STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LATCHKEY SERVICES FOR CHILDREN, )

)

Petitioner, )

)

vs. )

) Case No. 86-2044BID

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

REDLANDS CHRISTIAN MIGRANT )

ASSOCIATION, )

)

Intervenor. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held in Tallahassee, Florida on June 18, 1986, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Elizabeth J. Daniels, Esquire

Attorney at Law Johnson, Blakely, Pope,

Bokor & Ruppel, P..A.

911 Chestnut Street

Clearwater, Florida 33517

For Respondent: Barbara Ann McPherson, Esquire

Attorney at Law Department of Health and

Rehabilitative Services 2255 East Bay Drive Clearwater, Florida 33546

For Intervenor: Elizabeth Anne Goodale

Attorney at Law

14320 Indian Rocks Road Largo, Florida 33544

Background and Procedural Matters

On or about March 28, 1986, the Department of Health and Rehabilitative Services (HRS) advertised its Request for Proposals (RFP) for the provision of certain child day care services in that agency's District V, Pinellas and Pasco counties. [tr.-41, Respondent's Exhibit #1]. After its evaluation of the proposals, HAS announced its intention to award three contracts as follows:

1. to Project Playpen, for infant care in Pinellas County.

   
   

2. to Latchkey Services, Inc. (Latchkey) for preschool care and school age care in Pinellas County; and

   
   

3. to Redlands Christian Migrant Association (RCMA), for infant, preschool and school age care in Pasco-County.

On May 19, 1986, Latchkey filed its formal notice of protest against the intended awards to Project Playpen and RCMA. An informal resolution meeting was held on May 29, 1986 and Latchkey withdrew its protest of award to Project Playpen.

The protest was referred to the Division of Administrative Hearings on June 4, 1986, and the final hearing was scheduled as required by Section 120.53(5) Florida Statutes.

RCMA filed its Petition to Intervene as a Party on June 18, 1986, and that Petition was granted at the commencement of the final hearing.

At the hearing HRS presented its case through the testimony of four witnesses and seven exhibits, including the RFP, the competing proposals of Latchkey and RCMA, the Department's evaluation of those proposals, Rule 10M-11 Florida Administrative Code, and the HRS procedures manual. Exhibit #3, the transcript of the bidder's conference, was withdrawn.

Intervenor, RCMA, participated through cross-examination of witnesses, but did not produce its own witnesses or exhibits.

Latchkey presented its case through the testimony of two witnesses and through Exhibits #1-6.

After the hearing, each party submitted memoranda and proposed recommended orders. These have been carefully considered in the preparation of this recommended order and specific rulings on the proposed findings of fact as required in Section 120.59(2) Florida Statutes are found in the attached appendix.

Issues

The general issue in this proceeding is whether RCMA, or Latchkey should be awarded the contract for infant, preschool and school-age child care in Pasco County. The following more specific issues are identified:

1. Whether RCMA's proposal should be rejected for lack of authorized signature.

   
   

2. Whether RCMA is a "central agency" as required by HRS rules.

   
   

3. Whether RCMA's proposal was non-responsive for failure to address the school age child care component of the RFP.

   
   

4. Whether Latchkey was evaluated unfairly by consideration of the separate components rather than by consideration of its overall proposal.

FINDINGS OF FACT

1. The Parties

   
   

   1. HRS receives federal funds through the Social Services Block Grant for the purpose of purchasing child day care services for certain clients of the agency. HRS District V issued its RFP for those services for fiscal year 1986/1987 on March 28, 1986. The statement of purpose for the RFP provides:

      
      

      The Department is requesting proposals to provide child day care services in Pasco and Pinellas Counties through one or more central agencies as defined in the Rules of the Department of Health and Rehabilitative Services, Chapter 10M-11, Section 11.02[sic] and HRSM 175-14.

      
      

      It is the Department's intent to contract with no more than three (3) central agencies. A potential provider may submit a proposal to provide services in any or all of the following components:

      
      

      1. The development and provision of infant care, preschool care and school age care in predominantly rural Pasco County.

         
         

      2. The provision of preschool care and school age care in predominantly urban Pinellas County.

         
         

      3. The provision of infant care in Pinellas County that is compatible with the unique county licensing program requiring the care of infants in family day care homes. Since only two infants may be in care in each home, a minimal percentage of pre- schoolers will be allowed in this com- ponent.

