STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADULTS MANKIND ORGANIZATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3543BID

) FLORIDA DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, DIVISION ) OF EMPLOYMENT AND TRAINING, )

)

Respondent. )

) ADULTS MANKIND ORGANIZATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3544BID

) FLORIDA DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, DIVISION ) OF EMPLOYMENT AND TRAINING, )

)

Respondent. )

) CENTER FOR INDEPENDENT LIVING IN ) CENTRAL FLORIDA, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 90-3545BID

) FLORIDA DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, DIVISION ) OF EMPLOYMENT AND TRAINING, )

)

Respondent. )

) GOODWILL INDUSTRIES OF CENTRAL ) FLORIDA, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 90-3546BID

) FLORIDA DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, DIVISION ) OF EMPLOYMENT AND TRAINING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled cases on June 28, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioner

Adults Mankind Organization: No appearance

For Petitioner, Lee Ann Pendergrass Center for Independent Living Director

in Central Florida, Inc.: 720 North Denning Drive

Winter Park, Florida 32789

For Petitioner, Cherie Johnson

Goodwill Industries of Director of Rehabilitation Central Florida, Inc.: 6400 South Orange Avenue

Orlando, Florida 32809

For Respondent, David J. Busch, Esquire Florida Department of Labor Senior Attorney

and Employment Security, Florida Department of Labor Division of Employment and Employment Security

and Training: Suite 131 Montgomery Building 2562 Executive Center Circle E. Tallahassee, Florida

32399-0657

STATEMENT OF THE ISSUES

Whether the respective bid protests should be upheld.

PRELIMINARY STATEMENT

The respective Petitioners in the above-styled matters submitted proposals in response to Request for Proposals issued by Respondent for job placement projects to be funded by certain discretionary federal funds under the Wagner- Peyser Act, 29 U.S.C. Sec. 49f. (b). None of the proposals submitted by the Petitioners were selected for funding. Petitioners timely filed their bid protests following the non-selection of their projects.

No appearance was made at the final hearing by Adults Mankind Organization.

Prior to the start of the formal hearing, the undersigned called that organization and was told that the organization did not intend to attend the formal hearing and that it intended to voluntarily dismiss its bid protests.

Goodwill Industries of Central Florida, Inc. and the Center for Independent Living in Florida, Inc. protest the bid process on two grounds. First, they contend that the organizational capability of the respective proposers should have been given more weight in drafting the selection criteria. Second, they protest the evaluation committee's rerating of one of the criteria, the organizational capability of the proposers. Initially, the evaluation committee rated only the experience of the respective organizations. However, following an inquiry from a member of the Florida Legislature on behalf of a proposer, the scoring of that criteria was changed to include not only the experience of the

organization, but also the experience of the individuals who constitute the organization. The proposals submitted by these Petitioners were not recommended for funding under either the first or the second rating of the proposals.

Respondent's motion to dismiss these bid protests on the grounds that these Petitioners lacked standing was taken under advisement. A recommended disposition of that motion will be made in this Recommended Order.

At the formal hearing, the parties submitted 12 joint exhibits. Lee Ann Pendergrass, the Executive Director of the Center for Independent Living in Central Florida, Inc., testified on behalf of that organization. Goodwill Industries of Central Florida, Inc. called the following witnesses: Richard Meik, Betty Strickland, Linda Antwi, Roy Chilcote, Robert D. Johnston, and Cherie Johnson. Mr. Meik, Ms. Strickland, and Ms. Antwi were members of the committee that reviewed all proposals and who rated the respective proposals. Mr. Chilcote was responsible for the preparation of the rating system, which was adapted from those used in prior years. Mr. Johnston is Respondent's Director of Labor and Employment Training and the person who ordered the rerating of the category related to the organizational capability of each proposer to include the experience of key employees. Ms. Johnson is the Director of Rehabilitation for Petitioner, Goodwill Industries. Respondent called one witness, Hayden Gray, who was accepted as an expert witness in job training and manpower programs.

A transcript of the proceedings has been filed. Rulings on all timely filed proposed findings of fact may be found in the appendix to this Recommended Order.

