;GE NCY C K

AHF MCO OF FLORIDA, INC. d/b/a PHC FLORIDA HIV /AIDS SPECIALTY PLAN ,

2018 DEC 2 r p 2: ts

Petitioner ,

V.

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRA TION,

Respondent ,

DOAH CASE NOS. 18-3507B!D

18-3508B!D

18-3512B!D AHCA ITN 010-17/18 (HIV/AIDS

Specialty Plan)

AHCA ITN 011-17/18 (HIV/AIDS

Specialty Plan)

RENDITION NO.: AHCA- 1 - o<..\1 3 -FOF-BID

and

SIMPLY HEALTHCARE PLANS, INC.,

Intervenor.

I SOUTH FLORIDA COMMUNITY CARE NETWORK , LLC d/b/a COMMUNITY CARE PLAN (SERIOUS MENTAL ILLNESS),

Petitioner , DOAH CASE NO. 18-351 lBID

AHCA ITN 010-17/18 (SMI Specialty Plan)

V.

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent ,

and

WELLCARE OF FLORIDA, INC. d/b/a STAYWELL FLORIDA,

Intervenor.

I

Filed January 3, 2019 2:40 PM Division of Administrative Hearings

SOUTH FLORIDA COMMUNITY CARE NETWORK, LLC d/b/a COMMUNITY CARE PLAN,

Petitioner, DOAH CASE NO. l 8-35 l 3BID

AHCA ITN 010-17/18 (CSN Specialty Plan)

V.

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent.

I SOUTH FLORIDA COMMUNITY CARE NETWORK, LLC d/b/a COMMUNITY CARE PLAN,

Petitioner, DOAH CASE NO. 18-3514BID

AHCA ITN 010-17/18 (CW Specialty Plan)

V.

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent,

and

SUNSHINE STATE HEALTH PLAN,

Intervenor.

I

FINAL ORDER

This case was referred to the Division of Administrative Hearings ("DOAH") where the assigned Administrative Law Judge (ALJ), John D. C. Newton II, conducted a formal administrative hearing. The issues in this proceeding are: 1) whether Petitioner, AHF MCO of Florida, Inc., d/b/a PHC Florida HIV/AIDS Specialty Plan ("Positive"), has standing to contest the intended award to Simply Healthcare Plan, Inc. ("'Simply") for Regions IO and 11 or to seek rejection of all proposals (DOAH Case Nos. 18-3507B1D and 18-3508BID); 2) whether the intended decision

of the Agency for Health Care Administration ("Agency'"), to contract with Simply for Medicaid managed care plans for HIV/AIDS patients in Region 10 (Broward County) and Region 11 (Miami­ Dade and Monroe1 Counties) should be invalidated and all proposals rejected (DOAH Case Nos. 18- 3507B!D and l 8-3508BID); 3) whether the Agency must negotiate with Petitioner, South Florida Community Care Network, LLC. d/b/a Community Care Plan ("Community""), about a plan to provide HIV/AIDS Medicaid managed care services in Region 10 because it was the only responsive proposer of services that was a Provider Service Network ("PSN"") (DOAH Case No. 18-3512B!D);

4) whether the Agency must negotiate with Community to provide Medicaid managed care services in Region 10 for people with Serious Mental Illnesses because Community is a PSN (DOAH Case No. 18-3511BID); 5) whether the Agency must contract with Community to provide Medicaid managed care services for Children with Special Needs in Region 10 because Community is a PSN (DOAH Case No. 18-3513B!D); and 6) whether the Agency must negotiate with Community to provide Medicaid managed care services for Child Welfare patients in Region 10 because Community is a PSN (DOAH Case No. 18-3514B1D). The Amended Recommended Order, which was entered on November 20, 2018, is attached to this final order and incorporated herein by

reference, except where noted infra.

RULINGS ON EXCEPTIONS

Simply, WellCare of Florida, Inc. d/b/a Staywell Florida ("Staywell"), Community, and the Agency all filed exceptions to the Amended Recommended Order. Simply filed a Response to Community's exceptions. Staywell filed a response to Community's exceptions. Community filed responses to both Staywell and the Agency's exceptions. The Agency filed a response to Community's exceptions. Positive filed responses to both Simply and the Agency's exceptions.

1 The ALJ erroneously listed Collier County under Region 11 along with Miami-Dade County in his Amended Recommended Order. Collier County is under Region 8 of the Statewide Medicaid Managed Care Program.

In determining how to rule upon Simply, Staywell, Community and the Agency's exceptions and whether to adopt the ALJ's Amended Recommended Order in whole or in part, the Agency must follow Section 120.57(1)(!), Florida Statutes, which provides in pertinent part:

The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements oflaw....

Fla. Stat. § 120.57(1)(!). Additionally, "[t]he final order shall include an explicit ruling on each exception, but an agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record."

