STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUVENILE SERVICES PROGRAM, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 87-2800BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent, )

and )

) BAY AREA YOUTH SERVICES, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

The final hearing was held in this case on August 21, 1987, in Tampa, Florida, before Donald D. Conn, Hearing Officer, the Division of Administrative Hearings. The parties were represented as follows:

Petitioner: Dominic Amadio, Esquire

100 34th Street North, Suite 305 St. Petersburg, Florida 33713

Respondent: Frederick P. Wilk, Esquire

4000 West Buffalo Avenue, Room 520

Tampa, Florida 33614

Intervenor: William F. Bowman

2410 East Busch Boulevard, Suite 303

Tampa, Florida 33612

ISSUE

The issue in this case is whether the Department of Health and Rehabilitative Services (Respondent) wrongfully awarded a contract to provide juvenile alternative services in Polk, Hardee and Highlands Counties to Bay Area Youth Services, Inc. (Intervenor) rather than the existing Provider, Juvenile Services Program, Inc. (Petitioner). At the hearing the parties stipulated to the introduction of seven joint exhibits. Petitioner called six witnesses, aid Respondent called one witness. A transcript of the hearing was filed on September 28, 1987, and the parties were allowed ten days thereafter to file Proposed findings of fact, conclusions of law and memoranda. The Appendix to this Recommended Order contains a ruling on each timely filed Proposed finding of fact.

FINDINGS OF FACT

1. On or about April 24, 1987, Respondent issued a Request For Proposal (RFP) for the Juvenile Alternative Services Project (JASP) in Polk, Highlands and Hardee Counties. JASP is designed to serve delinquent children and status offenders, and is intended to reduce the incidents of their repeated contacts with the juvenile justice system through a program of meaningful sanctions and services. The program is available as a dispositional alternative by referral from Respondent's intake units, the State Attorney's Office and the Juvenile Division of the Circuit Court.

   
   

2. Specific services to be Provided under this RFP include victim negotiation, community work programs, restitution, family counseling service and volunteer counseling services. The RFP calls for Providing services to 585 clients from July 1, 1987 through June 30, 1988.

   
   

3. Petitioner and Intervenor each timely submitted proposals in response to the RFP. Petitioner is a social service agency with administrative offices in St. Petersburg, and Intervenor is a private service agency with offices in Tampa. Petitioner is the existing JASP provider in Polk, Hardee and Highlands Counties.

   
   

4. The RFP designates $131,654.86 as the anticipated funding level for this program, and Petitioner's proposal identified $131,655 for the provision of the requested services to a minimum of 585 clients while Intervenor's proposal identified $126,631 to provide these services to a minimum of 636 clients.

   
   

5. The proposals submitted by Petitioner and Intervenor were responsive to the RFP.

   
   

6. Pursuant to the RFP, a seven-member selection team was designated to review and evaluate the responsive proposals. Representative of Respondent on the selection team included JoAnne Harvey, Kevin Roberts and Tom McFadyen; the courts were represented by Jim Vanderwalker, the State Attorney's Office by Steve Houchins, the Public Defender's Office by Jay B. Haviser, and the community by Fran Martin Shiver from the Polk County Sheriff's Office.

   
   

7. RFP responses were opened at 4:30 p.m. on June 1, 1987, and the selection team met at 9:00 a.m. on June 3, 1987. Five of the selection team members attended the meeting and participated in the evaluation of these two proposals; Haviser and Shiver did not attend.

   
   

8. The RFP specifies that the evaluation was to be completed on June 4, 1987, and that the selection team, upon completion of its review, would submit its "recommendation" to Respondent's contract signer for award "based upon the recommendation made by the selection team and taking into consideration which bidder's offer is most advantageous to the Department."

   
   

9. Selection team members Houchins, Roberts and Harvey recommended that Intervenor be awarded the contract, and members Vanderwalker and McFadyen recommended Petitioner. Vanderwalker rated Petitioner one Point higher than Intervenor and McFadyen rated Petitioner three Points higher than Intervenor. Members recommending Intervenor all did so by a greater point spread than members selecting Petitioner. Intervenor received a total of 1325 Points to 1284 for Petitioner, of a total Possible Points of 1625.

