STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS REYMORE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3137BID

)

DEPARTMENT OF REVENUE, )

)

Respondent, )

and )

)

THOMAS & ASSOCIATES, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on July 14, 1995, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Gary P. Sams, Esquire

Carolyn S. Raepple, Esquire Hopping, Green, Sams & Smith, P.A.

123 South Calhoun Street Tallahassee, Florida 32314

For Respondent: Thomas Barnhart, Esquire

Department of Revenue Post Office Box 6668

Tallahassee, Florida 32314-6668

For Intervenor: Jeffrey F. Thomas, Esquire

Thomas & Associates

Treasure Coast Bank Building, Suite 209 789 South Federal Highway

Stuart, Florida 34991 and

Noel A. Bobko, Esquire

McCarthy, Summers, Bobko, et al. 2081 East Ocean Boulevard, Suite 2-A Stuart, Florida 34996

STATEMENT OF THE ISSUE

The issue presented is whether the Department acted fraudulently, arbitrarily, illegally, or dishonestly in determining that the Intervenor, rather than Petitioner, should be awarded the contract for child support enforcement legal services for Martin and Okeechobee Counties.

PRELIMINARY STATEMENT

In response to the Department's solicitation, both Petitioner Douglas Reymore and Intervenor Thomas & Associates submitted bid proposals for the contract to provide legal services for child support enforcement in Martin and Okeechobee Counties, and the Department notified them that it intended to award the contract to Thomas & Associates. Petitioner Douglas Reymore timely filed his notice of intent to file a formal protest and his notice of formal protest. This cause was subsequently transferred to the Division of Administrative Hearings to conduct a formal proceeding.

Petitioner testified on his own behalf and presented the testimony of Jeffrey F. Thomas, Don Pickett, and Linda Reymore. The Department presented no witnesses. Intervenor Thomas & Associates presented the testimony of Jeffrey F. Thomas, Don Edwards, and Mark Cullen. Additionally, Joint Exhibits numbered 1, 2, and 4-10; Petitioner's Exhibits numbered 1A-1F and 1H-1O (consisting of depositions); and Intervenor's Exhibit numbered 1 were admitted in evidence.

All parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On July 1, 1994, the Department of Revenue (hereinafter "Department") assumed responsibility for the State of Florida's Child Support Enforcement (hereinafter "CSE") Program, taking over those responsibilities from the Department of Health and Rehabilitative Services (hereinafter "HRS"). As part of that program, HRS had in place for most counties in Florida contracts with private attorneys to establish and/or enforce child support obligations. Petitioner Douglas Reymore was, by contract, the legal services provider for Martin, Okeechobee, Indian River, and St. Lucie Counties. The Department renewed that contract for an additional year.

   
   

2. The Department determined to rebid the legal service provider contracts for some of the counties in Florida for the 1995-1996 fiscal year. The contract for Martin and Okeechobee Counties was one of those contracts.

   
   

3. The Department prepared a Solicitation Package and distributed it to the Department's regional offices. The Department also distributed to its regional offices a document entitled Instructions to CSE Regions for Handling the Solicitation for Legal Services Providers (hereinafter "Instructions") to govern the solicitation, evaluation, and award of the CSE contracts. The stated purpose of the Solicitation Package was to "obtain the highest possible level of legal representation at the lowest possible cost while ensuring free and open competition among prospective proposers."

   
   

4. The solicitation was advertised in Martin and Okeechobee Counties in a timely manner from April 1 through April 5, 1995, as required in the Instructions. Upon their requests, copies of the Solicitation Package were sent

   by the Department to both Petitioner Douglas Reymore and to Intervenor Thomas & Associates. The Department did not provide a copy of the Instructions to any proposers prior to the opening of the proposals.

   
   

5. Proposals were required to be received by the Department by 3:00 p.m. on Friday, May 12, 1995. Both Reymore and Thomas & Associates timely submitted proposals. The proposals were opened in the Program Administrator's Office in West Palm Beach at 4:00 p.m. that same day. The proposals timely submitted were forwarded, after opening, to the Evaluation Committee established by the Department. The Evaluation Committee was required to conduct its review and evaluation consistent with the Evaluation Committee procedures set forth in the Instructions, including attachments.

   
   

6. Members of the Evaluation Committee for the Martin/Okeechobee Counties contract were Elaine Rosnow (Chair), Terrie Almond, Janice Blount, Donna Hilley, and Henry Smith. The names of the members of the Evaluation Committee were not disclosed to proposers prior to the opening of the timely submitted proposals. None of the members of the Evaluation Committee is an attorney, and none is considered an expert in computer technology.

   
   

7. The Child Support Enforcement Solicitation of Proposals Evaluation Sheet, included with the Instructions, identified nine Mandatory Requirements. Those same Mandatory Requirements were also identified in the Solicitation Package sent to Reymore and to Thomas & Associates. If any of the Mandatory Requirements identified in the Evaluation Sheet and the Solicitation Package were not met by a proposal, the proposal was not to be considered further by the Evaluation Committee.

   
   

8. The Evaluation Committee reviewed and evaluated the proposals. The proposal of Thomas & Associates was rated highest, and the Reymore proposal was rated second highest. The Evaluation Committee forwarded its scores on the proposals to the Program Administrator, who was required to award the contract to the highest ranking proposer.

   
   

9. The Department issued its notice of award for the CSE contract for Martin and Okeechobee Counties to Thomas & Associates on May 22, 1995. The term of the contract was to be for an annual period to begin on July 1, 1995, and end on June 30, 1996. Thomas & Associates was also named as the Department's intended recipient for two other CSE contracts, those for Palm Beach County (intrastate) and Palm Beach County (interstate).

   
   

10. A CSE legal practice under state contract, such as that for which proposals were solicited in the instant case, is high volume in nature. Currently, approximately 200 cases in Martin County and approximately 65-70 cases in Okeechobee County go to court each month. These court cases are handled by using three docket days in Martin County and one docket day in Okeechobee County each month.

    
    

11. The Solicitation Package for the Martin/Okeechobee Counties contract projected 156 referrals to the legal services provider each month. Upon the receipt of a referral from the Department's Child Support Office, the legal services provider under contract with the Department must take the appropriate legal action to collect child support from the non-custodial parent. These legal actions include establishing paternity, obtaining support orders, and enforcing support orders.

12. The greatest, and a substantial, difference between a private family law practice and a CSE legal practice under state contract is the caseload. Another difference is the limited funds available for expenses, such as for taking depositions and for service of process. There are also legal issues, concepts, and terms encountered in a CSE practice which are not encountered in a private family law practice.

    
    

13. Petitioner Reymore has practiced CSE law under a state contract for three years in Martin, Okeechobee, St. Lucie, and Indian River Counties. No attorney employed by Thomas & Associates has ever practiced CSE law under a state contract.

