STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PICKETT, FANELLI & O'TOOLE, P.A., )

)

Petitioner, )

vs. )

)

DEPARTMENT OF REVENUE, )

)

Respondent, ) CASE NO. 95-3138BID and )

) THOMAS AND ASSOCIATES, P.A., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on July 11, 1995, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Don Pickett

Pickett, Fanelli & O'Toole, P.A.

330 Clematis Street, Suite 201 West Palm Beach, Florida 33401

and Gary P. Sams

Carolyn S. Raepple

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

123 South Calhoun Street Tallahassee, Florida 32314

For Respondent: Thomas L. Barnhart

Department of Revenue Post Office Box 6668

Tallahassee, Florida 32314-6668

For Intervenor: Jeffrey F. Thomas

Mary B. Thomas Thomas & Associates

Attorneys at Law, P.A.

789 South Federal Highway, Suite 209

Stuart, Florida 34994

and Noel A. Bobko

McCARTHY, SUMMERS, BOBKO, McKEY & BONAN

2081 East Ocean Boulevard, Suite 2A Stuart, Florida 34996

and

Lawrence P. Stevenson HOLLAND & KNIGHT

315 South Calhoun Street, Suite 600 Post Office Box 810

Tallahassee, Florida 32302-0810 STATEMENT OF THE ISSUES

The central issue in this case is whether the Department of Revenue (Department) acted illegally, fraudulently, arbitrarily, or dishonestly in awarding the child support enforcement (CSE) legal services contract for Palm Beach County (Intrastate) to the Intervenor, Thomas & Associates, Attorneys at Law, P.A. (Thomas). The Petitioner, Pickett, Fanelli, & O'Toole, P.A. (Pickett), timely challenged the proposed award.

PRELIMINARY STATEMENT

This case began in April, 1995, when the Department advertised for legal services to be provided for CSE in Palm Beach County, Florida. This proceeding deals only with legal services to be rendered pursuant to the Department's CSE Palm Beach County intrastate contract for the fiscal year 1995/96. The Petitioner and Intervenor timely submitted proposals to provide the legal services, and, on May 22, 1995, the Department issued a notice that it intended to award the contract to Thomas. Petitioner timely filed a notice of protest and a formal protest.

In summary, Petitioner's formal protest set forth the following grounds for the challenge to the proposed award of this contract: that the evaluation committee used evaluation criteria not disclosed in the Solicitation and which arbitrarily created an inequitable review; that the committee members were not qualified to evaluate the proposals; that the proposals were improperly scored; that the references submitted by the Intervenor did not comply with the terms of the Solicitation; that the Intervenor was improperly awarded points for being a minority business; that the award of points for attorney experience was not based on the "per attorney" criteria of the Solicitation; that the Intervenor's proposal was impossible to perform with one attorney attending all hearings where the other party is represented by an attorney; that the Intervenor's proposal failed to identify the two other attorneys who would perform services under the contract; and that at least one member of the evaluation committee was biased against Petitioner. Subsequently, the matter was forwarded to the Division of Administrative Hearings for formal proceedings.

In accordance with Section 120.53(5)(e), Florida Statutes, the hearing was initially scheduled for July 7, 1995; however, by stipulation of the parties, the matter was continued to July 11, 1995. At the outset of the hearing, and pursuant to the prehearing order entered in this matter, the Department filed a letter verifying it had provided notice to all other bidders whose substantial interests may be affected by the disposition of this case. Further, Intervenor's motion in limine, addressed as a preliminary matter/motion, was denied.

At the hearing, the Petitioner presented the following witnesses: Don Pickett, a partner in the Petitioner law firm; Linda Goodwin, a domestic relations commissioner for the 15th judicial circuit; Larry S. Weaver, also a domestic relations commissioner; and Sheri Piles, a supervisor in the clerk of the court's circuit civil department.

Shirley Holmes, a Department employee who acts as contract liaison for the CSE program, testified on behalf of the Respondent. Testifying on behalf of the Intervenor were: Jeffrey F. Thomas, partner in the Intervenor law firm; Mark Cullen, an attorney; and Don Edwards, a computer systems specialist employed by the Department.

The following exhibits were admitted into evidence: Joint Exhibits 1 through 9; Petitioner's exhibits 4a-4m, 4s, 4v-4y, 6a-6h, 9, 10, 13; and

Intervenor's exhibits 1, 2, 3, 4, and 8. Intervenor also adopted the deposition testimony found in Petitioner's 4h and 4x.

Deposition testimony of witnesses (which was accepted in lieu of live testimony and included in the exhibits noted above) was admitted subject to specific objections filed by the parties. Rulings on those objections are included in the appendix at the conclusion of this order. Further, where applicable, rulings on findings of fact submitted in reliance on deposition testimony which has been rejected are also specifically addressed in the appendix.

The transcript of these proceedings was filed on July 24, 1995. By stipulation, the parties agreed to file their proposed recommended orders on August 4, 1995. Specific rulings on the parties' proposed findings of fact are included in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. Effective July 1, 1994, the Department became the state agency responsible for CSE actions within the State of Florida.

