STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNRISE COMMUNITY, INC., )

)

Petitioner, )

)

)

vs. ) CASE NO. 92-0342BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent, )

)

and )

)

SALEM VILLAGES MRDD, INC., )

)

Salem. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on April 20-22, 1992, April 28-May 1, 1992 and May 5-6, 1992 in Gainesville, Florida. The following appearances were entered:

APPEARANCES

Whether Respondent, Department of Health and Rehabilitative Services, acted fraudulently, arbitrarily, illegally or dishonestly in the selection of Salem Villages MRDD, Inc., (Salem) as the recipient of the award which is the subject of this proceeding.

PRELIMINARY STATEMENT

This matter began when Respondent published an invitation to bid in the June 21, 1991, issue of the Florida Administrative Weekly. The invitation requested separate proposal applications for intermediate care facilities for developmentally disabled persons in each of Respondent's service districts throughout Florida.

By letter dated November 21, 1991, Respondent awarded configuration 91-D3- 01 for the development, management and operation of facilities for 18 developmentally disabled persons in Respondent's District III to Salem. By letter of the same date, Petitioner was informed that its application had not been chosen for the award.

Subsequently, Petitioner protested the award and requested a formal administrative hearing to determine whether the selection of Salem as the recipient of an award was appropriate. Due to Petitioner's failure to state with specificity the grounds for protest, several amended petitions were filed before a final hearing could be held in the matter.

At the final hearing, Petitioner presented the testimony of seven witnesses and 98 exhibits of which 62 were accepted into evidence. The remainder of Petitioner's exhibits were either rejected or afforded alternative disposition,

i.e. official recognition. Respondent presented the testimony of five witnesses and 17 exhibits of which 16 were admitted into evidence. Salem, the Intervenor presented the testimony of one witness and 17 exhibits of which 14 were admitted into evidence.

A transcript of the final hearing was filed with the Division of Administrative Hearings on July 30, 1992. In accordance with provisions of Rule 22I-6.031, Florida Administrative Code, the parties, by request and agreement to a deadline for filing of proposed recommended orders that was more than 10 days after the filing of the transcript, waived provisions of Rule 28-5.402, Florida Administrative Code, although the undersigned did assure parties that he would strive to issue a recommended order within 15 days of submission of proposed recommended orders. Proposed recommended orders submitted by the parties were received and are addressed in the appendix to this recommended order. The motions of Respondent and Intervenor to strike the proposed findings of fact submitted by Petitioner, along with Petitioner's response, have been considered and are addressed in the conclusions of law portion of this recommended order.

Based upon all of the evidence, including the demeanor and candor of the witnesses who testified, the following findings of fact are determined:

FINDINGS OF FACT

1. On June 21, 1991, Respondent published a bed need in the Florida Administrative Weekly and also issued a Request for Proposals (RFP) for the licensure, development and operation of 258 beds statewide to be contained in Intermediate Care Facilities For The Developmentally Disabled (ICF/DD). Any formal protest of an award in response to a proposal was required to be filed within the ten day period prescribed in Section 120.53(5), Florida Statutes.

   
   

2. The published bed need and RFP called for the development of one or more configurations of six bed homes in each of Respondent's 11 service districts.

3. The configuration at issue in this proceeding, Configuration 91-D3-01, called for a total of four homes (24 beds) to be developed in Alachua, Columbia and Bradford Counties. All these counties are located within Respondent's District III.

   
   

4. The award process combined efforts of Respondent's State Developmental Services Program Office in Tallahassee with efforts of each District Developmental Services Office. The Tallahassee Office provided general oversight, advised the district offices, and sought to provide some uniformity to the approach taken by each of Respondent's service districts.

   
   

5. Respondent's State Developmental Services Program Office in Tallahassee took the lead in development of the bid application package, publication of the bed need and the evaluation instrument, and reviewed for approval the award recommendations made at the district level. Respondent's Tallahassee office also obtained credit checks for bidders and disseminated that information to the appropriate districts.

   
   

6. Respondent's Tallahassee Office of State Developmental Services Program was headed by Kingsley R. Ross, then Assistant Secretary for Developmental Services. Ross was the RFP issuing officer. He delegated responsibility to his staff, including Kathleen Winstead who headed the unit exercising responsibility for ICF/DD.