§ 120.57(1)(k), Fla. Stat. In accordance with these legal standards, the Agency makes the following rulings on Simply, Staywell, Community, and the Agency's exceptions:

Simply's Exceptions

In its first exception, Simply takes exception to Paragraphs 89 and 145 of the Amended Recommended Order, arguing the ALJ erred in concluding that the Agency failed to follow the review process of the ITN. The Agency agrees. The ALJ's interpretation of the terms of the ITN in Paragraph 89 is erroneous. The ITN did not mandate three evaluators would review all the responses in their entirety. The ALJ failed to recognize the wide discretion the Agency has

m the procurement process, or find that the Agency did not exercise such discretion in a

dishonest manner. See Dep't of Transp. v. Groves-Watkins Constructors, 530 So. 2d 912, 913

(Fla. 1988). Furthermore, as set forth in the ruling on the Agency's Exception No. 2 infra, which is hereby incorporated by reference, the parties had ample opportunity to challenge the specifications to the ITN, yet failed to do so. Thus, they have waived their rights to challenge the evaluation methods at this point in time. Based upon the foregoing, the Agency finds that it has substantive jurisdiction over the conclusions of law in Paragraphs 89 and 145 of the Amended Recommended Order, and that it is able to substitute conclusions of law that are as or more reasonable than those of the ALJ. Therefore, the Agency grants Simply's first exception, rejects Paragraph 145 of the Amended Recommended Order, and modifies Paragraph 89 of the Amended Recommended Order as follows:

89. The ranking process presented in the ITN and described in paragraphs 62-64, did not contemplated ranking each respondent by evaluator. The Agency carried this process over from an earlier procurement. In this procurement, despite v;hat the ITN said, the Agency assigned responsibilities so that each evaluator reviewed only a subset of SRCs. Therefore, the ranking of responses by evaluator presented in the ITN could not work. It v1as not even possible because no one evaluator reviewed a complete response and because each SRC had a different maximum point score.

In its second exception, Simply takes exception to Paragraph 143 of the Amended Recommended Order, arguing the ALJ erred in finding that April Bossoms testified that she was unable to rank responses by evaluator. Indeed, Ms. Bossoms testified that she was able to do so.

See Transcript, Volume 14, Pages 1596-1600. In addition, the Agency also believes Paragraph 143 of the Amended Recommended Order should be rejected for the reasons set forth in the

ruling on the Agency's Exception Nos. 4 and 5 infra, which are hereby incorporated by reference. To the extent Paragraph 143 of the Amended Recommended Order contains findings

of fact, the Agency determines the findings of fact are not based on competent, substantial record evidence. To the extent Paragraph 143 of the Amended Recommended Order contains conclusions of law, the Agency finds that it has substantive jurisdiction over the conclusions of law in Paragraph 143 of the Amended Recommended Order, and that it is able to substitute conclusions of law that are as or more reasonable than those of the ALJ. Therefore, the Agency grants Simply's second exception and rejects Paragraph 143 of the Amended Recommended Order.

In its third, fourth, and fifth exceptions, Simply takes exception to Paragraphs 144 and 145 of the Amended Recommended Order, arguing the ALJ erred in its conclusions of law pertaining to Positive's standing in this matter. The Agency agrees for the reasons set forth in its

ruling on the Agency's Exception Nos. 4 and 5 infra, which are hereby incorporated by reference. The Agency finds that it has substantive jurisdiction over the conclusions of law in Paragraphs 144 and 145 of the Amended Recommended Order, and that it is able to substitute conclusions of law that are as or more reasonable than those of the ALJ. Therefore, the Agency grants Simply's third, fourth and fifth exceptions, and rejects Paragraphs 144 and 145 of the Amended Recommended Order.

Staywell's Exceptions

In its first exception, Staywell takes exception to the Appearances section of the Amended Recommended Order, arguing it should be changed to reflect Staywell is an Intervenor in this matter. Pursuant to rule 28-106.205(1 ), Florida Administrative Code, "[p]ersons other than the original parties to a pending proceeding whose substantial interest will be affected by

the proceeding and who desire to become parties may move the presiding officer for leave to intervene." (Emphasis added). However, subsection (3) of the rule gives an exception for

"[s]pecifically-named persons whose substantial interest are being determined in the proceeding." For them, entering a notice of appearance is sufficient for intervention. Staywell, through its counsel, claimed it was a "specifically-named person" in DOAH Case No. 18- 3511BID, and entered a notice of appearance, citing to rule 28-106.205(3), Florida Administrative Code. It's clear from the record that Staywell participated in the matter as a party, and that the other parties to the matter considered Staywell as a party. The ALJ's styling of the case is thus a scrivener's error. Therefore, the Agency will treat Staywell's first exception as a motion to correct a scrivener's error, which it hereby grants. The style of DOAH Case No. 18-351 lBID is hereby changed to reflect that Staywell was an intervenor in the matter.

