STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COUNTY TRANSPORTATION/AAA ) WHEELCHAIR WAGON SERVICE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-3157BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

) NON-EMERGENCY MEDICAL TRANSPORT ) CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3158BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent, )

and )

)

B & L SERVICES, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on July 18, 1988, at Tallahassee, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner Non-Emergency Medical Transport

Corporation (NEMT):

Robert Siedlecki

individually and for the corporation, Post Office Box 196

Hollywood, Florida 33022

For Petitioner County Transportation/AAA Wheelchair Wagon Service, Inc. (AAA):

Brian M. Berman SMITH & BERMAN, P.A.

2310 Hollywood Boulevard

Hollywood, Florida 33020

For Respondent Department of Health and

Rehabilitative Services (HRS):

Lawrence F. Kranert

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

For Intervenor B & L Services, Inc. (B&L) :

John M. Camillo

VERNIS & BOWLING, P.A.

301 Southeast 10th Court

Fort Lauderdale, Florida 33316 BACKGROUND AND PROCEDURAL MATTERS

This case began on May 18, 1988, when HRS gave notice of its intent to award the contract for Medicaid transportation services to B&L. The selection had been determined based upon submissions filed in response to a request for proposal (RFP). Thereafter, NEMT and AAA timely filed notices of their intent to protest the award.

NEMT filed its formal written protest and alleged that both B&L and AAA had failed to comply with the "fatal items" required by the RFP. NEMT claimed it was the only qualified bidder to comply with the "fatal items" requirements.

AAA filed a formal written protest and alleged the evaluation process had been improperly interfered with by the contract manager. This alleged interference resulted in an adverse scoring of the company. Further, AAA claimed that B&L had failed to comply with the "fatal items" of the RFP.

On June 29, 1988, the matter was referred to the Division of Administrative Hearings for formal proceedings. By Order entered July 13, 1988, the successful bidder, B&L, was allowed to intervene. Further, the cases were consolidated for hearing purposes.

By stipulation the parties agreed that the following witnesses would be called and examined by all parties for their respective cases: Vera Sharitt, Human Services Program Analyst for the Medicaid Program Office, an employee of HRS and contract manager for this RFP; Donald Kent Rice, a member of the RFP evaluation committee; Magna Salas, a member of the RFP evaluation committee; Constance Klein, a member of the RFP evaluation committee; and Cathy N. D'Heron, supervisor of the contract manager, employee of HRS' Medicaid Program.

The following exhibits were admitted into evidence by stipulation of the parties: Exhibit 1, copy of the RFP, Medicaid Transportation Services, fiscal year 1988-89; Exhibit 2A, proposal submitted by AAA; Exhibit 2B, proposal submitted by NEMT; Exhibit 2C, proposal submitted by B&L; Exhibit 3, Fatal Items checklist with attachments for all bidders; Exhibit 4, composite showing the evaluation committee's tabulations; Exhibit 5, transcript of the informal bid protest resolution meeting; Exhibit 6, the HRS manual entitled "Contract Management System for Contractual Services;" and Exhibit 7, copy of Chapter 22

1/2 of the Broward County Code. NEMT's exhibit 1, a copy of a letter from Sharon Cruz to Vera Sharitt dated March 30, 1988, was also admitted into evidence.

The transcript of the proceedings was filed on August 5, 1988. All parties filed proposed recommended orders which have been carefully considered in the preparation of this Recommended Order. Specific rulings on the proposed findings of fact are included in the attached Appendix.

ISSUE

The central issue in this case is whether B&L is the lowest responsive bidder to HRS Medicaid transportation services RFP for fiscal year 1988-89.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. On March 18, 1988, HRS issued a request for proposal (RFP) for contractual services, the Medicaid transportation services for fiscal year 1988-

1. The proposals were to be opened April 15, 1988. The contract manager for the Medicaid Program Office was identified as Vera Sharitt. All questions pertaining to the provisions of the RFP were to be in writing addressed to Ms. Sharitt.

   
   

   1. The RFP identified seven categories of transportation which required response. In the instant case, NEMT, AAA, and B&L all submitted proposals for each of the categories.

