STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MORALL & CAREY, and ) SWEETING & HALBERT, P.A., )

)

Petitioners, )

)

v. )

)

DEPARTMENT OF REVENUE, )

) CASE NOS. 95-3029BID

Respondent, ) 95-3030BID and )

) LAW OFFICES OF HERNAN CASTRO, )

)

Intervenors. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on June 30, July 6, and July 7, 1995, in Tallahassee, Florida. Respondent, Intervenor, the court reporter, and the undersigned attended the formal hearing in Tallahassee. Petitioners and some witnesses attended a portion of the formal hearing in Tallahassee and the remainder of the hearing by video conference from Orlando, Florida.

APPEARANCES

For Petitioners: Harry Morall, Esquire

Jane Carey, Attorney Morall & Carey

905 West Colonial Drive Orlando, Florida 32804

James Sweeting, III, Esquire Stanley E. Halbert, Esquire Sweeting & Halbert, P.A.

227 North Magnolia Avenue, Suite 101 Orlando, Florida 32801

For Respondent: Patrick A. Loebig, Esquire

Brian F. McGrail, Esquire Florida Department of Revenue Post Office BOX 6668 Tallahassee, Florida 32314-6668

For Intervenor: Kathleen Blizzard, Attorney

James C. Goodlett, Esquire Jonathan S. Fox, Esquire

Hopping, Green, Sams & Smith, P.A.

123 South Calhoun Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues for determination are whether it was an arbitrary, fraudulent, dishonest or illegal exercise of agency discretion for Respondent to either: reject the proposal submitted by Petitioner, Morall & Carey ("Morall"), as unresponsive to the Solicitation for Proposals ("SFP"); or award the contracts for legal services for child support enforcement in Osceola and Seminole counties to Intervenor, rather than Petitioner, Sweeting & Halbert, P.A. ("Sweeting").

PRELIMINARY STATEMENT

On April 1, 1995, the Department advertised an SFP for Child Support Enforcement ("CSE") Legal Services Contracts in Osceola and Seminole counties, Florida. By letter dated May 22, 1995, Respondent provided notice of its intent to award the CSE contracts to Intervenor.

Petitioners timely filed notices of protests and formal written protests. On June 15, 1995, the matters were referred to the Division of Administrative Hearings ("DOAH") for assignment of a hearing officer to conduct a formal hearing.

At the formal hearing, the parties submitted 10 joint exhibits for admission in evidence. Petitioners presented the testimony of seven witnesses and submitted seven exhibits for admission in evidence. Respondent called four witnesses and submitted one exhibit for admission in evidence. Intervenor called two witnesses and submitted two exhibits for admission in evidence. The identity of the witnesses and exhibits and the rulings concerning each are reported in the transcript of the formal hearing filed on July 25, 1995.

Respondent, Intervenor, and Morall timely filed their respective proposed recommended orders ("PRO"s) on August 4, 1995. Sweeting filed its PRO on August 9, 1995. Proposed findings of fact in the parties' PROs are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Background

   
   

   1. Respondent is the state agency responsible for prosecuting CSE actions governed by Title IV-D of the Social Security Act, Public Law 93-647 (1975). Chapter 94-124, Laws of Florida. The United States Department of Health and Human Services ("HHS") promulgates the regulations governing the operation of CSE programs by individual states. 45 CFR, Parts 301-307.

      
      

   2. On April 1, 1995, Respondent advertised SFPs for CSE legal services in Osceola and Seminole counties. The respective CSE contracts for those two counties were scheduled for renewal.

   3. Respondent organized an evaluation committee to evaluate the solicitation proposals and to select the CSE legal services provider for Osceola and Seminole counties. William McEvoy, the Bureau Chief for Respondent's State- Wide Program Operations, appointed the members of the evaluation committee from a list of employees submitted by the Program Administrator for Respondent's District Seven. Mr. McEvoy appointed Mr. Ted Kaiser, Ms. Sharon Kurtz, and Ms. Barbara Bryan to the evaluation committee (the "evaluators").

      
      

   4. The evaluators received instructions during an orientation conference conducted by telephone prior to the actual evaluation. They reviewed the SFP and were instructed to evaluate each proposal on the basis of the content of the proposal.

      
      

      1. Mandatory Requirements And The Point System

         
         

   5. The SFP required potential providers to submit sealed proposals that satisfied certain mandatory requirements prescribed in the SFP. Proposals that satisfied all of the mandatory requirements were deemed responsive.

      
      

   6. Evaluators assigned points to each responsive proposal on a rating sheet. The evaluators used the rating sheets to assign points for the proposal ("proposal points"), references ("reference points"), and interviews with representatives of the respective firms ("interview points"). The maximum number of points that the evaluators could assigning was 95 proposal points, 5 reference points, and 10 interview points.

      
      

   7. The rating sheets authorized each of the evaluators to award a maximum of 110 total points for each proposal. No more than 330 aggregate points could be awarded to a particular proposal by all three evaluators. The SFP required Respondent to award the contract for CSE services to the solicitation proposal with the highest aggregate score.

      
      

      1.01(a) Proposal Points

      
      

   8. The SFP authorized proposal points on the basis of certain technical and cost factors. A maximum of 74 points was authorized for technical factors. Up to 21 points were authorized for cost factors.

      
      

   9. Technical factors encompassed five sub-categories. The sub-categories were labeled on the rating sheets as: the Plan; Consideration as to Geographic Area; Firm Resources; Time and Personnel to be Devoted to Child Support Work; and Minority Ownership.

      
      

   10. The plan for providing CSE services was entitled to a maximum score of

       10 points. The geographic location of the law office of each applicant was entitled to a maximum score of 4 points.

       
       

   11. Firm resources were entitled to a maximum score of 15 points. Of those 15 points, up to 7 points could be assigned to computer/software to manage high volume caseloads. Up to 4 points each could be assigned to: (a) legal forms; and (b) telephone and fax systems.