   
   

2. In order to procure legal services in connection with this responsibility the Department advertised a solicitation for the contract.

   
   

3. Petitioner and Intervenor timely submitted proposals for the contract.

   
   

4. By letter dated May 22, 1995, the Department advised Petitioner that the CSE contract had been awarded to Intervenor.

   
   

5. The Petitioner timely filed a protest of that award.

   
   

6. Prior to the advertisement of the solicitation, the Department issued a document entitled "Instructions to CSE Regions for Handling the Solicitation for Legal Services Providers" (Instructions) to govern the solicitation, evaluation, and award of the contract at issue in these proceedings.

   
   

7. The Instructions provided specific information to the district staff as to how these proposals were to be evaluated.

   
   

8. In accordance with the Instructions, the solicitation package (Solicitation) was advertised in Palm Beach County in a timely manner from April 1, 1995, through April 5, 1995.

   
   

9. The Department sent copies of the solicitation package to both the Petitioner and Intervenor.

10. The Instructions were not given to the Petitioner and Intervenor with the Solicitation package. In fact, the parties did not obtain copies of the Instructions prior to the opening of the proposals.

    
    

11. Completed proposals in response to the solicitation were required to be submitted by 3:00 p.m., May 12, 1995.

    
    

12. The Department established a evaluation committee to review all proposals submitted in this matter. The evaluation committee members were: Dottie Howell, Sammy Austin, Jim Pichurski, Linda Martin and Sandra Prince.

    
    

13. Each of the members of the evaluation committee was experienced in CSE and generally familiar with the type of services required under the subject contract.

    
    

14. Under the time restraints imposed by the Department, the evaluation committee reviewed and evaluated all proposals.

    
    

15. None of the evaluation committee members were attorneys.

    
    

16. None of the evaluation committee members had any expertise in computer science or an understanding of what computer services might be beneficial to the Department in connection with the contract.

    
    

17. In fact, other than the Instructions and the Solicitation, the evaluation committee was given no assistance in the evaluation process, even when clarification was requested.

    
    

18. The review process employed two levels of evaluation. First, the evaluation committee was to determine if all mandatory requirements had been met.

    
    

19. If any of the "Mandatory Requirements" identified in the Evaluation Sheet and the Solicitation Package were not met by a proposal, the proposal was to be rejected and withdrawn from consideration.

    
    

20. The evaluation committee did not reject the proposals submitted by Petitioner and Intervenor but continued with the evaluation and scoring process.

    
    

21. As a result, the evaluation committee scored the Intervenor's proposal highest with the Petitioner's proposal being scored second highest.

    
    

    Mandatory Requirements

    
    

22. The Instructions to the evaluation committee provided the following information pertinent to the mandatory requirements of the proposals:

    
    

    4. Review for compliance with mandatory requirements: The evaluation committee member must review all the proposals to determine compliance with the "Mandatory Requirements".

    * * *

    The following documents, certifications and responses to the statements listed below and Attachment VI are mandatory requirements.

    * * *

    1. Are the attorney/attorneys assigned to perform contract services members of the Florida Bar? Was a certificate of good standing [from] the Florida Bar attached for each attorney designed (sic) to do child support work? Yes/No

    2. Was a resume for each attorney designated to do child support work included with the proposal? Yes/No

    
    

23. Additionally, the Solicitation provided the following information pertinent to the mandatory requirements:

    
    

    The following must be included with your proposal:

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

    2. Attachments II, IV, VII signed by the authorized representative. Attachment III completed and signed by the authorized representative. Attachment VI must be accurately completed.

    3. Copy of Certificate of Minority Business Enterprise, if applicable.

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

       * * *

       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.

       
       

24. Attachment V (referenced in paragraph 23) to the Solicitation contained the following provisions:

    
    

    CATEGORY 1-MANDATORY REQUIREMENTS

    The following documents, certifications and responses to the statements listed below and Attachment VI are mandatory requirements. If any of these requirements are not met, your proposal will not be considered further. All forms and certifications must be signed by the same representative who is authorized to bind the firm to the terms of the solicitation and the contract. Attachment VI is the cost presentation. This form must be completed in its entirety and there must not be any typo- graphical or mathematical errors.

    * * *

    1. The attorney/attorneys assigned to perform 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.

    
    

25. The Intervenor's (Thomas') proposal set forth the following information under the heading "Time and Personnel to be devoted to child support work":

    
    

    (c) Palm Beach Intrastate: We would assign four full time attorneys with four paralegals and four legal secretaries in order to staff this contract. Again, Jeffrey F. Thomas, Esquire, would directly supervise all attorneys and personally appear at all hearing where the other party is represented by an attorney. In addition to Jeffrey F. Thomas, we would assign the following attorneys: Charles

    K. Willoughby, Esquire, L. Denise Coffman, Esquire, John C. Thomas, Esquire and Kim Nutter, Esquire.

    In the event we are awarded more than one contract, we would hire two more lawyers, two more paralegals and two more legal secretaries.

