STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CURE AIDS NOW, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-2765BID

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on August 23, 1988, 1/ in Tallahassee, Florida.

APPEARANCES

For Petitioner: Bob Kunst, Director

Cure Aids Now, Inc. 2240 South Dixie

Miami, Florida 3313

For Respondent: Catherine L. Dickson, Esquire

Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700 ISSUE

The issue presented for decision herein is whether or not Respondent arbitrarily, capriciously or discriminatorily denied Petitioner's request for funding and awarding grant monies for "Minority Aids Prevention Initiatives."

INTRODUCTION AND BACKGROUND

Petitioner, Cure Aids Now, Inc. (CAN) is a recognized nonprofit volunteer Aids education and prevention organization operating primarily in South Florida. On or about March 11, 1988, Respondent solicited proposals for Minority Aids Prevention Initiatives.

The Agency's request for proposals (RFP) specified certain criteria for evaluating grant proposals which were consistent with the criteria and goals established by the United States Center for Disease Control (CDC). Among the grants offered were grants to implement innovative strategies to promote and monitor condom use in minority communities and other grants where intended to

establish programs to educate and modify behavior among minority groups and to provide counseling, health services and testing.

Pursuant to the RFP, Petitioner submitted seven separate proposals seeking grants, of which fourteen separate contracts were offered by Respondent.

Petitioner was not awarded a contract.

Petitioner timely filed a protest of agency action on June 1, 1988.

Petitioner alleges in its protest that Respondent abused the objective criteria set forth in its RFP with respect to funding, that Petitioner was denied funding even though it was among the most effective and innovative Aids organization in the State of Florida and that the Agency's decision was based either on racial or ethnic discrimination against it in violation of its political and first amendment activities which were designed to publicize the Aids crisis in South Florida. Petitioner concludes that the Respondent awarded its grants in total derogation of the objective or fair criteria set forth in the RFP, and did so in an arbitrary, capricious or discriminatory manner, in violation of Federal, State and Administrative Regulations.

Respondent timely filed a Motion to Dismiss Petitioner's protest based on the following:

1. Petitioner lacked standing in that it has failed to plead that it has been "adversely affected by the agency's decision" as required by

   section 120.53(5)(b), Florida Statutes.

2. Petitioner has failed to state with particularity the facts and

   law upon which the protest is based.

3. Petitioner has failed to allege any material deviations in

   proposals submitted by the agencies selected to receive grants.

4. Petitioner has alleged extraneous matter and relied on self-serving observations about its organization in its protest to Respondent's award of grants to organizations other than itself.

The parties were allowed an opportunity to argue their positions on the Motion to Dismiss at the outset of the final hearing herein.

Ruling on Respondent's Motion to Dismiss

1. Petitioner alleged that it was assured by representatives of Respondent that it would receive priority consideration for grant awards in consideration of its extensive experience in dealing with high-risk behavior and Aids among ethnic minorities in South Florida, that the criteria set forth in the RFP was not utilized by Respondent in awarding the grants, that the organizations that were selected were not as qualified as Petitioner and that it was discriminated against based on its strident advocacy on behalf of homosexual and other Aids victims or because the members of its board of directors are non-hispanic white. Petitioner alleged that one of the organizations that was awarded grants, "Liga

   Hispania Contralel Cida" (Liga Hispania) had no headquarters and refused to acknowledge an address or a telephone number on its grant application.

   
   

2. Petitioner, an unsuccessful bidder, having alleged that it should have prevailed in its quest to receive grant awards demonstrated that its substantial interests were adversely affected by its failure to receive grants awarded by Respondent and therefore has standing to participate in this proceeding as required by section 120.53(5)(b), Florida Statutes.

   
   

3. Likewise, Petitioner by alleging that it was more qualified than the successful bidders and should have been selected is sufficient to meet the specificity requirement and would afford a basis, if true, to entitle it to relief. Rule 22I-6.004(3) and 10-13.007(3), Florida Administrative Code.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying documentary evidence received and the entire record compiled herein, I make the following relevant factual findings.

1. Petitioner is a recognized nonprofit Volunteer Aids education and prevention Organization in South Florida.

   
   

2. On March 11, 1988, Respondent solicited proposals for Minority Aids prevention initiatives. Along with the solicitation, Respondent specified certain criteria for evaluating the proposals.

   
   

3. Pursuant to the RFP, Petitioner solicited seven separate proposals seeking grants. Petitioner was unsuccessful in each of its grant applications.

   
   

4. Petitioner failed to introduce any material deviation in the proposals submitted by the agencies selected to receive grants which gave those bidders a substantial advantage over others and thereby restricts or stifles competition. See, Tropabest Foods, Inc. v. State, Department of General Services, 493 So.2d

   50 (Fla. 1st DCA 1986). Respondent introduced the criteria and rating sheets which were utilized in reviewing the RFP's submitted by each of the agencies that Respondent considered. The agencies were notified in the RFP of the criteria and the rating system that would be employed in reviewing the RFP's. There were no requirements in the RFP that a street address be shown by an applicant as Petitioner has alleged based on its contention that "Liga Hispania" has no address. To the contrary, and assuming arguendo that such a requirement exists, Respondent introduced evidence which demonstrated that "Liga Hispania" in fact has an address, 3675 S. Miami Avenue in Miami, Florida. A review of the RFP submitted by Liga Hispania, the agency to which Petitioner has grounded its protest, indicates that they demonstrated superiority in the areas of technical experience in their ability to involve itself with a wide range of programs which demonstrates an effectiveness in reaching into the community of those who would be most affected by receiving grant money for a Minority Aids Preventive Initiative and received a superior rating on the composite rating sheet used by Respondent in making the grant awards. The criteria set forth in the RFP was fair and in keeping with the goals of the Aids Preventive Initiative.

   Petitioner failed to demonstrate any deviation from either the criteria or that the criteria was otherwise biased toward those agencies that received grant monies.

   
   

5. Respondent's Administrator for the Statewide Aids Office, Joyner Sims, conducted the ratings of the various RFPs submitted for the Minority Aids

   Prevention Initiative. Administrator Sims evaluated each RFP by utilizing the published criteria and Petitioner's proposal was not as competitive as those of other agencies who were awarded grant monies. Petitioner's proposal was denied on that basis and for no reason other than the merits of its request for grant monies. Petitioner failed to substantiate that any commitments were given it for preferential treatment and even if such a preference was established by credible evidence, it would be contrary to the public policy for which this program was instituted.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of and parties to this proceeding. Section 120.57(1), Florida Statutes.

   
   

7. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

8. Petitioner failed to establish that it was arbitrarily, capriciously or discriminatorily denied grant awards for Minority Aids Prevention Initiatives by Respondent. The evidence established that the successful bidders submitted superior grant applications, the grant awards were made on the basis of the criteria set forth in the RFP's and the criteria was fair and objective.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that:

Respondent enter a Final Order dismissing Petitioner's bid protest and deny its request for relief.

DONE and ORDERED this 6th day of December, 1988, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1988.

ENDNOTE

1/ The parties waived the requirement that this case be heard within 15 days of receipt of the formal written protest by the Division as required in section 120.53(5)2e, Florida Statutes.

COPIES FURNISHED:

Catherine L. Dickson, Esquire Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

David A. Scotkin, Acting Director Cure Aids Now, Inc.

2240 South Dixie Highway Miami, Florida 33133

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sam Power, HRS Clerk Department of Health

and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 88-002765BID

Orders for Case No: 88-002765BID