       
       

   12. Time and personnel to be devoted to child support work was entitled to a maximum score of 40 points. The maximum score could be achieved by earning a maximum of 10 points for staffing ratios, 25 points for attorney experience, and

       5 points for customer service to Respondent and Respondent's accessibility to CSE staff.

   13. The 25 points available for attorney experience were divided into four sub-categories. Experience in child support practice was entitled to a maximum score of 10 points. Experience in family law, enforcement and collection, and trial or appellate practice was entitled to a maximum score of 5 points each.

       
       

   14. Attorney experience in child support practice for a single practitioner was entitled to two points for each year of experience. Attorney experience for more than one attorney was entitled to two points for each average year of experience.

       
       

   15. Attorney experience in family law, enforcement and collection, and trial or appellate practice for a single practitioner was entitled to one point for each year of experience. Attorney experience for more than one attorney was entitled to one point for each average year for all attorneys.

       
       

   16. Minority ownership was entitled to a maximum score of 5 points. Both Sweeting and Intervenor earned the maximum score for minority ownership.

       
       

       1.01(b) Cost Factors

       
       

   17. The SFP authorized each evaluator to award up to 21 points for the cost factor. Each evaluator multiplied 21 by a fraction. The numerator was the amount of the lowest cost proposal. The denominator was the amount of the cost proposal being evaluated. The product equaled the points awarded to the cost proposal being evaluated.

       
       

       1.01(c) Reference Points

       
       

   18. The SFP authorized a maximum score of 5 points for references. Reference points were awarded after the proposal points and interview points were determined.

       
       

       1.01(d) Interview Points

       
       

   19. The SFP authorized a maximum of 10 interview points. Interview points were awarded on the basis of interviews between representatives of the law firms who submitted responsive proposals. The interviews were conducted after the proposal points were determined.

       
       

       1. Responsiveness And Points Awarded

       
       

   20. The SFP required prospective applicants to submit completed and sealed proposals no later than May 12, 1995, at 3:00 p.m. The only applicants who submitted proposals were Morall, Sweeting, and Intervenor.

       
       

   21. The Sweeting proposals contained the lowest proposed cost for Osceola and Seminole counties. The proposed cost in each proposal submitted by the parties was:

       
       

       	OSCEOLA COUNTY	SEMINOLE
       Sweeting	$109,710.07	$219,993.98
       Morall	$140,929.00	$278,987.00
       Intervenor	$163,244.57	$327,130.77

       1.02(a) Responsiveness

       
       

   22. The evaluators first determined whether each proposal satisfied the mandatory requirements prescribed in the SFP. One mandatory requirement was for a Debarment/Suspension Certification form to be completed and signed by each applicant ("Attachment VII").

       
       

   23. Morall failed to include Attachment VII in its proposals for both Osceola or Seminole counties by 3:00 p.m. on May 12, 1995. Morall did not submit sealed proposals.

       
       

   24. The evaluators determined that the Morall proposals were unresponsive. They did not evaluate the Morall proposals to assign proposal, reference, and interview points.

       
       

   25. The proposals submitted by Sweeting and Intervenor were sealed and contained Attachment VII. The evaluators determined that the proposals were responsive, and evaluated the proposals in accordance with criteria in the SFP.

       
       

       1.02(b) Points Awarded

       
       

   26. The evaluators sat in separate parts of a single room and awarded points to each proposal individually. Each evaluator awarded points on the basis of the content of each proposal.

       
       

   27. Tables 1 and 2 compare the points awarded to the proposals submitted by Sweeting and Intervenor. The evaluators are designated E-1, E-2, and E-3.

       
       

       TABLE 1

       Osceola County

       Category	Sweeting Proposal E-1 E-2 E-3			Agg.	Intervenor Proposal E-1 E-2 E-3			Agg.
       Plan	2.00	5.00	6.00	13.00	10.00	10.00	9.00	29.00
       Geographic	1.00	1.00	5.00	7.00	2.00	3.00	3.00	8.00
       Firm Res. 1/	10.00	10.00	9.00	29.00	15.00	13.00	15.00	43.00
       Com/SW	7.00	7.00	6.00	20.00	7.00	5.00	7.00	19.00
       Forms	0.00	0.00	0.00	0.00	4.00	4.00	4.00	12.00
       Tel./Fax	3.00	3.00	3.00	9.00	4.00	4.00	4.00	12.00
       Time & Per.	17.75	14.75	13.75	46.25	39.33	38.33	39.33	77.66
       Staff	7.00	5.00	5.00	17.00	10.00	10.00	10.00	30.00
       Atty. Exp.	8.75	8.75	8.75	26.25	24.33	24.33	24.33	72.99
       Child Sup.	2.50	2.50	2.50	12.50	9.33	9.33	9.33	27.99
       Fam. Law	1.25	1.25	1.25	3.75	5.00	5.00	5.00	15.00
       Enf./Coll.	0.00	0.00	0.00	0.00	5.00	5.00	5.00	15.00
       Trial/Ap 2/	5.00	5.00	5.00	10.00	5.00	5.00	5.00	15.00

       
       

       Cust. Serv.	2.00	1.00	0.00	3.00	5.00	4.00	5.00	14.00
       Minority OS.	5.00	5.00	5.00	15.00	5.00	5.00	5.00	15.00
       Cost	21.00	21.00	21.00	63.00	14.07	14.07	14.07	42.21
       Prop. Pts.	56.75	56.75	59.75	173.25	85.40	83.40	85.40	254.20
       Ref. Pts.	4.00	4.00	4.00	12.00	5.00	5.00	5.00	15.00
       Int. Pts.	5.00	6.00	6.49	17.49	10.00	10.00	8.99	28.99
       Total Pts.	65.75	66.75	70.24	202.74	100.40	98.40	99.39	298.19
       Ranking				2				1

       
       

       TABLE 2

       Seminole County

       
       

       Sweeting Proposal Intervenor Proposal Category E-1 E-2 E-3 Agg. E-1 E-2 E-3 Agg.