FINDINGS OF FACT

1. Section 7(b) of the Wagner-Peyser Act (the Act), 29 U.S.C. Section 49f.(b), is a federal grant source which provides certain funds for the funding of job placement services at the discretion of the Governors of the respective states. Included among such services are job placement services for groups determined by the Governor of Florida, in his discretion, to have special needs within the parameters set forth in the Act. These funds are commonly referred to as "the Governor's Discretionary Funds" or "the 10 percent program".

   
   

2. In 1982, Congress passed the Job Training Partnership Act (JTPA), 29

   U.S.C. Sections 1501 et seq., which amended the Wagner-Peyser Act so as to provide the 10 percent program referred to above and which also provided for separate JTPA programs. The provisions of 29 U.S.C. Section 1517, require that the "primary consideration" to be given in the procurement of services under JTPA grant programs is to "... be the effectiveness of the agency or organization in delivering comparable or related services based on demonstrated performance "

   
   

3. The procurement of services under Wagner-Peyser grants are not governed by the provisions of 29 U.S.C. Section 1517, but are, instead, governed by what is referred to as "the common rule." Circular A-102, informally known as "the common rule", is codified at 29 CFR 97.36(d)(3)(iv), and provides that a state, in the procurement of services under the 10 percent program is to use the same policies and procedures it uses for procurement from non-federal funds.

   
   

4. Respondent issued a Request For Proposals (RFP) on January 26, 1990, seeking proposals for projects to be funded through the 10 percent program. Before the deadline for the submission of responses of March 21, 1990,

   Respondent conducted three RFP workshops and distributed answers to questions raised at the workshops.

   
   

5. Adults Mankind Organization submitted two proposals in response to the RFP. The Center for Independent Living in Central Florida, Inc. (CIL) and Goodwill Industries of Central Florida, Inc. (Goodwill Industries) each submitted one proposal in response to the RFP.

   
   

6. Key personnel for both CIL and for Goodwill Industries were experienced in responding to the type RFP issued by Respondent. Both CIL and Goodwill Industries had, in prior years, been successful proposers and had successfully managed contracts with Respondent that were funded by the Act.

   
   

7. Respondent selected a three person team to review all applications that were filed in response to the RFP. The rating system employed by the team was devised by the State Job Training Coordinating Council and was essentially the same system that had been used to rate applications in the previous program year. The process contemplated that the rankings and recommendations of the three person team was to be submitted to the Job Training Committee, a committee of the State Job Training Coordinating Council. The Job Training Committee would review the work of the three person team during a public meeting and thereafter make its recommendations to the State Job Training Coordinating Council. The State Job Training Coordinating Council would thereafter review the recommendations that had been made to it by the Job Training Committee and make its recommendations to the Governor.

   
   

8. All proposals were evaluated and ranked, by the evaluation committee in the order of their respective cumulative scores. The more points a proposal received, the higher its ranking. The top ranked proposal achieved the highest number of points and was ranked number one. Following the first ranking of the applications, the top 31 ranked proposals were recommended for funding. There was insufficient funding for projects ranked lower than 31 and, consequently, no project ranked lower than 31 was recommended for funding.

   
   

9. Following the first ranking, none of the proposals submitted by the Petitioners were ranked high enough to merit a recommendation for funding. CIL's project ranked 39. Goodwill Industries' project ranked 47. Adults Mankind's two projects ranked 51 and 53, respectively.

   
   

10. The initial ranking of the applicants by the evaluation team was published on April 24, 1990, before the recommendations were submitted to the Job Training Committee.

    
    

11. The maximum score an applicant could score for all categories was 100 points. One of the rating categories, worth a total of 10 points, related to the demonstrated capabilities of the proposing organization. In the first rating, each of the proposals submitted by the Petitioners received the maximum score of 10 in this category. However, any newly formed organization, regardless of the qualifications of the key employees of that organization, received no points in this category in the first rating of the proposals.

