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KEYSTONE EDUCATION AND YOUTH SERVICES vs DEPARTMENT OF JUVENILE JUSTICE, 05-002447BID (2005)

Court: Division of Administrative Hearings, Florida Number: 05-002447BID Visitors: 8
Petitioner: KEYSTONE EDUCATION AND YOUTH SERVICES
Respondent: DEPARTMENT OF JUVENILE JUSTICE
Judges: DIANE CLEAVINGER
Agency: Department of Juvenile Justice
Locations: Tallahassee, Florida
Filed: Jul. 08, 2005
Status: Closed
Recommended Order on Monday, December 12, 2005.

Latest Update: Jan. 13, 2006
Summary: The issue in this proceeding is whether the Department of Juvenile Justice’s (“Department”) proposed award of Request For Proposals (RFP) D7102 is clearly erroneous and contrary to competition, arbitrary or capricious.The evidence did not establish that the award of the Request for Proposals violated Chapter 112, Florida Statutes where the former deputy director was employed by the winning bidder.
05-2447.PDF

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS


KEYSTONE EDUCATION AND YOUTH ) SERVICES, )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )


Case No. 05-2447BID

)


RECOMMENDED ORDER


Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Diane Cleavinger, held a formal hearing on September 28, 2005, in Tallahassee, Florida.

APPEARANCES


For Petitioner: Seann M. Frazier, Esquire

Greenberg Traurig, P.A.

101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32302


For Respondent: Brian Berkowitz, Esquire

Department of Juvenile Justice Knight Building, Room 312V 2737 Centerview Drive

Tallahassee, Florida 32399-3100


STATEMENT OF THE ISSUE


The issue in this proceeding is whether the Department of Juvenile Justice’s (“Department”) proposed award of Request For

Proposals (RFP) D7102 is clearly erroneous and contrary to competition, arbitrary or capricious.

PRELIMINARY STATEMENT


The Department issued a Request for Proposals No. D7102 to operate an 85-slot, non-residential conditional release program in Jacksonville, Florida. Petitioner Keystone Education and Youth Services (Keystone), the Henry and Rilla White Foundation (White Foundation or White) and others submitted proposals to the RFP. The Department selected the White Foundation as the lowest and best responsive proposal.

Keystone filed a formal written protest contesting the Department’s preliminary decision to award the contract to White instead of Keystone. The Protest alleged that the Department violated applicable statutes and bid specifications in a manner that was clearly erroneous and contrary to competition, based upon the following arguments:

  1. White’s Response to the RFP included management personnel that were prohibited by Florida law from personally representing White and White violated Chapter 112, Florida Statutes. Accordingly, White’s Response should have been rejected;


  2. The Department replaced evaluators in Duval County with knowledge and experience in the program areas and service requirements for contractual services sought in the RFP with evaluators that did not possess an equal knowledge and experience;


    and


  3. The Department’s evaluation of White’s bid awarded more points than were earned by White based upon its past performance on behalf of the Department.


At the hearing, Keystone offered the testimony of three witnesses and the deposition testimony of Mr. Jamie Evans, Ms. Vanessa Hargray, Mr. Edgar Mathis, Ms. Sharon Neelands, Mr. William Schossler, Jr., Mr. Anthony Shoemo and Mr. Greg Starling. Keystone also offered six exhibits into evidence. Additionally, the parties offered Joint Exhibits 1 through 13 into evidence. The Department did not call any witnesses.

After the hearing, the parties submitted Proposed Recommended Orders on October 28, 2005.

FINDINGS OF FACT


  1. In March 2005, the Department issued RFP No. D7102.


    The RFP sought proposals to operate an 85-slot conditional release program for girls and boys in Circuit Four (Duval County).

  2. On May 24, 2005, the Department posted its decision to award the contract to the White Foundation. The scores for each Respondent were as follows: White, 733.16, Keystone 627.09 and the Bridge of Northeast Florida, 538.67. Keystone, the incumbent contractor, filed a formal written protest of the proposed award.