       
       

       Plan		10.00	9.00	7.00	13.00	10.00	10.00	9.00	29.00
       Geographic		4.00	4.00	3.50	7.00	3.00	3.00	3.00	9.00
       Firm Res.	3/	11.00	11.00	9.00	31.00	15.00	13.00	15.00	43.00
       Com/SW		7.00	7.00	6.00	20.00	7.00	5.00	7.00	19.00
       Forms		0.00	0.00	0.00	0.00	4.00	4.00	4.00	12.00
       Tel./Fax		4.00	4.00	3.00	11.00	4.00	4.00	4.00	12.00
       Time&Per.	4/	21.88	19.00	20.70	61.57	39.33	38.33	34.33	111.99
       Staff		2.00	4.00	7.00	13.00	10.00	10.00	10.00	30.00
       Atty.Exp.5/		16.88	11.00	7.60	35.47	24.33	24.33	24.33	72.99
       Child Sup.		10.00	4.00	3.80	17.80	9.33	9.33	9.33	27.99
       Fam.Law 6/		1.88	2.00	1.90	5.77	5.00	5.00	5.00	15.00
       Enf./Coll.		0.00	0.00	0.00	0.00	5.00	5.00	5.00	15.00
       Trial/App.		5.00	5.00	5.00	15.00	5.00	5.00	5.00	15.00
       Cust.Serv.7/		3.00	4.00	0.00	7.00	5.00	4.00	0.00	9.00
       Minority OS.		5.00	5.00	5.00	15.00	5.00	5.00	5.00	15.00
       Cost		21.00	21.00	21.00	63.00	14.13	14.13	14.13	42.39
       Prop.Pts. 8/		72.88	69.00	59.75	201.62	86.46	83.46	80.46	250.38

       Ref. Pts.	4.00	4.00	4.00	12.00	5.00	5.00	5.00	15.00
       Int. Pts.	5.00	6.00	6.49	17.49	10.00	10.00	8.99	28.99
       Total 9/	81.88	79.00	76.69	237.57	101.46	98.46	94.45	294.37
       Ranking				2				1

       
       

   28. Respondent issued a Notice of Intent to award the Contract for CSE legal services for Osceola and Seminole counties to Intervenor. Respondent provided notice by written correspondence dated May 22, 1995.

       
       

2. Unresponsiveness: Morall Proposal

   
   

   1. Each evaluator correctly determined that the Morall proposals were unresponsive. That determination was neither an arbitrary, fraudulent, dishonest, nor illegal exercise of agency discretion.

      
      

      1. Major Irregularity

         
         

   2. The omissions of Attachment VII from the Morall proposals were not minor irregularities. Although the omissions did not affect the price of the proposal or give Morall a benefit not enjoyed by other proposers, they were variations from the terms of the SFP that adversely impacted the interests of Respondent. 10/

      
      

   3. Funds needed by Respondent to administer the CSE program are derived from the federal government. 11/ Federal law prescribes the terms under which federal matching funds will be provided.

      
      

   4. Federal regulations require that a properly completed certification, such as that required in Attachment VII, must be submitted at the time that each party submits their respective proposals. 12/ The regulations specifically provide that Respondent shall require each of the parties:

      
      

      . . . to include the certification . . . in any proposal submitted in connection with . . . covered transactions. 13/

      * * *

      . . . persons who have been debarred or suspended shall be excluded from participating

      . . . in all . . . covered transactions. . . .

      14/

      
      

   5. The SFP placed all parties on notice of the material nature of the mandatory requirement for Attachment VII. The SFP specifically stated:

      
      

      This certification is required by the regulations implementing Executive Order 12549, Debarment and Suspension, signed February 18, 1986. The guidelines were published in the May 29, 1987 Federal Register (52 Fed. Reg., pages 20360- 30369). . . . This certification is a material representation of fact. . . .

      1. Minor Irregularity

      
      

   6. Even if the omissions of Attachment VII were minor irregularities, it would not alter the propriety of the evaluators' decisions. The evaluators engaged in an honest exercise of discretion when they refused to waive the requirement for Attachment VII.

      
      

   7. The SFP gave adequate notice to all parties that it was essential to include Attachment VII in their respective proposals in a timely manner and properly executed. The SFP specifically stated:

      
      

      . . . Proposal[s] shall be received by the time and date specified. . . .

      * * *

      Proposals submitted after the date and time for submission of proposals will be returned unopened by certified mail, return receipt requested.

      * * *

      The following must be included with your proposal:

      . . . Attachment . . . VII signed by the authorized representative. . . .

      (emphasis supplied)

      * * *

      The following documents, certifications and responses to the statements listed below . . . are mandatory requirements. If any of these requirements are not met, your proposal will not be considered further

      . . . . The proposal shall include a completed and signed Debarment/Suspension Certification Form (Attachment VII). (emphasis supplied)

      * * *

      Proposals that fail to satisfy all of the mandatory requirements will not be considered further. (emphasis supplied)

      
      

      SFP at 1, 4, and 38.

      
      

   8. The discretion exercised by Respondent's evaluators was consistent with the terms of the SFP. The decision to reject the Morall proposals was consistent with the language in the SFP requiring forms and attachments identified as mandatory requirements to be included in proposals in a timely manner and properly executed.

      
      

   9. The decision to reject the Morall proposals did not have the effect of eliminating the lowest cost proposal. The Morall cost proposals were not the low cost proposals for either Osceola or Seminole county. The decision did not conflict with the "strong public policy against disqualifying the low bidder for technical deficiencies. . . ." 15/

      
      

   10. The evaluators did not engage in fraud or collusion in rejecting the Morall proposals as unresponsive. Nor was the determination of the evaluators an attempt to avoid competition.