   
   

7. Respondent's individual service districts were responsible for evaluating, scoring, and selecting the successful applicant for each district configuration to be awarded. In view of the needs of the individual service districts, available resources in each district, and effectiveness of the individual proposal within a particular district, the process was structured in a manner that the local district bid committees were the de facto decision makers for the award in each district.

   
   

8. While the district decisions were subject to acceptance by Respondent's Office of State Developmental Services Program in Tallahassee, the role of the Tallahassee office was limited to instructing district staffs in methodology to be used in evaluating proposals and reviewing district compliance with guidelines. Scores assigned to each proposal and the proposal selected were not actually subjected to re-determination by the Tallahassee office.

   
   

9. The bed need and request for proposals had been under development by Respondent for more than a year. In the course of that process, meetings were held between Respondent's staff and potential providers to elicit input from corporations and organizations providing residential services to the developmentally disabled. Leslie Leech, Petitioner's president, participated in one of those meetings in November, 1990, to develop the criteria to be used for evaluating responses to the proposal solicitation.

   
   

10. As part of the process preceding issuance of the RFP, an earlier bed need had been published and withdrawn. A conference was held in connection with this earlier publication. The conference was recorded and transcribed. A copy of that conference transcript was admitted into evidence in this proceeding.

    
    

11. Since the first bed need publication was substantially the same as the one of June 21, 1991, which is associated with the RFP at issue in this proceeding, a second bidder's conference was not held in connection with the instant bed need publication and RFP.

12. The RFP provided that any intent to protest the bed need advertisement or proposal application package must be filed in writing within seventy-two hours after June 21, 1991 and a formal written protest submitted within 10 calendar days after the submission of the intent to protest. No protests were filed.

    
    

13. The RFP required as one of two mandatory or "fatal" items that each provider desiring to submit a proposal file a letter of intent with the Residential Services Director (RSD) in each district where the configurations to be bid upon were to be located. The deadline for letters of intent to be submitted was July 21, 1991.

    
    

14. Respondent required letters of intent so as to insure Respondent's ability to provide potential applicants with necessary information and to give Respondent an understanding of the identity and nature of the applicant. The letter of intent was to be submitted by the actual applicant or an agency that was clearly linked to the eventual applicant. Should the actual applicant not be named in the letter of intent, Respondent wanted to understand the relationship between the corporation that submitted the letter of intent and the corporation submitting the application. Respondent wanted the system to be flexible so as to encourage agencies to submit bids and not to have disqualifications on minor technicalities.

    
    

15. The second fatal item requirement was the submission of a separate, complete proposal to the district RSD within 90 days of the publication of bed need. The resultant submission deadline was September 19, 1991. RSDs would then perform a completeness review of the submitted applications.

    
    

16. The RFP package contained explanations and instructions regarding each of 14 categories or areas of concern upon which proposals were to be evaluated. RFP instructions required submission of written statements for each category which would explain such matters as the methods of operation to be used, protection of clients' rights, planned client activities and choices, financial strength of the provider, the budget, and services and treatment to be provided to clients. Also required by the RFP were certain supporting documents in connection with the 14 categories. Also contained in the package was a copy of the actual evaluation scoresheet which would be used by the district bid committee in the evaluation and scoring of submitted proposals.

    
    

17. Seventeen critical items were to be considered by RSDs in the course of a completeness review of a proposal. The 17 items included: submission of the required number of application copies; compliance with formatting and page limitation requirements; submission of a notarized Public Entity Crime Statement; submission of certain corporate commitments and authorizations; and submission of a letter of credit from a qualified financial institution for an amount sufficient to construct or acquire the homes and operate them for the first 60 days.

    
    

18. The district evaluation committees were instructed on the RFP scoresheet to also evaluate each item of a proposal for completeness and adequacy in scoring the individual proposals.

    
    

19. Members of the evaluation committee in each district were selected locally in accordance with guidelines issued from Respondent's Tallahassee office which specified the types of expertise and experience to be represented on each committee. The RSD in each district was required to serve on the committee, absent a disqualifying conflict of interest.

20. In District III, where the protest which is the subject of this proceeding originated, the evaluation committee appointed by the District Administrator at the time of the first published bed need (which was subsequently withdrawn) was carried over to review RFPs pursuant to the second bed need notice published on June 21, 1991.