    
    

14. The Solicitation Package, on page four, provided as follows:

    
    

    Each proposal will be reviewed for responsiveness to the mandatory requirements set forth in Attachment V. Proposals that fail to satisfy

    all of the mandatory requirements will not be considered further. No points will be awarded for the mandatory requirements.

    
    

    Above the listing of Mandatory Requirements on Attachment V, similar language appears, specifically: "If any of these requirements are not met, your proposal will not be considered further."

    
    

15. The Mandatory Requirements set forth in Attachment V include the following:

    
    

    1. The attorney/attorneys assigned to per- form contract services shall be members of The Florida Bar. A certificate of good standing from The Florida Bar shall be attached for each designated attorney.

    2. A resume for each attorney designated to do child support work shall be included with proposal.

       
       

       Page one of the Solicitation Package also recites that any proposal submitted must include:

       
       

       1) Resumes on all attorneys who will be assigned to this contract.

       4) Certificates of good standing from The Florida Bar on all attorneys who will be assigned to this contract.

       
       

16. The Thomas & Associates proposal included resumes and certificates of good standing from The Florida Bar for the following attorneys: Jeffrey F. Thomas, Mary Bobko Thomas, L. Denise Coffman, and Charles Willoughby. In the section of its proposal entitled Time and Personnel, Thomas & Associates specifically represented that two lawyers would be assigned to the contract: Charles Willoughby and Denise Coffman. It further represented that Jeffrey Thomas would directly supervise the lawyers and that he would also personally attend all hearings where the other party was represented by counsel.

    
    

17. The proposal then represented that Thomas & Associates was also bidding on the Palm Beach interstate contract and the Palm Beach intrastate

    contract. As to the Palm Beach interstate contract, the proposal represented that Jeffrey Thomas would directly supervise the lawyers and would also personally attend all hearings where the other party is represented by counsel. The proposal then represented that the following attorneys would be assigned to Jeffrey Thomas to work on the Palm Beach interstate contract: Charles Willoughby and Denise Coffman; John C. Thomas and Kim Nutter would serve as "back ups." As to the Palm Beach intrastate contract, the Thomas & Associates proposal represented that four attorneys would staff that contract full time, and Jeffrey Thomas would directly supervise all attorneys and personally appear at all hearings where the other party is represented by an attorney. The proposal then stated that the following attorneys would be assigned to Jeffrey Thomas for that contract: Charles Willoughby, Denise Coffman, John C. Thomas, and Kim Nutter.

    
    

18. The Thomas & Associates proposal then represented that if Thomas & Associates were awarded more than one contract, two additional lawyers would be hired. The proposal failed to identify or include any information about the two additional attorneys Thomas & Associates would hire in the event it was awarded more than one contract.

    
    

19. The Department awarded all three contracts to Thomas & Associates. The date of the award of the other contracts is not part of the record in this cause. However, since Charles Willoughby and Denise Coffman are to be assigned full time to the Palm Beach intrastate contract and are also to be assigned to

    the Palm Beach interstate contract, and since Thomas & Associates represented to the Department that it would hire more lawyers if awarded more than one contract, Charles Willoughby and Denise Coffman are either not available to be assigned to the Martin/Okeechobee Counties contract, or are not the only attorneys who will perform contract services.

    
    

20. The Solicitation Package precludes a proposer from assigning attorneys to perform services under the contract without identifying those attorneys in the proposal and submitting their resumes and certificates of good standing as part of the proposal made to the Department. The representations of Thomas & Associates committing to hire additional attorneys if it received more than one contract, as well as Thomas & Associates' commitment to assign attorneys to work on the contracts as represented in the Thomas & Associates proposal, would become conditions of any contract entered into with the Department as would all other representations in the proposal.

    
    

21. The Thomas & Associates proposal failed to meet all of the mandatory requirements set forth in the Solicitation Package due both to the failure of Thomas & Associates to identify all attorneys to be assigned to work on the contract and Thomas & Associates' failure to include resumes and certificates of good standing for those attorneys as part of its proposal. Accordingly, the Evaluation Committee should have rejected any further consideration of the proposal submitted by Thomas & Associates and should not have gone forward with scoring the proposal submitted.

    
    

22. The Evaluation Committee members were aware that Thomas & Associates had submitted proposals for all three contracts, that the proposal pledged the same attorneys to work on one contract full time while pledging them to work on two additional contracts, and that the proposal represented that additional lawyers would be hired if Thomas & Associates received more than one contract. Yet, the Evaluation Committee members did not consider the multiple mutually- exclusive assignments of the same attorneys in the Thomas & Associates proposal and did not consider the representation that additional unidentified attorneys would be hired. The Evaluation Committee members specifically marked their

    Evaluation Sheets to reflect that Thomas & Associates had met all mandatory requirements for having its proposal evaluated and scored when Thomas & Associates had not done so.

    
    

23. Page seven of the Solicitation Package provides as follows:

    
    

    The proposer must provide three references for whom the proposer has rendered services similar to those being proposed. Proposals must include the name, address, telephone number, and the Name and Title of the primary and alternate contacts for each reference.

    
    

    The Thomas & Associates proposal failed to comply with this requirement.

    
    

24. No references were provided in the proposal for the firm of Thomas & Associates, the proposed legal services provider. The only references provided were for Jeffrey Thomas, one of three identified attorneys designated by the Thomas & Associates proposal to perform work under the contract. No references were provided for Willoughby and Coffman, the other two attorneys identified to be assigned to the contract, and no references were provided for the two unidentified attorneys to be assigned to the contract should Thomas & Associates receive more than one contract.

    
    

25. The Thomas & Associates proposal contained four references for Jeffrey Thomas. However, only two of those references were clients.

    
    

26. No references were provided in the Thomas & Associates proposal from clients for whom high-volume child support or family law legal services had been provided. Accordingly, the Thomas & Associates proposal failed to include three references for whom the proposer has rendered services similar to those being proposed, as required by the Solicitation Package.

    
    

27. The Thomas & Associates proposal also failed to include alternate contacts for each reference, as required by the Solicitation Package. Alternate contacts should have been provided for individual references in case the Evaluation Committee was unable to make contact. For Jeffrey Thomas' individual references, only office telephone numbers were provided. Alternate contacts for Jeffrey Thomas' individual references could have been provided in the form of home telephone numbers. For Jeffrey Thomas' individual references, alternate references could have been provided in lieu of alternate contacts, but were not.

    
    

28. Due to Thomas & Associates' failure to provide alternate contacts for Jeffrey Thomas' references, or even the required number of references, the Evaluation Committee was able to reach only one of Jeffrey Thomas' references for the purpose of conducting an interview.