   11. Prior to rejecting the Morall proposals, the evaluators conferred with Respondent's state-wide Contract Administrator for the CSE program, in Tallahassee, Florida (the "administrator"). The administrator conferred with Wings Benton, Respondent's Chief Legal Counsel for the CSE Program (the "chief counsel"). The administrator and chief counsel agreed that Attachment VII was mandatory, that the Morall proposals should be rejected, and that the proposals should not be evaluated for point scores. Neither the administrator nor chief counsel knew the identity of the proposer at the time that they advised the evaluators to reject the proposals.

   
   

3. Evaluation Of Responsive Proposals

   
   

   1. Respondent intentionally made the evaluation process used in all of the counties in the state more subjective than it was the previous year by eliminating scoring formulas for any category except cost proposals. Respondent intended for local evaluators to exercise greater discretion. 16/

      
      

   2. Each evaluator fairly evaluated the proposals submitted by Sweeting and Intervenor. The manner of review and scoring was an honest exercise of agency discretion. Neither the review nor the scoring was an arbitrary, fraudulent, dishonest, or illegal exercise of agency discretion.

      
      

   3. Each evaluator evaluated each proposal separately and independently of the other two evaluators. Each relied on both professional and personal experience in the honest exercise of his or her best judgment. None of the evaluators were biased in favor of the Intervenor or against Sweeting.

      
      

   4. The evaluators fairly evaluated the proposals. Each of the evaluators evaluated the content of each separate proposal using reasonable judgment in a manner consistent with the criteria prescribed in the SFP.

      
      

   5. Each evaluator reviewed the proposals and completed rating sheets by assigning points within the permissible range for each category. 17/ Each evaluator applied the scoring spread fairly in order to determine which proposal was best able to provide legal services for the CSE program administered by Respondent.

      
      

   6. Each evaluator awarded higher point totals to the proposals submitted by Intervenor. The point totals assigned by each evaluator accurately reflect that evaluator's judgment of the ability of the proposers to provide legal services for the CSE program.

      
      

   7. Each evaluator measured the ability of the proposers to provide legal services for the CSE program based on the content of the proposals. Each evaluator approached the evaluation process without preconceived bias or prejudice.

      
      

      1. Impartiality

         
         

   8. Intervenor is the incumbent provider of legal services for the CSE program in several counties including Osceola and Seminole counties. The evaluators worked in the CSE program for many years and have a long standing business relationship with Intervenor's lawyers and staff. However, the job performance of the evaluators is not based on Intervenor's successful attainment of operational goals in the CSE program.

   9. The business relationship between the evaluators and Intervenor has been cordial. Each of the evaluators has attended social functions sponsored by Intervenor, including Christmas parties.

      
      

   10. At Christmas parties, members of the staff for HRS and Intervenor exchanged gifts of nominal value such as cookies and plants. The evaluators participated in those functions. The practice of exchanging gifts was terminated several years ago.

       
       

   11. The long standing relationship between the evaluators and Intervenor did not unduly influence the judgment of the evaluators. It did not create in the evaluators any inherent bias or prejudice in favor of Intervenor or against Sweeting that impacted the scores assigned in the evaluation process.

       
       

   12. Any successful incumbent provider of legal services can reasonably be expected to have an existing relationship with CSE staff that may not be enjoyed by law firms attempting to become providers. It would be difficult to identify evaluators who have sufficient knowledge and experience concerning the needs of the CSE program but do not have any business relationship with an incumbent provider.

       
       

   13. The inevitable pre-existing relationship between knowledgeable evaluators and incumbent providers arguably may create an appearance of impropriety in the evaluation process. However, the pre-existing relationship between the evaluators and Intervenor did not transform the honest exercise of the evaluator's discretion into an arbitrary, fraudulent, dishonest, or illegal exercise of agency discretion.

       
       

       1. The Plan

          
          

   14. The plans in Intervenor's proposals were complete and detailed. They exhibited no apparent deficiencies.

       
       

   15. The plans in Sweeting's proposals contained numerous deficiencies. The deficiencies included outdated terminology, inaccurate references to Osceola and Seminole counties, and numerous typographical and grammatical errors.

       
       

   16. Outdated terminology provided a reasonable basis for the evaluators to conclude that Sweeting is not familiar with current procedures in the CSE program. The plans in the Sweeting proposals were the same as a plan previously submitted by another prospective legal service provider. The outdated terminology in the previous plan was replicated without correction in the Sweeting plans.

       
       

   17. The plan submitted by Sweeting for Osceola County repeatedly referred to Seminole County. It was not clear which county was intended and which Sweeting office would be used to provide services.

       
       

   18. Numerous typographical and grammatical errors and incomplete sentences appeared throughout the Sweeting proposals. Those errors formed a reasonable basis for the evaluators to question the ability of Sweeting to provide correct and accurate legal services to the CSE program.

       
       

   19. Reduced point totals for the Sweeting plans reflected the evaluators' concern that Sweeting may not have exercised sufficient care in preparing its proposals. The evaluators reasonably concluded that, as a legal services

       provider, Sweeting may not exercise sufficient care in preparing or reviewing legal documents required for the CSE program.

       
       

       1. Geographic Area

          
          

   20. The evaluators assigned points based on the relative proximity of the provider's office to the CSE office and court house in the county for which a proposal was submitted. They assigned higher scores for an office located in close proximity to, or with greater access in relation to, the CSE office and courthouse.

       
       

   21. Two evaluators reduced the number of points for geographic area in the Sweeting proposal for Osceola County because it interchanged references to Osceola and Seminole counties. It was unclear from the proposal whether Sweeting intended to operate from its offices in Osceola or Seminole counties.

       
       

   22. The third evaluator awarded 5 points to Sweeting for geographic area when 4 points was the maximum number of points authorized for geographic area. The award of 5 points was inadvertent.

       
       

       1. Firm Resources

          
          

   23. The evaluators awarded a greater number of points to the Sweeting proposals for Computer/Software. None of the evaluators awarded any points to the Sweeting proposals for forms.

       
       

       3.04(a) Forms

       
       

   24. Instructions in the SFP directed proposers to identify legal forms presently available for child support and to include family law legal forms or other legal forms that are computer generated. Neither of the Sweeting proposals mentioned such forms or included examples of forms. Nor did the Sweeting proposals demonstrate an ability to generate forms.