    
    

26. The Thomas proposal did not disclose the names of the two additional lawyers who would be hired to perform services if Thomas were awarded two or more contracts, did not include their resumes, and did not include certificates of good standing from the Florida Bar.

    
    

27. The evaluation committee knew of two other contracts for which Thomas sought award from the Department. Further, if Thomas receives this award, the retention of two additional attorneys would be required as a condition of the contract.

    
    

28. The failure to include the resumes and certificates for the two attorneys was nonresponsive to the mandatory requirements of the Solicitation.

    
    

    References

    
    

29. The proposals were also to include specific information regarding attorney references. Pertinent to this issue, the Instructions provided:

    
    

    8. References: The evaluation committee must prepare a list of questions to ask references in the "References" portion of the evaluation.

    One member of the evaluation committee, usually

    the chairperson, asks the questions in the presence of the evaluation committee via speaker phone so all can simultaneously hear the responses of the references. Evaluation committee members should each make their own independent assignment of points for the references criterion for each proposal. These points shall not be communicated to the other members of the evaluation committee,

    but shall be indicated only on the evaluation sheets.

    * * *

    CATEGORY 2 which includes the technical information and cost factors shall be evaluated based on the criteria set forth in section V, pages 3-7 and Attachment V of the solicitation packet. A total of

    100 points has been assigned to this category. Note carefully: designate one person to check references.

    
    

30. The Solicitation set forth the requirements regarding such references. Pertinent to this case are the following provisions of the Solicitation:

    
    

    F. References (5 points)

    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. Preference will be given to those proposals that furnish references demonstrating experience in child support and family law matters. The Department reserves the right to utilize references received by other sources provided to the Department.

    
    

31. Again, the Solicitation was couched in mandatory terms of what a proposer was required to do under the heading "references."

    
    

32. In this case, under "references" the Intervenor's proposal contained the following information:

    
    

    1. John E. Sherrard, Esquire, Board Certified Marital and Family Lawyer, 34 E. Fifth Street, Stuart, Florida 34994, (407) 283-9322 - former client in family law matters concerning child support, custody and related matters as well

       as adversary of Thomas & Associates in various family law matters.

    2. Mrs. Sharen Muller, P.O. Box 2595, Stuart, Florida 34994 (407) 286-8503 former client in family law matter regarding child support, custody and related family law matters.

    3. Edward Galante, Esquire, 789 South Federal Highway, Suite 103, Stuart, Florida 34994, co- counseled on a complicated custody dispute between paternal grandparents and natural mother upon the death of the custodial parent; as well as worked as opposing counsel on several other family law cases.

    4. See also recommendation from Honorable John

    1. Fennelly, Circuit Court Judge, Nineteenth Judicial Circuit, for recertification of Jeffrey

    2. Thomas in June 1994.

    
    

33. The Intervenor listed only two references for whom the proposer had rendered services similar to those proposed. Intervenor's failure to provide three references as mandated by the Solicitation renders its proposal nonresponsive.

    
    

34. Additionally, the evaluation committee was given explicit instructions as to the procedure for contacting references. The procedure was not followed. None of the Thomas references was contacted. The Thomas proposal received the

    maximum points available without verification of the references as required by the terms of the Instructions.

    
    

35. Further, Petitioner's proposal received less than the maximum when one of the references, who was contacted under the correct procedure, did not use a specific adjective to compliment Pickett's work. Thus, the Petitioner arbitrarily received a smaller score than Intervenor whose proposal was not even rated in the same manner.

    
    

    Attorney Experience

    
    

36. The proposals were also rated based upon the attorney experience. Pertinent to this issue are the following provisions of the Instructions:

    
    

    CATEGORY 2 which includes the technical information and cost factors shall be evaluated based on the criteria set forth in section V, pages 3-7 and Attachment V of the solicitation packet. A total of 100 points has been assigned to this category.

    Note carefully: designate one person to check references.

    * * *

    1. Time and Personnel to be Devoted to Child Support Work (0-40)

       1. Staffing Ratio (0-10)

       2. Attorney Experience: Points assigned for each Attorney designated to do contract work (0-25)

          1. Experience in Child Support Practice (0-10)

             Assign 2 points per year up to 10 maximum for single practitioners.

             More than one practitioner, compute average

             years.

             Example: 2 Attorneys, one with 5 years and

             one with 2 yrs.

             2 pt.x5yrs=10 2 pt.x2yrs=_4_ 14/2=7pt

          2. Family Law Practice (0-5)

             1 pt per year for single practitioner More than one practitioner, compute

             average year.

             Example: 3 Attorneys with 5, 4, 3 years. (5+4+3)=12/3=4 pts.

          3. Enforcement and Collection Practice (0-5) (Same as above)

          4. Trial and/or Appellate Experience (0-5) (Same as above)

    
    

37. Based upon the Instructions, the evaluation committee presumed that attorney experience would be assessed based upon an averaging of years.

