STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MULTI-RESOURCES, INC., )

)

Petitioner, )

)

and )

) PEJUS, INC., and WOHLFARTH GROUP ) OF HOMES, INC., )

)

Intervenors, )

)

vs. ) CASE NO. 91-2178BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent, )

)

and )

)

ARA DEVCON, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on April 19 and April 25, 1991, in Tallahassee, Florida.

APPEARANCES

For Multi-Resources, Inc.: John Liguori, Esquire

P.O. Box 1051

Bartow, Florida 33830

For Pejus, Inc.: Ernest M. Beal, Jr., Esq.

Pejus, Inc.

9025 Coldwater Road

Suite 300

Fort Wayne, IN 46825

For Wohlfarth Group of

Homes, Inc.: Fred Wohlfarth

2301 Whitehorse Street

Deltona, Florida 32738

For Department of Health

and Rehabilitative Services: James Sawyer, Jr., Esquire

HRS-District 7 Legal Ofc. South Tower, Suite S-827

400 W. Robinson Street Orlando, Florida 32801

For ARA Devcon, Inc.: Linda Mabile

2121 Killearney Way Suite F

Tallahassee, Florida 32308 STATEMENT OF THE ISSUES

Petitioner, Multi-Resources, Inc., has protested Respondent, Department of Health and Rehabilitative Services' intended award of a bid to ARA Devcon, Inc.

The issues as raised by the pleadings and parties' prehearing statement are whether the Department of Health and Rehabilitative Services properly applied its scoring criteria to ARA Devcon and Multi-Resources, Inc.; and whether the evaluation process was so fatally flawed as to require a re-bid or reevaluation.

PRELIMINARY STATEMENT

Multi-Resources, Inc., timely filed its formal notice of protest of contract award RFP #DS-91-01 "Specialized Group Home", and the matter was referred to the Division of Administrative Hearings on April 5, 1991. Notice of the protest was also provided to all bidders.

Consistent with Section 120.53, F.S., the hearing was set for April 19, 1991. On April 17, 1991, Pejus, Inc., a bidder whose proposal was rejected, filed its Petition for Leave to Intervene.

Another bidder whose proposal was rejected, Wohlfarth Group of Homes, Inc., and the apparent successful bidder, ARA Devcon, Inc. appeared at the hearing and requested intervention.

None objected to the participation of ARA Devcon, Inc., and intervention was granted. The Department of Health and Rehabilitative Services objected to participation of Pejus, Inc., and Wohlfarth Group of Homes, Inc., as neither of these bidders filed protests. The objection was overruled and intervention was granted with participation limited to cross examination of witnesses and direct testimony of the parties.

Petitioner, Multi-Resources, Inc., presented the following witnesses: Ernest M. Beal, Jr., Frederick R. Wohlfarth, Jack Sandler, Russ Wingo, Jr., Delton Eugene Delaney, Ira Ehrlich, Paula Bowser, Dawn Winder, and Sandra Browdy.

Ernest Beal and Frederick Wohlfarth testified on behalf of their respective corporations. Linda Mabile testified on behalf of ARA Devcon, Inc.; and Raymond

A. Granston testified on behalf of the Department of Health and Rehabilitative Services.

Twelve joint exhibits were received in evidence by stipulation. These include the four responses to request for proposals, the request for proposals,

rating sheets, a program protocol, and several HRS manuals relating to the bid/contracts process and service delivery.

At the hearing Multi-Resources, Inc., presented two exhibits, its protest letter, received without objection; and a portion of a legislative management committee report, received over objection based on relevance. By leave granted without objection, Multi-Resources, Inc., presented the following late-filed exhibits: Exhibits A-E (Conflict of Interest questionnaires) and Exhibit F (approval of RFP and selection team appointment form).

Upon request of Pejus, Inc., with agreement by the Department of Health and Rehabilitative Services, the record is also supplemented with a letter dated May 16, 1991, from Ernest M. Beal, Jr. regarding acknowledgment by HRS that the agency has no records which confirm any evaluation or rejection of the Pejus, Inc., proposal. This letter is marked and received as "Pejus Exhibit #1".