    
    

21. Respondent employees who served as members of the evaluation committee for District III were: Charmaine Gibson, the RSD for the district; Vernita Hughes, a program supervisor in Respondent's Ocala office; Donna Van Leer, a quality control supervisor at a residential facility for the developmentally disabled; Vicki Crafton-Zinn, a contract specialist supervisor; and Mary Hawks, the head of District III's administrative services. Van Leer was a later appointee than the other committee members inasmuch as she replaced another person who was on maternity leave at the time the RFPs were evaluated.

    
    

22. Signed conflict of interest forms were produced at the final hearing for all members of the evaluation committee with the singular exception of the chairperson, Charmaine Gibson. Although the evidence establishes that Gibson signed such a form and that her answers to all questions on the form were in the negative, the form was subsequently misplaced.

    
    

23. Gibson's duties as RSD required her to be in frequent contact with staff of Res-Care Inc., (Res-Care) an organization associated with the Intervenor, Salem Villages MRDD, Inc., in this matter. Res-Care also operates facilities for the mentally retarded which are located in District III and Gibson's duties as RSD require her to supervise the contract between Respondent and Res-Care governing the operation of those facilities.

    
    

24. Res-Care's local manager, Carol Willis, is a former employee of Respondent and previously supervised Gibson during that employment. The two women have continued to see each other in the context of their present positions of employment, as well as an occasional social contact. There was, however, no evidence presented regarding any non-business or social contact between the two women during the evaluation process of the RFPs which are involved in this proceeding.

    
    

25. Although she did not know that Gibson was even a member of the evaluation committee until after Petitioner filed its protest, Willis and her superior, Terry Brownson, did have casual conversations with Gibson about possible employment with Res-Care. The conversations took place several months before the June 21, 1991 publication of bed need and involved a mention of the possible establishment of Res-Care operations in the Virgin Islands to which Gibson professed interest. No definite job offer was ever made and Gibson knew that the possibility of such expansion by Res-Care had been abandoned well before the selection committee met to consider the RFPs.

    
    

26. Edith Taylor, an aunt of Gibson's, served on a committee established by Res-Care to oversee Res-Care's operation of the cluster facilities for the mentally retarded. Taylor was recommended by Gibson to Res-Care for service on the committee which protects the rights and interests of Respondent clients living in the facilities. Gibson's recommendation was premised on the fact that Taylor had a number of years of experience as a teacher for the developmentally disabled. Taylor's position on the committee was unpaid and provided her with no material benefits.

27. Gibson did not supervise or exercise any authority over any other member of the evaluation committee. She was not in a position which would have permitted her to affect job security or status of any other member of the committee, nor did she attempt to influence any committee member with regard to the competing proposals. Further, the evidence establishes that she conducted herself impartially during the evaluation process.

    
    

28. As RSD, Gibson had questions about the completeness of the proposals of both Petitioner and Salem following her initial review. Subsequently, Kathleen Winstead in Respondent's Tallahassee office required both applicants to forward additional information and documentation concerning bonds proposed to be used by Salem and Petitioner for financing in their proposals. The additional information was submitted by both applicants and accepted for the purpose of clarifying Gibson's concerns.

    
    

29. Gibson's supervisor, Martha Foshee, notified both Petitioner and Salem by letters dated October 2, 1991, that their proposals were deemed sufficiently complete to be further evaluated by District III's evaluation committee.

    
    

30. Since there were questions regarding proposals received in other districts throughout the state, Respondent's Tallahassee office issued modifications to the RFP by letters to applicants dated October 21, 1991. The modifications provided an additional opportunity, until October 28, 1991, for previously rejected applicants to submit information correcting completeness errors or omissions in their proposals. The previous deadline for proposal submission had been September 19, 1991. The time for filing protests to the ultimate award was also extended from 10 to 30 days and the bond requirements for filing a protest were eliminated. As previously noted, the proposals of Petitioner and Salem had previously been determined to be complete and qualified for evaluation.

    
    

31. Respondent's modifications to the RFP did not result in an award anywhere in the state to proposers whose initial proposals had been rejected for lack of completeness.

    
    

32. After the proposals in District III were deemed complete by Gibson, she forwarded a copy of each proposal to members of the district evaluation committee. The proposals were voluminous with many supporting documents. Committee members were to review the proposals individually, making notes regarding any perceived strengths or weaknesses in each. Such individual review of the proposals by committee members was very time consuming.

    
    

33. Following their individual study of the proposals, members of the District III evaluation committee met on November 13-14, 1991, as a group to rate and review the proposals. Melverine Cunningham, an HRS employee, was present to take notes.