  3. Prior to the RFP, Francisco J. Alarcon served from March 1999 through May 2004, as the Deputy Secretary for the Department. As such, he was second in command and oversaw various aspects of the Department. He did not have a major role in the procurement process and was limited to final signature approval on contracts that were awarded by the Department. As a former employee of the Department, Mr. Alarcon is bound by the requirements of Chapter 112, Florida Statutes, and is prohibited for two years following his employment with the Department until 2006 from personally representing a client for compensation before the Department.

  4. Upon his resignation from the Department in May 2004, Mr. Alarcon was employed by the State of Georgia Department of Juvenile Justice for approximately five months until about October or November 2004. He subsequently left that position to perform private consulting work. As a consultant, he worked with Correctional Services of Florida (CSF), a subsidiary of White, around October/November 2004. CSF was formed by White in April 2004 and entered into its first contract with the Department in May 2004. Mr. Alarcon’s consulting services were limited to project specific engagements.

  5. One such project occurred on February 18, 2005, prior to the release of the RFP by the Department. He attended a quality assurance meeting on that date for a program that was

    operated by CSF. The evidence did not show the role, if any, Mr. Alarcon played in the meeting. Likewise, the evidence did not show that attendance at this meeting had any impact on or related to the RFP in this case or that anyone associated with that meeting was aware of the RFP at the time the meeting occurred in February. Finally, there was no evidence that quality assurance scores were generated from this meeting, or, if there were such scores established, that those scores were undeserved.

  6. Around December 2004 or January 2005, Mr. Alarcon began discussions with the White Foundation regarding whether he should join the organization and serve as a full-time employee.

  7. Knowing that Chapter 112, Florida Statutes, governed his activities, Mr. Alarcon sought guidance from the Commission on Ethics as to what scope of employment he might be able to assume with the White Foundation. He started that process in December 2004 and ultimately made a written request during the first part of January 2005.

  8. On January 11, 2005, an attorney from the Commission on Ethics, Ms. Julia Cobb Costas, responded to Mr. Alarcon’s request. The letter ostensibly described what employment

    Mr. Alarcon could accept with White despite its contracts with the Department. However, the letter began by specifically warning Mr. Alarcon about the requirements of Section 112.313,

    Florida Statutes, and it prohibited Mr. Alarcon from personally representing a client for compensation before his former agency for two years.

  9. Eventually in late February 2005, Mr. Alarcon was offered and accepted a full-time position as vice president of Residential and Community Relations with White. In this position, Mr. Alarcon supervises White’s program directors who oversee and operate White’s facilities that have contracts with the Department.

  10. The programs overseen by Mr. Alarcon include the Tiger Success Program, a Jacksonville Intensive Family Treatment Home contract, conditional release programs in Circuits two, three and four, and intensive delinquency diversion service programs in Circuits two, three and eight.

  11. As part of normal quality assurance activities, employees of the Department, as well as outside peer reviewers, annually audit every program in the state. As part of his role as operations chief Mr. Alarcon was present at either entrance or exit interviews on behalf of the White Foundation during some quality assurance meetings with employees of the Department. He may have also attended other meetings with departmental employees as well. Those appearances were unrelated to the RFP and were generally limited to responding to questions regarding

    program operations under other contracts White had with the Department.

  12. On April 18, 2005, Mr. Alarcon attended a quality assurance entrance conference concerning the Tiger Shop, a high- risk residential program for boys operated by a subsidiary of the White Foundation. The White Foundation assumed the Tiger Shop contract from another provider. Mr. Alarcon was aware that there were quality concerns at the Tiger Shop before the White Foundation stepped in to take over the contact from the incumbent provider. It was part of his operational directive to improve the quality of the Tiger Shop. As a result of the quality assurance process, in which Mr. Alarcon was only partially involved, the reviewing panel found that the Tiger Shop passed quality assurance for the first time in some years. Employees of the Department were in attendance at that meeting. During that meeting, Mr. Alarcon responded to one question that came up in regard to vacancies.