    
    

12. Two days after the publication of the initial evaluation a member of the Florida House of Representatives, asked Director Johnston to visit with him about the RFP process. Ernest Urassa was present at this meeting. Mr. Urassa is a former employee of Respondent who has experience in providing the type services required by the Act. Mr. Urassa formed a new organization and, on behalf of that new organization, submitted proposals in response to the RFP. In

    the first rating of the proposals, Mr. Urassa's proposals received zero points in the organizational capability category. Mr. Urassa had complained to this Representative and to several of Respondent's employees about the rating of the organizational capability category. During this meeting, this Representative asked Director Johnston to explain the rationale behind the rating of the organizational capability category, but there was no evidence that this Representative was attempting to improperly influence the procurement process.

    
    

13. Mr. Johnston thereafter determined that the organizational capability category had not been fairly rated by the evaluation team. He thereafter ordered the evaluation team to rerate that one category and make its recommendations based on the revised rankings. The evaluation committee was told to consider the experience of key individuals in rating the organization's capabilities, but there was no attempt to give one proposer an unfair advantage over another. The evaluation committee rerated all of the proposals and gave all proposers a rating of 10 in the organizational capability category.

    
    

14. Following the second rating, the proposals submitted by these Petitioners were again below the cutoff for those projects that would be recommended for funding. CIL's proposal was ranked 44, Goodwill Industries' proposal was ranked 51, and Adults Mankind's proposals were ranked 57 and 58, respectively. No project ranked lower than 36 received a recommendation for funding.

    
    

15. The evaluation committee thereafter submitted its rankings and its recommendations to the State Job Training Committee, a committee of the State Job Training Council. The fact that the proposals had been rerated in this one category and the reasons for the rerating were discussed in public meetings before both the State Job Training Committee and the State Job Training Council. The State Job Training Council decided to cut the funding of all projects that were recommended for funding by 25% so that none of the projects that would have been funded following the first rating would be totally excluded from funding after the second rating. This 25% funding cut did not effect any of the Petitioners since their projects were not selected for funding.

    
    

16. Petitioners failed to establish that there was any illegality, fraud, oppression or misconduct involved in the preparation of the RFP, in the selection of the evaluation committee, in the instructions given the evaluation committee, or in the work done by the evaluation committee. Mr. Johnston acted within his discretion in reviewing the method by which this category was being evaluated, in determining that the committee was not fairly evaluating the category, and in ordering the committee to rerate the proposers in the way he thought the category should be rated.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. As the parties challenging the selection of the projects to be funded through the request for proposal process, the respective Petitioners have the burden of establishing by a preponderance of the evidence that the Respondent's action was arbitrary and capricious or that the proposed grants resulted from illegality, fraud, oppression, or misconduct. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 788 (Fla. 1st DCA 1981); Liberty County v. Baxter's Asphalt and Concrete, 421 So.2d 505 (Fla. 1982);

    Capeletti Bros., Inc. v. State, Department of General Services, 423 So.2d 1359 (Fla. 1st DCA 1983).

    
    

19. Adults Mankind has not followed through on its announced intention to voluntarily dismiss the two bid protests that it filed. Adults Mankind did not appear at the formal hearing and has offered no evidence in support of its two bid protests. Consequently, it is recommended that the two bid protests filed by Adults Mankind be dismissed.

    
    

20. CIL and Goodwill Industries contend, in part, that there was insufficient consideration given in the evaluation process to the organizational capabilities of the proposing organization. Petitioners contention should be rejected because the procurement of services under the Wagner-Peyser Act is governed by the "common rule" codified at 29 CFR Part 97, not by Section 107(b) of the Job Training Partnership Act, codified at 29 U.S.C. Section 1517. Respondents established that appropriate consideration was given to the organizational capabilities of the proposing organizations, and that the RFP comported with the requirements of Florida law. Petitioners also argue that had they known that it was possible to ask that a category be rerated, they could have asked that certain categories in which they achieved low scores also be rerated. This argument is pure speculation and is, consequently, rejected.

    
    

21. Petitioners failed to establish their standing to protest the rerating of the organizational capabilities of the proposing organizations ordered by Director Johnston. The application of neither Petitioner achieved a sufficient ranking either before or after the rerating to merit a recommendation for funding. Consequently, the substantial interests of neither Petitioner was effected by the rerating.