38. In contrast, the Solicitation provided:

    
    

    V. CRITERIA TO BE USED IN EVALUATING PROPOSALS The evaluation of all proposals will be made by an evaluation committee of qualified persons who are familiar with child support services. The committee will review, analyze and complete a rating sheet for each proposal.

    
    

    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.

    
    

    The technical information and cost category of the evaluation will address the capability of the proposer to perform the services. The cost factor and the areas outlined in Attachment V will be evaluated focusing on the provisions in the narrative in paragraphs A through G below.

    * * *

    D. TIME AND PERSONNEL TO BE DEVOTED TO CHILD SUPPORT WORK (40 points)

    * * *

    1. Attorney Experience (25 points)

       Please indicate number of years of experience per attorney.

       1. Experience in Child Support Practice (10)

       2. Family Law Practice (5)

       3. Enforcement and Collection Practice (5)

       4. Trial and/or Appellate Experience (5)

    
    

39. Attachment V to the Solicitation contained, in pertinent part:

    
    

    4. Time and Personnel to be Devoted to Child Support Work (0-40)

    1. Staffing Ratio (0-10)

    2. Attorney Staffing: Points assigned for each Attorney designated to do contract work (0-25)

       1. Experience in Child Support Practice (0-10)

       2. Family Law Practice (0-5)

       3. Enforcement and Collection Practice (0-5)

       4. Trial and/or Appellate Experience (0-5)

    
    

40. Thus, based upon the Solicitation, proposers should have presumed (and therefore structured their proposals) that this category would be evaluated on a per attorney basis. Since twenty-five of the forty points available under this heading were to be assigned based upon the attorney experience set forth in the proposal, it is reasonable to find that the proposals should have considered staffing seriously.

    
    

41. In the Petitioner's case, experienced lawyers were chosen whose compensation financially impacted other areas of the Pickett proposal. Had the

    averaging method been disclosed prior to submittal of the proposals, Petitioner could have computed mathematically a way to max out the attorney experience points at a reduced cost and thereby apply resources to another area of the proposal.

    
    

42. In the alternative, had the proposals been scored as indicated in the Solicitation, Intervenor would not have received more than twenty points.

    
    

43. Under the averaging method used, the Petitioner received twenty-five points and the Intervenor received 23.3 points for attorney experience.

    
    

44. The Department has articulated no explanation for why the terms of the Solicitation were not followed in the assessment of points for attorney experience.

    
    

    Minority Ownership

    
    

45. At the time of the evaluation of these proposals, Intervenor was not certified as a minority business enterprise.

    
    

46. Under the heading "Minority Ownership" Intervenor's proposal stated:

    
    

    E. Minority Ownership:

    Mary B. Thomas owns 60 percent of Thomas and Associates, Attorneys at Law, P.A. Mrs.

    Thomas is an American woman who qualifies as a minority under Section 288.703(3), Florida Statutes. As such, Thomas and Associates, Attorneys at Law, P.A. has applied to become certified as a minority Business Enterprise

    (See application - for certification copy attached)

    
    

47. The minority business enterprise application referenced above (of which only a portion was attached to the proposal) represented that the firm had been established on September 21, 1989, and that Mary B. Thomas, an American woman, had acquired 60 percent of the company's ownership on April 30, 1995. Jeffrey F. Thomas, Mrs. Thomas' husband, owns the remaining outstanding shares of the company.

    
    

48. Question 11 of the minority business enterprise application referenced above sought the following information to which Intervenor gave the response indicated:

    
    

    (11) Is a trade or professional license required for the business: Yes XX No

    
    

    If yes, for each trade or professional license the company holds, complete the following for the licensee(s).

    
    

    NAME MINORITY STATUS LICENSE NUMBER ISSUING AGENCY

    Mary B. Thomas Am. Woman 391999 Florida Bar

    
    

49. The Instructions allowed the evaluation committee to award from zero to five points for minority ownership. No explanation or definition of "minority ownership" was included within the Instructions.

50. Similarly, the Solicitation provided:

    
    

    V. CRITERIA TO BE USED IN EVALUATING PROPOSALS The evaluation of all proposals will be made by an evaluation committee of qualified persons who are familiar with child support services. The committee will review, analyze and complete a rating sheet for each proposal.

    
    

    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.

    The technical information and cost category of the evaluation will address the capability of the proposer to perform the services. The cost factor and the areas outlined in Attachment V will be evaluated focusing on the provisions in the narrative in paragraphs A through G below.

    * * *

    
    

    E. MINORITY OWNERSHIP (5 Points)

    Qualifying under Section 288.703(3), Fla. Stat. If business has been certified as a Minority Business Enterprise, please so indicate. A copy of the certification must be attached.

    If business has not been certified, but has at least fifty one percent minority ownership, please so indicate. Minority ownership must be documented.

    
    

51. While the Solicitation did not define "minority ownership" with a objective standard for review, it did provide that documentation for the claimed points must be provided.