    
    

29. The requirement of three references for whom the proposer has rendered services similar to those being proposed is a material requirement for the personal services contract under consideration in this cause. Thomas & Associates' failure to meet this requirement also made its proposal non- responsive to the Department's solicitation. Rather than declaring the proposal non-responsive, the Evaluation Committee members awarded points to the Thomas & Associates proposal for providing sufficient and appropriate references. No points should have been awarded to Thomas & Associates for its references.

30. Page four of the Solicitation Package advises that any proposal must contain a detailed written Plan clearly demonstrating the proposer's ability to process referrals or case establishment activities, and identifying existing resources and proposed resources. Pages 17-20 set forth the criteria for the provision of legal services. The Plan contained in the Thomas & Associates proposal is, for the most part, simply a verbatim recitation of the language on those pages of the Solicitation Package. The few portions of the Thomas & Associates Plan which were not copied verbatim from the Solicitation Package cannot be implemented or, if implemented, would delay the processing of the Department's high-volume caseload.

    
    

31. The Thomas & Associates Plan commits to obtaining a court date for all enforcement hearings which is no later than 45 days after receipt of a referral. The Plan further commits to using interrogatories and requests to produce in each enforcement case. Due to the time necessary for the sheriff to serve pleadings on a CSE respondent and the applicable discovery response times, it is not possible to utilize interrogatories and requests to produce in each enforcement action within the time frames asserted by Thomas & Associates in its Plan. Further, interrogatories are not necessary in many cases, and the information that can be obtained through them can also be obtained from the non- custodial parent at the final hearing.

    
    

32. Thomas & Associates' Plan also commits to scheduling a support hearing within 45 days of receipt of a case referral from the Department when paternity is in dispute and a Human Leukocyte Antigen Test or other DNA test is requested. This schedule cannot be achieved since DNA test results are not received until four to eight months after the court orders such a test to be performed.

    
    

33. The Thomas & Associates Plan also commits to ensuring that the judge signs appropriate income deduction orders at the time of hearing. This is not possible in Martin and Okeechobee Counties because hearings are conducted by hearing officers who then submit their written recommendations to the judge before the judge will enter an income deduction order. It is usually not possible to have a hearing, get the hearing officer's written recommendation, and have the judge review that recommendation and issue an income deduction order all in a single day.

    
    

34. The Thomas & Associates proposal asserts that Jeffrey Thomas would appear at all hearings where the non-custodial parent is represented by an attorney under the Palm Beach County intrastate contract, the Palm Beach County interstate contract, and the Martin/Okeechobee contract. That commitment would be a special condition of any contract between the Department and Thomas & Associates, as would all provisions of the Thomas & Associates proposal.

    
    

35. Charles Willoughby graduated from law school in 1994 and became licensed to practice in the State of Florida some time thereafter. His resume reflects no experience in any facets of marital and family law. The Thomas & Associates proposal commits that Jeffrey Thomas will "personally train" and "supervise" Willoughby in the performance of his duties. The Thomas & Associates proposal also represents that Jeffrey Thomas will personally attend all meetings with Department child support staff.

    
    

36. It is common for the non-custodial parent to come to a hearing in a CSE case represented by an attorney without that attorney having made a prior appearance in the case or having notified anyone that the attorney will be making an appearance in the case. In Martin and Okeechobee Counties, when the

    non-custodial parent is represented by an attorney, the attorney first appears on the day the hearing is set in approximately 40 percent of the cases.

    
    

37. It is impossible for a single attorney to attend every hearing under the Martin/Okeechobee Counties, Palm Beach County intrastate, and Palm Beach County interstate CSE contracts where the opposition is represented by counsel because often hearings occur simultaneously before multiple domestic relations commissioners, hearing officers, and judges at multiple courthouses. It would be inappropriate for a CSE attorney under state contract to request a continuance of a hearing to allow a more experienced attorney to appear on behalf of the Department. Further, there is no basis for believing that such a motion would be granted.

    
    

38. Accordingly, given the Thomas & Associates commitment that Jeffrey Thomas will personally train and supervise attorney Willoughby and personally attend all meetings with Department staff, and given the numerous courthouse locations where hearings will be conducted under the three contracts awarded Thomas & Associates, it would not be physically possible for Jeffrey Thomas to personally attend all hearings where the opponent is represented by counsel. Consequently, it is not possible for Thomas & Associates to perform under the CSE contracts awarded to it in accordance with the representations made in the proposal. Members of the Evaluation Committee knew that Jeffrey Thomas could not attend all hearings where the other parties are represented by counsel at the time they were scoring the Thomas & Associates proposal. Yet, they believed that the Instructions given to them for scoring proposals did not permit them to consider the impossibility of performance.

    
    

39. Points were awarded to the Thomas & Associates proposal for the staffing ratio of attorneys and paraprofessionals proposed. The proposal represented that each attorney will have one paralegal and one legal secretary assigned to work on the contract. The proposal, like the letterhead used by Thomas & Associates for the purpose of submitting proposals to the Department, represented that Jacquelynne O. Benefield, a certified legal assistant, would supervise the paralegal department. Her resume was also included in the proposal. Benefield is not a certified legal assistant. The Thomas & Associates' misrepresentation regarding her credentials was not known to the Evaluation Committee members when they scored the proposal.

    
    

40. The Department's evaluation mechanism provided for extra points for minority ownership of a proposer. Page one of the Solicitation Package specified that a copy of the certificate of minority business enterprise, if applicable, must be included with the proposal. However, page six provided different information by specifying that a copy of the certification must be attached to the proposal if a business has been certified as a minority business enterprise. However, if the business has not been certified, but has at least

    51 percent minority ownership, such minority ownership must be documented.

    
    

41. The Thomas & Associates proposal asserted that Mary Thomas, Jeffrey Thomas' wife, is an American woman and owns 60 percent of Thomas & Associates. The proposal asserted that Thomas & Associates is not certified as a minority business enterprise and had only applied for such certification. The Solicitation Package, therefore, required that Thomas & Associates document Mary's minority ownership. The only documentation submitted was a copy of an application for certification without any proof that the application had even been filed. The application was dated May 4, 1995, and represented that Mary Thomas had acquired her 60 percent ownership in Thomas & Associates, a business which earned $220,000 in 1994, on April 30, 1995. The application also

    reflected that Jeffrey Thomas, the 40 percent owner of the firm, is the president of Thomas & Associates, while Mary Thomas, the 60 percent owner of the firm, is only the vice president.