  13. On June 21, 2005, Mr. Alarcon attended a question-and- answer entrance conference for conditional release services in Circuit four. The meeting comprised departmental employees that once worked for Mr. Alarcon when he served as Deputy Secretary of that Department. Again his role was to provide information.

    On March 9, 2005, Mr. Alarcon reviewed an IDDS Circuit two corrective action plan with Department employees including Jan Aby, Chief Probation Officer for the Circuit.

  14. In June 2005, Mr. Alarcon attended a meeting with Thomas Dunn of the Department to discuss the transition of a contract for conditional release in Circuit two, and to make sure that the transition went smoothly.

  15. On June 23, 2005, Mr. Alarcon attended a meeting to again assist in the transition of a contract for a new conditional release contract in Circuit three. That meeting included the Department’s Chief Probation Officer for that Circuit to make sure the White Foundation had a smooth transition in taking over another provider’s contract.

  16. During each of these meetings, Mr. Alarcon was compensated either as a consultant or as an employee of the White Foundation. However, the evidence did not show that these meetings related to the RFP at issue here or that the role

    Mr. Alarcon played violated Chapter 112, since it appears that his participation was limited to supplying information to the Department and did not involve advocating a certain action by the Department.

  17. Mr. Alarcon also served on the executive management team for the White Foundation. The executive team consisted of three individuals, William R. Schossler, president and CEO,

    Patsy Schossler, vice president for Behavioral Healthcare Services, and Mr. Alarcon. The executive team determines which RFP’s the Foundation should respond to. The White Foundation has pursued five such contracts since Mr. Alarcon was employed by the Foundation. Those contracts were:

    1. A conditional release program in Nassau County.

    2. A conditional release program in Circuit two.

    3. A conditional release program in Circuit three.

    4. The contract at issue in this case, and

    5. A program in Monticello.


      Except for the program in Monticello, the White Foundation was awarded the contracts under the relevant RFP. The evidence did not show the White Foundation’s past rate of success in the contracts it pursued.

  18. In this case, Mr. Alarcon was in favor of the team’s decision to submit a response to the RFP at issue here. However, beyond his favorable position, Mr. Alarcon did not prepare or participate in the preparation of the RFP at issue here.

  19. The RFP specifications included a description of the proposed scope of services and incorporated several standard forms, including Form PUR 1001 “General Instructions to Respondents.” The RFP warned prospective providers that they must “comply fully” with the RFP specifications.

  20. The RFP specifications and Form PUR 1001 stated that, ”This solicitation is subject to Chapter 112, Florida Statutes.” Chapter 112, Florida Statutes, in relevant part, prohibits a former state employee from personally appearing before his or her former employer on behalf of another for compensation for two years after the employee leaves state employment. Additionally, the RFP provided as follows:

    a. Management Capability-Services

    1. This section shall reasonably and logically identify the management approach to plan, control, and manage the program, in accordance with requirements identified in Exhibit One, Scope of Services.

    2. This section shall also identify how the prospective Provider’s organizational structure provides the capability to perform the services required.

    3. An organizational chart for the Provider and one for the Program shall be included.


  21. Attachment B, General Instructions for the Preparation and Submission of Proposals, Section XVIII, E, Past Performance, of the RFP required each prospective provider to demonstrate its knowledge and experience in operating similar programs by providing information as required in the RFP, both inside and outside of Florida and on similar non-residential programs operated by the prospective provider that have attained professional accreditation. Accreditation was not defined in the RFP. Scores were based on Quality Assurance scores published as of the day the RFP was opened.

  22. Attachment G, Contract, Section AB, of the RFP, Quality Assurance Standards, required that each provider be able to achieve and maintain at least an overall performance rating in the “minimal” range for applicable quality assurance standards, and stated that failure to maintain such level of performance would cause the Department to conduct a second quality assurance review within six months. This provision further provided that the contract would not be cancelled so long as compliance was achieved within six months.