    
    

52. In this case, other than the assertions noted above, Intervenor provided no documentation.

    
    

53. Members of the evaluation committee uncertain of how to assign points under this criteria requested assistance. They were directed to use their own judgment to assign points.

    
    

54. Without supporting documents, Intervenor received five points from each of the evaluation committee members for minority ownership.

    
    

55. The assignment of points for minority ownership without documentation violated the explicit language of the Solicitation.

    
    

56. The Department has articulated no basis for why the terms of the Solicitation were not followed with regard to the assignment of points for minority ownership.

    
    

    Bias

57. Each of the evaluation committee members were required to execute a conflict of interest questionnaire. One of the questions of that form provided: "Are there any other conditions which may cause a conflict of interest?"

    
    

58. In connection with the foregoing form, one committee member answered the question by checking the "no" response. This member, Dottie Howell, has demonstrated a bias against the Petitioner.

    
    

59. Ms. Howell has told Department employees that she was keeping a file on the Pickett firm in order to get it discharged.

    
    

60. Ms. Howell has publicly expressed dissatisfaction with the services rendered by the Pickett firm.

    
    

61. Ms. Howell has stated the Petitioner has a poor attitude and has attempted to interfere in policy decisions.

    
    

62. Given Ms. Howell's opinions regarding the Petitioner, she should have declined service on the evaluation committee.

    
    

63. The Solicitation provided, in pertinent part:

    
    

    II. STATEMENT OF NEED

    
    

    Through this solicitation for proposals to provide legal services, the Department seeks to obtain the highest possible level of legal representation at the lowest possible cost while ensuring free and open competition among prospective proposers.

    * * *

    
    

    V. CRITERIA TO BE USED IN EVALUATING PROPOSALS

    
    

    The evaluation of all proposals will be made by an evaluation committee of qualified persons who are familiar with child support services. The committee will review, analyze and complete a rating sheet for each proposal.

    
    

64. From the foregoing, the Department intended to ensure fair competition among proposers of this contract. As each member was to evaluate the proposals, each were to be qualified to perform the assessment. A biased evaluation member is not qualified to rate the proposals. At the minimum, by allowing such evaluator to be included gives the impression of a less than fair review.

    
    

65. Except for Ms. Howell, all members of the evaluation committee were qualified to render the reviews.

    
    

    CONCLUSIONS OF LAW

    
    

66. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.53(5), and 120.57(1), Florida Statutes.

    
    

67. The Department is the state agency charged with the responsibility of administering the CSE program for the state. As such, the Solicitation for

    legal services in this case was issued pursuant to Section 287.057, Florida Statutes; consequently, the agency has elected to proceed on the basis of that provision.

    
    

68. The Petitioner's challenge to the proposed award to Intervenor was timely perfected.

    
    

69. The Petitioner has standing to raise the challenge of the instant case.

    
    

70. In this case, "the scope of the inquiry is limited to whether the purpose of competitive bidding has been subverted. In short, the hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly." Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912, 914 (Fla. 1988).

    
    

71. The scope of the review is merely to determine whether the proposals were appropriately evaluated. No determination as to the accuracy of the challenged proposal can be made. Since much of Petitioner's argument has maintained the Intervenor submitted misleading or erroneous information which, after the fact, it has tried to establish, findings related to such allegations have been deemed irrelevant under the Groves-Watkins standard. The Department's actions have been reviewed only as to whether the evaluation committee acted arbitrarily in the award of the contract. In this context, Petitioner has met its burden.

    
    

72. An arbitrary action by the Department is one not supported by fact or logic. Agrico Chemical Co. v. Department of Environmental Regulation, 565 So.2d 759 (Fla. 1st DCA 1989).

    
    

73. In this case, the Petitioner has established that the Department acted in an arbitrary manner. First, the agency chose to evaluate the proposal submitted by Intervenor when such proposal failed to meet the mandatory requirements of the bid documents. As such, the Intervenor's proposal was nonresponsive to the Solicitation.

    
    

74. Intervenor failed to identify and include resumes and certificates of good standing for all attorneys who would be assigned to work on the contract. This was a mandatory requirement of the bid solicitation. The Intervenor chose to submit proposals for more than one contract. To do so, it was obligated to disclose all information required by the Solicitation. Thus, since it obviously sought all contracts, Intervenor should have included the identities, resumes and certificates required by the Solicitation.

    
    

75. Secondly, Intervenor failed to list three references as specified by the Solicitation. This was a requirement of the bid solicitation. The Intervenor listed only two references as specified in the Solicitation. The third reference was a lawyer who co-counseled with Intervenor on a "complicated custody dispute." A "complicated custody dispute" is not the equivalent to CSE.

    
    

76. Moreover, the evaluation committee did not designate one person to check the references but assigned points to this proposal without an independent assessment of the references. The Department has offered no credible explanation for why the Solicitation would require references, direct the committee to check same, and yet allow the evaluation committee which failed to follow instructions to award the maximum points allowed under the category to a nonresponsive proposal.