    
    

42. Thomas & Associates submitted no documentation of Mary Thomas' minority ownership. Had Thomas & Associates submitted even the documents required to be submitted as part of the application for certification as a minority business, the Evaluation Committee would have seen that Mary Thomas bought her 15 shares of stock by writing a check in the amount of $15 from the joint checking account of her and her husband Jeffrey. The stock certificate issued to her was dated May 30, 1995, subsequent to the Department awarding to Thomas & Associates the contract which is the subject of this proceeding. The stock certificate issued to Mary bears certificate number 1 while the stock certificate for ten shares issued to Jeffrey on September 21, 1989, bears certificate number 2. The stock transfer ledger also reflects that Mary was issued stock certificate number 1 and Jeffrey was issued stock certificate number 2 five and a half years earlier.

    
    

43. The Thomas & Associates proposal did not document the alleged minority ownership, and Thomas & Associates was entitled to receive no points for that category.

    
    

44. The Evaluation Committee was concerned about the alleged minority ownership being documented only by an application dated one week before the deadline for submitting proposals to the Department. The Committee contacted the Department's Tallahassee office for guidance as to how to score the alleged minority ownership. The Evaluation Committee was advised to score that category in any manner the individual members saw fit. No guidance was given to the Evaluation Committee members and no criteria were suggested for grading that category which allowed a range of points from zero to five.

    
    

45. The scores given by the Evaluation Committee to the Thomas & Associates proposal for minority ownership covered the range from zero to five. It is illogical to give partial credit for a category such as minority ownership. Thomas & Associates either is a minority business, thereby being entitled to full credit, or it is not, thereby being entitled to no credit. Since Thomas & Associates failed to comply with the Solicitation Package requirements by documenting the alleged minority ownership, it was entitled to no points in that category.

    
    

46. The Solicitation Package advised prospective proposers that the "evaluation of all proposals will be made by an Evaluation Committee of qualified persons who are familiar with child support services". In making the representation that the membership of the Evaluation Committee would consist of "qualified" persons, the Department intended those persons to be familiar with the requirements to carry out the terms of the CSE legal services contract, including the various means for doing that work.

    
    

47. The Department made no effort to insure that members of the Evaluation Committee were familiar with the necessities of a high-volume CSE law practice, that members were familiar with the operations of law firms necessary to carry out that kind of practice, or that members understood the experience and needs in their region. The members of the Department's CSE staff on the Evaluation Committee do not have knowledge of how to operate a CSE law office under state contract. In the past, when proposals for CSE legal services have been solicited, attorneys have been included on the evaluation committees.

48. The Department gave no guidance to the Evaluation Committee on how to evaluate the proposals for "attorney experience" or for their "Plan." The Evaluation Committee members gave Thomas & Associates high scores for its Plan even though some of the representations in it are not feasible in a high-volume CSE practice of law.

    
    

49. The lack of guidance resulted in the Evaluation Committee giving high scores for Thomas & Associates' Plan, notwithstanding Thomas & Associates' obvious lack of understanding of CSE legal practice under state contract. For example, Thomas & Associates' Plan indicated that depositions would be taken in every paternity and support action. Because a very limited amount of money is available under the contract for expenses, it would not be possible to take depositions in all of those cases.

    
    

50. Thomas & Associates' Plan also inaccurately describes the use of temporary relief hearings when no such hearings are utilized by the judicial hearing officers in Martin and Okeechobee Counties. That Plan also inaccurately suggested that a temporary relief hearing would be used when a respondent acknowledges paternity, since no temporary relief hearing is necessary in such a circumstance. Instead, the case would be scheduled on the next available docket for final hearing. The Plan also inaccurately indicates there is a need for a temporary relief hearing when the issue of support has already been resolved through a stipulation for support.

    
    

51. Thomas & Associates' Plan also inaccurately suggests all support cases can be brought to hearing within 45 days of referral from the Department. Given the time necessary for a case to be processed by the court clerk's office and for the sheriff to serve the summons, together with the 20 days the respondent is given to respond after service, it would not be possible to meet this schedule in every case. Moreover, the sheriff is unable to obtain service on the non-custodial parent in approximately 35 percent of support cases. Such cases are not set for hearing because the court has no jurisdiction over the

    non-custodial parent. Instead, these cases are sent back to the Department so a correct address for the non-custodial parent can be found, if possible.

    
    

52. Anyone familiar with a high-volume CSE practice of law under state contract would know that the above-described components of Thomas & Associates' Plan are impossible, impractical, or simply make no sense. Similarly, an experienced attorney would know that the time frames suggested for service of process and obtaining discovery were unrealistic and that it is inappropriate to seek a temporary relief hearing when a case is ready to be set for final hearing.

    
    

53. All family law does not constitute child support enforcement law. The Evaluation Committee members' lack of qualifications is evidenced by their inability to distinguish among family law, child support, enforcement and collection, and trial and appellate areas of practice even though the Evaluation Sheet required a separate score for each of these practice areas for evaluating attorney experience.

    
    

54. The Evaluation Committee members did not have specialized computer knowledge. Their lack of experience in computers is evidenced by the high scores awarded the Thomas & Associates proposal based on the computerized handling of the contract, notwithstanding the proposal's failure to mention any hard drive, failure to describe the random access memory (RAM) its computers contain, and failure to indicate whether its software can handle the number of files necessary to perform under the Department's contract. Without knowing the

    computers' hard drive capacity and the RAM of the computer, the Evaluation Committee could not judge the capability of the computers to handle the volume of files under the contract.

    
    

55. The Evaluation Sheet utilized by the Evaluation Committee is not the same as the Evaluation Sheet which was included in the Solicitation Package. In the evaluation scheme specified in the Solicitation Package, the area that provided the largest single award of points was "attorney experience." In this area, the Solicitation Package indicated that points would be awarded for attorney experience on a "per attorney" basis. The Solicitation Package does not contain any indication that for multi-attorney firms the attorneys' years of experience will be totalled and then averaged before points are assigned.

    
    

56. Unlike the Solicitation Package which was provided to potential proposers, the Instructions given the Evaluation Committee contained contradictory provisions, some providing for attorney experience points to be awarded on a per attorney basis and others providing for points to be awarded based on the average years of experience of all attorneys designated to work on the contract.

    
    

57. For multiple-practitioner law firms such as Thomas & Associates, the attorney experience points differ significantly if they are computed on a "per attorney" basis and then averaged, rather than on the basis of "average years" of experience of all attorneys designated to work on the contract. When attorney experience scores are calculated on a per attorney basis, each attorney assigned to the contract must have a minimum of five years experience in an area of law for the firm to receive the maximum points for that area. When attorney experience scores are calculated on the basis of "average years" of experience of all attorneys designated to work on the contract, a multiple-practitioner firm such as Thomas & Associates can receive the maximum number of points even if some of the attorneys have no experience.

