STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATIONAL CLEANING OF FLORIDA ) INC., )

)

Petitioner, )

)

vs. ) CASE NO. 91-5344BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

) ROYAL SERVICES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 91-5345BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

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 case on September 6, 1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner,

National Cleaning

of Florida, Inc.: Robert E. Ziegler, Esguire

Roberts, Morris & Ziegler 1401 East Broward Boulevard

Fort Lauderdale, Florida 33301

For Petitioner, Royal Services,

Inc. Albert S. C. Millar, Jr., Esquire 4206 Herschel Street

Jacksonville, Florida 32210

For Respondent: Colleen A. Donahue, Esquire

Department of Health and Rehabilitative Services

201 West Broward Boulevard

Fort Lauderdale, Florida 33301-1885

STATEMENT OF THE ISSUES

These consolidated bid protests, pertaining to Invitation to Bid #595-581 issued by Respondent, present the following issues: as to Case No. 91-5344B1D whether the bid protest filed by National Cleaning Services of Florida, Inc. should be upheld and as to Case No. 91-5345B1D whether the bid protests filed by Royal Services, Inc. should be upheld. The following sub-issues are presented:

1. Whether Respondent acted in an arbitrary and capricious manner in rejecting the bid of Royal Services, Inc., the apparent low bidder.

2. Whether Respondent should award the bid to either National or Royal.

3. Whether Respondent should convene an evaluation committee to evaluate the bids.

4. Whether Respondent acted in an arbitrary and capricious manner in rejecting all bids.

PRELIMINARY STATEMENT

Respondent, Department of Health and Rehabilitative Services (DHRS), issued Invitation to Bid #595-581 (ITB) for housekeeping services at South Florida State Hospital (SFSH), a DHRS facility. Robert L. Slater, a contract manager employed by DHRS issued the ITB without following the pre-issuance procedural review to which such invitations are subject under pertinent rules. Both Royal Services, Inc., (Royal) and National Cleaning of Florida, Inc., (National) submitted bids in response to the ITB. The bids were opened on May 24, 1991, and tabulated by a bid clerk. Royal was the apparent low bidder. Following the tabulations, Mr. Slater advised his supervisor, J. E. Harmon, the Assistant Hospital Administrator at SFSH, that Royal had been the provider for the housekeeping services in a prior year, that Royal's performance had not been acceptable, and that he thought Royal had "low balled" its bid. Based on Mr.

Slater's recommendation, a letter was sent to Royal on May 31, 1991, advising that its bid had been rejected based on its poor performance from August 30, 1989 through June 30, 1990. Also on May 31, 1991, DHRS sent all bidders a letter announcing that the ..... selection committee's recommendation to the District Administrator is to award the contract to National Cleaning of Florida, Inc." This letter advised each bidder of its right to protest the decision.

Royal timely protested the rejection of its bid and protested the announced intent to recommend that the bid be awarded to National. DHRS took no formal action as to Royal's protests.

On July 12, 1991, DHRS advised all bidders that it had rejected all bids and would solicit the housekeeping services in a RFP (request for proposals). The stated reason for the rejection of all bids was a ". . . defect in this (sic) evaluation criteria utilized".

Thereafter both Royal and National filed separate, timely protests pertaining to the decision to reject all bids. All pending protests were consolidated for formal hearing and resolution.

At the formal hearing, Royal presented the testimony of J. E. Harmon, George Stewart, Robert L. Slater, and James Martin. As previously noted, Mr.

Harmon is the Assistant Hospital Administrator at SFSH and Mr. Slater is the contract manager who was responsible for the ITB. Mr. Stewart is a branch manager for Royal who had responsibility for the provision of services by Royal at SFSH between August 30, 1989 and June 30, 1990, and who had responsibility for the preparation and submission of Royal's response to the ITB. Mr. Martin was the project manager for Royal at SFSH from March 1990 through June 1990.

DHRS presented the testimony of Constance A. Klein, of Roger Rucker, and additional testimony of Mr. Harmon. Ms. Klein, who is employed by DHRS, has the responsibility to oversee the publishing and preparation of all invitations to bid in DHRS District X, such as the subject ITB. Mr. Rucker, who is also employed by DHRS, has the responsibility of acting as the Quality Assessment Director at SFSH. National presented no additional witnesses.