         
         

         * * * [Respondent's Exhibit #1, p3-4]

   2. On April 29, 1986, proposals were received as follows:

      
      

      1. Project Playpen proposed providing infant and some preschool care in Pinellas County with administrative costs of 4 percent.

         
         

      2. Latchkey proposed to provide all three components with administrative costs of 12 percent.

         
         

      3. RCMA proposed providing infant, preschool and school age care in Pasco County with administrative costs of 11 percent.

      
      

   3. Project Playpen has been providing infant and some preschool care in Pinellas County since 1972. Latchkey has provided after school and some

      preschool care in Pinellas County for seven years, and has provided after school care in Pasco County for two years. Also for two years Latchkey has provided the infant and preschool care in Pasco County through a subcontract with RCMA. Latchkey is a central agency in District V.

      
      

   4. After the proposals were received, the HRS evaluation committee met to distribute evaluation sheets and copies of the proposals to its five members. The members then individually reviewed the proposals. On May 5, 1986, the committee met again to resolve areas of doubt and determine the final score for each proposal. As to the Pasco County component the total score derived for RCMA was 384 points; the total score for Latchkey was 355.4; the total available score was 410.

      
      

2. Signature Authority

   
   

   1. The RFP addresses the need for an appropriate signature on the proposal in two places:

      
      

      1. On page 16, Paragraph L., "Required Copies of the Proposal", sub- paragraph 2. provides,

         
         

         All copies must bear the original signature of an official of the provider agency who is authorized to bind the Provider to the proposal. If the signature is that of an agency, individual other than the President

         or Chief Executive Officer of the Board, the proposal must be accompanied by a written delegation of authority from the governing board.

         
         

      2. On page 23, in the proposal evaluation check list, paragraph 1., "Proposal Requirements" provides "(Any one 'No' statement for the following items will automatically disqualify the proposal)." Subparagraph C, on page 24, asks, "Is the proposal signed by a duly authorized officer of the applicant organization?" [Respondent's Exhibit #1]

      
      

   2. The RCMA proposal was signed by Wendell N. Rollason as Executive Director. He is not a member of the RCMA state board of directors and the proposal did not include a separate board statement of authority. The organizational chart and position description included in the proposal indicate that the Executive Director alone is responsible directly to the Board of Directors. Through delegation or directly, he supervises all RCMA staff. He must keep the RCMA Board fully informed but must [A]ssume and accept full responsibility for all activities, planned or not of the Redlands Christian Migrant Association and its several subdivisions." [Respondent's Exhibit #5, pp. 187-188]

      
      

   3. The evaluation committee assumed that Mr. Rollason was the chief executive officer, as there was nothing to indicate otherwise and the position description defined a very authoritative position. [tr. - 70]

      
      

   4. After Latchkey's protest raised the issue of signature authority, the President of the RCMA board, Wm. H. Krome, executed an affidavit stating:

      
      

      May 27, 1986

      To Whom It May Concern:

      
      

      For much of the past twenty years I have been associated with Redlands Christian Migrant Association, Inc. as a Board Member. For the last six years I have served as President. I have participated in each writing or rewriting of the Corporation's By-Laws, the latest being two years ago.

      
      

      In 1966 , we employed Mr. Wendell N. Rollason as our corporation's chief executive officer, with the appropriate title Executive Director. It seems unnecessary to add that he is the chief executive officer of the Board, of the senior staff, of the programming and any and all functions and appendages of the Corporation.

      
      

      That is exactly what the use of "Corporation" in the below quoted R.C.M.A. By-Laws means:

      
      

      Article IV Section 2 Paragraph (b)

      
      

      Select or dismiss the Executive Director of R.C.M.A. who shall have responsibility of the day-to-day operations of said Corp- poration without interference by State Board or Directors or its individual members.

      
      

      I might add in all of R.C.M.A.'s dealings with agencies, colleges, or local, state, and federal authorities this is the first time Mr. Rollason's full authority as chief executive officer of the

      R.C.M.A. and its Board of Directors has ever been challenged.