    
    

58. Thomas & Associates received the maximum number of attorney experience points even though one of the attorneys assigned to work on the contract, Charles Willoughby, graduated from law school in 1994 and became licensed to practice law some time thereafter. The proposal admits that Willoughby has "little experience in family law matters." Conversely, the proposal does not assert that he has any experience in family law matters, any experience in child support, any experience in enforcement and collections, or any experience in trial and/or appellate work. Further, his resume does not indicate that he has any experience in the practice of law. Interestingly, not all members of the Evaluation Committee evaluated the same attorneys when computing the points to be awarded to Thomas & Associates for attorney experience. One Evaluation Committee member's Evaluation Sheet reflects that Mary Thomas was evaluated along with Jeffrey Thomas and Charles Willoughby in some areas of practice but that Mary Thomas along with Jeffrey Thomas and Denise Coffman were evaluated as to other areas of practice.

    
    

59. In calculating Thomas & Associates' attorney experience score, the Evaluation Committee members did not consider the two additional attorneys who are unidentified but would be hired if Thomas & Associates receives more than one contract. The only way to take into account those additional attorneys would be to award each of them zero points for experience.

    
    

60. Basing attorney experience points on the "average years" of experience of all attorneys designated to work on the contract, or on the years of experience of a single attorney in a multiple-practitioner firm, as was done by

    some members of the Evaluation Committee, is inconsistent with the Department's stated goal of obtaining the highest possible level of legal representation through this solicitation process. Similarly, utilizing a formula which gives the same credit for experience to an attorney practicing in the general area of family law as to an attorney practicing high-volume CSE legal services, a concept the Evaluation Committee members found to be unfair, is also inconsistent with the Department's stated goal of obtaining the highest possible level of legal representation.

    
    

61. The maximum score Thomas & Associates could have received for attorney experience based on the per attorney scoring procedure specified in the Solicitation Package is substantially less than the number of points awarded by the Evaluation Committee. Further, if the Evaluation Committee had properly scored Thomas & Associates' attorney experience, that proposal would have received an overall average score lower than the Reymore proposal received.

    
    

62. The Evaluation Committee awarded an average of 4.9 of the available 5 points for references to Thomas & Associates based solely on the one reference for Jeffrey Thomas it was able to contact. However, the Evaluation Committee interviewed two of the Reymore references. The Department's Tallahassee office specifically instructed the Evaluation Committee not to interview the third person listed in the Reymore proposal as a reference since she was also a member of the Evaluation Committee, something Reymore could not have known when he prepared his proposal since the names of the persons on the Evaluation Committee were not disclosed in the Department's Solicitation Package.

    
    

63. To insure that the evaluation of the proposals was fair and equal, the Evaluation Committee had been instructed to interview an equal number of references for each proposer. By basing Thomas & Associates' score on a single interview, the Evaluation Committee members did not follow the appropriate procedure in awarding points for references.

    
    

64. One member of the Evaluation Committee did not participate in the interviews of references. Instead, that member used another member's notes from the references' interviews to award points for references. By awarding points for references based solely on the notes of another Evaluation Committee member, that Committee member did not follow the appropriate procedure in awarding points.

    
    

65. Despite the absence of any effort by the Department to assure that its members were qualified to evaluate a high-volume CSE practice, the Evaluation Committee was given wide discretion to evaluate the proposals using whatever criteria its individual members chose. The evaluation scheme developed for this solicitation differed from those used previously in order to give the Department's regions more flexibility. The only substantive instructions given the members of the Evaluation Committee on how to evaluate the proposals for CSE legal services were those in the Solicitation Package and the Instructions. Members of the Evaluation Committee found the Instructions inadequate, and the ranges of points with no criteria confusing.

    
    

66. In prior solicitations for CSE legal services, evaluation committees were given a scoring matrix which set guidelines on how to score each section of a proposal. The Department's departure from the past practice of providing a scoring matrix to assist the evaluation committee in evaluating the proposals in order to give the regions more flexibility is illogical since there is no basis for the premise that the practice of law varies from region to region in the state or that different regions require different legal services.

67. The difference in the average scores given Thomas & Associates' proposal over the Reymore proposal was 11.8 points. Had the Thomas & Associates' proposal been properly scored, the Reymore proposal would have been the highest-scoring proposal. Moreover, Reymore would have submitted the highest-scoring responsive proposal if the Thomas & Associates' proposal had been disqualified due to the failure of Thomas & Associates to include all of the Mandatory Requirements in its proposal.

    
    

68. Thomas & Associates has not challenged the responsiveness of Reymore's proposal or the accuracy of the Evaluation Committee's scoring of the Reymore proposal.

    
    

    CONCLUSIONS OF LAW

    
    

69. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

70. The Department argues that it has wide latitude in awarding the contract in this proceeding because legal services are not subject to the competitive sealed bid requirements found in Chapter 287, Florida Statutes, and argues the issue of whether the Department's Solicitation Package constituted an invitation to bid or a request for proposals. Although legal services are exempt from the requirements of Section 287.057, Florida Statutes, the Department elected to solicit proposals through that competitive process. The Department is, therefore, obligated to evaluate those proposals in accordance with the statutory and case law controlling the solicitation of competitive bids. The Department's argument has been consistently rejected since it was first proffered by the Department's predecessor, HRS. See, for example, Smith and Thompson, P.A., et al. v. Dept. of Health and Rehabilitative Services, DOAH Case No. 92-6440BID (Final Order Jan. 8, 1993); Carlton & Carlton, P.A., et al. vs. Dept. of Health and Rehabilitative Services, DOAH Case Nos. 92-4937BID, 92- 4938BID, 92-4939BID, and 92-5015BID (Final Order March 17, 1993).

    
    

71. The purpose of this proceeding is to determine whether the Department has acted fraudulently, arbitrarily, illegally, or dishonestly in determining that Thomas & Associates should be awarded the contract for CSE legal services in Martin and Okeechobee Counties. Dept. of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988). An arbitrary action is one not supported by facts or by logic. Agrico Chemical Co. v. Dept. of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1979) cert. den. 376 So.2d 74. Petitioner has met his burden of proving that the Department has acted arbitrarily.

    
    

72. The Department acted arbitrarily in awarding the contract under consideration in this cause to Thomas & Associates because that proposal was not responsive to the Solicitation Package. The Thomas & Associates proposal failed to include resumes and certificates of good standing from The Florida Bar for all attorneys assigned to work on the contract although the Solicitation Package clearly identified the inclusion of both of those documents as Mandatory Requirements. The Thomas & Associates proposal specified that the two attorneys identified to work on the Martin/Okeechobee contract would be working full time on a different contract if that different contract was awarded to Thomas & Associates. It is obvious that Thomas & Associates could not have known at the time of submitting its proposal that it would receive the contract award on all contracts for which it submitted a bid. However, Thomas & Associates knew it

    was bidding on multiple contracts and that there was a possibility it would receive the award of more than one contract. Thomas & Associates' failure to identify the attorneys that it would hire if it were awarded more than one contract and to include resumes and certificates of good standing for those attorneys made Thomas & Associates' proposal non-responsive. It should have, therefore, in accordance with the Solicitation Package and with the Instructions, been rejected by the Evaluation Committee and should not have been scored.

