STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VISIONQUEST NATIONAL, LTD.,

Petitioner,

vs.

DEPARTMENT OF JUVENILE JUSTICE,

Respondent.

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) Case No. 02-2825BID

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RECOMMENDED ORDER

This case has been submitted upon stipulated facts whereby the parties and the Administrative Law Judge agreed to proceed before the Division of Administrative Hearings.

Section 120.569(1), Florida Statutes.

APPEARANCES

For Petitioner: H. B. Stivers, Esquire

Levine Stivers & Myers

245 East Virginia Street Tallahassee, Florida 32301

For Respondent: Brian Berkowitz, Esquire

Department of Juvenile Justice 2737 Centerview Drive, Suite 312

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUES

In its formal written protest, Petitioner VisionQuest National, Ltd. (VisionQuest), through paragraph 6.d. and e., challenged the manner in which Respondent Department of Juvenile Justice (DJJ) assigned and weighed points in

accordance with specifications set forth in RFP I5J01 (the RFP). The first issue to be resolved concerns the timeliness of that challenge to the specifications. The aspects of the RFP specifications challenged in the formal written protest are related to the assignment of points for past performance in carrying out contracts with DJJ for non-residential programs which can total 250 out of 1000 possible points in the competition. Section 120.57(3)(b), Florida Statutes.

The second issue to be resolved concerns the appropriate disposition in the case where DJJ has conceded that the actions of some of its evaluators in considering responses to the RFP materially deviated from agency policy and the expectations in the RFP, thus compromising the evaluation process. Section 120.57(3)(f), Florida Statutes.

PRELIMINARY STATEMENT

On April 12, 2002, the RFP was issued for "84 Community- based Conditional Release Slots in Orange and Osceola Counties." Proposals in response to the RFP were to be opened on May 14, 2002. VisionQuest and two other vendors timely submitted responses to the RFP. On June 4, 2002, DJJ posted its notice of intent to award the contract. VisionQuest was not the successful bidder. VisionQuest timely filed its notice of protest with DJJ. Its formal written protest was timely filed on June 17, 2002, with the Agency. On July 17,

2002, the case was received by the Division of Administrative Hearings for consideration in accordance with Section 120.57(3)(e) and (f), Florida Statutes.

The case was set to be heard on August 15, 2002, before Stephen F. Dean, Administrative Law Judge. The parties stipulated to reset the hearing for September 17, 2002. The case was reset for the latter date.

On September 5, 2002, DJJ moved to relinquish jurisdiction on the following grounds:

1. During a pre-hearing discovery deposition, there was testimony that two of the three Department employees assigned to evaluate the responses to the RFP met to discuss the evaluation process and began scoring one of the proposals. While it is not clear that the two evaluators collaborated on their scoring the proposals, their meeting was contrary to the Department's policy and procedure for evaluating bid proposals.

   
   

2. The Department requests DOAH relinquish jurisdiction in this case, to allow the Department to select a new evaluation team to review and score the e programmatic portions of the proposals consistent with the Department's policies and procedures. The Department has determined that a new evaluation is the best and most efficient means of addressing the situation.

   
   

3. Re-scoring of the proposals may moot the pending protest. In the interest of judicial economy, the current protest should not continue.

VisionQuest responded in opposition to the motion to relinquish jurisdiction. Oral argument was presented on the

motion. On September 12, 2002, an order was entered denying the motion to relinquish.

On September 13, 2002, counsel for DJJ wrote to Judge Dean to apprise him that the parties had agreed to stipulate to the facts in the case and leave only issues of law to be resolved. As a consequence, the hearing would not be necessary. The correspondence asked that the hearing be cancelled and that the parties be allowed to submit stipulated facts, legal questions and proposed recommended orders.

On September 16, 2002, Judge Dean entered an order canceling the September 17, 2002 hearing and granting the parties until September 26, 2002, to submit their stipulations and proposed recommended orders.

On September 25, 2002, DJJ, with VisionQuest's agreement, moved to extend the time for submitting the stipulation of facts and proposed recommended orders until October 2, 2002.

The parties were orally informed that that extension was granted.

On October 2, 2002, the parties filed stipulated facts and joint exhibits A through L. The stipulated facts and exhibits are received and made part of the record. On that same date the parties submitted proposed recommended orders which have been considered in preparing the recommended order.

The order is entered by the undersigned in substitution for Judge Dean upon the agreement of counsel as confirmed in writing on December 5, 2002.

FINDINGS OF FACT

STIPULATED FACTS

1. On or about April 12, 2002, DJJ issued an RFP under Solicitation Number I5J01 for "84 Community-based Conditional Release Slots in Orange and Osceola Counties." DJJ appointed one of its employees, Diana Blue, as the Contract Administrator for this RFP. As a Contract Administrator, she had the duties and obligations of the Source Selection Evaluation Team Chairperson. On or about April 10, 2002, Deborah H. Dickerson, DJJ's Chief Probation Officer for the 9th Circuit, appointed Shelley Maxwell, Nathan Marcou and Marcus Freeman as the evaluation team for RFP I5J01.