10. The selection team, through its chairperson JoAnne Harvey, submitted its report and recommendation on June 4, 1987 that the JASP contract be awarded to Intervenor, and on or about June 11, 1987 Petitioner received formal notification of Respondent's intent to award this contract to Intervenor. On the same day Petitioner filed its notice of intent to Protest, and thereafter Petitioner timely filed its request for hearing on or about June 19, 1987 alleging that the award Procedure was "deficient" and that the deficiency resulted in their not receiving the award. Specifically, it is alleged that the selection team based its recommendation upon erroneous facts and information Provided to it by Chairperson Harvey and Diane Morton, JASP contract manager with Respondent who selected the team members, coordinated, scheduled and attended the team meeting.

    
    

11. Chairperson Harvey took notes of the selection team meeting and her report was based upon those notes. Neither a transcript or tape recording of the team meeting was required by the RFP, nor were they made. No opportunity for oral presentations by providers was allowed in the RFP, nor was any provided before the selection team.

    
    

12. Although Chairperson Harvey had received and reviewed the proposals prior to the meeting, some of the selection team had not, and therefore time was allowed at the beginning of the meeting for each member to review the two proposals and to ask Diane Morton technical, non-substantive questions about each proposal. Based upon the testimony of McFadyen, Morton and Harvey, Morton functioned only as a facilitator or coordinator during the meeting, assisting members in finding certain items or subject matter in each proposal, and determining if the automatic disqualification items of Part A on the proposal rating sheet applied to either proposal. However, Morton made no qualitative judgments about either proposal, and responded only to members' questions. Her participation assisted, rather than impaired, the fairness and integrity of the process.

    
    

13. Following the time allotted for review and asking technical questions, each member completed the rating sheet individually, and thereafter the scores were announced. A discussion period was then provided during which members explained the basis for their evaluation of each Proposal. Following this discussion, members could change their rating based upon new information and the comments of other members, but in this instance no member changed his rating. The final ratings and recommendations were then announced.

    
    

14. There is no evidence that the selection team acted arbitrarily or capriciously, or in a manner which was inconsistent with the RFP or rules of Respondent. The sole basis for team member ratings of each Proposal was their own evaluation of each Proposal; there is no evidence of "erroneous" facts or information being supplied to the team by Harvey or Morton. No member of the team asked for additional time to review or rate the Proposals during the meeting on June 3, although the evaluation did not have to be completed until the next day, June 4.

    
    

15. At hearing, Petitioner sought to establish that Intervenor did not include a required Civil Rights Statement. The RFP lists a series of appendices which "must" be attached to each Proposal. Appendix 9(g) references a "Civil Rights Statement (Attachment IV of the RFP)." However, Attachment IV to the RFP is a "Civil Rights Certificate" not a "Civil Rights Statement." Attachment X of the RFP is a Civil Rights Compliance Checklist, and Intervenor included Attachment X, rather than the required Attachment IV with its RFP. However, question 6 of the Checklist asks whether "an Assurance of Compliance (is

    already) on file with HRS?" Intervenor answered this question on the Checklist in the affirmative. The required Attachment IV, Civil Rights Certificate, is the Assurance of Compliance referred to in question 6. Therefore, the unrebutted record in this case establishes that Intervenor already had on file with Respondent the required Attachment IV, and Respondent reasonably accepted this previous filing, along with the additional civil rights information provided on the Checklist as compliance with the RFP Appendix 9(g) requirement. It is also apparent from Section VI, A, 3. of the RFP that the failure to include Appendix IV will "not be fatal to the consideration of the proposal and that only five points are to be given for this Attachment. The three committee members who recommended Intervenor each gave Intervenor the five points on this item; however, even if this five points is deducted from Intervenor's score, Houchins, Roberts and Harvey still would have rated Intervenor higher than Petitioner, and Intervenor's overall point total would still have exceeded Petitioner's.