  23. In its response to the RFP, the White Foundation proposed to have Mr. Alarcon oversee the control and management of all operations proposed by the Foundation. Its response included an Organizational Chart that identified Mr. Alarcon as ultimately responsible for the contract.

  24. The White Foundation’s response to the RFP referenced Mr. Alarcon’s recent employment with the Department and stated:

    For five years, Frank Alarcon was the Deputy Secretary for the Florida Department of Juvenile Justice, providing direction to all branches of the agency, including Probation and Community Corrections.


    However, including Mr. Alarcon’s name in its response to the RFP did not violate Chapter 112 since such information does not constitute a personal appearance by Mr. Alarcon before the Department, his former employer and did not demonstrate that Mr. Alarcon’s participation in programs like the one here while

    employed with the Department was substantial. Moreover, the evidence did not demonstrate that Mr. Alarcon’s role as Operations Chief would violate Chapter 112, especially since Chapter 112 has not been interpreted to be a bar to all contact between a former employee and their employing agency.

  25. As indicated earlier, RFP responses were evaluated on quality assurance scores that had been published at the time the RFP’s were opened. Quality assurance reviews result in a variety of Quality Assurance Scores. Compliance with a series of indicators is measured, with a percentage reported as to how many are met. Scores are also reported for the percentage of standards that are met as found by the quality assurance activities.

  26. Paul Hatcher serves at a Senior Management Analyst II with the Probation and Community Corrections Branch of the Department. As part of his responsibilities, he assists in the procurement of contracts for the Department. He performs past performance evaluations for RFPs.

  27. To determine past performance scores, Mr. Hatcher looked only to published quality assurance reports already assembled by the Department. No discretion is used by

    Mr. Hatcher when translating previous quality assurance scores into points to be used in the RFP evaluation. He simply converts quality scores into points for past performance.

  28. Mr. Hatcher used the average of five quality assurance scores to determine the points that the White Foundation was awarded for past performance. These represented the scores for facilities that White listed in response to the RFP that were similar non-residential programs to the one outlined in the RFP. A sixth program, was not scored because it had not been in operation long enough to have a valid quality assurance score.

  29. After the responses were evaluated and scores were published, Mr. Hatcher, noticed a small mathematical error and slightly lowered one score contained in the average score he assigned to the White Foundation. The corrected score had no material impact on the overall ranking of White and Keystone.

  30. Overall, 100 points were available for past performance and compliance. The criteria that the past performance review was based on and limited to similar programs was applied uniformly to all potential providers. The scores reported for this RFP response showed that the White Foundation had nearly 100 percent compliance and 75 percent performance scores.

  31. In statistics published by the Department in 2004, White’s overall quality assurance score was 64 percent and was labeled as “minimal performance.” White’s score ranked 81 among

    83 providers in the state. Likewise, in February 2005, White received a Quality Assurance Program Review of its Group

    Treatment Homes in Jacksonville, Duval County, Florida. White’s facility received a score of only 64 percent which was labeled as “minimal performance.” However these 2004 statistics and 2005 scores either included or involved scores for programs that were not similar to the program outlined in the RFP. Therefore, these statistics were not used by the Department in its evaluation because they were not specified in the RFPs evaluation criteria. The decision by the Department not to use these statistics was well within its authority and was not arbitrary or capricious.

  32. Additionally, the quality assurance scoring for the RFP called for a deduction of points if a provider failed to report important incidences. In Jacksonville, at a non-similar residential program operated by White, there were numerous instances of failures to report various incidences. The Department’s Quality Assurance Report for this facility found that five youths had been Baker Acted for suicidal thoughts, gestures or self-mutilation but, four of those incidents were never properly reported. The Department properly did not deduct points for these failures to report since the Jacksonville program was not similar to the program outlined in the RFP.