2. The evaluation team was to review the responses to the RFP and subjectively evaluate the categories labeled "C.2

   - Management Capability" and "C-4 - Program Services." These two criteria combine for a possible 550 points out of a possible 1000. Each category is further broken down into subcategories: C.2 - Management Approach and Organizational Structure and C.4 - Soundness of Approach and Comply with Retirements.

3. The RFP also provides for an objective review of the responses in some respect. The RFP provides for up to 250 points, out of the possible 1000, to be awarded in the area of past performance. One way these points are earned is by a provider having operated a DJJ Program(s) within the last three years and the program(s) having earned a "commendable or higher recognition." Such a program(s) would receive 20 points for each year, thereby allowing a single program to earn multiple scores, or multiple programs to earn multiple scores.

4. A second way these points are earned is by a provider having operated a DJJ Program(s) within the last two years and the program(s) having met or exceeded DJJ's approved Performanced Based Budgeting performance measure for recidivism rates. Such a program(s) would receive 20 points for each year, thereby allowing the single program to earn multiple scores, or multiple programs to earn multiple scores.

5. VisionQuest, Eckerd Youth Alternatives (Eckerd) and Children's Comprehensive Services (CCS) submitted timely responses to the RFP which were due no later than May 14, 2002.

6. On May 14, 2002, the evaluation team was contacted and provided addresses so they could receive the RFP and the responses. This was the first contact the evaluation team had

   with anyone regarding their role on the evaluation team since the date of their appointment, April 10, 2002. Some of the evaluation team received their packages on Friday, May 17, 2002 and were to have their evaluations back on Tuesday,

   May 21, 2002. At least one of the evaluation team members did not receive their packages until Monday, May 20, 2002. The date to return the evaluations was extended to Wednesday,

   May 22, 2002. In this package was the RFP, the responses to the RFP, a score sheet, the Briefing for Source Selection Evaluation (SSET) Team Members and Advisors Form, and Conflict of Interest Questionnaire.

7. Shelley Maxwell, evaluator number 3 for this RFP, is a DJJ probation officer for Osceola County. Part of Ms. Maxwell's responsibilities are to oversee the youth assigned to the current contract provider of community based conditional release slots in Osceola County, VisionQuest. Ms. Maxwell has no experience with RFPs, the evaluation of responses to RFPs nor has she received any training with

   regards to an RFP. Ms. Maxwell was not told what she would be doing or given any instruction between the time of being appointed to the evaluation team and receiving her materials.

8. Ms. Maxwell reviewed her packet of materials on Friday, May 17, 2002, and was still unclear on what was expected of her. She then contacted a DJJ supervisor who

   informed her to review the responses and evaluate them. Upon learning that VisionQuest had submitted one of the responses she was to review, Ms. Maxwell thought that she and Nathan Marcou had been appointed to the evaluation team because they worked with VisionQuest on a daily basis. This allowed them to compare VisionQuest's written response with the daily activities of the current program.

9. On Monday, May 20, 2002, Ms. Maxwell met with Nathan Marcou. Ms. Maxwell was told to get together with the other team members and perform the evaluations. Ms. Maxwell and Mr. Marcou discussed the proposal they were reviewing during this meeting, which was Eckerd's.

10. Ms. Maxwell later reviewed the proposals from CCS and VisionQuest at home during the evening of Monday, May 20, 2002. In evaluating the response to the RFP filed by VisionQuest, Ms. Maxwell used her knowledge obtained through her day-to-day contact with VisionQuest. Her knowledge further affected the scores she awarded to VisionQuest.

11. Ms. Maxwell signed her Briefing for Source Selection Evaluation (SSET) Team Members and Advisors Form, Conflict of Interest Questionnaire, and score sheets for CCS and VisionQuest on May 20, 2002. Her score sheet for Eckerd's response is not signed. Ms. Maxwell submitted her paperwork

    to go to the main office in Orlando, and then on to Tallahassee via courier.

12. Based on the evaluations, DJJ issued a notice of intent to award a contract to Eckerd posted June 4, 2002. VisionQuest timely filed its Notice of Intent to Protest and its Formal Protest Petition and Request for Hearing. During the pendency of this action, DJJ has admitted that the evaluation process of RFP I5J01 was flawed and contrary to DJJ's policies and practices.

13. In an attempt to remedy the flaws, DJJ desires to conduct a new evaluation of the RFP responses with a new evaluation team. VisionQuest desires to have the RFP rebid.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in accordance with Sections 120.569(1) and 120.57(1) and (3), Florida Statutes.

15. Among other grounds the formal written protest challenges the bid award based upon the allegations that:

    1. The RFP assigns and weighs points to categories of the RFP responses in such a way as to result in an arbitrary and capricious evaluation of each response to the RFP.

       
       

    2. The RFP assigns and weighs points to categories of the RFP responses in such a way as to be contrary to competition.

16. This refers to the RFP Attachment C Evaluation Questionnaire for Past Performance and Attachment D Evaluation Criteria, to include reference to past performance with the prospect that a company with a history of past performance would receive additional points for that service.