After the hearing was closed Wohlfarth Group of Homes, Inc., submitted a separate packet identified as the letter of intent and proposal for RFP #DS-91-

01. This packet is in a different format than the exhibit identified as its proposal and received in evidence at the hearing as Joint Exhibit #5, and as stated in a post-hearing order dated June 17, 1991, the packet is not considered as evidence in this proceeding.

A transcript of the hearing was prepared and filed. An extension was granted to the parties to file their post-hearing proposed recommended orders by July 10, 1991. On June 28, 1991, ARA Devcon filed a "response to formal written protest" which summarizes that party's argument and testimony at the hearing.

It also makes an appropriate correction to the transcript at pages 383-384, lines 25-1.

On July 10, 1991, Petitioner, Multi-Resources, Inc., filed proposed findings of fact and a proposed order. All matters of record as described above have been considered in the preparation of this recommended order. Specific rulings on the findings of fact proposed by Multi-Resources, Inc., are found in the attached Appendix.

On August 12, 1991, Wohlfarth Group of Homes, Inc., filed its proposed findings of fact, approximately one month after the deadline established in an order entered on June 10, 1991. These are addressed in the attached Appendix.

FINDINGS OF FACT

The Parties

1. The Department of Health and Rehabilitative Services (HRS) is an agency of the State of Florida with the responsibility to provide services to certain clients and the authority to contract for the provision of those services.

   
   

2. Multi-Resources, Inc., (MRI) is a Florida corporation with an office in Sebring, Florida. The corporation provides behavioral treatment to persons with developmental disabilities referred to its programs by HRS.

   
   

   The corporation currently operates in HRS Districts VI, VII, and IX, including a facility in Orlando, in District VII, which serves residential clients in two homes under contract with HRS. The clients in that facility are the same clients who are to be served under the proposed contract which is the subject of this proceeding.

3. ARA Devcon, Inc., (Devcon) has been incorporated in Florida since 1981. It currently serves 276 developmentally disabled individuals in residential cluster facilities. Eighty-four of these individuals are "dually diagnosed"; that is, they are retarded and also have mental disabilities which require intensive intervention. Devcon provides services to HRS clients through contracts with the agency.

   
   

4. Pejus, Inc., (Pejus) is an Indiana corporation organized to provide human services to persons with special needs. It operates programs in northern Indiana and, through a separate Florida corporation, Community Opportunities, Inc., it operates residential group homes under contract with HRS in District

   IV. These group homes serve persons with dual diagnoses of mental retardation and mental illness with severe behavioral disorders.

   
   

5. Wohlfarth Group of Homes, Inc., (Wohlfarth) is in the process of incorporating in the State of Florida, with an office in Deltona, Florida. It currently does business in New Jersey as Developmental Disabilities Association of New Jersey, Inc.. In New Jersey it provides services to developmentally disabled persons, which services include group homes and adult training programs.

   
   

   The Request for Proposals

   
   

6. On January 3, 1991, HRS District VII Administrator, Paul Snead, approved the Request for Proposals (RFP) and appointment of a 5-person selection team for RFP #DS-91-01, for specialized group homes for 24 District VII clients who are dually diagnosed or have severe behavior problems. (Joint Exhibit #3, MRI Exhibit F)

   
   

7. The deadlines in the RFP provide for release of the RFP on January 18, 1991, a bidders' conference on January 28, 1991, and responses to the RFP to be received by the department by 3:00 p.m. on February 15, 1991. (Joint Exhibit #3)

   
   

8. The RFP describes briefly the services to be provided with programmatic and other special requirements.

   
   

   Under "General Information", the RFP provides that the contract will be a fixed-price contract, with a line-item budget to be presented for the contract period of October 1, 1991-September 30, 1992, October 1, 1992-September 30,

   1993, and October 1, 1993-September 30, 1994. "All costs will be reviewed to ensure that the costs are allowable and 'reasonable and necessary'". (Joint Exhibit #3, p.5)

   
   

9. The instructions in the RFP include the following:

   
   

   1. How to Submit a Proposal

      Each copy of the proposal must include a Title Page which contains the following information:

      1. RFP number

      2. Title of proposal;

      3. Bidder's name;

      4. Organization to which proposal is submitted;

      5. Name, title, phone number and address of person who can respond to inquiries regarding the proposal; and,

      6. Name of project director (if known).

      All proposals should include: (Attachment XI)