In its second exception, Staywell takes exception to the first paragraph on Page 11 of the Amended Recommended Order, arguing the ALJ erred by stating Staywell offered an unredacted version of Joint Exhibit 361. The Agency will treat this exception as a motion to correct a scrivener's error, which it will grant. Therefore, the Agency modifies the first paragraph of Page 11 of the Amended Recommended Order as follows:

Staywell presented the testimony of Elizabeth Miller. It offered only urn=edaeted Joint Exhibit 361, which was admitted.

In its third exception, Staywell takes exception to Paragraphs 137 and 138 of the Amended Recommended Order, arguing that some additional findings of fact should be added to the legal conclusions that are contained within those paragraphs. However, the Agency is not required to make additional findings of fact. See § 120.57(1 )(l), Fla. Stat. Therefore, the Agency denies Staywell's third exception.

Community's Exceptions

In its first exception (Section II, 1. of Community's Exceptions), Community takes exception to the Statement of Issues portion of the Amended Recommended Order, arguing

Paragraphs C, D, and F do not identify whether the Agency was required to contract with Community as an issue in the case. However, Community fails to "include appropriate and specific citations to the record" in support of its exception as required by section 120.57(1)(k), Florida Statutes. Therefore, the Agency need not rule on it.

In its second exception (Section III, 1. of Community's Exceptions), Community takes exception to Paragraph 16 of the Amended Recommended Order, arguing there were actually three Provider Service Networks ("PSNs") that submitted proposals to serve the Children with Special Needs ("CSN") population, not two PSNs as the ALJ found in that paragraph. However, Community appears to be misreading the findings of fact in Paragraph 16 of the Amended Recommended Order. Paragraph 16 of the Amended Recommended Order states that "Community, Staywell, and two others submitted proposals to offer Specialty Plans for Children with Special Needs (CSN) in Region 10. Community was one of two responding PSNs." (Emphasis added). In addition, the findings of fact in Paragraph 16 of the Amended Recommended Order are based on competent, substantial evidence. See Transcript, Volume 11, Pages 1270-1271. Thus, the Agency cannot reject or modify them. See § 120.57(1)(/), Fla.

Stat.; Heifetz v. Dep't of Bus. Reg., 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985) (holding that an agency "may not reject the hearing officer's finding [of fact] unless there is no competent, substantial evidence from which the finding could reasonably be inferred"). Therefore, the Agency must deny Community's second exception.

In its third exception (Section III, 2. of Community's Exceptions), Community takes exception to Paragraph 22 of the Amended Recommended Order, arguing the findings of fact contained therein are incomplete. However, whether a finding of fact is complete is not a valid basis for the Agency to reject or modify it. The Agency may only reject or modify findings of

fact if they are not based on competent, substantial evidence. See § 120.57(1)(/), Fla. Stat.;

Heifetz. The findings of fact in Paragraph 22 of the Amended Recommended Order are based on competent, substantial record evidence. See Joint Exhibit 1. Therefore, the Agency denies Community's third exception.

In its fourth exception (Section III, 3. of Community's Exceptions), Community takes exception to Paragraphs 26 and 28 of the Amended Recommended Order, arguing the ALJ's findings that the ITN did not describe or specify specialty populations to be served were not based on competent, substantial evidence. Community's argument is incorrect. The findings of fact in Paragraphs 26 and 28 of the Amended Recommended Order are based on competent, substantial record evidence. See, Transcript, Volume 2, Pages 218-220; and Joint Exhibit 1. Thus, the Agency is not at liberty to reject or modify them. See § 120.57(1)(/), Fla. Stat.;

Heifetz. Therefore, the Agency denies Community's fourth exception.

In its fifth exception (Section III, 4. and 5. of Community's Exceptions), Community takes exception to the ALJ's finding of fact in Paragraph 28 of the Amended Recommended Order that "Petitioners and Intervenors describe the populations that they propose serving as HIV/AIDS patients, patients with SMI, CSN, and child welfare populations." Community argues the finding of fact incorrectly suggests these categories were created by ITN respondents and that the Agency did not specifically solicit responses as to these specialties. The finding of fact at issue in Paragraph 28 of the Amended Recommended Order is based on competent,

substantial record evidence. See Joint Exhibit 1. Thus, the Agency is not permitted to disturb it.

See § 120.57(1)(/), Fla. Stat.; Heifetz. In addition, Community's argument concerning the

admission of its Exhibits 22-26 is outside of the Agency's substantive jurisdiction. See Barfield

v. Dep't of Health, 805 So. 2d 1008 (Fla. 1st DCA 2002). Therefore, the Agency denies Community's fifth exception.

In its sixth exception (Section III, 6. of Community's Exceptions), Community takes exception to the ALJ's finding of fact in Paragraph 46 of the Amended Recommended Order that "Attachment A at A I 0-(d) makes it clear that the answers are part of the addendum." However, Community fails to "identify a legal basis for the exception'' as required by section 120.57( I )(k), Florida Statutes. Therefore, the Agency need not address it.