       
       

   25. The evaluators specifically allocated points to Intervenor's proposals based on Intervenor's inclusion of sample forms. They also awarded points on the basis of Intervenor's description of its ability to generate forms.

       
       

       3.04(b) Telephone System/Fax/Courier

       
       

   26. The evaluators awarded fewer points for the Sweeting proposals for telephone, fax, and courier. The interchange of Osceola and Seminole counties made it unclear from the terms of the proposals whether the fax and courier facilities were located in Osceola or Seminole counties.

       
       

   27. The Sweeting proposals also stated only that the telephone lines were located in the 407 area code. The Sweeting proposals did not specify how many telephone lines were available in Osceola County and how many were available in Seminole County.

       
       

       1. Time And Personnel To Be Devoted To Child Support Work

          
          

   28. Time and personnel devoted to child support consisted of three sub- categories. The sub-categories were staffing ratio, attorney experience, and customer service.

       3.05(a) Staffing Ratio

       
       

   29. Staffing ratio is the ratio of attorneys to para- professionals. Para-professionals include paralegals and secretaries.

       
       

       3.05(a)(1) Attorneys

       
       

   30. Based on their experience in the CSE program, the evaluators determined that a minimum of 1.5 attorneys are needed to provide sufficient legal services for the CSE program in Osceola County. The evaluators determined that 2 attorneys are needed to provide sufficient legal services for the CSE program in Seminole County.

       
       

   31. Under the procedures prescribed in the SFP, the evaluators were accorded flexibility to use their independent professional knowledge and experience. Application of a minimum requirement for attorneys in Osceola and Seminole counties was within the range of discretion that Respondent intended for local

       evaluators throughout the state.

       
       

   32. Each of the evaluators engaged in an honest exercise of discretion when he or she reduced the points awarded in the Sweeting proposals by using a minimum attorney requirement. None of the evaluators discussed the use of a minimum requirement during the evaluation. The evaluators applied the same methodology in a consistent manner without consulting each other or anyone else.

       
       

   33. The minimum attorney requirement was a reasonable attempt to reflect the adequacy of attorney representation available for child support and enforcement. The assessment of the adequacy of attorney representation in the Sweeting proposals was an honest exercise of the evaluators' discretion based on their own independent knowledge and experience.

       
       

   34. The Sweeting proposal for Osceola County listed one attorney as the attorney responsible for the contract to provide CSE services to Respondent. The proposal stated that Stanley Eric Halbert, Esquire, would have been the attorney responsible for the contract with Respondent. The Sweeting proposal was fairly judged inadequate to meet the minimum requirement for full time attorneys in Osceola County.

       
       

   35. The Sweeting proposal for Seminole County listed one attorney as the attorney responsible for the contract to provide CSE services to Respondent. The proposal stated that James Sweeting, III, Esquire, would have been the attorney responsible for the contract with Respondent. The Sweeting proposal

       was fairly judged not to meet the minimum requirement for full time attorneys in Seminole County.

       
       

   36. Intervenor's proposals listed four attorneys for Osceola and Seminole counties. Intervenor's proposals were fairly judged to meet or exceed the minimum requirement for full time attorneys for Osceola and Seminole counties. 18/

       
       

       3.05(a)(2) Staff

       
       

   37. The Sweeting proposals listed two paralegals, one office manager/courier, one secretary/receptionist, two investigators, and one secretary/fiscal clerk. However, staff resumes in the Sweeting proposals show that only one individual among those listed in the proposals qualifies as a

       para-professional. The evaluators fairly used the one para-professional as a basis for scoring the Sweeting proposals.

       
       

   38. Intervenor's staff includes four full-time attorneys and three para- professionals. Two of the para-professionals are legal secretaries. The third is a paralegal. All para-professionals would work in both counties.

       
       

       3.05(b) Attorney Experience

       
       

   39. The category for attorney experience is divided into four sub- categories. They are child support practice, family law practice, enforcement and collection, and trial or appellate experience.

       
       

   40. With one exception, the evaluators awarded the maximum allowable points for trial or appellate experience to the Sweeting proposals. 19/ The primary sub-categories at issue, therefore, involve child support, family law, and enforcement and collection.

       
       

       3.05(b)(1) Child Support And Family Law

       
       

   41. The resumes of Mr. Sweeting and Mr. Halbert do not indicate an area of specialty in either child support or family law. The only areas of specialty indicated are criminal defense, commercial litigation, general civil litigation, and personal injury. The introductory sections preceding the resumes in the Sweeting proposals represent that "1/4 - 1/3 of their practice is litigating the issues of paternity, child support enforcement and modification of support."

       19/

       
       

   42. The evaluators fairly applied a percentage multiplier of .25 percent to determine the points assigned to the Sweeting proposals for attorney experience in child support and enforcement. Although the rating sheets and instructions did not specifically instruct the evaluators to apply a percentage multiplier, neither addressed the issue and neither precludes the use of a multiplier.

       
       

   43. Under the procedures prescribed in the SFP, the evaluators were accorded flexibility to give attorneys 100 percent credit for a given area of practice or to apply a percentage multiplier. The use of a percentage multiplier was within the range of discretion that Respondent intended for local evaluators throughout the state.

       
       

   44. Each of the evaluators engaged in an honest exercise of discretion when he or she applied a percentage multiplier. None of the evaluators discussed the use of a percentage multiplier during the evaluation. The evaluators applied the same methodology in a consistent manner without consulting each other or anyone else. 20/

       
       

   45. Use of a percentage multiplier was a reasonable attempt to reflect the amount of experience attributable to child support and enforcement when the resumes and introductory section in the proposals were read together. 21/ It is also reasonable to apply a percentage multiplier of 100 percent when an attorney's work experience is wholly devoted to child support and enforcement.