      1. The project objectives as seen by the bidder;

      2. A detailed explanation of how the services will be provided; and,

      3. An operational plan which lists the activities to be conducted to accomplish each objective, and completion dates.

      The proposal should include: (Attachment XI)

      1. A table of organization, indicating how the project staff fit into the total agency, and how each member of the project staff relates to the other;

      2. A synopsis of corporate qualifications, indicating ability to manage and complete the proposed project;

      3. Evaluations of projects similar to the one proposed in the RFP (previous experience is desired but not required);

      4. A copy of the most recent financial statement or audit;

      5. An explanation outlining the staff who will provide the service, their qualifications and their number; and,

      6. Complete the Administrative Assessment of Potential Providers Checklist (Attachment X) and return it with the response to the RFP.

      The bidder must deliver the proposal packets either by hand or certified mail in a sealed envelope marked "Bid RFP #DS-91-01".

      In order for the bidder to receive proof of delivery they must request a receipt showing the time and date of delivery or mailing.

      j. Number of Copies Required

      The bidder will be required to submit an original and 2 copies of the proposal. At least one copy of the proposal submitted to the department must contain an original signature of an official of the provider agency who is authorized to bind the provider to the proposal.

      (Joint Exhibit #3, pp. 7, 8)

10. The RFP describes "other required information" to include a Department of General Services acknowledgment form, a "statement of no involvement" form (certifying that the bidder was not involved in developing the RFP and other related matters), and a sworn statement under Section 287.133(3)(a), F.S. on public entity crimes. (Joint Exhibit #3, p. 9).

11. Paragraph B.3.a. of the RFP requires that the proposal include "...a signed statement in response to the RFP

    indicating acceptance of the terms and

    conditions of provisions of service as specified in the RFP and contained in the core model contract".

    (Joint Exhibit #3, p. 10)

    
    

12. Paragraph C. of the RFP provides:

    
    

    C. Proposal Evaluation Criteria and Proposal Rating Sheet

    The criteria by which the response to RFP #DS-91-01 will be selected is found in Attachment IX.

    The proposal rating sheet is a list of the evaluation criteria and specific indicators used to assess the degree to which the bidder's response meets those criteria. Prior to February 20, 1991, each proposal will be reviewed by the Proposal Selection Team and points awarded for each section based on the responses given. The selection team will evaluate the quality and completeness of the bidder's response. The values awarded for each response will be tabulated and a minimum score established below which proposals will not be considered.

    (Joint Exhibit #3, pgs. 10, 11)

    
    

13. Attachment IX of the RFP, (Joint Exhibit #3) is the proposal rating sheet for RFP #DS-91-01. It has spaces to be filled in for the title of the proposal, the bidder and the reviewer. Total possible points is 646, and a minimum of 323 points is required.

    
    

14. Part A of the Proposed Rating Sheet provides:

    
    

    Part A: MINIMUM PROPOSAL REQUIREMENT - FATAL ITEMS

    (A. "no" in any of the following requirements will automatically remove the proposal from the further consideration.)

    Circle Appropriate Responses

    1. The proposal contains an original YES NO signature by an authorized agency

       official agreeing to the terms and conditions of the contract and the statement of no involvement.

    2. The proposal for a cost-reimbursement YES NO project includes a line-item budget with

       justification. The proposal for a fixed rate project includes justification for the fixed rate.

    3. Is the population to be served YES NO the target population specified in the

       RFP?

    4. Was the District 7 application Packet YES NO used to respond to the RFP?

    5. The proposal includes a completed and YES NO signed Public Entity Crime Form,

    PUR 7068.

    (Joint Exhibit #3)

    
    

15. A total of 6 possible points is allowed for submittal of a bound proposal with required number of copies, all mandatory attachments, and sequentially numbered pages.