The parties submitted nine joint exhibits, each of which was accepted into evidence. Royal presented six exhibits. Royal's Exhibit One was withdrawn by Royal. Royal's Exhibit Two was accepted into evidence. Royal's Exhibit Three was accepted into evidence, but the attachments thereto were rejected. Royal's Exhibits Four, Five, and Six were rejected. National presented two exhibits, with National's Exhibit One being rejected and National's Exhibit Two being accepted into evidence. DHRS presented three exhibits, each of which was accepted into evidence. DHRS Exhibit Two was one of the attachments to Royal's Exhibit Three. DHRS Exhibit Three was the same document as National's Exhibit One.

A transcript of the proceedings has been filed. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Department of Health and Rehabilitative Services (DHRS) issued Invitation to Bid Number 595-581 (ITB) in the Spring of 1991. 1/ The ITB solicited bids for the provision of specifically identified housekeeping services at South Florida State Hospital (SFSH), a DHRS facility in District X of DHRS.

   
   

2. Robert L. Slater is a contract manager employed by DHRS at SFSH. Mr. Slater had, since 1986, the responsibility of preparing the bid solicitation for SFSH housekeeping services. Mr. Slater prepared the ITB that is the subject of this proceeding.

   
   

3. The procedure established by District X for the review of ITB solicitations is as follows:

   
   

   v'... all RFP/ITB documents must be reviewed and approved by Grants Management, Budget, District Legal Counsel and the District Administrator prior to their release and advertisement.

   
   

4. District X procedure requires that a form accompany the ITB as it is circulated for review. The form provides identifying information about the ITB and a place for the reviewer to indicated his or her approval or disapproval, his or her signature, the date, and any comments.

5. Mr. Slater did not submit the ITB for the appropriate review. Prior to publishing the ITB, Mr. Slater left the ITB in the in-house mail box of David A. Sofferin, the Administrator of SFSH, without the accompanying form. After the ITB was returned to him without any indication as to whether Mr. Sofferin had reviewed it, Mr. Slater published the ITB without it being reviewed as required by District X procedure. There was no evidence as to whether Mr. Sofferin reviewed the ITB before its release.

   
   

6. Mr. Slater initially refused to deliver to Royal a copy of the ITB package. He took this action because he did not believe that SFSH wanted Royal as a provider. This was the first and only time Mr. Slater had refused to deliver a bid package to an interested bidder. It was only after Royal complained to DHRS District X legal counsel that Mr. Slater provided a copy of the ITB package to Royal. Royal did not attend the pre-bid meeting because the notification was contained in the bid package, which was received by Royal after the meeting. There was no showing that Royal's inability to attend this meeting prejudiced it in submitting its bid.

   
   

7. The ITB contained the following in paragraph 7 of the "General Conditions" portion:

   
   

   1. AWARDS: As the best interest of the state may require, the right is reserved to ... reject any and all bids ...

      
      

   2. The "Bidder Qualifications" section of the ITB provided, in pertinent part, as follows:

      
      

      Bidder qualifications must be satisfactory to South Florida State Hospital. The hospital reserves the right to waive informalities in any Bid and to reject any and all Bids or to accept any Bid, any combinations of alternatives that in our judgment will be in the best interest of the State of Florida.

      Each bidder shall furnish as a part of his/her Bid a written statement in evidence of their ability to accomplish the specified work. This statement must include information as to the immediate availability or ownership of the necessary; (sic) equipment to perform this work, and the financial worth or reputability (sic) of the bidder and experience which the bidder has had in successfully completing projects of a similar size, scope and responsibility. Experience must be evidenced by three

      (3) references.

      
      

   3. The following appears in the ITB in a section entitled "Bidder Qualifications Evaluation Criteria":

      
      

      All bidders' qualifications will be evaluated by a selection team using the

      following criteria: (yes or no response)

      1. "Fatal" criteria/any (sic) Bid receiving a "no" response on any items in this category will not be considered any further. /2

      2. Bidders Organizational Capability

         Does the synopsis of the bidder's corporate qualifications indicate the ability to manage and completely deliver the services required?

         Do the evaluations and/or recommendations of the bidder indicate an acceptable level of past performance?

      3. Budget or Rate Analysis

         Does the proposed rate meet the "reasonable and necessary" test?