17. The opportunity to contest the aforementioned specifications through paragraphs 6.d. and 6.e. to the formal written protest is controlled by Section 120.57(3)(b), wherein it is stated:

    . . . With respect to a protest of the specifications contained . . . in a request for proposals, the notice of protest shall be filed in writing within 72 hours after the receipt of notice of the project plans and specifications or intended project plans and specifications in . . . (a) request for proposals, and the formal written protest shall be filed within ten days after the date of protest is filed.

    Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter.

    
    

    The record does not reveal that a notice of protest or formal written protest was timely filed challenging the specifications when made known to VisionQuest. As a consequence, VisionQuest waived its right to challenge the specifications by its failure to timely file in opposition to the specifications described. Optiplan v. School Board of Broward County, 710 So. 2d 569 (4th DCA 1998). On May 14, 2002, DJJ provided its notice of intended contract award. The

    notice of protest and formal written protest which followed did not allow a protest of the specifications at that point in the process.

18. DJJ, in its notice of intended contract award, proposed agency action, ranked Eckerd, CCS and VisionQuest in order of preference. In this proceeding de novo the agency has abandoned the selection process that would lead to a contract award given its procedural transgressions but it does not favor the rejection of all bids leading to a rebid. Instead, it prefers to reconvene the process, select new evaluators, re-score the responses and presumably amend its notice of intended contract award to coincide with those results. This arrangement would create a new point of entry to challenge the amended notice of intended contract award no less so than had the agency expressed its intention to reject all bids and rebid the project when it discovered its material error in the evaluation process. Either the return of the matter for the agency to reconvene the process by picking new evaluators, evaluation and ranking or starting the entire process again by rejecting all bids and rebidding, contemplate the prospect that other vendors, namely Eckerd and CCS, would have a point of entry to contest the results in addition to opportunity for VisionQuest to contest the results. The proposal to return for selection of new evaluators, evaluation

    and ranking leading to an amended intended contract award is not described in governing statutes, agency rules or existing policies or the RFP specifications, whereas the opportunity to reject all bids at this time with the prospect of re- soliciting responses to an RFP is a procedure recognized in Section 120.57(3)(f), Florida Statutes. In particular, there is no indication that the choice to resubmit the responses in this RFP for consideration by new evaluators is pursuant to an existing policy. Rather this choice is one designed to rectify the problem limited to this case.

19. DJJ cites the court case G-TECH Corp. v. Department of Lottery, 737 So. 2d 615 (lst DCA 1999), as creating the opportunity to conclude the process under the present RFP through the process of assigning new evaluators, conducting further evaluation and ranking the offers leading to a new notice of intended contract award. In G-TECH the original evaluators had performed the evaluation of the responses to that RFP, ranked the vendors within the context of their part of the evaluation process and explained the results at hearing. Given subsequent clarification of the responses to the RFP provided by the vendors at hearing, it was recommended that the Lottery secretary allow the evaluators access to those explanations, resulting in the opportunity for the original evaluators to re-score the proposals and testify

    concerning the results of rescoring. This bifurcation of the proceeding was accepted by the Lottery secretary. This process was condoned by the appellate court on appeal after the entry of a recommended order and a final order taking into account the adjusted scoring by the original evaluators. In the G-TECH bid process the evaluators had not acted inappropriately in their evaluation. They were unmindful of the evidence presented by the respective vendors explaining items in responses to the RFP when offering their testimony as evaluators in the initial session of the hearing. As a matter of logistics it was recommended and the Lottery secretary allowed for those evaluators to have exposure to the explanations by the vendors' experts concerning technical information. This was in aid of a more thorough understanding of bid responses limited to those issues and the opportunity to take into account the information through a reconvened session of the hearing. The G-TECH arrangement for a second hearing session occurred in a setting where a case of great complexity had for the most part been completed before recommending that the limited opportunity for further evaluation be afforded the original evaluators. By contrast, other than the act of re-solicitation of responses pursuant to a new RFP, the assignment of new evaluators, the conduct of an evaluation, ranking and notice of intended contract award is

    the same pursuit as the proposal to return this RFP for further consideration. In this instance the better choice would be to reject all bids in favor of a re-solicitation to make a clean breast of the matter. It is the method ordinarily employed.

20. Ultimately, this is a question of the appropriate procedural approach for the future, DJJ having conceded that their error affected the substance of the competition at this juncture. With that in mind, it is

RECOMMENDED:

That a final order be entered rejecting the protest set forth in Paragraph 6.d. and e. to the formal written protest as an untimely challenge to the RFP specifications and that all bids be rejected in RFP I5J01.

DONE AND ENTERED this 17th day of December, 2002, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 17th day of December, 2002.

COPIES FURNISHED:

Brian Berkowitz, Esquire Department of Juvenile Justice 2737 Centerview Drive, Suite 312

Tallahassee, Florida 32399-3100

H. B. Stivers, Esquire Levine Stivers & Myers

245 East Virginia Street Tallahassee, Florida 32301

William G. Bankhead, Secretary Department of Juvenile Justice Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building

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: 02-002825BID

Orders for Case No: 02-002825BID