    
    

16. Two questions on the proposal rating sheet yield a total of 20 possible points for the bidder's understanding of why the project is necessary and what the project is intended to accomplish. (Part C)

    
    

    Six questions yield a total of 300 possible points on the bidder's response to RFP specifications. (Part D)

    
    

    Six questions yield a total of 120 possible points on the bidder's organizational capability. (Part E)

    
    

    Four questions yield a total of 200 possible points for the bidder's budget and financial information. (Part F)

    
    

    (Joint Exhibit #3, Attachment IX) The Review Process

17. Raymond Granston has been employed by the Department of Health and Rehabilitative Services since 1986, as a case manager, and most recently as a human services program specialist in the HRS Developmental Services Program Office. He drafted RFP #DS-91-01, handled the advertisement and solicitation process, and led the 5-person selection team in the evaluation of responses.

    
    

    In addition to Granston, the team included Sandy Pruette, the Residential Services Director; Helen Tasher, a member of Granston's staff; Sandra Browdy, Licensure Specialist; and Paula Bowser, Grants Specialist.

    
    

18. Four timely responses to the RFP were received: Pejus, MRI, Devcon and Wohlfarth.

    
    

19. After the proposals were opened, Granston gave one copy of each to Paula Bowser. The original and remaining copy of each were retained in Granston's office for his and the other review team members' access.

    
    

    Each member took advantage of that access, and approximately February 26, 1991, the review committee met as a group, with Granston as chairperson.

    
    

    The group spent two or three hours together discussing the proposals and ascribing numbers from the rating sheet. Neither the Pejus, nor Wohlfarth proposals were rated, however, as "fatal" items were found.

    For the two remaining proposals, Raymond Granston kept notes of scores on a legal pad. The actual rating sheets for MRI and Devcon were not completed until sometime after the notice of intended award was sent, but the scores on Granston's notes were the basis for the notice.

    
    

    Those scores were a total of 534 for MRI (although the rating sheet reflects a computation error and total of 551); and a total of 618 points for Devcon.

    
    

    (Joint Exhibit #11 and 12)

    
    

    As described by the team members, the scoring process was a group effort, rather than the result of averaging individual members' scores for the proposals. Individual score sheets were not used.

    
    

20. The Wohlfarth proposal was not scored by the review committee as the committee determined that paragraph A.1., the first "fatal" item, disqualified it from further review. That is, the committee felt that the proposal did not include

    
    

    "...an original signature by an authorized agency official agreeing to the terms and conditions of the contract and the statement of no involvement."

    (Joint Exhibit #3, Attachment IX)

    
    

21. The review committee determined that the Pejus proposal had two "fatal" items: paragraph A.1., described above, and paragraph A.2. requiring justification in the budget. Determination on this latter item was based on lack of narrative pages in the budget.

    
    

    The Pejus proposal also had a couple of typographical errors where the service area was described as District IV, rather than District VII, but those errors were not considered by the committee to be "fatal" to its proposal.

    
    

22. The agency maintained deliberative notes for the proposals submitted by MRI, Devcon and Wohlfarth, although these were not produced at hearing or offered into evidence. HRS, as stipulated by counsel, has no records which confirm any evaluation or rejection of the Pejus proposal.

    
    

    (Pejus Exhibit #1)

    
    

    The Bid Protest

    
    

23. In a letter dated March 8, 1991, Ross Wingo, Jr., President of MRI, informed Ray Granston of his formal protest of intended contract award in RFP #DS-91-01, and outlined the bases for the protest.

    
    

24. Most of MRI's protest involves argument that scores awarded for specific items are improper. For example, Devcon did not include a separate narrative statement for each budget item. Instead, a brief explanation of the cost was included on the face of the budget form. Devcon received a score of 9 out of 10 points; MRI received a full 10 points and included a separate narrative statement.

25. The RFP paragraph E.5. requires a "statement certifying financial capability". Devcon did not include a separate signed statement, but rather provided the following at page 84:

    
    

    ARA Devcon has the financial capability to sustain this project for a minimum of 60 days or until the first reimbursement for services rendered is received from HRS. Further evidence of our financial capability is documented in the attached audit.

    (Joint Exhibit #2)

    
    

    Devcon received 9 out of 10 possible points for this. MRI received the full 10 points.

    
    

    A separate signed statement is clearly required in the RFP for the "statement of no involvement", but the RFP does not clearly require a separate signed statement of financial capability. Devcon's signature on the proposal itself constitutes acceptance of the entire proposal, including the statement described above.