    
    

34. Each proposal was separately reviewed by the committee in accordance with the Content Review Of Proposal form (rating sheet) provided in the RFP. After discussion, the committee reached agreement on a score for each section of a particular proposal. Each proposal was given a final score by totalling the points awarded in the individual sections. Committee comments justifying a higher or lower than average score were written on the content review form.

    Each of the content review forms were signed at the conclusion of the proposal rating by the committee.

35. All proposals, including Petitioner's and Salem's, were evaluated and rated in the same way. Salem's proposal received the highest number of points, 388, followed by Petitioner's proposal with a total score of 379 points. The committee recommended to Respondent's Tallahassee office that Salem receive the award. In the event that Salem failed to accept the award, the committee recommended that the award should go to Petitioner.

    
    

36. Following their deliberations and decision, Gibson advised the committee members that a comparative review report had to be completed and forwarded to Respondent's Tallahassee office to inform the Tallahassee office of the committee findings on each section of the proposals. The report was to effectively provide a summary of the committee's findings. Due to time constraints, the committee members signed the comparative review form at the conclusion of their deliberations on November 14, 1991, and authorized Gibson to complete the form using the notes taken during the committee's two day meeting.

    
    

37. The comparative review report was completed by Gibson and forwarded to Tallahassee on November 15, 1991. The report fairly and accurately summarized the committee's views and recommendation. The report was prepared in accordance with instructions and was consistent with the committee's work. The method of preparation of the comparative report did not impact the award process.

    
    

38. Upon receipt in Tallahassee, Kingsley Ross's staff reviewed the recommendation of each district to determine whether the recommendation in that district was supported by the comparative review report and whether procedures had been followed. Upon confirmation in writing by his staff, Ross accepted the district recommendations. Acceptance of the District III recommendation, as well as recommendations by all other service districts, was confirmed in a statewide award list published on November 22, 1991. Ross provided further confirmation of award or rejection to each applicant in each service district by letter on November 21, 1991.

    
    

39. Petitioner received awards in other district (Districts VIII and XI) and accepted those awards. Salem also received awards in other districts.

    
    

40. Salem timely accepted the award in District III (Configuration ID 91- D3-01) and provided Respondent with the necessary financial information.

    
    

41. Petitioner's protest of the award in District III was received by the district's legal counsel on December 19, 1991. As such, the protest was filed more than 10 days after the award, a violation of Section 2.20 of the initial RFP. The protest was, however, filed within the 30 day period permitted by Respondent's RFP modifications contained in the October 21, 1991 letter. Further, in accordance with those modifications, Petitioner declined to post the bond originally required by the RFP.

    
    

    SALEM'S PROPOSAL

    
    

42. Gibson received Salem's letter of intent to submit a proposal on July 22, 1991. The proposal was submitted on behalf of Salem Housing/Health Care Villages, two non-profit corporate entities with a common board of directors and control. This concept was utilized by Salem as the result of uncertainty as to which corporation would file the proposal.

43. Within the letter of intent, Salem declared its intention to enter into development and management agreements with Res-Care. A list of Res-Care directors were also submitted, along with the common directors of the not for profit corporations.

    
    

44. Prior to the September 19, 1991 deadline, Salem's proposal was submitted by an entity known as Salem Villages MRDD, Inc. The proposal cover sheet identified the proposal as that of Salem Housing and Health Care Village in cooperation with Res-Care, Inc.

    
    

45. Health Care Villages, Inc. changed its name to Salem Villages, Inc. The Intervenor, Salem Villages MRDD, Inc., a not for profit corporation, is a subsidiary corporation of Salem Villages, Inc., formerly known as Health Care Villages, Inc.

    
    

46. The relationship of these companies to one another and to the reference "Salem Housing/Health Care Villages" noted in the letter of intent was fully described in the proposal. The first page of the proposal provided an explanatory note which reads as follows:

    
    

    NOTE: The letter of Intent for this proposal was in the name Salem Housing/Healthcare Villages, which were two affiliated not-for- profit organizations with a common Board of Directors. During the process of preparing this Proposal Application, Healthcare Villages legally changed its name to Salem Villages MRDD, Inc., to clarify its

    affiliation. Some application materials using the prior name had already been printed. We apologize for any confusion. The correct

    name of the applicant is Salem Villages MRDD, Inc.