       
       

   46. Intervenor's practice is wholly dedicated to child support, enforcement, and family law. The evaluators awarded the maximum points allowable for attorney experience in Intervenor's proposals. 21/

       3.05(b)(2) Enforcement And Collection Practice

       
       

   47. A significant portion of CSE services involve enforcement and collection. The resumes in the Sweeting proposals included no express references to enforcement and collection, except for the introductory section preceding the resumes. The introductory section states that "1/4 - 1/3 of their practice is litigating the issues of ". . . enforcement and modification of support." 22/

       
       

   48. The scores assigned by the evaluators failed to award points to the Sweeting proposals for the statement that 1/4 - 1/3 of their experience was in enforcement and modification of child support. The evaluators resolved this issue in a manner that was inconsistent with their application of a percentage multiplier for child support and family law. However, the inconsistency was the result of an honest exercise of discretion and not an arbitrary, fraudulent, dishonest, or illegal exercise of agency discretion. 23/

       
       

       3.05(c) Customer Service And Accessibility To CSE Staff

       
       

   49. The Sweeting proposal for Osceola County contained errant references to the central location of the Sweeting office in Seminole County. The evaluators fairly deducted points based on the content of the proposal being reviewed.

       
       

   50. The Sweeting proposals promised to establish ". . . mutually convenient working arrangements as well as schedules for face to face and telephone conference communication" after the contracts were awarded. 24/ Intervenor's proposals documented office hours and accessibility by car phone.

       
       

       1. Cost Factors

          
          

   51. The evaluators fairly awarded Sweeting the maximum number of points for the cost factor. The Sweeting cost proposals were the lowest cost proposals that Respondent received.

       
       

       1. Minority Ownership

          
          

   52. The evaluators fairly awarded Sweeting and Intervenor the maximum number of points authorized for minority ownership. Both proposers qualify as minority owners.

       
       

       1. References

          
          

   53. References listed by Sweeting rated Sweeting as "good." References listed by Intervenor rated Intervenor as "excellent."

       
       

   54. Sweeting failed to provide three references to whom Sweeting had rendered services similar to those being proposed. Sweeting listed references to whom Sweeting had rendered "labor and employment law services" in Seminole and "Orange" counties.

       
       

   55. Sweeting's proposals failed to include references to whom Sweeting had provided child support services. The proposals also failed to include references to whom Sweeting had provided services in Osceola County. 25/

       1. Interviews

       
       

   56. Interview questions sought to reveal how attorneys conducted themselves "on their feet." They did not alter the criteria in the SFP.

       
       

   57. The evaluators fairly assigned points based on the evaluator's subjective assessment of the performance of the interviewees. The scores awarded by the evaluators constituted an honest exercise of discretion and not an arbitrary, fraudulent, dishonest, or illegal exercise of agency discretion.

       
       

       CONCLUSIONS OF LAW

       
       

   58. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding. Section 120.57(1), Florida Statutes. 26/ The parties were duly noticed for the formal hearing. The parties have standing in this proceeding.

   
   

4. Motion To Strike

   
   

   1. On August 10, 1995, Respondent filed Department of Revenue's Motion To Strike Petitioner's Proposed Recommended Order (the "motion to strike"). The motion to strike requests that the undersigned strike Sweeting's proposed recommended order as untimely.

      
      

   2. Proposed recommended orders were required to be filed no later than 10 days after the date that the transcript was filed. The transcript was filed on July 25, 1995. The last day for filing proposed recommended orders was August 4, 1995.

      
      

   3. Sweeting filed its proposed recommended order on August 9, 1995. That was approximately 15 days after the transcript was filed and approximately

      5 days after the last day for filing proposed recommended orders.

      
      

   4. Sweeting did not timely file its proposed recommended order. However, Respondent neither alleged nor made a factual showing of prejudice to it, or the other parties, caused by the late filing of Sweeting's proposed recommended order. The motion to strike is denied.

   
   

5. Burden Of Proof

   
   

   1. The burden of proof is on the parties asserting the affirmative of an issue before the administrative tribunal. Florida Department of Transportation

      v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 2d DCA 1981). Morall must show by a preponderance of the evidence that Respondent's determination that the Morall proposals were unresponsive was an arbitrary, fraudulent, dishonest, or illegal act of agency discretion. Sweeting must show by a preponderance of evidence that Respondent's award of the CSE contracts to Intervenor was an arbitrary, fraudulent, dishonest, or illegal act of agency discretion. Department of Transportation v. Groves-Watkins Constructors, 530 So. 2d 912 (Fla. 1988).

      
      

   2. Neither Morall nor Sweeting satisfied their burdens of proof. In Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So. 2d 505 (Fla. 1982), the court stated:

      
      

      1. public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when based on an honest exercise of this

         discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree.

         
         

         Liberty County, 530 So. 2d at 507.

         
         

   3. Contrary to the procedure generally followed for formal hearings conducted pursuant to Section 120.57(1), the hearing officer does not conduct a de novo hearing in bid protest proceedings. In bid protest proceedings:

      
      

      . . . the hearing officer sits in a review capacity, and must determine whether the . . . [SFP] criteria have been met.

      
      

      Intercontinental Properties, Inc. v. Department of Health and Rehabilitative Services, 606 So.2d 380, 386 (Fla. 3d DCA 1992).

      
      

   4. The hearing officer's scope of inquiry is limited to a determination of whether Respondent abused its discretion in an arbitrary, dishonest, fraudulent, or illegal manner. In Groves- Watkins, the court stated:

   
   

   The hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly.

   
   

   Groves-Watkins, 530 So. 2d at 914.

   
   

6. Merits

1. Morall and Sweeting failed to show by a preponderance of the evidence that it was an arbitrary, fraudulent, dishonest, or illegal exercise of agency discretion for Respondent to either: reject the solicitation proposal submitted by Morall, as non- responsive; or award the contract for legal services for child support enforcement to Intervenor, rather than Sweeting. The preponderance of evidence shows that, for the reasons stated in the Findings of Fact, the evaluators acted fairly and reasonably and in a manner that satisfied the criteria prescribed in the SFP.