    
    

26. Each of the four proposals is voluminous, with narrative statements and lengthy attachments describing various financial, personnel or direct services aspects of the respective proposed program.

    
    

    Devcon's proposal is approximately 215 pages; MRI's is neatly bound, well- organized and comprises 395 pages.

    
    

    The narrative statements provided by Devcon are much briefer, but still include the essentials required by the RFP. It is obvious that the scores ascribed by HRS' review committee were not based simply on quantity of verbiage.

    
    

    Several of MRI's points on protest relate to the perceived quality of its detail as opposed to the sometimes bare-bones statements by Devcon. Scoring for many items was plainly subjective, but not plainly erroneous.

    
    

27. Nor was it error, as contended by MRI for the review team to lack a certified behavior analyst or other expert in the direct delivery of services to developmentally disabled clients. Nothing in the RFP nor the procedural manuals of HRS require such expertise in review team members. HRS Manual 75-2 requires a selection team of at least three employees who have experience and knowledge in the program area and service requirements. (Joint Exhibit #9, p. 5-23) At least three members of the team had that experience and knowledge.

    
    

    One member, Paula Bowser, is a grants specialist for HRS developmental services and concentrated on the financial aspects and budget presentations in the proposals. Another member, Sandra Browdy, has 19 years employment experience with HRS, and as a human services program analyst/licensing representative is familiar with the agency's standards for service delivery and the evaluation and survey of service providers.

    
    

28. It is impossible to determine that the review by the Committee was so cursory that the scores ascribed to Multi-Resources and to ARA Devcon's proposals are invalid.

    It is obvious, however, that the Committee missed certain documents in the Pejus and Wohlfarth proposals or erroneously stated the reason for failure to score those proposals.

    
    

29. Joint Exhibit #5 is the exhibit examined by the parties at the hearing and was stipulated in evidence as the Wohlfarth proposal. (transcript p. 380)

    
    

    According to Raymond Granston, the Wohlfarth proposal was rejected for lack of an original signature by an authorized agency official agreeing to the terms and conditions of the contract and the statement of noninvolvement. In response to a specific question from the Hearing Officer, Granston stated the problem was not that there was no original signature, but rather that the statement is not there. (transcript, p. 504)

    
    

    The RFP, as cited in paragraphs #10 and #11, above, actually references two separate statements, although the two are addressed together on the RFP rating sheet.

    
    

    James Casale is identified throughout the Wohlfarth proposal as the Project Director. Marion Wohlfarth, President of Wohlfarth, is identified on the application for funding form as the official authorized to sign the contract.

    James Casale's name and signature appear on the Department of General Services Request for Proposal Acknowledgment form. That form includes this language

    
    

    "I agree to abide by all conditions of this proposal and certify that I am authorized to sign this proposal for the proposer and that the proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements."

    (Joint Exhibit #5 - unnumbered pages)

    
    

    James Casale's name and signature as authorized representative appear on the "Statement of No Involvement" form in the Wohlfarth proposal.

    
    

    Attachment V of the RFP is the HRS standard contract. Wohlfarth's proposal includes this contract form, signed by James Casale, Project Director for Wohlfarth Group of Homes, Inc.

    
    

    The required documents are found in the Wohlfarth proposal, but none of the signatures are originals. (Joint Exhibit #5)

    
    

    As admitted by Ray Granston, there is no specific form in the RFP that the proposer was to execute to state it would agree to the terms and conditions of the contract. (transcript, p. 503) By signing the contract itself, Wohlfarth apparently intended to agree to its terms and conditions, but the signature is not that of Marion Wohlfarth, the person authorized to sign the agreement.

    
    

30. The Pejus proposal was stipulated into evidence by the parties as Joint Exhibit #4. (transcript, p. 380)

    
    

    This exhibit includes a cover letter signed by Ernest Beal, Jr., President of Pejus, Inc.. It also includes a bound volume, which is the body of the proposal, and a supplement to the proposal that was faxed to Raymond Granston on February 15, 1991. The supplement includes Ernest Beal's signature on the Department of General Services Request for Proposal Acknowledgment Form and a

    separate "Statement of No Involvement" Form signed by Ernest M. Beal, Jr.