    
    

47. The note should have included the facts that Health Care Villages, Inc. had changed its name to Salem Villages, Inc. and also that Salem Villages, Inc. created a subsidiary, Salem Villages MRDD, Inc., which is the applicant and Intervenor in this proceeding.

    
    

48. The body of the proposal did in fact disclose all the information. The proposal identified the legal name of the applicant as Salem Villages MRDD, Inc. and included a certificate of the Secretary of State of Florida showing that a Florida corporation by that name had filed its articles of incorporation on September 6, 1991.

    
    

49. The financial system in the proposal explained that:

    
    

    1. Salem Village, Inc. was formerly known as Health Care Villages, Inc.

       
       

    2. Salem Village, Inc. formed a subsidiary, Salem Villages MRDD, Inc. on September 8, 1991.

       
       

    3. The applicant for the ICF/DD homes is Salem Villages MRDD, Inc.

    4. Salem Housing Corporation and Salem Villages, Inc. had common directors and officers.

       
       

       The proposal clearly reflected Salem's relationship to Health Care Villages, Inc. and Salem Villages, Inc. A certificate from the Secretary of State that Res-Care, Inc. was authorized to do business in the State of Florida was also included.

       
       

50. There was no intent to deceive or conceal by Salem nor was there any evidence of a deliberate attempt to circumvent the requirements and purposes of the letter of intent. Respondent was aware that the name of the applicant differed from that within the letter of intent and accepted Salem's explanation contained within the proposal prior to making the award. The letter of intent submitted was sufficient to meet the purposes for which Respondent required a timely letter of intent as a material or, in the language of the RFP, a fatal item.

    
    

51. Salem's proposal clearly and repeatedly revealed that Res-Care would play an important role in the ICF/DD's should the contract be awarded to Salem. Res-Care was selected by Salem to be the managing agent for the project.

    
    

52. Salem, as applicant executed all the certifications required by Section 2 of the RFP. Res-Care executed all the certifications in Section 2 with the exception of the certificate of financial commitment. Res-Care's commitment to Respondent contained within Salem's proposal are substantial. Res-Care commits its organization, its experience and its expertise to the proposal. Res-Care also commits to the financial commitments made within the proposal. The financial commitments include a term loan and revolving line of credit in the total amount of $9,000,000.00 which would be available for the homes if awarded.

    
    

53. Petitioner's proposal also reflects its reliance on the support of non related corporations. Petitioner admitted in its proposal that it was not capable of handling the financing of these homes on its own. Petitioner "teamed up" with a corporation, CIL Realty of Florida, Inc., a Florida corporation.

    Both CIL Realty of Florida, Inc. and its parent, Corporation for Independent Living (CIL) were to undertake substantial responsibility regarding the acquisition of the homes and maintenance thereafter.

    
    

54. The proposals of both Salem and Petitioner contain commitments for tax exempt bond financing to acquire, equip and open the homes. Neither CIL Realty of Florida, Inc. nor CIL signed any certifications to Respondent as part of Petitioner's proposal. While Petitioner asserted that the information in Salem's proposal regarding the experience and financial strength of Res-Care should not have been considered by Respondent in rating Salem's proposal, the bid evaluation committee considered all the information contained in each proposal in arriving at its rating for that proposal. As such the committee treated all applicants exactly the same and provided no advantage or disadvantage to any applicant.

    
    

55. Respondent required the applicant to provide financial information in order to determine the applicant's ability to complete the project. Salem's proposal provided a sufficient amount of such information to Respondent. Salem's proposal included two years of audited financial statements from Res- Care and a draft of audited financial statement for over two years for Salem Villages, Inc. and its related companies which included Salem. The draft audit

    and financial statement were prepared by Coopers and Lybrand, CPA's. Coopers and Lybrand were preparing the report for inclusion in Salem's proposal. The auditors included information as late as September 6, 1991, making it impossible for the audit to become finalized prior to the deadline for submission of the proposal. Respondent did not require Salem to submit financial statements on the board members.

    
    

56. Respondent did not require Petitioner to submit financial statements on its board members, although Petitioner's proposal, unlike Salem's, failed to contain audited financial statements for the two previous years.

    
    

57. Res-Care did not submit a certificate of financial commitment of the applicant. This certification related to a successful applicant's providing Respondent with proof, satisfactory to Respondent, of the financial ability to obtain and operate the home for sixty days. Following the award, Salem provided commitment letters from Summit Capital Marketing, Inc., Res-Care and its bank, Citizens Fidelity Bank, in support of this request.