  33. Finally, 10 points were to be awarded for each accredited program a provider operated. The Department awarded White 30 points for this category, indicating that it operated

    three accredited programs. One of the programs was for White’s Clay County facility.

  34. Ten points were awarded for White’s Clay County facility. The Clay County program had been the facility that was too recent to have a valid quality assurance score. However, the evidence did not show that accreditation by a private organization required any length of service or that shortness of service precluded accreditation acceptable to the Department. The Department’s acceptance and award of 10 points was appropriate and not arbitrary or capricious.

  35. The White Foundation submitted a single accreditation form, from an organization know as “CARF,” to document their three accredited programs. The evidence did not demonstrate that CARF was not an appropriate accrediting agency. The CARF accreditation lists the types of services White was accredited for, but does not identify any accreditation for a particular program in any of the three particular locations submitted by White for scoring. The Department reasonably accepted such document as proof of accreditation.

  36. In the past, the Department has used qualified individuals from the circuit for which the RFP program is located. For example Circuit four employees evaluated Circuit four procurements. In theory, under the old system, juvenile probation officer supervisors served as evaluators and would

    receive training if they were going to be an evaluator. The old system, in theory, allowed people with direct knowledge and experience to evaluate responses or bids to meet their local needs.

  37. In 2005, the Department created a new method for selecting evaluators for all of its RFPs. The reason for the change was to streamline training and remove any perceived influence that might be created due to relationships between local personnel and providers. There was no indication of specific problems that caused a change in the old system of evaluation. It was simply a management decision that any agency is entitled to make in order to perform its duties and operate the agency. There was no evidence that demonstrated or suggested that this change in the evaluation process either related to this RFP or was done for some illegal purpose.

  38. In the new process, assistant chief probation officers from around the state were called upon to review RFPs for their neighboring circuits. The out-of-circuit reviewers were selected on a random basis. Thus, a probation officer from Broward County might review a Duval County contract or vice versa. There was no evidence that these assistants did not possess the experience and knowledge required to review these RFP’s. More importantly, there was no evidence that any of the evaluators who reviewed this RFP were unqualified.

  39. During this change in process, the contract for Circuit four’s conditional release program was expiring, and as part of her normal responsibilities, Ms. Carr, the local area supervisor, assembled an evaluation team of local evaluators per instructions she received early in the contract process. The instructions related to several contracts, including the conditional release program at issue in this case.

  40. On April 28, 2005, Ms. Carr sent instructions to the team of local evaluators. At some point, she was notified that the Department had a new process for RFP evaluation and that the new process would be followed on this RFP. On May 3, 2005,

    Ms. Carr instructed her local evaluators that they would no longer be needed to conduct an evaluation.

  41. A set of three new evaluators were chosen under the new process. The three evaluators were Vanessa Hargray, Anthony Shoemo and Greg Starling. None were from Circuit four. All three scored the White Foundations management capabilities more highly than Keystone’s.

  42. Reviewer Vanessa Hargray knew of Mr. Alarcon during his tenure as Deputy Secretary. She scored White’s management capabilities higher than Keystone’s (128 vs. 108 points). Even though her explanation of her score was vague, there was no evidence that her knowledge of Mr. Alarcon influenced her scoring of the proposals.

  43. Reviewer Anthony Shoemo also scored White’s management capabilities more highly than Keystone’s (134 vs. 98 points). Mr. Shoemo did not remember that Mr. Alarcon was listed in White’s RFP Response. His explanation as to why he scored White’s management as superior was also vague. However, there was no evidence that Mr. Alarcon’s role in White influenced his scoring of the proposals.