         Does either a cost or price analysis indicate that the cost or rate is appropriate and reasonable?

         
         

   4. Under the "Bidders' Qualification Checklist" portion of the ITB, a checklist type form is provided. This checklist provides a line for the name of the bidder, the name of the reviewer, and the date.

      
      

   5. Part I of the checklist provides "Fatal" Criterion questions with six questions to be answered in a yes or no fashion. There is no contention that either Royal or National failed to meet a "fatal" item.

      
      

   6. Part II of the checklist is as follows:

      
      

      1. Is the ability to manage and completely

         deliver the

         services apparent?

         
         

         Is satisfactory past performance apparent?

         (0-10) x WV of 5

         
         

   7. Part III of the checklist is as follows:

      
      

      1. Does the proposed rate meet the reasonable and necessary test?

      
      

      Is the rate appropriate?

      (0-10) x WV of 5

      
      

      
      

   8. There is no indication in the ITB as to how the selection team is to be appointed 3/ or as to how the selection team is to apply the criteria contained in the ITB. The items under Parts II and III of the checklist are to be considered using a weighted values for the scores received in response to the questions. There is no indication as to how these weighted responses are to be

      factored in to the selection process or whether these items are to be considered additional "fatal" items if the bidder receives poor scores in these categories. If it is assumed that these questions should be considered additional "fatal" items, there is no indication as to what score, if any, is necessary for a bidder to "pass" these categories.

      
      

   9. DHRS never convened a selection team to review the bids.

      
      

   10. On May 24, 1991, the bids were opened and tabulated by a bid clerk. This bid clerk did not review the bids to determine whether the criteria in the ITB had been met. The Royal bid was tabulated as being $434,704.32 for residential buildings and $101,088.48 for administrative buildings (for a total of $535,792.80.) The National bid was tabulated as being a total of $626,397.36.

       
       

   11. The decision to reject the Royal bid was made by J. E. Harmon, the Assistant Hospital Administrator, based on a conversation he had with Mr. Slater following the bid opening. Mr. Slater told Mr. Harmon that he believed that Royal had "low balled" its bid and that Royal's performance had been unsatisfactory when it had had the contract.

       
       

   12. Royal filed a lawsuit against DHRS for breach of contract that involved Mr. Slater and the manner in which Royal was paid. Royal contends that Mr. Slater's bias against it stems not from poor service, but because of this lawsuit. This contention is contrary to the greater weight of the evidence and is rejected.

       
       

   13. On May 31, 1991, a letter signed by Mr. Harmon, but drafted by Mr. Slater, refunded Royal's check that had been posted in lieu of a bid bond and notified Royal as follows:

       
       

       Please be advised that the Bid submitted by your company has been rejected in the best interest of the State of Florida. This action was determined to be necessary because of your company's poor performance at this facility from August 30, 1989 through

       June 30, 1990.

       
       

   14. Also on May 31, 1991, Mr. Slater prepared and sent a letter (which he signed) to each bidder, which provides as follows:

       
       

       The selection process has been completed for the above referenced Invitation to Bid. The selection committee's recommendation to the District Administrator is to award the contract to National Cleaning of Florida, Inc.

       The Department appreciates your time and interest in the Invitation to Bid. We encourage your continued interest in HRS contractual services.

       You have the right to protest this decision as described here: Failure to file a protest within the time prescribed in Section 120.53(5), Florida

       Statutes, shall constitute a waiver of proceedings under Chapter 120 and shall not be considered. To comply with this statute, a written notice of intent to protest must be filed with the contact person listed in the Invitation To Bid within 72 hours after receipt of this notice. Within 10 days after the notice of intent is filed, a formal written notice of protest must be filed with the contact person listed in the Invitation to Bid. The formal written protest must be accompanied by a bond payable to the department in the amount of $5,000 or 1% of the department's estimate of the total volume of the proposed contract, whichever is less.