      
      

   2. All proposals were first reviewed to determine whether or not they met the requirements set forth in the fatal items checklist. This review was performed by Vera Sharitt. All bid responses were deemed in compliance with the fatal items and were, therefore, submitted to the five member evaluation committee for further review. Committee members then used a ating sheet to determine which proposal was the most advantageous to the state.

      
      

   3. The evaluation committee weighed each proposal on the basis of five criteria: proposal requirements; response to statement of purpose/need project understanding; method of service provision; references; and rate analysis. The proposal receiving the highest total of points was deemed the most advantageous to the state. In each of the seven transportation categories, B&L received the highest total of points from the evaluation committee members.

      
      

   4. The evaluation committee met on May 16, 1988. Present at this meeting were: Kent Rice, Connie Klein, Magna Salas, Susan Pippitt, Urban Myers, Vera Sharitt, and Cathy N. D'Heron. In response to a suggestion made by Vera Sharitt, the committee members agreed to assign set points to the rate analysis portion of the rating sheet. Accordingly, the lowest rate was given 10 of the possible 10 points, the second lowest was given 5 of the possible 10 points, and the third lowest was given 1 of the possible 10 points. In the event of a tie, both proposals received the same points. The RFP had included a sample rating sheet which had specified that the rating analysis would be computed on a 0-10 scale. The committee determined that the proposed assignment of 10-5-1 was within the published range but that it would be unfair to give the highest rate

      0 points.

   5. At no time during the evaluation committee meeting did Vera Sharitt improperly influence or attempt to influence the members' scoring of points.

      Ms. Sharitt did not interfere with the evaluation process nor did she attempt to favor one proposal over another.

      
      

   6. Further, there is no evidence which suggests that Ms. Sharitt improperly influenced or attempted to influence evaluation committee members outside of the meeting conducted on May 18, 1988.

      
      

   7. The fatal items checklist for the RFP asked six cuestions which related to information required to complete a proposal. The absence of any one of the required items would have resulted in the disqualification of the proposal. At issue in this case are the following provisions of the fatal items:

      
      

      1. Was the fatal items envelope received by the time and date specified in the RFP?

      2. Ambulatory Services:

         1. Did the proposer submit a copy(ies) of taxi and/or limousine permits?

         2. Did the proposer submit proof of registration from the Florida Division of Motor Vehicles?

      3. Wheelchair/Stretcher Van Services:

         1. Did the proposer submit a copy of county licensure?

      4. Did the proposer submit proof of vehicle liability insurance which included insurer name, address and phone number, policy number, vehicles covered as identified by vehicle identification number, liability limits and policy effective/expiration dates?

      5. Did the proposer submit a statement that the proposer agrees to all contract terms and conditions?

      6. Did the proposer submit the statement regarding no involvement?

         
         

   8. In reviewing the information submitted under the fatal items checklist, Vera Sharitt determined that if the information sought could be found in any of submitted materials, the proposer would be deemed qualified. Thus, in the case of B&L, Ms. Sharitt found that the insurance coverage for the vehicles, which named B&L as the insured, corresponded to the vehicles identified on the vehicle registrations submitted. Having made the connection to relate proposer to insurance and vehicles, the actual ownership of the vehicles (in this case in the name of a third or fourth entity) Ms. Sharitt deemed to be unimportant. The same approach was applied to the submittals made by AAA and NEMT.

      
      

   9. The RFP did not require that vehicles identified in a proposal be titled in the name of the proposer. No proposer challenged the terms of the RFP or the fatal items checklist.

      
      

   10. All three proposers, NEMT, AAA and B&L, complied with the fatal items requirements as consistently reviewed by Ms. Sharitt.

       
       

   11. Based upon the terms of the RFP and the fatal items checklist, Ms. Sharitt's review and finding that all proposers were qualified was reasonable.

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

       
       

   13. Section 287.057, Florida Statutes, provides, in pertinent part:

       
       

       (1) For the purposes of this section, the term "state contractual service term contract" means a term contract whereby a responsive bidder agrees to furnish a contractual service during a prescribed period of time or by specific date. The specific period of time or date completes such contract.