      [Petitioner's Exhibit #1]

      
      

   5. The RCMA by-laws provide for the Board to approve a maximum dollar amount for contracts which may be negotiated and executed by the Executive Director without prior approval, and the Board may authorize the Executive Director to sign contracts annually for ongoing renewable contracts. [Pet. Ex #3, p3]

      
      

3. Central Agency

   
   

   1. The RFF sought proposals from central agencies as defined in HRS rule 10M-11.002 Florida Administrative Code. That rule provides that "central agencies" are "...agencies which operate or subcontract to [sic] three or more centers and render administrative, supervisory, training and technical assistance activities necessary to insure the provision of services at the required level of standards."

      
      

   2. HRS considers RCMA a central agency. It operates as a central agency in several areas of the state and operates far more than three child care

      centers throughout the state. It also provides administrative, supervisory, training and technical assistance activities. [tr. - 105, Respondent's Ex #5]

      
      

      School Age Child Care Component

      
      

   3. RCMA's discussion of school age child care in Pasco County was minimal and the proposal lost points accordingly. [tr - 49]. However, the component is addressed in the proposal. The preference of RCMA was that Latchkey continue its existing school programs as part of Latchkey's proposal, but if that were not feasible RCMA would seek to continue the established programs. [Respondent's exhibit #5, p. 12]

      
      

   4. Under program objectives, RCMA states that it will expand types of child care services to include school age care as necessary as need is determined by waiting lists. [Respondent's Exhibit #5, p. 18] Data from the 1985 waiting lists indicates that the need for expanded school age care is miniscule (5 percent), compared to preschool (64 percent) and infant Care (31 percent). [Respondent's exhibit #5, pp 40-43]

      
      

4. Evaluation of Latchkey: Component vs. Overall

1. The RFP is explicit with regard to HRS' intent to enter into up to three contracts for child care in District V. Its instructions to bidders provide that complete proposals are not necessary for each component but that certain portions of the RFP must be addressed separately for each component.

   
   

   [Respondent's Exhibit #1, pp3, 17]

   
   

2. At the bidders' conference attended by Linda Morelock, Latchkey's Executive Director, HRS' representative did not indicate the Department was soliciting an overall proposal rather than the components called for in the RFP. [tr. - 63] At the conference Linda Morelock asked whether the submittals had to be separate packages or could they be included in one notebook for more than one proposal. She was referred to page 17 of the RFP, and was told that the proposals could be packaged together so long as the sections within the package were clearly indicated. [tr. - 44,45]

   
   

3. HRS does not, in any district in the state, limit its contracts for child care to a single central agency. There are three central agencies in Palm Beach County alone.

   [tr. - 106]

   
   

4. Latchkey characterized its proposal as an "overall" proposal for all three components in the RFP. It contends that its proposal should have been scored as a whole, rather than by each component.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding. Section 120.53(5) Florida Statutes and Section 120.57(1) Florida Statutes.

   
   

6. Wendell Rollason is the Chief Executive Officer of RCMA. It is the nature of his position in relation to the corporation which determines whether he is an officer or an employee. "...an officer holds an office and performs

   duties created and prescribed by charter or bylaws, and the officer is elected either by action of the stockholders or the board of directors at a salary or for compensation fixed by them or by the charter or bylaws. ...Employees are usually subordinate to and act under control of corporate officers, while the officers exercise the power of management under the policies or directives of the board of directors." Flight Equipment and Engineering Corp. v. Shelton, 103 S 2nd 615, 623 (Fla. 1958)

   
   

7. The procedures in the RCMA Bylaws relating to contract authority for the Executive Director are not relevant to the submittal of a response to an RFP. The proposal is merely preliminary to the negotiation and execution of a contract. See RFP, page 6, paragraph 2 and page 11, paragraph D, and HRS Manual 175-14, Chapter 4. [Respondent's Exhibit #8] For good reason the agency requires someone with authority to sign the proposal. Otherwise valuable time could be lost in reviewing material which may never result in a contract. However, nothing in the RFP requires the signature of the person with the immediate authority to sign the contract, should one result from the proposal.