       
       

   15. Royal thereafter timely protested DHRS' action in rejecting its bid and in announcing that the recommendation would be made to the District Administrator to award the bid to National. No action was taken by DHRS on these protests until DHRS referred Royal's protests stemming from Mr. Harmon's letter of May 31, 1991, and Royal's protest stemming from Ms. Borland's letter of July 12, 1991, 4/ to the Division of Administrative Hearings for formal hearing by its "Notice of Referral and Notice to Bidders" dated August 22, 1991, and filed with DOAH on August 23, 1991. 5/

       
       

   16. After Royal filed its protests following the two letters dated May 31, 1991, DHRS reviewed the bids and the process that had been followed in issuing those bids. DHRS determined that it preferred to issue a RFP (request for proposals) for these contractual services rather than soliciting these services by an ITB. This decision was based, in large part, on the desire to give greater weight to the ability of the bidders to satisfactorily perform the required services and on the fact that Royal had filed a protest.

       
       

   17. On July 12, 1991, DHRS notified bidders by letter signed by Maureen D. Borland, Acting District Administrator, that all bids were rejected, that the services will be the subject of an RFP, and that the contact person was Mr. Slater. The letter notified the bidders that they had the right to protest the decision and advised as to the procedure to be followed and the time constraints to be observed in filing a protest.

       
       

   18. Following the letter of July 12, 1991, both National and Royal perfected protests of the decision to reject all bids. National contends that the Royal bid was properly rejected. National further contends that any defect in the evaluation process can be cured by convening the evaluation committee to review the remaining bids.

       
       

   19. Royal contends that the ITB completely describes the services desired by SFSH, that an RFP is not appropriate, and that an RFP would only serve as a means for DHRS to discriminate against Royal. Royal further contends that price is the primary factor to be considered, that it was the low bidder, and that it should be awarded the bid. Royal contends in the alternative that DHRS erred in rejecting all bids and that the evaluation committee should be convened to evaluate its bid along with the other bids.

   20. Royal had a contract to provide housekeeping services at SFSH from August 30, 1989 through June 30, 1990. This contact was let pursuant to a RFP. Mr. Slater was the contract manager for the housekeeping services when this contract was procured. The contract could not be renewed beyond June 30, 1990, because the RFP failed to include prices for the second and third years of the contract. The following year, the contract was solicited on an ITB basis, and was awarded to Allstate Specialty Services as the lowest and best bidder. Mr. Slater was the contract manager for the procurement of these services.

       
       

   21. DHRS was not satisfied with the services provided during the time Royal had the contract for housekeeping services. Various deficiencies were discussed with the project manager during weekly meetings. There were no written statements of deficiencies given to Royal by DHRS while Royal had the housekeeping contract, and no deductions were made from any payment to Royal. On May 7, 8, and 9, 1990, an inspection of SFSH was made by DHRS Office of Licensure and Certification. This report which followed the inspection noted several deficiencies in the housekeeping services. The record was not clear,

       however, whether the deficiencies were the result of Royal's poor performance or whether the deficiencies were the result of DHRS purchasing an insufficient level of services.

       
       

   22. The record is clear that Mr. Slater had not been pleased with the services performed by Royal when it had the contract. Mr. Slater was pleased with Mr. Martin, Royal's project manager, but he did not feel that Royal had sufficient supervision of its employees and that Royal should have devoted more workers to the project. As compared to the contract entered into for the period August 30, 1990, through June 30, 1990, the subject ITB was described by Mr. Slater as being more stringent, tighter, and improved. The subject ITB was intended to cure the problem of lack of supervision by inserting specific requirements as to the level of supervision the provider would have for its employees.

       
       

   23. There was insufficient evidence to sustain DHRS contention that Royal was an unqualified bidder.

       
       

   24. There was insufficient evidence to sustain DHRS contention that Royal's bid was a "low ball" bid.

       
       

       CONCLUSIONS OF LAW

       
       

   25. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

       
       

   26. Part I of Chapter 287, Florida Statutes, relate to the procurement of contractual services by agencies of the State of Florida.

       
       

   27. Section 287.012, Florida Statutes, provides, in pertinent part, as follows:

       
       

       The following definitions shall apply in this part:

       * * *

       (8) "Invitation to bid" means a written solicitation for sealed competitive bids with the title, date, and hour of the public bid opening designated and specifically defining the commodity,

       group of commodities, or services for which bids are sought. It includes instructions prescribing all conditions for bidding and shall be distributed to all prospective bidders simultaneously. The invitation to bid is used when the agency is capable of specifically defining the scope of the work for which a contractual service is required ...