       * * *

       (3) When an, agency determines in writing that the use of competitive sealed bidding is not practicable, contractual services shall be procured by competitive sealed proposals. A request for proposals which includes a statement of the services sought and all contractual terms and conditions applicable to the procurement of contractual services, including the criteria, which shall include, but need not be limited to, price, to be used in determining acceptability of the proposal shall be issued... The award shall be

       made to the responsible offeror whose proposal is determined in writing to be the most advantageous to the state, taking into consideration the price and the other criteria set forth in the request for proposals. The contract file shall contain the basis on which the award is made.

       
       

   14. Pertinent to this case are the following provisions of Chapter 10-13, Florida Administrative Code, with which all parties have complied: Rule 10-

       13.002 and Rule 10-13.008.

       
       

   15. The standard for review of agency decisions to award service contracts is whether the agency acted arbitrarily or capriciously. Further, the proper procedure for contesting the terms of a RFP, its fatal items checklist, or proposal rating sheet would have required a protest within seventy-two hours of receipt of the RFP. Capeletti Bros., Inc. v. Department of Transportation, 499 So.2d 855 (Fla. 1st DCA 1986). In the case at issue, the parties did not timely contest the terms of the RFP, its fatal items checklist, or the proposal rating sheet. The only timely issues framed in this matter were whether the contract manager interfered with the scoring process and whether B&L and AAA complied with the requirements of the fatal items checklist.

       
       

   16. With regard to the alleged interference by the contract manager, the evidence in this cause simply does not support such accusation. The record is clear that Ms. Sharitt did not participate in the scoring of the rating sheets. Her only input to the evaluation committee consisted of a recommendation that they utilize a set point assignment for each rate submitted. The committee then chose to assign the points which were utilized. The committee rejected a

       suggestion to give the highest proposal 0 points. Instead, the committee, as a whole, chose to assign 1 point to the highest proposal, 5 points to the second highest, and 10 points to the lowest. At the time this assignment was agreed upon, the committee members had no idea how the proposals would be evaluated under the other four criteria. It should be noted that the rating sheet had specified that the rate analysis would be on a scale of 0-10. Clearly, the method utilized by the committee fell within that range. Ms. Sharitt did not attempt to influence the committee members in a manner which would affect the outcome of the award. Neither she nor anyone else present had any knowledge of the points given under the other four criteria. Consequently, the actions taken by Ms. Sharitt did not adversely affect the evaluations made. Further, the committee did not act arbitrarily or capriciously in electing to assign set points per rate. In fact, the system assured that the committee members would use consistent points for each category evaluated.

       
       

   17. With regard to the fatal items checklist, Ms. Sharitt reviewed the proposals giving each an opportunity to show compliance with the required information. That she looked to the four corners of all information submitted does not suggest she acted improperly. Since the RFP did not specify that all vehicles had to be owned by the proposer, the insurance documentation which connected the proposer to the vehicles identified was sufficient to meet the fatal items checklist. Had she applied a more strict reading of the requirements, all proposers might have been disqualified on a very limited technical, unsubstantial basis. By giving each proposer the benefit of looking at the entire submittal, Ms. Sharitt assured that the evaluations would be made on the merits of each. To ignore pertinent information simply because it was not on the correct line or space would be arbitrary. All proposers in the instant case met the fatal items. Consequently, the final rankings were based upon the evaluation committee's computations.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Department of Health and Rehabilitative Services enter a final order awarding the contract for Medicaid transportation services, fiscal year 1988-89, to B & L Services, Inc.

DONE and RECOMMENDED this 16th day of September, 1988, in Tallahassee, Florida.

JOYOUS D. PARRISH

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 16th day of September, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-3157BID, 88-3158BID

Rulings on Proposed Findings of Fact submitted by Petitioner, NEMT:

1. Paragraph 1 is rejected as contrary to the weight of the evidence submitted, argumentative and a conclusion of law erroneous to the facts of this case.

2. Paragraph 2 is rejected as contrary to the weight of the evidence submitted.

3. Paragraph 3 is rejected as contrary to the weight of the evidence submitted.

4. Paragraph 4 is rejected as irrelevant, immaterial or contrary to the relevant evidence submitted.

5. Paragraph 5 is rejected as irrelevant, immaterial or contrary to the relevant evidence submitted.

6. Paragraphs 6,7,8 and 9 (including all subportions therein) are rejected as irrelevant or contrary to the weight of the credible evidence submitted.