In its seventh exception (Section III, 7. of Community's Exceptions), Community takes exception to Paragraph 69 of the Amended Recommended Order, arguing it contains mislabeled and erroneous conclusions of law. To the extent Paragraph 69 of the Amended Recommended Order could be construed to be conclusions of law, the Agency finds that, while it does have substantive jurisdiction over them because it is the single state agency in charge of administering Florida's Medicaid program, it cannot substitute conclusions of law that are as or more reasonable than those of the ALJ. To the extent that Paragraph 69 of the Amended Recommended Order contains findings of fact, the findings of fact in that paragraph are based on

competent, substantial record evidence. See Joint Exhibit 3; and Paragraph 8 of the parties' Joint Prehearing Stipulation. Therefore, the Agency denies Community's seventh exception.

In its eighth exception (Section IV, 1. and 2. of Community's Exceptions), Community takes exception to Paragraph 119 of the Amended Recommended Order, arguing that: 1) the ALJ's summarization of Community's argument that "sections 409.974 and 409.966 and the ITN require the Agency to negotiate with it because it is a PSN" is underinclusive; and 2) the ALJ's summarization of Community's argument that "the Agency's decision not to award a Children with Special Needs plan does not qualify as a rejection of all bids" is an overgeneralization. Community's exception is unfounded. The ALJ's summarization of Community's arguments

mirrors what Community argued in its proposed recommended order. See Pages 12-13, 21, and 41-42 of Community's Consolidated Proposed Recommended Order. Therefore, the Agency denies Community's eighth exception.

In its ninth exception (Section IV, 3. of Community's Exceptions), Community takes exception to Endnote 5 of the Recommended Order, arguing the ALJ erred by stating "Community did not raise or preserve the 'ranking' issue advanced by Positive." The ALJ's conclusion of law in Endnote 5 of the Recommended Order is outside of the Agency's substantive jurisdiction. See, ' Barfield, 805 So. 2d 1008. Therefore, the Agency denies Community's ninth exception.

In its tenth exception (Section IV, 4. of Community's Exceptions), Community takes exception to Paragraph 124 of the Recommended Order, arguing the ALJ erred by not concluding that Community was entitled to a contract to serve those with Serious Mental Illness ("SMI"). Community's argument is founded on the premise that Paragraph 124 of the Recommended Order identifies all the contract awards Community is entitled to. However, nowhere in Paragraph 124 of the Amended Recommended Order does it state this. Thus, Community's argument is unfounded. In addition, the Agency finds that, while it has substantive jurisdiction over the ALJ's conclusions of law in Paragraph 124 of the Amended Recommended Order because it is the single state agency in charge of administering Florida's Medicaid program, it cannot substitute conclusions of law that are as or more reasonable than those of the ALJ. Therefore, the Agency denies Community's tenth exception.

In its eleventh exception (Section IV, 5. of Community's Exceptions), Community takes exception to Paragraphs 125 and 133 of the Amended Recommended Order, arguing the ALJ did not recognize, account for, or acknowledge the numerous preferences and requirements that have

to be met when contracting out Medicaid services. The Agency finds that, while it does have substantive jurisdiction over the conclusions of law in Paragraphs 125 and 133 of the Amended Recommended Order because it is the single state agency in charge of administering Florida's Medicaid program, it cannot substitute conclusions of law that are as or more reasonable than those of the ALJ. Therefore, the Agency denies Community's eleventh exception.

In its twelfth exception (Section IV, 6. of Community's Exceptions), Community takes exception to Paragraph 129 of the Amended Recommended Order, arguing the ALJ erred by concluding that "[t]he statutes are not clear on the subject or whether the PSN requirement applies to specialty plans." The Agency disagrees, and finds that, while it does have substantive jurisdiction over the conclusions of law in Paragraph 129 of the Amended Recommended Order because it is the single state agency in charge of administering Florida's Medicaid program, it cannot substitute conclusions of law that are as or more reasonable than those of the ALJ. Therefore, the Agency denies Community's twelfth exception.

In its thirteenth exception (Section IV, 7. of Community's Exceptions), Community takes exception to Paragraph 130 of the Amended Recommended Order, arguing the ALJ erred in his interpretation of the applicability of the 2018 amendment to Article V, Section 21 of the Florida Constitution. This issue is outside of the Agency's substantive jurisdiction. Therefore, the Agency denies Community's thirteenth exception.

In its fourteenth exception (Section IV, 8. - 10. of Community's Exceptions), Community takes exception to Paragraph 133 of the Amended Recommended Order, arguing: 1) the ALJ erroneously concludes that an award of two MMA plans, to CSN plans, two SMI plans, two CW plans, and two HIV/AIDS plans is an outcome that was not intended or contemplated by the Legislature; 2) the ALJ erroneously concluded that Community's interpretation would

require the Agency to award at least two vendors for any specialty population "proposed" as misstating Community's position; and 3) the ALJ erred in concluding "Community's interpretation also violates the principle that tribunals should not construe statutes in ways that lead to an absurd result." The Agency finds that, while it does have substantive jurisdiction over the conclusions of law in Paragraph 133 of the Amended Recommended Order because it is the single state agency in charge of administering Florida's Medicaid program, it cannot substitute conclusions of law that are as or more reasonable than those of the ALJ. Therefore, the Agency denies Community's fourteenth exception.