   
   

2. The evaluators based their decisions on an honest exercise of discretion. When an agency's decision is based on an honest exercise of discretion its decision:

   
   

   will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree. . . .

   
   

   Groves-Watkins, 530 So. 2d at 913.

   
   

3. Allegations similar to those in this proceeding were raised in a bid protest in Scientific Games Inc., v. Dittler Brothers, Inc., 586 So.2d 1128 (Fla. 1st DCA 1991). In Scientific Games, the protestors alleged misinterpretation of proposals, factual errors in the evaluation of the proposals, and misapplication of the applicable statutes. The Court stated:

. . . the hearing officer need not, in effect, second guess the members of the evaluation

committee to determine whether he and/or other reasonable and well-informed persons might have reached a contrary result.

Scientific Games, 586 So.2d at 1131.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order denying the Petitioners'

protests and awarding to Intervenor the contracts for CSE legal services in Osceola and Seminole counties.

RECOMMENDED this 31st day of August, 1995, in Tallahassee, Florida.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488

Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1995.

ENDNOTES

1/ E-2 did not make notes on the evaluation sheet to reflect the separate points awarded to Sweeting's proposal for Computer/Software to Manage High Volume Caseload, Forms, and Telephone System/Fax/Courier. However, Table 2 uses separate scores of 7, 0, and 3 because those are the scores that, in effect, are included in the scores given by E-2 to Sweeting's proposal for Firm Resources.

2/ E-2 awarded 0 points on the rating sheet for trial and appellate experience. However, E-2 testified at the formal hearing that she awarded 2.5 points for child support and 1.25 points for family law. By awarding a total score of 8.75 for attorney experience, E-2 in effect awarded 5.0 points for trial and appellate experience.

3/ E-2 did not make notes on the evaluation sheet to reflect the separate points awarded to Sweeting's proposal for Computer/Software to Manage High Volume Caseload, Forms, and Telephone System/Fax/Courier. However, Table 2 uses separate scores of 7, 0, and 4 because those are the scores that, in effect, are included in the scores given by E-2 to Sweeting's proposal for Firm Resources.

E-1 did not make notes on his or her evaluation sheet to reflect the separate points awarded to Intervenor's proposal for Computer/Software to Manage High Volume Caseload, Forms, and Telephone System/Fax/Courier. However, Table 2 uses separate scores of 7, 4, and 4 because those are the scores that, in effect, are included in the scores given by E-2 to Intervenor's proposal for Firm Resources.

4/ The actual score awarded by E-3 to Sweeting's proposal was 21.875. However, space limitations in Table 2 do not permit the third decimal to be shown. The actual score awarded by E-3 to Intervenor's proposal was 34.34. E-3 computed the average experience for child support practice as 9.34 rather than 9.33. An average experience of 9.34 resulted in total proposal points of 80.47. However, total proposal points awarded Intervenor by E-3 equaled 80.46. Table 2 uses 34.33, for Time and Personnel to be Devoted to Child Support Work, and 9.33 for Experience in Child Support Practice, because 34.33 and 9.33, in effect, are reflected in the total proposal points of 80.46.

5/ The actual score awarded by E-3 was 16.875. However, space limitations in Table 2 do not permit the third decimal to be shown. The actual score awarded by E-3 to Intervenor's proposal was 24.34. E-3 computed the average experience for child support practice as 9.34 rather than 9.33. An average experience of

9.34 resulted in total proposal points of 80.47. However, total proposal points awarded Intervenor by E-3 equaled 80.46. Table 2 uses 24.33 because 24.33, in effect, is reflected in the total proposal points of 80.46.

6/ The actual score awarded by E-3 was 1.875. However, space limitations in Table 2 do not permit the third decimal to be shown.

7/ E-3 actually awarded 5 points to Intervenor's proposal for Customer Services and Accessibility to CSE Staff. The 5 points awarded by E-3 should have resulted in a score of 39.34 for Time and Personnel to be Devoted to Child Support Work. However, the total points E-3 awarded for Time and Personnel to be Devoted to Child Support Work was only 34.34. Table 2 uses a score of 0.00 for Customer Services and Accessibility to CSE Staff because that is the score that was, in effect, reflected in the total score awarded by E-3 for Time and Personnel to be Devoted to Child Support Work.

8/ The actual score awarded by E-3 was 72.875. However, space limitations in Table 2 do not permit the third decimal to be shown.

9/ The actual score awarded by E-3 was 81.875. However, space limitations in Table 2 do not permit the third decimal to be shown.

10/ The Department of Health and Rehabilitative Services ("HRS") previously administered the CSE program before it was transferred legislatively to Respondent. Fla. Admin. Code Rule 10-13.012, promulgated by HRS, defined a minor irregularity as:

. . . a variation from the bid invitation or proposal terms and conditions which does not affect the price of the bid, or give the bidder an advantage or benefit not enjoyed by other bidders, or does not adversely impact the interests of the Department.

See, Intercontinental Properties, Inc., v. Department of Health and Rehabilitative Services, 606 So.2d 380, 386 (Fla. 3d DCA 1992), in which the court cited the quoted language.

11/ The United States Department of Health and Human Services funds approximately 66 percent of the state run CSE program with federal monies.

12/ 45 CFR Parts 76.105, 76.110(a)(1)(ii)(B), 76.510(b), and Appendix B to Part 76.

13/ 45 CFR Part 76.510(b).

14/ 45 CFR Part 76.200.

15/ Intercontinental Properties, 606 So.2d at 387.

16/ The previous year was the exception rather than the rule. The elimination of scoring formulas for categories other than cost factors was a return to standards applied prior to the previous year.

Petitioners stipulated prior to the formal hearing that they did not challenge the specifications prescribed for the evaluation process. Their challenges are limited to how the specifications were applied.

17/ The only exception is discussed in para. 61, infra.