    
    

58. Salem's proposal complied with the RFP's two fatal item requirements, receipt of the letter of intent and the proposal within the required time frame. Salem's proposal also complied with the critical items of the RFP, including specifying a per diem rate that was within the current Florida Title XIX ICF/MR- DD Reimbursement Plan.

    
    

59. The financial information submitted by Salem with respect to its parent and Res-Care adequately explained the financial history of the corporations for the purposes of Respondent, which were to secure an indication of the financial ability of the applicants to carry out their proposals if awarded. In addition to the financial statements for Salem, and Res-Care, Salem submitted other documentation of its and Res-Care's ability to perform, including a letter of intent from Summit Capital Markets, Inc. committing that company to secure long-term, tax-exempt bond funding for the configurations for which Salem was bidding and a letter from Citizens Fidelity Bank of Louisville, Kentucky stating Res-Care had total credit of $9,000,000.00 available from that bank to be used in the operation of the homes.

    
    

60. In the RFP, Respondent reserved the right to determine in its discretion what constituted an acceptable equivalent to the required conditional letter of credit to be submitted with each proposal and the final letter of credit to be posted by the successful applicant. Respondent determined that the letters from Summit Capital Markets, Inc. committing to secure bond financing for Salem were sufficient to meet these financial conditions.

    
    

61. Respondent accepted and, in making the award, relied upon the proposal commitments made to it by both Salem and Res-Care. Respondent found Res-Care's participation integral to the proposal and to the award. Salem is bound to continue the relationship with Res-Care. Salem will be the owner of the home and the provider with its responsibilities. Res-Care will be the managing agent for Salem.

    
    

62. When considered as a whole, as was properly done by Respondent, the proposal of Salem disclosed sufficient information to allow Respondent to conduct a reasonable and fair evaluation on the specifics of Salem's proposal and compare it fairly to the other proposals submitted.

    
    

63. The evaluation and selection procedure designed and utilized by Respondent in response to the legislature's authorization and direction,

    although not altogether perfect, was basically fair to all who submitted proposals and did not result in any discernible advantage to any particular proposer at the expense of another. The procedure as designed and utilized was reasonable, logical and in compliance with the requirement of law. There was no evidence sufficient to establish any abuse of discretion, arbitrariness, fraud or illegality on the part of HRS that resulted in any unfair advantage for Salem or disadvantage for Petitioner. The procedures and methods utilized in actuality were applied evenly and fairly to both Salem and Petitioner.

    
    

    CONCLUSIONS OF LAW

    
    

64. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.53(5) and 120.57(1), Florida Statutes.

    
    

65. Counsel for Respondent and counsel for Intervenor filed separate motions to strike the proposed findings of fact submitted by Petitioner. The motions also sought the imposition of monetary sanctions and attorney fee awards. Inasmuch as it is impossible to rule upon each of the proposed findings of Petitioner for the reasons set forth in the appendix to this recommended order, the motions are, to some extent, mooted. The motions, to the extent they seek relief in the form of monetary sanctions or attorney fee awards, are denied at this time.

    
    

66. Petitioner bears the burden of establishing its entitlement to the relief sought in this proceeding. Florida Department of Transportation v. J. W.

    C. Company, Inc. 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

67. Whether Petitioner has met that burden must be resolved by determining whether Respondent, based upon evidence presented at the final hearing, acted fraudulently, arbitrarily, illegally or dishonestly in the selection of Salem as the recipient of the award which is the subject of this proceeding.

    
    

68. Any error that does not result in a subversion of the purpose of the competitive bidding process or cause prejudice to a bidder does not rise to the level of misconduct necessary to constitute an abuse of discretion. Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988). Also, in determining whether an agency has improperly waived an irregularity, a variation may be waived if it does not give an unfair advantage to one bidder over other, or does not adversely impact advantage to one bidder over others, or does not adversely impact the interests of the agency. Tropabest Foods, Inc. v. Department of General Services, 493 So.2d 50, 52 (Fla. 1st DCA 1986).

    
    

69. Section 393.067(17(c), Florida Statutes, which provides the procedure by which Respondent is to choose the recipient of the award in this matter, reads as follows:

    
    

    The department shall approve and select from provider proposals that respond to published projected bed need, based on the following weighted criteria in order of importance:

    1. Adequacy and quality of services that address the published bed need projections, especially the client demographic and programmatic characteristics.