In its fifteenth exception (Section IV, 11. of Community's Exceptions), Community takes exception to Paragraph 137 of the Amended Recommended Order, arguing the ALJ erred by concluding the terms of the ITN do not require the Agency to contract with Community. The Agency disagrees. It agrees with ALJ's conclusion that the Agency is not required to contract with Community. Therefore the Agency denies Community's fifteenth exception.

In its sixteenth exception (Section IV, 12. of Community's Exceptions), Community takes exception to Paragraph 146 of the Amended Recommended Order, arguing the ALJ' s statement that "Community criticizes the Agency's decision to not contract with any provider of services for children with special needs" is contrary to the record. The ALJ's statement is an

accurate summary of what Community argued in its Proposed Recommended Order. See Pages 21 and 48 of Community's Consolidated Proposed Recommended Order. Therefore, the Agency denies Community's sixteenth exception.

In its seventeenth exception (Section V., 1. of Community's Exceptions), Community takes exception to Recommendations B, C, and D of the Amended Recommended Order because the ALJ did not direct the Agency to award Community contracts as the sole responsive PSN.

Based on the ruling on Community's fifteenth exception supra, which is hereby incorporated by reference, the Agency denies Community's seventeenth exception.

In its eighteenth exception (Section V., 2. of Community's Exceptions), Community takes exception to Recommendation C of the Amended Recommended Order due to the fact that it is identical to Recommendation B of the Amended Recommended Order. The Agency agrees. It will treat Community's eighteenth exception as a motion to correct a scrivener's error, which it will grant. Therefore, the Agency modifies the Amended Recommended Order to eliminate Recommendation C.

In its nineteenth exception (Section V., 3. of Community's Exceptions), Community takes exception to Recommendation E of the Amended Recommended Order, arguing the Agency's failure to enter any award was an arbitrary and capricious action that was contrary to competition. Community's argument makes no sense because Recommendation E of the Amended Recommended Order upholds the Agency's preliminary decision to award Staywell a contract for SMI in Region 10. Therefore, the Agency denies Community's nineteenth exception.

In its twentieth exception (Section VI., 1. of Community's Exceptions), Community takes exception to the Amended Recommended Order in general for not addressing the choice of coverage argument and anti-trust compliance arguments it raised. Community's exception fails to cite to the Amended Recommended Order by page number or paragraph. Thus, the Agency

does not need to address it. See§ 120.57(1)(k), Fla. Stat.

Agency's Exceptions

In Exception No. 1, the Agency takes exception to Paragraphs 136, 137, and 138 of the Amended Recommended Order, as well as Recommendations B, C, and D of the Amended

Recommended Order, arguing the ALJ should have denied Community's protest or dismissed it as an untimely challenge to the terms of the ITN. Specifically, Community argued, and the ALJ concluded, that both section 409.974(1), Florida Statutes, and Attachment A, Section D(5) of the ITN require the ALJ to invite the top-ranked PSN to negotiations. The Agency agrees with the ALJ's conclusions of law in these paragraphs. Therefore, it denies Exception No. I.

In Exception No. 2, the Agency takes exception to Paragraph 139 of the Amended Recommended Order, arguing the ALJ erred by concluding the Agency violated section 287.057(16)(a)l., Florida Statutes, by using only two evaluators to evaluate certain sections of the offers that were submitted in response to the ITN. The Agency agrees. For the ITN at issue in this matter, section 287.057(16)(a)l., Florida Statutes, required the Secretary to appoint "[a]t 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." The competent, substantial record evidence demonstrates the Agency more than satisfied this statutory requirement by appointing 11 evaluators to evaluate the responses to

the ITN. See, ' Transcript, Volume 2 at Page 226. The ALJ incorrectly interprets the statute

to require at least three evaluators to evaluate every section of the responses, when such is not

the case. It is established that "a public body has wide discretion in soliciting and accepting bids

for public improvements and its decision, when based on an honest exercise of this discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons

may disagree." Groves-Watkins Constructors, 530 So. 2d at 913 (emphasis in the original). The Agency used its discretion in appointing more than three evaluators in all, even though less than three evaluators evaluated and scored certain sections of the responses to the ITN. Furthermore, there was no evidence any of the parties who responded to the ITN received an unfair

competitive advantage due to how the Agency had its evaluators evaluate and score the ITN.