    (Joint Exhibit #4) None of these are original signatures. There is no evidence of whether the fax was received by the 3:00 p.m. deadline. A follow up mailed version was stamped "received" by the agency on February 18, 1991. (Joint Exhibit #4)

    
    

31. The Pejus Proposal was also not evaluated because it lacked budget justification. See paragraph #21, above.

    
    

    The proposal rating sheet does not require a narrative, but rather for a fixed-rate project such as this it requires "justification for the fixed rate". (Joint Exhibits #11 and #12) Pejus' proposal includes a detailed line-item budget on the forms provided in the RFP packet. Explanations, where necessary, are found in the line-item budget. (For example, see Attachment D1, pp. 4.3, 4.13, 4.19, 4.25 and 4.32., Joint Exhibit #4)

    
    

32. HRSM 75-2 is the agency manual which provides procedures for HRS' procurement and contract management.

    
    

    It requires that prospective members of the selection team complete a conflict of interest questionnaire (Appendix J) to ensure that no team member has any conflict of interest that would interfere in selection of a contractor. (Joint Exhibit #9, p. 5-23) It does not provide when the form must be completed unless the team member participates in RFP development, in which case the form must be completed prior to that participation. Ray Granston complied with that requirement. Four of the five review committee members completed the questionnaire. (MRI Exhibits A-E) Appendix J, the questionnaire form, was amended effective November 1, 1990, and no longer requires a sworn statement. (Joint Exhibit #9)

    
    

33. The manual requires that the selection team evaluate RFP proposals using the weighted evaluation sheet contained in the published RFP. It does not require, as suggested by Multi-Resources, that the evaluation sheets be completed by each reviewer or that the sheets be maintained.

    
    

    Summary of Findings

    
    

34. The review process itself was informal and poorly documented, although it substantially complied with the requirements of the RFP and with the agency's procedures manual.

    
    

    From the evidence presented, the ultimate results of the review are appropriate, even though the witnesses were thoroughly confused as to the specifics regarding rejection of the Pejus and Wohlfarth proposals.

    
    

    The unclear requirements of the RFP as to forms and certifications thought missing from the Pejus and Wohlfarth proposals contributed to that confusion.

    The RFP requirements were not protested, however, and among the four providers who submitted proposals only MRI attended the advertised bidders conference. (Joint Exhibit #8)

    
    

    CONCLUSIONS OF LAW

    
    

35. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.53(5)(d), F.S., and 120.57(1), F.S.

36. Section 120.53(5)(a), F.S., provides the procedure for resolving protests arising from the contract bidding process. This procedure includes the necessity for a person affected adversely by the decision to file a notice of protest within 72 hours and a formal protest within 10 days.

    
    

    These deadlines also apply to protests of bid or RFP criteria, and failure to timely protest those criteria constitutes a waiver. Capeletti Brothers, Inc., v. Department of Transportation, 499 So.2d 855 (Fla. 1st DCA 1986).

    
    

37. MRI's protest of the intended award to Devcon was timely filed, and as the unsuccessful bidder where only two proposals were evaluated, Multi-Resources unquestionably has standing to challenge the intended award. Preston Carroll Co., Inc., v. Florida Keys Aqueduct Authority, 400 So.2d 524 (Fla. 3rd DCA 1981).

    
    

38. The burden on a petitioner in such a challenge is substantial. Public bodies enjoy wide discretion in soliciting and accepting bids for public contracts, and even when reasonable persons may disagree, their decisions will not be disturbed when based on an honest exercise of discretion. Baxter's Asphalt and Concrete, Inc., v. Department of Transportation, 475 So.2d 1284, 1287 (Fla. 1st DCA 1985), citing Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982)

    
    

    Equally well-established is the principle that competitive bidding statutes are enacted for the protection of the public. Public bodies may not arbitrarily or capriciously discriminate between bidders or make awards based on personal preference. Wood Hopkins Contracting Co. v. Roger Au and Son, Inc., 354 So.2d

    446 (Fla. 1st DCA 1978); Wester v. Belote, 103 Fla. 976, 138 So. 721 (Fla. 1931).

    
    

39. Here the Petitioner failed to demonstrate by a preponderance of the evidence that it, rather than Devcon, is entitled to the contract, or that the agency abused its discretion and acted arbitrarily or capriciously.