    
    

73. That disclosing the identity of the person to perform legal services is a material requirement cannot be debated. There can be nothing more material to the performance of a personal services contract than the identity of the persons to perform pursuant to that contract. Accordingly, the omission of certificates and resumes for the attorneys to perform the legal services attendant to CSE proceedings in Martin and Okeechobee Counties is not a minor technicality and cannot be waived by the Department. By submitting a non- responsive proposal, Thomas & Associates precluded itself from being awarded the contract which is the subject of this proceeding.

    
    

74. Further, the failure to include those required documents in the Thomas & Associates proposal prevented the Evaluation Committee from considering the professional qualifications of the attorneys who would be assigned to the contract, a critical ingredient in evaluating the proposal to provide professional services. Allowing Thomas & Associates to hire unidentified attorneys after receiving the award allows Thomas & Associates to hire attorneys to perform services for the Department who have no experience of any kind, contrary to the stated purpose of the Solicitation Package which was to "obtain the highest possible level of legal representation."

    
    

75. The Thomas & Associates proposal was also non-responsive in that it failed to include "three references for whom the proposer has rendered services similar to those being proposed." That proposal did not include any references for the law firm submitting the proposal or for all attorneys to be assigned to the contract. Instead, it included references only for Jeffrey Thomas as an individual. Of those references, only two were from clients for whom he had performed child support legal services, and none was from a client for whom high-volume child support or family law legal services had been provided. The Thomas & Associates proposal should have been declared non-responsive for its failure to include the required references, and the Evaluation Committee should not have scored the proposal.

    
    

76. In addition to failing to provide references for the proposer, the Thomas & Associates proposal did not include "alternate contacts for each reference" as required by the Solicitation Package. This omission contributed to the Evaluation Committee's failure to interview more than one reference for Jeffrey Thomas. The failure to include appropriate and sufficient references and alternate contacts rendered the Thomas & Associates proposal non-responsive. It also prevented the Evaluation Committee from fully considering the professional qualifications of the attorneys who would be providing professional services. Accordingly, the Department's award of the subject contract to Thomas & Associates was arbitrary.

    
    

77. Rather than declaring the Thomas & Associates proposal non-responsive as the Evaluation Committee was required to do pursuant to the Solicitation Package and the Instructions, the Evaluation Committee scored the proposal. Due

    to the manner in which that proposal was scored, it received excessive points in the evaluation process, and, thus, the award of the contract to Thomas & Associates was arbitrary.

    
    

78. The Evaluation Committee was not composed of "qualified persons" familiar with the provision of child support legal services as required by the Solicitation Package. The Department's stated intention was for members of the Evaluation Committee to be familiar with the means by which providers would carry out the terms of the contract. However, the Department made no effort to ensure that members of the Evaluation Committee knew the peculiar requirements of a high-volume CSE law practice. Members of the Evaluation Committee had no knowledge of how to operate a CSE law office under the contract.

    
    

79. Unlike prior years, when lawyers were on the evaluation committees, none of the members of the Evaluation Committee had any legal training. That lack of legal training resulted in confusion in assignment of scores for the proposals. For example, members awarded Thomas & Associates high scores for its Plan because they were unfamiliar with legal procedures and did not understand that the few representations in the Plan which were not copied verbatim from the Solicitation Package were either incapable of being accomplished or unnecessary. Similarly, the members of the Evaluation Committee gave the Thomas & Associates proposal high scores for attorney experience because they were unable to distinguish among different areas of legal practice. Each member individually erroneously assumed that an enforcement and collection practice is the same thing as a family law practice which is the same thing as a trial and appellate practice which is the same thing as a child support practice.

    
    

80. The Evaluation Committee was also not composed of qualified persons who understood the logistical requirements for a high-volume CSE law practice. None of the members possessed the degree of computer knowledge necessary to evaluate proposals which relied upon law office automation. The Thomas & Associates proposal failed to mention whether its computers had a hard-disc drive, failed to describe the RAM of its computers, and failed to indicate whether its software could handle the volume of files necessary to perform under the contract. Nevertheless, the Evaluation Committee awarded high scores to that proposal on the basis of Thomas & Associates' proposed computerized handling of the caseload.

    
    

81. The Instructions furnished to the Evaluation Committee for scoring the proposals were vague and ambiguous. The Instructions contained contradictory directions for awarding points in the category of attorney experience. Some portions of the Instructions required experience points to be awarded on a "per attorney" basis and others directed that points be awarded on an "average years" basis for all attorneys. Such ambiguous and internally inconsistent instructions resulted in excessive points being awarded to Thomas & Associates.

    
    

82. In addition, the Evaluation Committee was provided with hidden instructions for scoring attorney experience, the category with the largest number of points available. The hidden instructions were not included in the Solicitation Package nor were they made available to the proposers. The Solicitation Package stated that points would be awarded for attorney experience on a "per attorney" basis and included a sample Evaluation Sheet reflecting that. The Solicitation Package did not indicate that, for a multi-attorney firm, attorney experience would be totalled and then averaged before points were awarded for attorney experience. Only the Evaluation Sheet actually used by the Evaluation Committee contained that information.

83. For multi-practitioner firms, the attorney experience points differ significantly, depending upon which methodology is used. Had the Evaluation Committee used the per attorney methodology as required by the Solicitation Package, the Thomas & Associates proposal would have received substantially fewer points in that category. Further, had the Evaluation Committee accounted for the two additional attorneys that Thomas & Associates represented it would hire under its proposal, the Thomas & Associates' maximum score would have also been significantly less than it received. The manner in which the attorney experience category was scored, rather than the manner in which the Solicitation Package represented it would be scored, allowed an inexperienced attorney to receive the maximum points for attorney experience.

    
    

84. Hidden instructions create an unlevel playing field among competing bidders. In this case, the improper use of the undisclosed "average years" methodology gave a benefit to Thomas & Associates. That law firm, by not hiring and identifying its two additional attorneys until after receipt of the contract awards, did not incur that expense and was free to shop for the most advantageous deal after receiving the contract. Moreover, the "average years" methodology allowed Thomas & Associates to be evaluated as if it had in place all necessary attorneys, when in fact, it did not.