    
    

16. Petitioner produced the testimony of Peter Schatzel, Certified Public Accountant, to establish that Intervenor is not financially able to sustain and carry out the JASP proposal. However, Schatzel had not reviewed any audited or unaudited financial statements for Intervenor covering the period after June 30, 1986, and thus had no knowledge of Intervenor's current financial condition. Chairperson Harvey testified that a successful bidder can receive an advance of amounts due under a contract to support start-up costs. It was therefore not established, by competent substantial evidence, that Intervenor would not be financially able to carry out its obligations under this contract.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Sections 120.53(5) and 120.57(1), F.S.

    
    

18. An agency has wide discretion in awarding contracts to responsible bidders, and its decision will not be overturned unless it is arbitrary or capricious. Baxter's Asphalt and Concrete, Inc. v. Dept. of Transportation, 475 So.2d 1284 (Fla. 1st DCA 1985); Capelletti Brothers v. Dept. of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983); Wood-Hopkins Contracting Co. v. Roger J. Au and Son, Inc., 354 So.2d 446 (Fla. 1st DCA 1978). Agencies do not have unbridled discretion, but must act in a reasonable manner in the award of contracts. The burden is upon the unsuccessful bidder which seeks to establish that it is entitled to the award, or that the award to another bidder is arbitrary, capricious or violative of established procedures. J.W.C. Co. Inc.

    v. Dept. of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981). As the substantially affected party in this proceeding, Petitioner has the burden of producing evidence at hearing sufficient to change the agency's mind. Groves- Watkins Constructors v. Dept. of Transportation, Case No. BR-163 (Fla. 1st DCA, Op. filed June 11, 1987, Op. on Motion for Rehearing filed August 4, 1987).

    
    

19. Petitioner has failed to sustain its burden in this case. Respondent's actions in the evaluation process and in selecting Intervenor have not been shown to be arbitrary, capricious, or unreasonable. Intervenor submitted a response to the RFP which proposes to serve a greater number of clients, as a minimum, than Petitioner at a lower cost to the Respondent. See Section 287.057(2)(3), F.S. (1986 Supplement). The evaluation process and criteria were fully set forth in the RFP, including the timetable for decisions, and all bidders were therefore aware of the process when they submitted their proposals. Complaints about inadequate notice and time for deliberation are not well- founded because it has not been shown that the selection team wanted, or needed,

    more time to review these proposals or that oral presentation by providers were essential to the process. Respondent followed the evaluation process and criteria set forth in the RFP, and that process was reasonable in view of the July 1 contract start date.

    
    

20. Petitioner has not shown that Intervenor is financially unable to perform under this contract, and that therefore any award to Intervenor would be unreasonable. Acceptance of Intervenor's proposal despite the technical defect of failure to attach the Civil Rights Certificate (Attachment IV) is harmless error at most since Intervenor would still have received an overall higher rating than Petitioner if the five points for this item had been deducted. However, it was also reasonable for Respondent to accept Intervenor's answer to question 6 on the Civil Rights Compliance Checklist as compliance with the requirement of a Civil Rights Assurance Certificate since said answer pointed out that the required Assurance was already on file with Respondent.

RECOMMENDATION

Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the bid protest filed by Petitioner.

DONE AND ENTERED this 14th day of October, 1987, at Tallahassee, Florida.

DONALD D. CONN

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 14th day of October, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2800BID

Petitioner filed Closing Argument on October 7, 1987 which has been considered in the preparation of this Recommended Order. However, no specific ruling thereon can be made since this is not a proposed finding of fact as provided in Rule 22I- 6.031, F.A.C.

COPIES FURNISHED:

Dominic Amadio, Esquire

100 34th Street North Suite 305

St. Petersburg, Florida 33713

Frederick P. Wilk, Esquire 4000 West Buffalo Avenue Room 520

Tampa, Florida 33614

William F. Bowman

2410 East Busch Boulevard Suite 303

Tampa, Florida 33612

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 87-002800BID

Orders for Case No: 87-002800BID