7. Paragraph 10 is rejected as argument or conclusion of law erroneous to the facts of this case.

8. Paragraph 11 is rejected. There is no evidence which would suggest B&L acted as a "front" for another entity or entities.

9. Paragraph 12 is rejected as argument unsupported by the record in this cause.

10. Paragraph 13 is rejected All parties waived any contest of the rating criteria by not timely challenging the terms of the RFP. Further, the terms as applied in this instance have not been arbitrarily or capriciously used to prejudice any proposer.

11. Paragraph 14 is rejected as contrary to the weight of the evidence presented.

12. Paragraph 15 is rejected as argument or a conclusion of law which, although correctly stated, is not applicable to the facts of this case.

13. Paragraphs 16 and 17 are rejected as argument.

14. Paragraph 18 is accepted to the extent it states Robert J. Siedlecki/NEMT Corp. was a qualified bidder; however, to the extent such paragraph concludes the bidder qualified was NEMT, the paragraph is rejected as contrary to the weight of the evidence presented.

Rulings on NEMT's findings as to AAA:

1. Paragraphs 1-5 are rejected as contrary to the weight of the relevant and material evidence submitted. It should be further noted that NEMT does not have standing to contest the award to B&L given the finding that AAA did, in fact, comply with the fatal items checklist. Being a qualified proposer, AAA stood next in line to receive the contract not NEMT.

The submissions made by NEMT with the proposed findings of fact have not been considered as evidence in this case.

Rulings on the proposed findings of fact submitted by AAA:

Inasmuch as this petitioner's proposed findings were not in numbered paragraphs, ruling has been made based upon the order of presentation. The first paragraph being considered paragraph 1.

1. Paragraph is accepted as the applicable rule governing the fatal items checklist.

2. Paragraph 2 is rejected as contrary to the weight of the evidence.

3. Paragraph 3 is rejected as irrelevant, immaterial or contrary to the weight of the credible, relevant evidence.

4. Paragraph 4 is rejected as irrelevant, immaterial or contrary to the weight of the evidence; additionally, such conclusion falls outside of the scope of this petitioner's contest.

5. Paragraph 5 is rejected as contrary to the weight of the evidence. Ms. Sharitt also testified that the connection between B&L and the other entities was based upon insurance documentation submitted with the proposal.

6. Paragraph 6 is rejected as a conclusion of law which, while correctly stately, is not a finding of fact and which has been erroneously applied.

7. Paragraph 7 is rejected as irrelevant, immaterial or contrary to the evidence presented.

8. The first five sentences of paragraph 8 are accepted. The balance of the paragraph is rejected as contrary to the weight of the credible evidence submitted.

9. Paragraph 9 is rejected as unsupported by the record or contrary to the evidence submitted.

Rulings on the proposed findings of fact submitted by HRS:

1. Paragraphs 1-10 are accepted.

2. To the extent paragraph 11 conforms with the findings made in paragraphs 5, 6, & 7 they are accepted. Otherwise the paragraph is rejected as contrary to the evidence presented.

3. Paragraphs 12-14 are accepted.

Rulings on the proposed findings of fact submitted by B&L:

It is presumed the submittal reviewed below was from B&L; however, no identifying statement was included in the text of the proposal itself. The presumption is based on the fact that all other submittals were clearly identified by party name.

1. Paragraphs 1-5 are accepted.

2. Paragraph 6 is accepted see findings made in paragraph 8 as to the exact language of the fatal items checklist.

3. Paragraph 7 is accepted.

4. Paragraphs 8, 9, and 10 are accepted.

5. The first two sentences of paragraph 11 are accepted; the balance of the paragraph is rejected as irrelevant or immaterial to the issues framed in this cause.

COPIES FURNISHED:

Robert J. Siedlecki 5890 Rodman Street

Hollywood, Florida 33023

Brian M. Berman

2310 Hollywood Boulevard

Hollywood, Florida 33020

Lawrence F. Kranert, Jr. Department of Health and

Rehabilitative Services

201 West Broward Boulevard Fort Lauderdale, Florida 33301

John M. Camillo

301 Southeast 10th Court

Fort Lauderdale, Florida 33316

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 88-003157BID

Orders for Case No: 88-003157BID