSSION

1. Prior to taking evidence in the case the Intervenor's Motion for Summary Recommended Order was considered. Respondent's Exhibits numbered 1 and 2, addressing the motion, were considered by the undersigned. Petitioner presented the testimony of Pate McCartney, an officer of First Health Services of Florida, which was also considered.

2. The Intervenor's motion addressed the sole issue in the case which was whether or not the Petitioner's submission pursuant to the Respondent's Request for Proposal (RFP) of

   June 16, 2000, was responsive.

   
   

3. Section 10.5.2 of the RFP established a threshold which proposers were required to cross in order to be eligible to participate in this procurement process. Specifically Section

   10.5.2 required parties making a proposal to provide documentation that, "The contractor or subcontractor has not been

   sanctioned by a state or federal government within the last 10 years."

4. Although Petitioner apparently did respond to an inquiry listed as Section 60.1.1.7 of the RFP, addressing Petitioner's history of sanctions, lawsuits, bankruptcies, or penalties incurred by the Petitioner over a five-year period, Petitioner did not address the requirements of Section 10.5.2 of the RFP. The requirements of Section 10.5.2 are different and cover a greater period of time than do the requirements of Section

   60.1.1.7. As a result of this failure to respond, Petitioner was informed by the Agency for Health Care Administration (AHCA), in a letter dated August 2, 2000, that its proposal was being rejected.

5. Section 80.1 of the RFP provides that the proposals received shall be evaluated in six stages. It further recites that, "Any proposal that doesn't meet mandatory requirements shall be rejected." Section 80.3 of the RFP is the first stage. It is entitled, "Evaluation of the Mandatory Requirements of the Technical Proposal." Within this paragraph is a sentence which states, "Only proposals passing the mandatory requirements shall be considered in Phase 2." Mandatory requirement 7 states, "Does the proposer meet the requirements of Section 10.5 - Organizations Eligible to Submit Proposals?" The terms of the RFP provide that these requirements are material requirements.

6. As noted, Section 10.5.2 requires documentation that the contractor has not been sanctioned within the last 10 years and no documentation addressing that issue was included in Petitioner's response to the RFP. At the hearing, Pate McCartney testified that, he was Petitioner's staff person responsible for preparing the response to ACHA's RFP. Mr. McCartney stated that he made a telephone call to ACHA sometime after July 27, 2000, and verbally provided ACHA with the information required by Section 10.5.2 of the RFP. The deadline for receipt of proposals was July 27, 2000, at 4:00 p.m. A telephone call does not meet the definition of documentation as that term is used in Section

   10.5 of the RFP. Even if one assumes, for sake of argument, that a telephone call complied with the requirements of Section 10.5 of the RFP, the call came too late.

7. Upon consideration of the foregoing, it is concluded that no facts were presented which dispute Respondent's assertion that Petitioner was not responsive to the requirements of the RFP.

RECOMMENDATION

Based upon the foregoing, Intervenor's Motion for a Summary Recommended Order is granted. Accordingly, it is RECOMMENDED:

That the Agency for Health Care Administration enter a final order denying Petitioner's request for relief and dismissing its bid protest.

DONE AND ENTERED this 8th day of November, 2000, in Tallahassee, Leon County, Florida.

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2000.

COPIES FURNISHED:

Martha Harrell Chumbler, Esquire Carlton, Fields, Ward, Emmanuel,

Smith & Cutler, P.A. Post Office Box 190

Tallahassee, Florida 32302

James G. Council, Esquire

First Health Services Corporation 4300 Cox Road

Glen Allen, Virginia 23060

Barrett G. Johnson, Esquire Johnson & Associates, P.A. Post Office Box 1308 Tallahassee, Florida 32303

J. Stephen Menton, Esquire Rutledge, Ecenia, Purnell

& Hoffman, P.A.

215 South Monroe Street, Suite 420 Post Office Box 551

Tallahassee, Florida 32302-0551

William Roberts, Esquire Steven Grigas, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Building Three, Suite 3431 Tallahassee, Florida 32308

Lloyd M. Weineman, Esquire Crowell & Moring LLP

1001 Pennsylvania Avenue, Northwest Washington, DC 20004-2595

Sam Power, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive

Building 3, Suite 3431

Tallahassee, Florida 32308

Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Building 3, Suite 3431

Tallahassee, Florida 32308

Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration 2727 Mahan Drive

Building 3, Suite 3116

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 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: 00-004031BID

Orders for Case No: 00-004031BID