  44. Finally, Reviewer Greg Starling also scored White’s management capabilities higher than Keystone’s (147 vs. 128 points). There was no evidence that Mr. Alarcon’s role in the management of White influenced his scoring. In the score sheets reflecting Mr. Starling’s evaluation of White’s proposal, he wrote “Good relationships already established.” When questioned what he meant by the statement, Mr. Starling could offer no adequate explanation. However, the comment is otherwise unclear since the Foundation had other contractual relationships with the Department. Moreover, review of management capabilities involves review of many non-objective qualities and the lack of specific reasons for preferring one proposal over another does not form an adequate basis under these facts to infer some undue influence on the part of the White Foundation that would disqualify its response to the RFP or that Chapter 112 had been violated.

    CONCLUSIONS OF LAW


  45. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. See §§ 120.569, 120.57(3), Fla. Stat.

  46. The burden is on Keystone, as Petitioner, to establish by a preponderance of the evidence that the proposed award of an RFP is clearly erroneous, contrary to competition, arbitrary, capricious or violates the agencies’ statutes or RFP specifications. Department of Transportation v. J.W.C. Co. Inc., 396 So. 2d 778 (Fla. 1st DCA 1981) State Contracting and

    Eng’g Corp. v. Department of Transportation, 709 So. 2d 607, 609 (Fla. 1st DCA 1998).

  47. Section 120.57(3)(f), Florida Statutes, sets forth the burden of proof, as follows:

    In a competitive-procurement protest,. .

    .the administrative law judge shall conduct a de novo proceeding to determine whether the agency’s governing statutes, the agency’s rules or policies, or the solicitation specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious.


  48. A capricious act is one which is taken without thought or reason or is irrational. Agrico Chemical Co. v. Dept. of Environmental Regulation, 365 So. 2d 759, 763 (Fla. 1st DCA

    1978). An arbitrary decision is one that is not supported by facts or logic. Id.

  49. A “responsive bid” is a bid or proposal which conforms in all material respects to the invitation to bid or request for proposal. See § 287.012(25), Fla. Stat. To demonstrate that a decision is “clearly erroneous,” it need only be shown that the “agency’s interpretation conflicts with the plain and ordinary intent of the law,” and in such instances, “judicial deference need not to be given to it.”

    See Colbert v. Department of Health, 890 So. 2d 1165, 1166 (Fla. 1st DCA 2004).

  50. The contrary to competition standard requires a showing that the action complained of: (a) creates favoritism;

    (b) erodes public confidence that contracts are awarded equitably and economically; (c) causes the procurement process to be genuinely unfair or unreasonable; or (d) is unethical, dishonest, illegal, or fraudulent. See, e.g., R.N. Expertise Inc., v. Miami-Dade County School Board, et al., Case No. 01- 2663BID, 2002 WL 185127, 21-22 (Fla. Div. Admin. Hrgs. Feb. 4, 2002); See also E-Builder v. Miami-Dade County School Board, et al., Case No. 03-1581BID, 2003 WL 22347989, 10(Fla. Div. Admin. Hrgs. Oct. 10, 2003).

  51. In this case, Petitioner asserts that the Department erred by failing to reject White’s RFP Response once it became apparent that White’s response violated Section 112.313(9)(a)4., Florida Statutes, because the Department’s former Deputy Secretary, Mr. Alarcon, was employed by White, sat in on some quality assurance meetings, and/or was referenced in the RFP response.

  52. Section 112.313(9) is titled “Postemployment Restrictions” and provides:

    No agency employee shall personally represent another person or entity for compensation before the agency for which he or she was employed for a period of two years following vacation of position, unless employed by another agency of state government.


    Section 112.312(22) defines “represent” or “representation” as actual physical attendance on behalf of a client in an agency proceeding, the writing of letters or filing of documents on behalf of a client, and personal communications made with the officers or employees of any agency on behalf of a client.

    However, the evidence did not show that Mr. Alarcon violated Chapter 112 relevant to this RFP or created some influence on the Department by his indirect role as Operations chief.