       * * *

       (10) "Qualified bidder" or "qualified offeror" means a person who has the capability in all respects to perform fully the contract requirements and has the integrity and reliability which will assure good faith performance.

       * * *

       1. "Request for proposals" means a written solicitation for sealed proposals with the title, date, and hour of the public opening designated. The request for proposals is used when the agency is incapable of specifically defining the scope of work for which the

          ... contractual service is required and when the agency is requesting that a qualified offeror propose ... contractual service to meet the specifications of the solicitation document.

       2. "Responsive bidder" or "responsive offeror" means a person who has submitted a bid which conforms in all material respects to the invitation to bid or request for proposals.

       
       

   28. Section 287.057, Florida Statutes, provides, in pertinent part, as follows:

       
       

       (2) Unless otherwise authorized by law, all contracts for contractual services shall be awarded by competitive sealed bidding. An invitation to bid shall be issued which shall include a detailed description of the services sought; the date for submittal of bids; 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 bid.

       ... No criteria may be used in determining acceptability of the bid that was not set forth in the invitation to bid. The contract shall be awarded with reasonable promptness by written

       notice to the qualified and responsive bidder who submits the lowest and best bid. This bid must be determined in writing to meet the requirements and criteria set forth in the invitation to bid.

       
       

   29. The purpose of the competitive bidding laws has been discussed by the Florida Supreme Court in Wester v. Belote, 103 Fla. 976, 138 So. 721, at 724 (Fla. 1931), as follows:

       
       

       ... [T]hey thus serve the object of protecting the public against collusive contracts and prevent favoritism toward contractors by public officials and tend to secure fair competition upon equal terms to all bidders, they remove temptation on the part of public officers to seek private gain at the taxpayers's expense, are of highly remedial character, and should receive a construction always which will fully effectuate and advance their true intent and purpose and which will avoid the likelihood of same being circumvented, evaded, or defeated.

       
       

   30. DHRS has asserted the position that Royal's bid was properly rejected because of its poor performance during the time it held the housekeeping contract. This decision was reached by Mr. Harmon solely on the recommendation of Mr. Slater and without the benefit of an evaluation of all bids by a selection team as required by Section 287.057(16), Florida Statutes. At the formal hearing at which this decision was challenged by Royal, the evidence failed to establish that Royal's bid can be rejected on the basis that Royal is not a "qualified bidder" as defined by Section 287.012(10), Florida Statutes, or that it was not a "responsive bidder" as defined by Section 287.012(13), Florida Statutes. Consequently, it is concluded that DHRS should not have disqualified Royal's bid based on Mr. Slater's perception of Royal's performance for the period August 30, 1989, through June 30, 1990, and that its action in doing so is contrary to fundamental fairness and is arbitrary and capricious. See, Baxter's Asphalt & Concrete, Inc. V. Liberty County, 406 So.2d 461 (Fla. 1st DCA 1981), reversed on other grounds, Liberty County V. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505 (Fla. 1982).

       
       

   31. DHRS has taken the position that all proposals should be rejected because of the flawed nature of the bid process. As asserted by DHRS, there were flaws in this procurement from its inception. The ITB was prepared by Mr. Slater and was issued without review consistent with established, written DHRS procedures. Mr. Slater announced to all bidders that the "... selection committee's recommendation to the District Administrator is to award the contract to National was made without any evaluation committee being convened to evaluate the respective bids. The ITB incorporated evaluation criteria without any indication as to how that criteria is to be applied or as to how the weighted evaluations to be made by the evaluation committee are to be factored into a decision. The evaluation criteria is confusing and is more consistent with a request for proposal than with an invitation to bid. For those reasons, the argument by Royal and by National that DHRS be required to convene the

       evaluation committee to evaluate all bids is rejected. With the flawed evaluation criteria contained in the ITB, it is concluded that all bids should be rejected and these services be re-solicited. It is not necessary to resolve whether the re-solicitation should be through an ITB or through an RFP because that is not an issue in this proceeding. Neither Royal or National has established that DHRS's decision to reject all bids on the basis of these flaws was arbitrary, capricious, or illegal action or that the rejection of all bids violated Respondent's established procedures. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Liberty County v. Baxter's Asphalt & Concrete, Inc., supra; Capeletti Brothers, Inc. v. State Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983).