18/ Even if the minimum requirement, in effect, is an unwritten criterion that is not prescribed in the SFP, its application is not arbitrary, capricious, dishonest, or illegal. The evaluators applied the unwritten requirement in a consistent manner to both Sweeting and Intervenor. It did not create a competitive disadvantage for either proposer and did not affect the cost of the proposals. Application of the unwritten criterion was an exercise of discretion based on the evaluators' professional experience and knowledge. It was not arbitrary, capricious, dishonest, or illegal.

19/ The only exception was that E-2 awarded no points on her rating sheet for trial or appellate practice in the Sweeting proposal for Osceola County. But see, n. 2, supra.

In Liberty County, 421 So.2d at 507, the court stated that a public body such as Respondent:

. . . has wide discretion in soliciting and accepting bids. . . and its decision, when based on an honest exercise of this discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree.

See also, Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912, 913 (Fla. 1988).

20/ See, Joint Exhibits 7 and 8 at 16 and 15, respectively.

21/ In Liberty County, 421 So.2d at 507, the court stated that a public body such as Respondent:

. . . has wide discretion in soliciting and accepting bids . . . and its decision, when based on an honest exercise of this discretion, will not be overturned

by a court . . . even if reasonable persons may disagree.

See also, Groves-Watkins, 530 So.2d at 913.

22/ The only exception to this finding involved E-1's mistaken award of the maximum number of points for child support experience in the Sweeting proposal for Seminole County.

23/ Even if the percentage multiplier, in effect, is an unwritten criterion that is not prescribed in the SFP, its application is not arbitrary, capricious, dishonest, or illegal. The evaluators applied the unwritten requirement in a consistent manner to both Sweeting and Intervenor. It did not create a competitive disadvantage for either proposer and did not affect the cost of the proposals. Application of the percentage multiplier was an exercise of discretion based on the evaluators' individual interpretation of the rating sheets and proposals. It was not arbitrary, capricious, dishonest, or illegal.

24/ See, Joint Exhibits 7 and 8 at 16 and 15, respectively.

25/ In Liberty County, 421 So.2d at 507, the court stated that a public body such as Respondent:

. . . has wide discretion in soliciting and accepting bids . . . and its decision, when based on an honest exercise of this discretion, will not be overturned by a court . . . even if it may appear erroneous and even if reasonable persons may disagree.

See also, Groves-Watkins Constructors, 530 So.2d at 913.

26/ See, Joint Exhibits 7 and 8 at pages 25 and 24, respectively.

27/ An additional reference listed by Sweeting telephoned the CSE program office after the evaluation procedure was closed and was not interviewed. Closure of the evaluation process was an honest exercise of discretion and was not an arbitrary, fraudulent, dishonest or illegal exercise of agency discretion.

28/ All chapter and section references are to Florida Statutes (1993 and Supp. 1994) unless otherwise stated.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3029BID

Petitioner, Morall's, Proposed Findings Of Fact.

1.-3. Accepted in substance

4. Rejected as not supported by credible and persuasive evidence 5.-8. Accepted in substance

1. Rejected as recited testimony

2. Accepted in substance

11.-12. Rejected as recited testimony

1. Accepted in substance

2. Rejected as irrelevant and immaterial

3. Accepted in substance

4. Rejected as conclusion of law

5. Rejected as not supported by credible and persuasive evidence Petitioner, Sweeting's, Proposed Findings Of Fact.

1.-5. Accepted in substance

6.-7. Rejected as irrelevant and immaterial

8.-9. Rejected as not supported by credible and persuasive evidence 10.-12. Accepted in substance

11.-13. Rejected as recited testimony

1. Rejected as not supported by credible an persuasive evidence

2. Rejected as not supported by credible and persuasive evidence

3. Accepted in substance

17.-18. Rejected as not supported by credible and persuasive evidence 19.-20. Rejected as irrelevant and immaterial

1. Rejected as not supported by credible and persuasive evidence

2. Accepted in substance

23.-24. Accepted in substance

1. Rejected as not supported by credible and persuasive evidence

2. Accepted in substance

3. Accepted in substance

4. Rejected as not supported by credible and persuasive evidence Respondent's Proposed Findings Of Fact.

   1.-11. Accepted in substance

   12.-15. Rejected as recited testimony 16.-19. Accepted in substance

   20.-23. Rejected as recited testimony Intervenor's Proposed Findings Of Fact.

   1.-11. Accepted in substance

   12.-13. Rejected as recited testimony 14.-28. Accepted in substance

5. Rejected as recited testimony 30.-43. Accepted in substance

44.-47. Rejected as recited testimony

1. Accepted in substance

2. Rejected as recited testimony

3. Accepted in substance

51.-54. Accepted in substance

55. Rejected as recited testimony 56.-74. Accepted in substance

1. Rejected as recited testimony

2. Rejected as not supported by credible and persuasive evidence 77.-79. Accepted in substance

80. Rejected as recited testimony 81.-82. Accepted in substance

83.-84. Rejected as recited testimony

1. Accepted in substance

2. Accepted in substance

3. Rejected as not supported by credible and persuasive evidence 88.-100. Accepted in substance

1. Rejected as recited testimony

2. Accepted in substance

3. Rejected as recited testimony 104.-110. Accepted in substance

111.-112. Rejected as recited testimony

COPIES FURNISHED:

Larry Fuchs, Executive Director

104 The Carlton Building Tallahassee, Florida 32399-0100

Linda Lettera, General Counsel

204 The Carlton Building Tallahassee, Florida 32399-1250

Harry Morall, Esquire Jane Carey, Attorney Morall & Carey

905 West Colonial Drive Orlando, Florida 32804

James Sweeting, III, Esquire Stanley E. Halpert, Esquire Sweeting & Halpert, P.A.

227 North Magnolia Avenue Suite 101

Orlando, Florida 32801

Patrick A. Loebig, Esquire Brian F. McGrail, Esquire Florida Department of Revenue

P.O. BOX 6668

Tallahassee, Florida 32314-6668

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: 95-003029BID

Orders for Case No: 95-003029BID