  53. The discretion afforded state agencies in public contracting is not unbridled and can be overturned when the purpose of competitive procurement has been subverted. Wood

    Hopkins Contracting Company v. Roger Au & Son, Inc., 354 So. 2d


    446 (Fla. 1st DCA 1988). Procurements must be free of the appearance of conflicts of interest, which otherwise would interfere with the recognized objectives of competitive bidding:

    [T]o protect the public against collusive contracts; to secure fair competition upon equal terms to all bidders; to remove not only collusion but temptation for collusion and opportunity for gain at public expense; to secure the best values for the [public] at the lowest possible expense, and to afford an equal advantage to all desiring to do business with the [government], by affording for an exact comparison of bids.


    See Wester v. Belote, 138 So. 721, 723-24 and Harry Pepper &


    Associates, Inc., v. City of Cape Coral, 352 So. 2d 1190, 1192 (Fla. 2nd DCA 1977).

  54. White’s submission was responsive to the requirements of the RFP. The reference in the RFP to Mr. Alarcon’s role in the White Foundation was not shown to violate Section 112.313(9)(a)4., Florida Statutes, because he made no personal appearances on behalf of the Foundation relevant to the RFP. Referencing Mr. Alarcon in an RFP response soliciting a contract from the Department, is not a personal appearance before an agency and does not invalidate White’s RFP response.

  55. Similarly, such a reference does not violate Section 112.3185(3), Florida Statutes, which prohibits work in connection with a contract that the former employee participated

    in personally and substantially through decision or approval. The evidence did not demonstrate that Mr. Alarcon personally participated in any substantial manner in either this type of RFP or this RFP, in particular, when he was employed by the Department.

  56. Section 28.057 (17), states that for a contract the agency head shall appoint: “(a) At least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought. Keystone has failed to prove that the Department is in violation of this provision and has failed to prove that the change of evaluators constitutes a violation of the same provision. All evaluators chosen by the Department are experienced in their respective areas and are provided consistent training conducting RFP evaluations.

  57. Keystone has also failed to offer proof that the Department has violated any rules, policies, procedures, or statues by awarding accreditation points to White. The award of points in this case was well within any reasonable interpretation of the RFP specification and was neither erroneous, arbitrary or capricious. The record is clear that the RFP’s review criteria were equally applied by each Department employee involved. There is no proof that the

decisions by the Department employees were improper, arbitrary or capricious. Therefore, the Department’s decision should be

upheld.


RECOMMENDATION


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

RECOMMENDED that


The Department’s decision to award the contract to the White Foundation be upheld.

DONE AND ENTERED this 12th day of December, 2005, in Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 12th day of December, 2005.

COPIES FURNISHED:


Seann M. Frazier, Esquire Greenberg Traurig, P.A.

101 East College Avenue Post Office Box 1838

Tallahassee, Florida 32302-1838


Brian Berkowitz, Esquire Department of Juvenile Justice Knight Building, Room 312V 2737 Centerview Drive