    
    

85. The Evaluation Committee members' lack of familiarity with the operation of a high-volume law practice prevented the Committee from understanding that some of the representations in the Thomas & Associates proposal were incapable of being performed, and the Instructions for scoring proposals precluded them from including in their scoring those factors which they knew could not be performed as represented by Thomas & Associates. The Evaluation Committee did not know that Thomas & Associates could not utilize interrogatories and requests to produce in each enforcement action, as proposed, or obtain a hearing date within 45 days after receipt of each referral, as proposed. Further, Thomas & Associates would not be able to obtain a hearing within 45 days when certain tests are needed to determine paternity. Finally, Thomas & Associates would not be able to obtain a judge's signature on an income deduction order at the time of hearing because hearings are conducted by hearing officers in Martin and Okeechobee Counties.

    
    

86. On the other hand, the Evaluation Committee members did realize that Jeffrey Thomas could not personally attend all hearings where the other party was represented by counsel. They commented to each other that such could not be done while they were scoring the proposals. Yet, they understood the Instructions given them to require that they score the Plan as presented and not include in their scoring any evaluation as to whether the Plan could be accomplished. The Evaluation Committee members also noticed that the same attorneys, Willoughby and Coffman, were being pledged to deliver services full time on other bids and that the proposal admitted that unidentified attorneys would need to be hired if more than one contract was awarded to Thomas & Associates. Yet, the Instructions required the Evaluation Committee to score the Thomas & Associates proposal as though attorneys who might not work on the contract would be working on the contract. Interestingly, from the way the Thomas & Associates proposal was written, one of the Evaluation Committee members believed that Mary Thomas was one of the attorneys who would work under the contract, although Thomas & Associates did not assert that she would.

    
    

87. In this proceeding, Petitioner argues that the Thomas & Associates proposal contained additional material misrepresentations. Although that may be true, such as the representation that the employee who would head the paralegal department was a certified legal assistant when she was not, such additional

    misrepresentations could not have been known by the Evaluation Committee at the time that it was scoring the Thomas & Associates proposal.

    
    

88. The lack of criteria given the Evaluation Committee for determining the points to be awarded in the various categories also makes the Department's intended bid award arbitrary. In prior solicitations, evaluators were given a scoring matrix which included guidelines on how to score each section of a proposal. The criteria from prior solicitations were not utilized in this evaluation, and the only directions given to the Evaluation Committee were the few contained in the Solicitation Package and Instructions. These directions were inadequate to assure a uniform and reasoned scoring of the proposals. Instead, Evaluation Committee members were allowed to evaluate the proposals with each member using whatever criteria he or she chose. Allowing each member of the Evaluation Committee to develop his or her own personal set of criteria for scoring the proposals is arbitrary.

    
    

89. Members of the Evaluation Committee testified that they were not given proper guidance or criteria in order to know how to score the various categories in the proposals. In the category of minority ownership, the Evaluation Committee members actually requested guidance from headquarters in Tallahassee as to how to award points in that category and were advised to use their own discretion.

    
    

90. As to the guidance that was given, the Evaluation Committee failed to follow such directions. It improperly awarded points to Thomas & Associates for references. The Instructions required that points for references be awarded only on the basis of responses to standardized questions in an oral interview. Points were not to be awarded on the basis of letters of recommendation. To insure the evaluation was fair, the Evaluation Committee was instructed to interview an equal number of references for each proposer. The Evaluation Committee interviewed two references for Petitioner Reymore but only one reference for Thomas & Associates and that reference was for Jeffrey Thomas, the attorney who would supervise the attorneys who actually performed the legal services under the contract. Four of the five Committee members gave Thomas & Associates the maximum number of points for references although they did not interview a single reference that met the criteria set forth in the Solicitation Package. The award of any points to Thomas & Associates for references was arbitrary.

    
    

91. Thomas & Associates arbitrarily received credit as a minority owned enterprise although its proposal did not include the required documentation to have been awarded extra points as a minority business. Even had Thomas & Associates included documentation (a difficult task since Mary Thomas' ownership would be identified as questionable had the supporting documentation been submitted), the Department arbitrarily established a range of points to be awarded for minority ownership when a business either is or is not a minority business. No guidelines were established for the awarding of partial credit, which was done by some Evaluation Committee members.

    
    

92. The Department has determined the Reymore proposal to be responsive, and Thomas & Associates has not contested the responsiveness of the Reymore proposal in this proceeding. Accordingly, since the Thomas & Associates proposal is non-responsive to the Solicitation Package and should not have been scored, the Reymore proposal is the highest-rated responsive proposal received in this solicitation. Reymore, thus, is the best qualified proposer for this contract award.

93. Even if the Thomas & Associates proposal had been responsive to the Solicitation Package requirements, a substantial number of points awarded to it by the Evaluation Committee were not supported by fact or logic, and those points were arbitrarily awarded. No challenge to the points awarded to the Reymore proposal was raised in this proceeding. Accordingly, the Reymore proposal is the highest-scoring proposal received by the Department as a result of this solicitation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered determining the Thomas &

Associates proposal to be nonresponsive and awarding to Petitioner Reymore the

contract to provide child support enforcement legal services for Martin and Okeechobee Counties.

DONE and ENTERED this 11th day of September, 1995, at Tallahassee, Florida.

LINDA M. RIGOT, 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 11th day of September, 1995.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's proposed findings of fact numbered 1-20, 22-45, 48-82, 85- 95, 99-101, 106, 107, 114, 116-147, 149, 150, and 152-173 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed finding of fact numbered 21 has been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

3. Petitioner's proposed findings of fact numbered 46, 47, and 96 have been rejected as being irrelevant to the issues under consideration in this cause.

4. Petitioner's proposed findings of fact numbered 98, 102-105, 108-113, and 115 have been rejected as being unnecessary to the issues involved herein.

5. Petitioner's proposed findings of fact numbered 83, 84, 148 and 151 have been rejected as being subordinate to the issues herein.

6. Intervenor's proposed findings of fact numbered 1-12, 15, 16, 18, 37, 76, 77, 83, 84, 87, 101, 109-111, 115, 118, 120, 123, 165, and 178 have been adopted either verbatim or in substance in this Recommended Order.

7. Intervenor's proposed findings of fact numbered 13, 14, 21-23, 25, 26, 31-34, 38, 40, 46, 57, 61-65, 71, 90, 91, 96, 99, 117, 130-132, 158, 160, 162, 163, and 168-173 have been rejected as being irrelevant to the issues under consideration in this cause.

8. Intervenor's proposed findings of fact numbered 17, 19, 20, 24, 42, 45, 48, 51, 58-60, 66, 72-75, 79, 85, 86, 88, 89, 92, 97, 98, 112, 113, 116, 121,

   127, 133, 166, 167, 176, 177, 179, 181, and 182 have rejected as not being supported by the weight of the credible evidence in this cause.

9. Intervenor's proposed findings of fact numbered 27, 30, 35, 39, 41, 43, 44, 47, 50, 52-56, 67-70, 80-82, 100, 102-107, 114, 124-126, 128, 129, 137, 142- 146, 148-153, 174, and 180 have rejected as being subordinate to the issues herein.