       
       

   32. An agency has wide discretion in soliciting and accepting bids, and its decision, if based on an honest exercise of this discretion, will not be overturned even if reasonable persons may differ with the outcome. C. H. Barco Contracting Co. v. State, Dept. of Transportation, 483 So.2d 796 (Fla. 1st DCA 1986); Liberty County V. Baxter's Asphalt & Concrete, Inc., supra.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which rejects all bids submitted

in response to the subject Invitation to Bid.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of October, 1991.

CLAUDE B. ARRINGTON

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 23rd day of October, 1991.

ENDNOTES

1/ The date the ITB was first published was not established.

2/ The ITB thereafter lists six items as "fatal" items, none of which are pertinent to the resolution of the issues.

3/ The level of services solicited by this contract requires the appointment of a selection team pursuant to Section 287.057(16), Florida Statutes, which provides, in pertinent part, as follows:

(16) A selection team of at least three employees who have experience and knowledge in the program areas and service requirements for which contractual services shall be appointed by the agency head to aid in the selection of contractors for contracts of more than the threshold amount provided in S. 287.017 for CATEGORY FOUR.

4/ See paragraphs 23 and 24, infra, for a discussion of Ms. Borland's letter of May 31, 1991, and the protests that followed that letter.

5/ DHRS correctly asserted the position at the formal hearing that the letter of May 31, 1991, signed by Mr. Slater was merely an announcement of the selection committee's recommendation and that no protest was timely until DHRS had acted on the recommendation by announcing its intention to award the bid. The rejection of Royal's bid as reflected the letter dated May 31, 1991, that Mr. Harmon signed was final and should have resulted in DHRS referring that protest to the Division of Administrative Hearings as required by pertinent rule. See, Rule 13A-1.006(3)(c), Florida Administrative Code. There was no explanation as to why this protest was not referred to DOAH on a timely basis.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO.

91-5344B1D AND CASE NO. 91-5345BID

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner, National Cleaning of Florida, Inc.

1. The proposed findings of fact in paragraph 1 are adopted in material part by the Recommended Order. The proposed finding of fact as to the date the ITB was mailed to bidders is rejected because that date was not established.

2. The proposed findings of fact in paragraphs 2, 3, 4, 6, 7, 8, and 10 are adopted in material part by the Recommended Order.

3. The proposed findings of fact in paragraphs 5 and 9 are rejected as being unnecessary to the conclusions reached.

4. The unnumbered paragraph following paragraph 10 is rejected as being contrary to the findings made and the conclusions reached.

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner, Royal Services, Inc.

1. The proposed findings of fact in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 22, and 23 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 11 are rejected as being subordinate to the findings made.

3. The proposed findings of fact in paragraphs 20 and 21 are rejected as being unsubstantiated by the evidence. The record does not establish that the contract executed by Royal and DHRS for the services Royal provided between August 30, 1989, and June 30, 1990, was identical to the contract contained in Joint Exhibit 1.

4. The proposed findings of fact in the first sentence of paragraph 24 are rejected as being unsubstantiated by the evidence. The greater weight of the evidence was that DHRS monitored the performance of Royal throughout the period

it held the housekeeping contract and that it held weekly meetings to discuss the complaints. The proposed findings of fact in the second sentence of paragraph 24 are rejected as being subordinate to the findings made. The proposed findings of fact in the third sentence of paragraph 24 are rejected as being argument.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent, Department of Health and Rehabilitative Services.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 12 are rejected as being a conclusion.- This conclusion is consistent with the conclusion reached in the conclusion of law portion of the recommended order.

COPIES FURNISHED:

Colleen A. Donahue, Esquire Department of Health and

Rehabilitative Services

201 West Broward Boulevard

Fort Lauderdale, Florida 33301-1885

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, General Counsel

Department of Health and Rehabilitative Services 1323 Winewood Boulevard2

Tallahassee, Florida 32399-0700

Robert E. Ziegler, Esquire Roberts, Morris & Ziegler 1401 Eest Broward Boulevard

Fort Lauderdale, Florida 33301-

Albert S. C. Millar, Jr., Esquire 4206 Herschel Street

Jacksonville, Florida 32210

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: 91-005344BID

Orders for Case No: 91-005344BID