Tallahassee, Florida 32399-3100


Anthony Schembri, 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

10 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case


Docket for Case No: 05-002447BID
Issue Date Proceedings
Jan. 13, 2006 Final Order filed.
Dec. 12, 2005 Recommended Order (hearing held September 28, 2005). CASE CLOSED.
Dec. 12, 2005 Recommended Order cover letter identifying the hearing record referred to the Agency.
Oct. 28, 2005 Proposed Recommended Order of Keystone Education and Youth 
Services, Inc. filed.
Oct. 28, 2005 Proposed Recommended Order by Department of Juvenile Justice filed.
Oct. 28, 2005 Notice of Filing; Proposed Recommended Order filed.
Oct. 17, 2005 Final Hearing (Transcript) filed.
Sep. 27, 2005 Deposition (W. Schossler) filed.
Sep. 27, 2005 Telephonic Deposition (E. Mathis) filed.
Sep. 27, 2005 Deposition (J. Evans) filed.
Sep. 27, 2005 Telephonic Deposition (S. Neelands) filed.
Sep. 27, 2005 Phone Deposition (V. Hargray) filed.
Sep. 27, 2005 Phone Deposition (A. Shoemo) filed.
Sep. 27, 2005 Telephonic Deposition (G. Starling) filed.
Sep. 27, 2005 Notice of Filing Original Transcripts of Depositions filed.
Sep. 26, 2005 Pre-hearing Stipulation filed.
Sep. 23, 2005 Notice of Filing Return of Service of Subpoena ad Testificandum Served on Francisco Alarcon filed.
Sep. 22, 2005 Notice of Taking Telephonic Deposition filed.
Sep. 20, 2005 Notice of Taking Telephonic Depositions (A. Shoemo and V. Hargray) filed.
Sep. 15, 2005 Notice of Taking Deposition filed.
Sep. 15, 2005 Notice of Taking Telephonic Deposition filed.
Sep. 14, 2005 Department of Juvenile Justice`s Response to Keystone Education and Youth Services` First Request for Production of Documents filed.
Sep. 07, 2005 Notice of Continuation of Taking Deposition filed.
Sep. 02, 2005 Amended Notice of Taking Deposition filed.
Sep. 02, 2005 Notice of Taking Telephonic Deposition filed.
Aug. 31, 2005 Notice of Taking Deposition filed.
Aug. 17, 2005 Department of Juvenile Justice`s Response to Keystone Education and Youth Services` First Request for Admissions filed.
Aug. 08, 2005 Notice of Taking Deposition Duces Tecum filed.
Aug. 08, 2005 Subpoena Duces Tecum (1) filed.
Aug. 08, 2005 Notice of Filing filed.
Aug. 03, 2005 Department of Juvenile Justice`s Response to Keystone Education and Youth Services` First Set of Interrogatories filed.
Aug. 01, 2005 Notice of Compliance with Pre-hearing Order filed.
Jul. 26, 2005 Notice of Taking Depositions Duces Tecum filed.
Jul. 26, 2005 Order Granting Continuance and Re-scheduling Hearing (hearing set for September 28, 2005; 9:30 a.m.; Tallahassee, FL).
Jul. 22, 2005 Notice of Filing filed.
Jul. 22, 2005 Motion to Continue filed.
Jul. 19, 2005 Keystone Education and Youth Services` Notice of Subpoena Duces Tecum for Deposition of William R. Schossler filed.
Jul. 19, 2005 Keystone Education and Youth Services` Notice of Subpoena Duces Tecum for Deposition of Frank Alarcon filed.
Jul. 19, 2005 Keystone Education and Youth Services` Notice of Subpoena Duces Tecum for Deposition of the Henry and Rilla White Foundation, Inc. filed.
Jul. 19, 2005 Keystone Education and Youth Services` First Request for Production of Documents to Department of Juvenile Justice filed.
Jul. 19, 2005 Keystone Education and Youth Services` First Request for Admissions to Department of Juvenile Justice filed.
Jul. 19, 2005 Keystone Education and Youth Services` Notice of Service of First Set of Interrogatories to Department of Juvenile Justice filed.
Jul. 19, 2005 Keystone Education and Youth Services` First Set of Interrogatories to Department of Juvenile Justice filed.
Jul. 18, 2005 Order of Pre-hearing Instructions.
Jul. 18, 2005 Notice of Hearing (hearing set for August 4, 2005; 9:30 a.m.; Tallahassee, FL).
Jul. 08, 2005 Procurement Protest Bond filed.
Jul. 08, 2005 Formal Written Protest and Petition for Formal Administrative Proceedings filed.
Jul. 08, 2005 Notice of Agency Decision filed.
Jul. 08, 2005 Notice of Protest filed.
Jul. 08, 2005 Agency referral filed.

Orders for Case No: 05-002447BID
Issue Date Document Summary
Jan. 11, 2006 Agency Final Order
Dec. 12, 2005 Recommended Order The evidence did not establish that the award of the Request for Proposals violated Chapter 112, Florida Statutes where the former deputy director was employed by the winning bidder.
Source:  Florida - Division of Administrative Hearings

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