10. Intervenor's proposed findings of fact numbered 28, 29, 36, 49, 78, 108, 119, 122, 138-141, 147, 154, 155, 157, 159, 161, 164, 175, and 183 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

11. Intervenor's proposed findings of fact numbered 93-95, 134-136, and

    156 have been rejected as being unintelligible.

12. Respondent's proposed findings of fact numbered 1-3, 5, and 11 have adopted either verbatim or in substance in this Recommended Order.

13. Respondent's proposed findings of fact numbered 4, 7, 10, and 20 have been rejected as not being supported by the weight of the credible evidence in this cause.

14. Respondent's proposed findings of fact numbered 6, 8, 9, 14, 16, and

    18 have been rejected as being subordinate to the issues herein.

15. Respondent's proposed finding of fact numbered 13 has been rejected as being irrelevant to the issues under consideration in this cause.

16. Respondent's proposed findings of fact numbered 15, 17, 19, and 21 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

COPIES FURNISHED:

Douglas Reymore, Esquire Suite 420

10 Central Parkway Stuart, Florida 34994

Gary P. Sams, Esquire Carolyn S. Raepple, Esquire

Hopping Green Sams & Smith P.A.

123 South Calhoun Street Tallahassee, Florida 32314

Thomas Barnhart, Esquire Patrick Loebig, Esquire Department of Revenue Post Office Box 6668

Tallahassee, Florida 32314-6668

Jeffrey F. Thomas, Esquire Thomas & Associates

Treasure Coast Bank Building Suite 209

789 South Federal Highway Stuart, Florida 34991

Noel A. Bobko, Esquire

McCarthy, Summers, Bobko, et al. Suite 2-A

2081 East Ocean Boulevard Stuart, Florida 34996

Larry Fuchs Executive Director

Department of Revenue

104 Carlton Building Tallahassee, Florida 32399-0100

Linda Lettera General Counsel

Department of Revenue

204 Carlton Building Tallahassee, Florida 32399-0100

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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF REVENUE

DOUGLAS REYMORE,

Petitioner,

vs.

DEPARTMENT OF REVENUE, CASE NO. 95-3137BID DOR NO 95-3-BID

Respondent,

and

THOMAS & ASSOCIATES,

Intervenor.

/

FINAL ORDER

This cause came before me for the purpose of issuing a final order. A formal hearing was held on July 14, 1995 in West Palm Beach, Florida. The Hearing Officer assigned by the Division of Administrative Hearings in the above styled case submitted a Recommended Order to the Department of Revenue. A copy of the Recommended Order is attached to this Final Order and is Incorporated by reference. The Respondent timely filed exceptions to the Recommended Order, and the Petitioner filed a response to the exceptions. The Intervenor's exceptions were not filed within the filing deadline and are denied as untimely.

Pursuant to Chapter 120, Florida Statutes, the Department has jurisdiction of this cause.

STATEMENT OF THE ISSUE

The primary issue is whether the Department of Revenue (Department) acted illegally, fraudulently, arbitrarily, or dishonestly in determining that the Intervenor (Thomas), rather than the Petitioner (Reymore), should be awarded the contract for child support enforcement legal services for Martin and Okeechobee Counties.

STANDARD FOR REVIEW

Pursuant to section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the Recommended Order. However, the agency may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. Freeze v. Dept. of Business Regulation, 556 So. 2d 1204 (Fla. 5th DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987) . Competent, substantial evidence has been defined as evidence that is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached. DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957).

The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the proceedings at the Division of Administrative Hearings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the agency is bound by that finding.

RULING ON MOTION TO STRIKE

The petitioner's motion to strike the respondent's exceptions to the recommended order is denied.

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference the findings of fact set forth in paragraphs 1 through 68 of the Recommended Order, with the exception of paragraph 66. The Department's exceptions to the findings of fact are denied because competent, substantial evidence exists to support the

findings in the Recommended Order, except that the Department's exception to paragraph 66 of the Recommended Order is granted. The hearing officer made the following finding of fact in paragraph 66:

The Department's departure from the past practice of providing a scoring matrix to assist the evaluation committee in evaluating the proposals in order to give the regions more flexibility is illogical since there is no basis for the premise that the practice of law varies from region to region in the state or that different regions require different legal services.

The hearing officer's finding that it was "illogical" for the Department not to use the matrix is a statement of opinion and is not supported by competent, substantial evidence. Shirley Holmes testified in a deposition that the Department discontinued the use of the scoring matrix "to give more flexibility to the regions in determining what their needs were." (Petitioner's Exhibit 1-A,

p. 54). The evidence does not suggest that the decision to use another scoring method was illogical. Therefore, the exception is granted.

CONCLUSIONS OF LAW

The Department hereby adopts and incorporates by reference the conclusions of law set forth in paragraphs 69 through 93 of the Recommended Order. The Department's exceptions to the conclusions of law in the Recommended Order are denied.

Therefore, based on the Findings of Fact and the Conclusions of Law as set forth in the Recommended Order, it is hereby ORDERED that the proposal of the Intervenor, Thomas & Associates, is nonresponsive and the contract to provide child support enforcement legal services for Martin and Okeechobee Counties shall be awarded to Petitioner Reymore.

Any party to this Final Order has the right to seek judicial review of the Final Order as provided in Section 120.68, Florida Statutes, by the filing of a Notice of Appeal as provided in Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of General Counsel, Post Office box 6668, Tallahassee, Florida 32314-6668 and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the appropriate District Court of Appeal. The Notice of Appeal must be filed within

30 days from the date this Final Order is filed with the Clerk of the Department.

DONE AND ENTERED in Tallahassee, Leon County, Florida this 1st day of December, 1995.

STATE OF FLORIDA DEPARTMENT OF REVENUE

L. H. Fuchs Executive Director

I HEREBY CERTIFY that the foregoing FINAL ORDER has been filed in the official records of the Department of Revenue this 1st day of December, 1995.

Judy Langston Agency Clerk

COPIES FURNISHED:

Thomas L. Barnhart Department of Revenue Office of General Counsel Post Office Box 6668

Tallahassee, Florida 32314-6668

Jeffrey F. Thomas

Thomas & Associates, P.A.

Treasure Coast Bank Building, Suite 209 789 S. Federal Highway

Stuart, Florida 34991

Douglas Reymore Suite 420

10 Central Parkway Stuart, Florida 34994

Gary P. Sams Carolyn S. Raepple

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

123 S. Carlton St.

Post Office Box 6526

Tallahassee, Florida 32314

Noel A. Bobko

McCarthy, Summers, Bobko, et al. Suite 2-A

2081 East Ocean Blvd. Stuart, Florida 34996

Docket for Case No: 95-003137BID

Orders for Case No: 95-003137BID