77. The evaluation committee also acted arbitrarily in the assignment of points to the Intervenor's proposal. In this regard, the Intervenor received points as a minority business enterprise despite the fact that the Intervenor has not been certified as a minority business.

    
    

78. Under these circumstances, the Solicitation required that minority ownership be documented. In this case the inclusion of a portion of an application for certification as a minority business enterprise does not "document" Intervenor's entitlement to an award of points as a minority business. For the terms of the Solicitation to have meaning, the evaluation committee was required to examine documentation submitted to verify that, if true, the Intervenor is minority owned.

    
    

79. The "minority owner" in this case is the wife of the lawyer who is specified to perform the lion's share of the contract services. Mrs. Thomas acquired her stock in the corporation only days before the submittal of the proposal and paid a mere $15.00 with a check drawn on the couple's joint personal bank account. Mr. Thomas was the sole shareholder prior to this transaction. The award of additional points to this proposal for minority ownership based upon the documentation submitted (which did not even include the foregoing information) defies logic.

    
    

80. More inequitable to the evaluation process, however, was the lack of clarity in the instructions for the award of points for the time and personnel to be devoted to child support work. The Instructions given to the evaluation committee directed members to average points for attorney experience. Thus, mathematically it was possible for a three person law firm whose members have one senior attorney and two inexperienced lawyers to receive a higher score than a three person firm with multi-year experience.

    
    

81. Since the goal of the Solicitation was to obtain the highest possible level of legal representation at the lowest possible cost, this process of evaluation lacks logic. In fact, because the proposals were scored in this manner, Intervenor received more points than the terms of the Solicitation would have allowed if the points were computed on a per attorney basis (as its terms suggested).

    
    

82. The Department has presented no credible explanation for the procedure followed by the evaluation committee. The scoring formula should have been disclosed to all proposers in advance of the submittal deadline. Because the Solicitation was, on its face, acceptable, a timely challenge to the undisclosed method of computing attorney experience could not have been made.

    
    

83. In connection with the scoring of this category, because the Intervenor did not disclose the pertinent information regarding two unknown attorneys who would be hired to perform the contract services, it is impossible to calculate the score it should have received under the averaging method that was employed even assuming, arguendo, that the proposal should be considered responsive.

    
    

84. Finally, were the Department to determine that the lack of attorney documentation and references were somehow minor irregularities, the scoring of these proposals must be uniform and in accordance with the Solicitation. Based upon the foregoing, Intervenor would be entitled to no more than twenty points for attorney experience, zero points for references, and zero points for minority ownership.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That Department of Revenue enter a final order determining the Intervenor's proposal was nonresponsive to the mandatory terms of the Instructions and Solicitation.

DONE AND RECOMMENDED this 5th day of September, 1995, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 5th day of September, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3138BID

Rulings on the objections to deposition testimony filed in this matter: Objections noted by page (P) and line (L)

1. Petitioner's objections per objections filed July 21, 1995:

   1. Don Edwards: P 41 L 7-11--deny motion to strike; P 42 L 19 (per deposition objection)--overruled; P 42 L 22 and 25 (per objection filed)-- overruled; P 43 L 12-15 (per objection filed)--overruled.

   2. John C. Thomas: none.

   3. Mary B. Thomas: none.

   4. Denise Coffman: none.

   5. Jeffrey F. Thomas: none.

   6. Kim Nutter: none.

   7. Jacquelynne Benefield: none.

   8. Mark Cullen: none.

   9. Terri Almond and Henry Smith: Petitioner's objection, relevance, is noted; however, over the objection the entire depositions have been received; findings of fact which include statements irrelevant to the issues of this case are rejected elsewhere.

   10. C. Patrick O'Toole, Karen Moree, and Nancy Partin: Petitioner's objection, relevance, is noted; however, over the objection the entire depositions have been received; findings of fact which include statements irrelevant to the issues of this case are rejected elsewhere.

   11. Linda Martin: P 42 L 2-4--overruled; P 42 L 23 through P 43 L 4-- overruled.

   12. Yvonne Whitfield: P 7 L 22-24--sustained; P 23 L 10-13--sustained; P

       12 L 12-18--overruled (the objection does not relate to the cited record); P 31

       L 23 through P 32 L2--overruled; P 32 L 12-15--overruled; P 32 L 21 (per depo objection)--overruled; P 33 L 9 (per depo objection)--overruled.

   13. Marsha Nims: P 46 L 12-21--sustained; P 46 L 22-25--sustained; P 47 L 1-4--sustained; P 47 L 5-9--sustained; P 47 L 10-13--sustained; P 50 L 10 (per depo objection)--overruled; P 51 L 2 (per depo objection)--overruled; P 51 L 9 (per depo objection)--overruled; P 52 L 12 through P 53 L 2--sustained; P 52 L 3 through P 55 L 8--sustained; P 55 L 9 through P 56 L 14--sustained.

   14. Sandra Prince: P 43 L 2-12--overruled; P 44 L 1-4--overruled.

   15. Jim Pichurski: P 34 L 5-8--overruled; P 34 L 8-14--overruled; P34 L 20 through P 35 L 1--overruled; P 35 L 2-7--overruled; P 36 L 7-17--overruled.