    2. Completeness of the proposal and adherence to time frames.

    3. Demonstration of financial ability to operate the facility in relation to published bed need projections.

    4. Appropriateness of per diem cost to provide quality services.

    
    

70. The facts established at the final hearing demonstrate that Respondent made a good faith effort to establish a system meeting the legislative mandate that was fair and calculated to select the applicant best able to meet the needs of the clients sought to be served in each of Respondent's service districts, including District III. Salem's bid was facially responsive and responsive in fact, as supported by competent substantial evidence.

    
    

71. Petitioner's argument for an interpretation of certain requirements of the RFP in a manner beneficial to its current position is not persuasive since the interpretations of doubtful language by the parties may also be considered in construing that language. American Agronomics Corporation v. Ross, 309 So.2d 582, 584 (Fla. 3rd DCA 1975), cert. denied, 321 So.2d 558 (Fla. 1975). The interpretations of Respondent and Salem are in basic accord regarding information requested by the various provisions of the RFP. Further, Petitioner's own actions demonstrate an interpretation not initially at odds with that of Respondent or Salem. For example, Petitioner's argument that Res- Care should have executed a separate "financial commitment to the applicant" form overlooks the fact that Petitioner submitted none of the required corporate commitment or authorization forms with regard to CIL Realty of Florida, Inc., the entity to have been responsible for providing required financing under Petitioner's proposal.

    
    

72. There exists no legal basis to recommend a reversal of the contemplated award to Salem. Petitioner has failed to show that Respondent abused its discretion in this matter. Moore v. Department of Health and Rehabilitative Services, 596 So.2d 759 (Fla. 1st DCA 1992).

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered granting the award of Configuration 91-D3-01 to Salem.

DONE AND ENTERED this 2 day of September, 1992, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 2 day of September, 1992.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

RESPONDENT'S PROPOSED FINDINGS OF FACT

1-15. Adopted in substance.

16. Rejected, unnecessary 17-20. Adopted in substance.

21. Adopted with regard to the first five sentences.

The remaining of this proposed finding is rejected as unnecessary.

21-30. Adopted in substance.

31. Rejected as unnecessary.

32-41. Adopted in substance, although not verbatim.

42. Rejected, unnecessary. 43-44. Adopted in substance.

1. Adopted by reference.

2. Adopted by reference. 47-48. Adopted in substance.

49. Rejected as unnecessary. 50-51. Adopted in substance.

1. Adopted, but not verbatim.

2. Adopted in substance. 54-57. Adopted in substance.

1. Adopted by reference.

2. Adopted by reference. 60-62. Adopted in substance.

63-91. Adopted in substance, although not verbatim.

92-99. Rejected as unnecessary. Regardless of the conduct of Petitioner's counsel, factual findings regarding that conduct are not relevant to a determination of the issues in this proceeding.

INTERVENOR'S PROPOSED FINDINGS OF FACT

1-33. Adopted in substance.

34-53. Adopted in substance, although not verbatim. 54-59. Adopted by reference.

60-82. Adopted in substance.

83. Rejected, see comment regarding proposed findings of Respondent with regard to conduct of Petitioner's counsel.

84-87. Rejected, unnecessary. PETITIONER'S PROPOSED FINDINGS OF FACT

Petitioner, Sunrise Community, Inc. submitted a document entitled "Proposed Findings of Fact". The document was 175 pages in length, containing 825 proposed factual findings. The proposed findings of fact were submitted by Petitioner's counsel without leave or approval by the Hearing Officer to depart from the requirements of Rule 22I-6.031 (3), Florida Administrative Code.

Accordingly, the Hearing Officer has reviewed the proposed findings of fact submitted by Petitioner's counsel and to the extent possible those proposed findings have been addressed in the Findings of Fact established by the Hearing Officer. In view of the excessive length and redundancy of many of Petitioner's proposed findings, it is not possible to address them individually in this Appendix.

COPIES FURNISHED:

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Steven M. Weinger, Esq.

2650 SW 27th Avenue, 2nd Floor Miami, FL 33133

Ralph McMurphy, Esq.

HRS District III

1000 NE 16 Avenue, Bldg. H.

Gainesville, FL 32609

Emery Rosenbluth, Esq.

111 N. Orange Ave. Suite 900 Orlando, FL 32802-0285

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 consult with the agency that will issue the final order in this case concerning their 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: 92-000342BID

Orders for Case No: 92-000342BID