See Capeletti Bros., Inc. v. State, Dep't of Gen. Svcs., 432 So. 2d 1359 (Fla. 1st DCA 1983). All who responded to the ITN were equally affected by the Agency's scoring methods. Finally, the Agency specifically stated in Attachment A, Section D, 5.c.2 of the ITN that "[t]he Agency

reserves the right to have specific Sections of the responses evaluated by less than three (3)

individuals." See Joint Exhibit 1 at Bates Page 30 (Emphasis added). None of the bidders in this matter filed a challenge to this specification of the ITN. Thus, they have no right to challenge

the Agency's evaluation process. See section 120.57(3)(b), Florida Statutes. The Agency finds that it has substantive jurisdiction over the conclusions of law in Paragraph 139 of the Recommended Order because it is the single state agency in charge of administering Florida's Medicaid program, and that it can substitute conclusions of law that are as or more reasonable than those of the ALJ. Therefore, the Agency grants Exception No. 2, and modifies Paragraph 139 as follows:

139. Section 287.057(16)(a)(l) requires the Agency to use at least three qualified individuals to evaluate and score the ITN responses. The statute is clear. It requires the Agency head to appoint "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." When the language is clear, the statute should be given its plain meaning. Resort to principles of statutory interpretation is not needed or proper. Daniels v. Fla. Dep't of Health, 898 So. 2d 61, 64-65 (Fla. 2005); Nicoll v. Baker, 989 So. 2d 990-91 (Fla. 1996). Due to The Agency's-the reassignment of some of Evaluator 3's scoring assignments, the evaluation process did not cause the Agency to be non-compliantcomply with section 287.057(16)(a)(l) because there were 11 evaluators who were appointed to score the ITN. This, Positive arguesThus, there is no good reason to reject all bids and begin the procurement process anew.

In Exception No. 3, the Agency takes exception to Paragraph 100 of the Amended Recommended Order, arguing the ALT erred by finding the Agency made "significant" scoring errors in the procurement. This argument is correct. There is no competent, substantial evidence in the record indicating the Agency's scoring errors were significant. Additionally, Positive lacked standing to raise this argument because it did not challenge the Agency's scores for all the other ranked bidders in Region IO and 11. See Madison Highlands, LLC v. Fla. Hous. Fin. ' 220 So. 3d 467, 473-474 (Fla. 5th DCA 2017) ("An applicant who submits the fifth lowest bid does not have a substantial interest, unless the applicant can establish that the four higher-ranked applications must all be rejected or re-evaluated, resulting in the protesting filer being ranked highest."). Finally, even if Positive did somehow have standing to raise the issue, and it could be successfully argued that the Agency made scoring errors in the procurement, the ALJ did not find that such scoring errors gave anyone an unfair advantage so as to necessitate a

rejection of all bids. See Robinson Elec. Co., Inc. v. Dade Cnty., 417 So. 2d 1032 (Fla. 3d DCA 1982). Therefore, for these reasons, the Agency grants its Exception No. 3, and modifies Paragraph 100 of the Amended Recommended Order as follows:

100. The fact that so many respondents submitted proposals for so many regions and types of plans provided the Agency another opportunity for time-saving. The Agency loaded Adobe Pro on the evaluators' computers as a timesaving measure. This program allowed the evaluators to compare a bidder's Comprehensive Plan Proposal to the same company's regional and Specialty Plan proposals. If the Adobe Pro comparison feature showed that the proposal response was the same for each plan, the Agency permitted evaluators to score the response once and assign the same score for each item where the respondent provided the same proposal. This speeded scoring. It, however, meant that for SRCs where evaluators did this, that they were not reviewing the SRC response in the specific context of the specialty plan population, each of which had specific and limited characteristics that made them different from the broader General and MMA plan

populations. This is significant because so many 8RCs required narrative responses 1.vhere context 1.vould matter.

In Exception Nos. 4 and 5, the Agency takes exception to Paragraphs 142, 143, 144 and 145 of the Amended Recommended Order, as well as Recommendation A, arguing Positive did not have standing to raise any challenge in this matter because it was a non-responsive bidder. The Agency agrees. Positive was clearly a non-responsive bidder because it violated the provisions of section 287.057(23), Florida Statutes, which provides:

Each solicitation for the procurement of commodities or contractual services shall include the following provision: "Respondents to this solicitation or persons acting on their behalf may not contact, between the release of the solicitation and the end of the 72-hour period following the agency posting the notice of intended award, excluding Saturdays, Sundays, and state holidays, any employee or officer of the executive or legislative branch concerning any aspect of this solicitation, except in writing to the procurement officer or as provided in the solicitation documents. Violation of this provision may be grounds for rejecting a response."

There is no factual dispute that Positive repeatedly contacted government officials for a contract award under the ITN during the time frame prohibited by section 287.057(23), Florida Statutes

(the "cone of silence"). See Transcript, Volume 2, Pages 237-238; Transcript, Volume 3, Pages 337-339; and Agency's Exhibits 2, 3, 4 and 263 (which were proffered but not admitted by the ALJ). Its counsel admitted Positive committed such a violation at hearing. See Transcript, Volume 1, Pages 32-34. Applicable precedent indicates that a non-responsive bidder does not have standing to protest an agency's contract awards. "A party has standing to protest the lowest

bid if that party has a substantial interest to be determined by the agency." Westinghouse Elec.