   16. Shirley Holmes: P 52 L 5-12--sustained; P 52 L 13-21--sustained; P 53 L 9-20--sustained; P 53 L 25 (per depo objection)--overruled; P 58 L 7-15-- sustained; P 58 L 16-22 overruled; P 60 L 6-17--sustained; P 61 L 20-25-- sustained; P 62 L 11--sustained; P 63 L 2 (per depo objection)--overruled; P 64 L 3-14--sustained; P 64 L 15 through P 65 L 2--overruled; P 65 L 3-5--sustained; P 65 L 6-15--sustained; P 66 L 9-15--overruled; P 67 L 10-11--sustained; P 67 L 12-21--sustained; P 68 L 2-19--sustained [this ruling renders depo objections at P 68 L 5 and P 68 L 17 moot].

   17. Sammy Austin: P 63 L 5-8--overruled; P 63 L 9-13--overruled; P 63 L 18-20--overruled; P 64 L 2 (per depo objection)--sustained; P 65 L 14 (per depo objection)--sustained; P 66 L 20 through P 67 L 16 sustained; P 68 L 8 through P

       69 L 11 sustained.

   18. Dottie Howell: P 109 L 1-12--sustained; P 110 L 22 (per depo objection)--overruled; P 111 L 13, 21(per depo objection)--sustained; P 112 L 8- 11--overruled; P 112 L 12-15--overruled; P 116 L 20 (per depo objection)-- sustained; P 117 L 11, 15 (per depo objection)--sustained; P 118 L 4 (per depo objection)--sustained; P 119 L 7-10--overruled.

2. Intervenor's objections per objections filed July 21, 1995:

   1. Shirley Ann Holmes: P 32, L8-23--sustained; P 39 L 8-25--sustained.

   2. Dottie Howell: P 128 L 10 through P 129 L 17--sustained.

   3. Linda Martin: None stated in deposition or objections filed.

   4. Sandra Ann Prince: None stated in deposition or objections filed.

   5. James Pichurski: None stated in deposition or objections filed.

   6. Sammy Austin: P 25 L 24 through P 26 L 5--overruled; P 27 L 8-22-- overruled; P 35 L 2-9--overruled; P 46 L 21 through P 47 L 2--overruled; P 48 L 4-24--overruled; P 49 L 22 through P 50 L 8 per deposition (Asked and Answered)-

      -sustained; P 56 L 22 through P 57 L 10--sustained.

3. The Department submitted no objections to the deposition testimony.

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs 1 through 20, 22, 25, 26, 27, 28, 29, 31, 32, 33, 35, 36,

37, 68, 69, 73, 74, 76, 79, 80 through 96, 106, 111, 114, 115, 120, 127, 128,

134 through 138, 141 through 148, 151, 152, 153, 154, 158, 162, 165, 166 through 171, 172a., 172b., and 172c. are accepted.

1. Paragraph 21 is rejected as contrary to the weight of credible evidence or irrelevant.

2. Paragraphs 23 and 24 are rejected as irrelevant.

3. Paragraph 30 is rejected as irrelevant.

4. Paragraph 34 is rejected as repetitive.

5. Paragraphs 38 through 67 are rejected as irrelevant given the standard of review set forth in Groves-Watkins. However, should the Groves-Watkins decision be held to not apply, the following rulings for the cited paragraphs would be applicable:

   Paragraphs 38 through 43, 46 through 50, 52, 54 through 60, and 63 through

   67 are accepted.

   Paragraph 44 is rejected as irrelevant.

   Paragraph 45 is rejected argument and repetitive.

   Paragraph 51 is rejected as incomplete statement; the Intervenor's proposal acknowledged that two additional attorneys would be required which is precisely why it was incumbent upon it to disclose the names and documentation for such attorneys.

   Paragraph 53 is rejected as editorial comment or argument. Paragraph 61 is rejected as argument.

   Paragraph 62 is rejected as editorial comment or argument.

6. Paragraphs 70 and 71 are rejected as contrary to the weight of the credible evidence.

7. Paragraph 72 is rejected as irrelevant or contrary to the weight of the evidence.

8. With regard to Paragraph 75 it is accepted that only one of the two reference letters specified "child support" as the service provided. The other letter addressed only "family law" issue.

9. Paragraph 77 is rejected as argument or irrelevant since the contact interview with references wasn't made any way.

10. Paragraph 78 is rejected as argument or irrelevant.

11. Paragraphs 97, 98, and 99 are rejected as irrelevant.

12. Paragraph 100 is rejected as argument or irrelevant.

13. Paragraph 101 is rejected as irrelevant.

14. Paragraph 102 is rejected as irrelevant.

15. Paragraph 103 through 105, 107 through 110, 112, and 113 are rejected as irrelevant.

16. Paragraphs 116, 117, 118, and 119 are rejected as contrary to the weight of the credible evidence.

17. Paragraphs 121, 122, 123, 124, 125, 126 are rejected as contrary to the weight of the evidence or irrelevant. The evaluation committee relied on the information it was given, presumed it to be accurate, and rated the proposals on the limited criteria it was given. In retrospect, the guidelines should have been more precise. Regrettably (or not, depending on your view), the standard of review in this case does not allow the imposition of a better view from hindsight to correct perceived deficiencies.