   
   

8. RCMA is a "central agency" as defined in Rule 10M- 11.0002, Florida Administrative Code and HRS Manual 175-14 [Respondent's Exhibit #8]. Petitioner failed to substantiate its contention that, even if RCMA is considered a "central agency" by HRS in other areas of the state, it could not be so considered in District V, as it currently operates less than three centers in Pasco County. Nothing in the rule or manual and no other policy to the knowledge of HRS' Program Supervisor limits the definition of "central agency" to a given geographical area. [tr. - 105, 106]

   
   

9. RCMA's proposal addressed, however fleetingly, the provision of child care services to school age children. For that reason it is responsive to the RFP.

   
   

10. Latchkey failed to prove a factual or policy basis, and failed to prove legal authority for its contention that its proposal should have been evaluated on an overall basis, rather than component by component. Latchkey was not unfairly scored by virtue of its evaluation by component rather than by overall proposal. Latchkey produced no competent evidence that it could have relied on for any notion that, in the face of unambiguous RFP language, HRS was really soliciting overall proposals for Child care in District V.

    
    

11. Latchkey failed to prove that RCMA's proposal should be rejected, or that the RCMA proposal is entitled to a lower score than Latchkey's proposal.

For the foregoing reasons, it is RECOMMENDED:

That Latchkey's protest be denied and the agency proceed to negotiate its contract with RCMA for the purchase of child care services in Pasco County, District V.

DONE AND ENTERED this 4th day of August, 1986, at Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2044BID

Rulings on proposed findings of fact submitted by Petitioner:

1. Rejected as unnecessary: the responsiveness of Latchkey's bid is not at issue.

2. Rejected as contrary to the weight of evidence. School age care was addressed in more general terms in other areas of the proposal.

3. and 4. Rejected as contrary to the weight of evidence. RCMA proposed requesting only $288,470.88, but also said if that is not acceptable RCMA would use the balance of the allocation.

1. Rejected as unnecessary.

2. Adopted in part in Paragraph 12, otherwise rejected as unnecessary.

3. Rejected as unnecessary and immaterial.

4. Rejected as unnecessary and immaterial.

5. and 10. Adopted in Paragraph 16.

11. and 12. Rejected as immaterial and unnecessary.

1. Adopted in substance in Paragraph 3, as to the subcontract with Latchkey, otherwise rejected as unnecessary.

2. Rejected as immaterial and unnecessary.

3. Rejected as immaterial and unnecessary.

4. Rejected as contrary to the weight of evidence.

Rulings on proposed findings of facts submitted by Respondent:

1. and 2. Adopted in Paragraph 1.

1. Adopted in Paragraph 15.

2. Adopted in substance in Paragraph 14.

3. Adopted in Paragraph 2.

6.7,8,9. and 10. Adopted in substance in the Background Statement.

1. Adopted in Paragraph 11 and Conclusion of Law #4.

2. Adopted as a Conclusion of Law #2.

3. Adopted in Paragraph 4.

4. Rejected as unnecessary.

5. Adopted in part in Paragraphs 2, and 4; otherwise rejected as unnecessary.

Rulings on proposed findings of fact submitted by Intervenor:

1. Rejected as unnecessary.

2. and 3. Adopted in Paragraph 1.

1. Rejected as unnecessary.

2. Adopted in Paragraph 2.

6,7, and 8. Adopted in Paragraph 3.

1. Adopted in Paragraph 4.

2. [no paragraph 10]

3. Adopted in Paragraph 2.

12,13, 14. Adopted in Background Statement.

1. Adopted in Conclusion of Law #4.

2. Adopted in Paragraph 6.

COPIES FURNISHED:

Elizabeth J. Daniels, Esquire Johnson, Blakely, Pope, Bokor & Ruppel, P.A.

911 Chestnut Street

Clearwater, Florida 33517

Barbara Ann McPherson, Esquire Department of Health and Rehabilitative Services

2255 East Bay Drive Clearwater, Florida 33546

Elizabeth Anne Goodale, Esquire 14320 Indian Rocks Road

Largo, Florida 33544

Docket for Case No: 86-002044BID

Orders for Case No: 86-002044BID