The process was flawed, but the flaws of an incomplete record of deliberations and decisions are insufficient to require the process commence anew. The evidence produced at hearing, and afterwards when the record remained open, establishes that certain documents, described by the RFP as prerequisite for review, were not properly provided by Pejus and Wohlfarth.

Albeit inartfully, the HRS review staff who testified at hearing stated their bases for the scores ascribed to MRI and to Devcon. Except for the miscalculation which resulted in awarding MRI more points than it earned, the scores subjectively awarded were not arbitrary.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That a Final Order be entered dismissing Multi-Resources, Inc., petition and awarding the contract in RFP #DS-91-01 to ARA Devcon, Inc.

DONE AND RECOMMENDED this 16th day of August, 1991, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings 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, 1991.

APPENDIX TO RECOMMENDED ORDER

The following constitute specific treatment of the findings of fact proposed by MRI and Wohlfarth. Although it was substantially late, Wohlfarth's submittal was considered. Its consideration does not alter the outcome of this proceeding.

Proposed Findings of Fact Submitted by MRI

1. Adopted in paragraph 2.

2. Adopted in paragraph 1.

3. Adopted in paragraph 7.

4. Adopted in paragraph 18.

5. Adopted in paragraph 6., except that the manual does not require a 5- person team.

6. Rejected as contrary to the weight of evidence. 7.-9. Adopted in paragraph 19.

1. Rejected as contrary to the evidence.

2. Adopted in paragraph 32.

3. Rejected as immaterial.

13.-16. Adopted in summary in paragraph 32.

17.-20. Rejected as immaterial, and, as to the requirements of HRSM 75-2, contrary to the evidence.

21.-23. Addressed in the preliminary statement. 24.-25. Adopted in paragraph 19.

1. Adopted in paragraph 17.

2. Rejected as immaterial.

3. Rejected as contrary to the evidence.

4. Rejected as immaterial.

5. Rejected as contrary to the evidence.

6. Rejected as unnecessary.

7. Rejected as contrary to the evidence. 33.-35. Rejected as immaterial.

1. Adopted in paragraph 19.

2. Rejected as unclear.

3. Adopted in paragraph 19.

39.-42. Rejected as contrary to the evidence.

43. Rejected as unnecessary.

44.-45. Rejected as contrary to the evidence. 46.-47. Rejected as immaterial.

48. Adopted in paragraph 19. 49.-50. Rejected as unnecessary.

51. Adopted in the conclusions of law, in substance. 52.-54. Rejected as contrary to the evidence.

55. Rejected as unnecessary.

56.-59. Rejected as argument or conclusion, rather than findings of fact. Proposed Findings of Fact Submitted by Wohlfarth

1. Adopted in paragraph 7.

2. Adopted in paragraph 18.

3. Adopted in paragraph 17.

4. Rejected as contrary to the evidence. 5.-8. Rejected as immaterial.

1. Rejected as contrary to the evidence.

2. Adopted in paragraph 20.

3. Rejected as contrary to the evidence.

4. Rejected as unsubstantiated by competent evidence.

13.-16. Rejected as argument or conclusions, rather than findings of fact.

COPIES FURNISHED:

James Sawyer, Jr., Esquire HRS-District 7 Legal Office South Tower, Suite S-827

400 W. Robinson Street Orlando, FL 32801

Ross Wingo, Jr., Esquire Multi-Resources, Inc.

2555 US 27 South

Sebring, FL 33870

ARA Devcon, Inc.

Attn: Linda Mabile

2121 Killearney Way, Ste. F Tallahassee, FL 32308

Wohlfarth Group of Homes, Inc. Attn: Fred Wohlfarth

2301 Whitehorse Street

Deltona, FL 32738

Ernest M. Beal, Jr., Esquire Pejus, Inc.

9025 Coldwater Rd., Ste. 300 Fort Wayne, IN 46825

John Liguori, Esquire

P.O. Box 1051 Bartow, FL 33830

John Slye, General Counsel HRS

1323 Winewood Blvd.

Tallahassee, FL 32399-0700

R. S. Power, Agency Clerk HRS

1323 Winewood Blvd.

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-002178BID

Orders for Case No: 91-002178BID