Corp. v. Jacksonville Transp. Auth., 491 So. 2d 1238, 1240 (Fla. 1st DCA 1986) (holding that "[a]bsent extraordinary circumstances not present here, a non-bidder does not have standing to

challenge the successful bid.") (citing Preston Carroll Co., Inc. v. Fla. Keys Aqueduct Auth., 400

So.2d 524 (Fla. 3d DCA 1981)). A non-responsive bidder has no chance of obtaining the contract award, and is in a similar position to that of a non-bidder. Accordingly, at least two administrative agencies have concluded that non-responsive bidders do not have standing to protest contract awards. In Sprint Payphone Svcs., Inc. v. Dep't of Corrections and MCI

Worldcom Communications, Inc., DOAH Case No. 01- 0189B1D (DOAH Apr. 6, 2001; DOC Apr. 24, 2001), the ALJ concluded as a matter of law that "[o]nly responsive bidders have standing to protest agency contract awards." Further, the ALJ concluded that "[b]ecause Sprint's proposal is non-responsive as matter oflaw, it is not necessary to address the question of whether the Department's award of the contract to Worldcom is contrary to agency' s governing statutes, rules or policies, or the bid or proposal specifications." Similarly, in Hemophilia Health

Services, Inc. v. Agency for Health Care Administration, 28 FALR 1928 (AHCA 2006);

curiam aff'd 950 So. 2d 416 (Fla. 1st DCA 2006), the ALJ concluded that "[a] vendor who responds to an RFP does not have standing, on that basis alone, to protest the agency's determination of a winner or winners. In order to establish the required substantial interest for standing, a protestor must demonstrate that, but for the agency's errors, the protestor would have

been a winner." Id. at 1946- 1947. Thus, the ALJ should not have entertained any of Positive' s arguments in this matter.

In addition, the ALJ erred by ruling that, in spite of the fact Positive committed a cone of silence violation, the Agency waived its right to argue Positive lacked standing to participate in the proceeding because the Agency did not affirmatively disqualify Positive as non-responsive bidder at the time of Positive's violation. First, as pointed out by Simply in its exceptions to the Amended Recommended Order, the Agency did not need to affirmatively reject Positive's proposal based on the cone of silence violation because Positive was not in contention for a

contract award when it committed the violation - Positive had already failed to reach negotiations. See Pages 9-10 of Simply's Exceptions to the Amended Recommended Order. Second, section 287.057(23), Florida Statutes, does not have a temporal aspect to it. In other words, the statute does not give the Agency a certain amount of time to affirmatively act on a bidder's cone of silence violation before it is deemed to have waived its right to raise the issue.

"In the administrative context, ' [s]tanding has been equated with jurisdiction of the subject matter of litigation and has been held subject to the same rules, one of which is that jurisdiction of the subject matter (thus standing to bring suit) cannot be conferred by consent.'''

Grand Dunes, Ltd. v. Walton Cnty., 714 So. 2d 473,475 (Fla. 1st DCA 1998), citing Askew v.

Hold the Bulkhead-Save Our Bays, Inc., 269 So. 2d 696, 698 (Fla. 2d DCA 1972), overruled on

other grounds; Save Sand Key, Inc. v. U.S. Steel Corp., 281 So. 2d 572, 577 (Fla. 2d DCA 1973). Just as standing cannot be conferred by consent, neither can it be conferred by waiver.

See 84 Lumber Co. v. Cooper, 656 So. 2d 1297, 1298 (Fla. 2d DCA 1994). Instead, a party either has standing or it does not, regardless of what stage the legal proceeding is in. The Agency had the right to raise the issue of Positive's standing at any time without affirmatively disqualifying Positive as a non-responsive bidder. Here, the Agency raised the issue at the very outset of the DOAH proceeding - making any waiver argument incorrect. The ALJ departed from the essential requirements of law by ruling otherwise, and refusing to even consider evidence of Positive's blatant non-responsiveness. The Agency cannot allow the ALJ's ruling on Positive's standing that was entered without compliance with - and thus in violation of - the essential requirements of law to remain undisturbed because it would open the gate for future bidders to act similarly to Positive in the hopes of receiving public contracts.

Therefore, for all the reasons stated above, the Agency grants its Exception Nos. 4 and 5, and rejects Paragraphs 142, 143, 144 and 145 of the Amended Recommended Order, as well as Recommendation A, in their entirety due to the fact that Positive lacked standing to participate in this matter because it was a non-responsive bidder.2

FINDINGS OF FACT

The Agency hereby adopts the findings of fact set forth in the Amended Recommended

Order, except where noted supra.