    
    

22. Even had Petitioners established their standing, the Petitioners failed to meet their burden of establishing that the rankings were arbitrary and capricious or that the proposed grants resulted from illegality, fraud, oppression, or misconduct. An agency has wide discretion in soliciting and accepting bids and a decision based on an honest exercise of its discretion may not be overturned, even if reasonable persons may disagree with the outcome.

1. Barco Contracting Co. v. State Department of Transportation, 483 So.2d 796 (Fla. 1986).

   
   

   RECOMMENDATION

   
   

   Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the bid protests filed by the respective Petitioners in Cases 90-3543BID, 90-3544BID, 90-3545BID and 90-3546BID be dismissed.

   DONE AND ENTERED this 16th day of August, 1990, in Tallahassee, Leon County, Florida.

   
   

   
   

   CLAUDE B. ARRINGTON

   Hearing Officer

   The DeSoto Building 1230 Apalachee Parkway

   Tallahassee, Florida 32399-1550 904/488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1990.

   
   

   APPENDIX TO RECOMMENDED ORDER, CASES 9O-3543BID, 9O-3544BID, 90-3545BID and 90-3546BID

   
   

   The following rulings are made on the proposed findings of fact contained in the proposed recommended order submitted July 27, 1990 (the proposed recommended order does not specify by whom it was submitted, but it is apparent that it was submitted by one or more of the petitioners):

   
   

   1. The proposed findings of fact in paragraphs 1-8, 13, and 15 are adopted in material part by the Recommended Order.

   2. The proposed findings of fact in paragraphs 9-12, 14, 16, 19, 20, and 22-25 are rejected as being unnecessary to the conclusions reached.

   3. The proposed findings of fact in paragraph 17 are rejected as being unsubstantiated by the evidence. The proposed finding misconstrues Mr. Johnston's testimony.

   4. The proposed findings of fact in paragraph 18 are rejected as being unsubstantiated by the evidence and as being

      argument.

   5. The proposed findings of fact in Paragraphs 21 and 26 are rejected as being unnecessary to the conclusions reached and as being argument.

The following rulings are made on the proposed findings of fact contained in the proposed recommended order submitted by Respondent:

1. The proposed findings of fact in Paragraphs 1, 3-6, and 10-12 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 2 are rejected as being unnecessary to the conclusions reached.

3. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made.

4. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order, and are rejected in part as being the recitation of testimony.

5. The proposed findings of fact in paragraph 9 are rejected as being unnecessary to the conclusions reached or as being subordinate to the findings made.

COPIES FURNISHED:

David J. Bush, Senior Attorney Florida Department of Labor

and Employment Security The Montgomery Building Suite 131

2562 Executive Center Circle East Tallahassee, Florida 32399-0657

Sara Bravo Executive Director

Adults Mankind Organization, Inc. 1850 S. W. 8th Street, Suite 411 Miami, Florida 33135

Shelton Kemp

Chief, Bureau of Job Training Florida Department of Labor

and Employment Security Division of Labor Employment

and Training

The Atkins Building, Suite 300 1320 Executive Center Drive Tallahassee, Florida 32399-0667

Nan Griggs Executive Director

Treasure Coast Private Industry Council, Inc.

3405 Northwest Federal Highway Suite 101

Jensen Beach, Florida 34957

Lee Ann Pendergrass Director

Center for Independent Living in Central Florida, Inc.

720 North Denning Drive Winter Park, Florida 32789

Cherie Johnson

Director of Rehabilitation Development

Goodwill Industries of Central Florida, Inc.

6400 S. Orange Avenue Orlando, Florida 32859-0557

Hugo Menendez, Secretary Berkely Building, Suite 200

2590 Executive Center Circle, East Tallahassee, Florida 32399-2152

Stephen Barron General Counsel

307 Hartman Building 2012 Capital Circle S.E.

Tallahassee, Florida 32399-0658

Docket for Case No: 90-003543BID

Orders for Case No: 90-003543BID