CONCLUSIONS OF LAW

The Agency adopts the conclusions of law set forth in the Amended Recommended

Order, except where noted supra.

ORDER

Based upon the foregoing, the formal written protests of Positive that were filed in DOAH Case Nos. l 8-3507BID, l 8-3508BID and l 8-3512BID are hereby dismissed due to lack of standing; the formal written protest of Community that was filed in DOAH Case No. 18- 3513BID is hereby dismissed based on the reasoning set forth in the Amended Recommended Order; and the Agency will enter into negotiations with Community for the contracts that were at issue in DOAH Case Nos. 18-3511B1D and 18-3514BID. The parties shall govern themselves

accordingly.

DONE and ORDERED this l_L day of htc

, 2018, in Tallahassee,

Florida.

TIN M. SENIOR, SECRETARY

ENCY FOR HEALTH CARE ADMINISTRATION

2 Even if Positive had standing, it did not prove its case and its protest must still be dismissed. See the ruling on the Agency's Exception 3 supra.

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH THE FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

. I HEREBY CERTIFY that a true and correct copy o th foregoing inal Oi;_,d9.r has been

furn,# to the oet>l<ll'isnamed below by the method md1cated on this 2/ aay of

C:::.< 6-/ , 2018. --- -

RICHARD J. SHOOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, MS #3

Tallahassee, Florida 32308-5403

(850) 412-3630

COPIES FURNISHED TO:

Honorable John D. C. Newton II Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060 (via electronic filing)

Joseph M. Helton, Jr., Esquire Assistant General Counsel

Agency for Health Care Administration 2727 Mahan Drive, MS #3

Tallahassee, Florida 32308

(via electronic mail to Joseph.Helton@ahca.myflorida.com)

Joseph M. Goldstein, Esquire Andrew E. Schwartz, Esquire Sidney C. Calloway, Esquire Suzanne M. Driscoll, Esquire Shutts & Bowen, LLP

200 East Broward Boulevard Suite 2100

Fort Lauderdale, Florida 33301

(via electronic mail to jgoldstein@shutts.com, aschwartz@shutts.com, scalloway@shutts.com, sdriscoll@shutts.com, jgoodwin@shutts.com, mpoppell@shutts.com, and ehumaran@shutts.com)

Brian A. Newman, Esquire Brandice D. Dickson, Esquire Kathryn L. Hood, Esquire Joseph B. Brannen, Esquire Pennington, P.A.

215 South Monroe Street, 2nd Floor Post Office Box 10095 Tallahassee, Florida 32301

(via electronic mail to brian@penningtonlaw.com, bamdi@penningtonlaw.com, khood@penningtonlaw.com, and breck@penningtonlaw.com)

Michael J. Glazer, Esquire Stephen C. Emmanuel, Esquire Erik Matthew Figlio, Esquire Alexandra Akre, Esquire Ausley and McMullen

123 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302

(via electronic mail to mglazer@ausley.com, semmanuel@ausley.com, rfiglio@ausley.com, and aakre@ausley.com)

Robert H. Hosay, Esquire Benjamin J. Grossman, Esquire

Nicholas John Peter Meros, Esquire Foley & Lardner, LLP

106 East College Avenue, Suite 900

Tallahassee, Florida 32301

(via electronic mail to rhosay@foley.com, bjgrossman@foley.com, and nmeros@foley.com)

John A. Tucker, Esquire Christopher Ryan Maloney, Esquire Foley & Lardner, LLP

One Independent Drive, Suite 1300 Jacksonville, Florida 32202

(via electronic mail to jtucker@foley.com, and cmaloney@foley.com)

Kevin A. Reck, Esquire Foley & Lardner, LLP

111 North Orange Avenue, Suite 1800

Orlando, Florida 32801

(via electronic mail to kreck@foley.com)

F. Philip Blank, Esquire

F. Philip Blank, P.A.

Post Office Box 13236

Tallahassee, Florida 32317-3236

(via electronic mail to phil@blanklaw.com)

Frank P. Rainer, Esquire Leonard M. Collins, Esquire John F. Loar, Esquire

M. Stephen Turner, Esquire Ginger B. Boyd, Esquire

Nelson Mullins Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300

Tallahassee, Florida 32301

(via electronic mail to frank.rainer@nelsonmullins.com, lcollins@nelsonmullins.com, john.loar@nelsonmullins.com, stephen.tumer@nelsonmullins.com, and ginger.boyd@nelsonmullins.com)

Lacey D. Corona, Esquire

Nelson Mullins Broad and Cassel

390 North Orange Avenue, Suite 1400

Orlando, Florida 32801

(via electronic mail to lacey.corona@nelsonmullins.com)

Beth Kidder, Deputy Secretary Division of Medicaid

(via electronic mail to Beth.Kidder@ahca.myflorida.com)

Docket for Case No: 18-003512BID

Orders for Case No: 18-003512BID