18. With regard to paragraphs 129 and 130, it is accepted that evaluation committee members did not distinguish between family law categories; however, such failure was not arbitrary or capricious and does not evidence a lack of qualification to serve on the committee. Therefore, the paragraphs are rejected as contrary to the weight of evidence. More likely, the committee members' failure to distinguish the subcategories evidenced a poorly drafted solicitation the terms of which were not timely challenged.

19. Paragraphs 131, 132, and 133 are rejected as irrelevant.

20. With regard to paragraph 139, given the past statements made about Petitioner, Ms. Howell should have declined service on the committee.

21. With regard to paragraph 140, it is accepted as accurate as to the scoring but irrelevant to the overall scoring if Ms. Howell and the other members had given Intervenor no points for minority ownership or references. Had the committee properly scored those criteria at zero (assuming it could not deem it nonresponsive which is the correct finding), the results would not have

    been impacted by Ms. Howell's biased (and inaccurate) assessment of Petitioner's plan and resources.

22. Paragraphs 149 and 150 are rejected as irrelevant.

23. Paragraphs 155, 156, and 157 are rejected as irrelevant. The Intervenor's proposal was nonresponsive as to the undocumented, unnamed attorneys. The possible scoring of the proposal (which should not have been scored) is irrelevant. If scored on a per attorney basis as indicated in the Solicitation, the Intervenor would not have received the points awarded.

24. With regard to paragraph 159, it is accepted that the manner of calculating attorney experience based upon averaging all years of experience inaccurately qualifies the level of representation. Mathematically, it would be possible for one attorney to associate with two attorneys with no experience and achieve a higher rating that three attorneys with experience. Although the Solicitation represented it sought the highest level of legal representation, given the nature of the work involved, and the direction given the evaluation committee, the Department may well have determined other factors were acceptable. The true issue is not that the averaging was done, but that it was not disclosed to the proposers. Petitioner might well have associated an attorney with 40 years experience, released the more seasoned associates, hired inexpensive new lawyers, used the savings elsewhere in the proposal, and presented an entirely different plan. Once it becomes a mathematical formula, the computation of what is needed to max out the points is relatively easy work.

25. With the deletion of the first phrase (before the comma) which is rejected as contrary to the weight of the evidence, paragraph 160 is accepted.

26. Paragraphs 161, 163, and 164 are rejected as irrelevant.

27. Paragraph 172d. is rejected as contrary to the weight of the evidence or irrelevant.

28. Paragraph 173 is rejected as irrelevant.

Rulings on the proposed findings of fact submitted by the Respondent:

Note: Rule 60Q-2.031(3), Florida Administrative Code, requires that proposed findings of fact be supported by citations to the record, unless the lack of a transcript makes citation impossible. The Department's proposed findings of fact failed to comply with this rule. Where proposed findings of fact could not be readily verified and a specific citation was not provided, they have been rejected for failing to comply with the rule.

1. Paragraphs 1 through 9, 11, 13, 14, and 16 are accepted.

2. Paragraph 10 is rejected in that it concludes the evaluation was impartial (at least one evaluation committee member was not impartial) and is, therefore, contrary to the weight of the credible evidence. The paragraph is comprised of multiple fact statements some of which are rejected as lacking appropriate citation to record, some irrelevant.

3. Paragraph 12 is rejected as irrelevant.

4. Paragraph 15 is rejected as argument.

5. Paragraph 17 is rejected as contrary to the weight of the credible evidence, not supported by record cited, or irrelevant.

6. Paragraph 18 is rejected as irrelevant.

7. The first sentence of Paragraph 19 is rejected as argument. With the clarification that the Intervenor did not, in fact, attach a completed application for certification with all documentation included, the remainder of the paragraph is accepted. Intervenor attached only self-serving statements, not documentation as required by the Solicitation.

8. Paragraphs 20 and 21 are rejected as argument, contrary to the weight of the credible evidence, or irrelevant as presented. Portions of the paragraphs which are accurate appear elsewhere in the form acceptable.

Rulings on the proposed findings of fact submitted by the Intervenor:

1. Paragraphs 1 through 14, 23 through 27, 29, 30, 31, 36 through 44, 46, 47, 48, 60, 61, 78, 83, 85, 86, 102, 103, 107 through 110, 125, 135, 136, 137, 138, 139, 140, 141, 142, 144, 152, 154, 155, 156, 158, and 170 are accepted.

2. Paragraph 15 is rejected as not supported by the record cited. No stipulation of fact such as that represented appears in the prehearing statement filed July 10, 1995.

3. Paragraph 16 is accepted as an accurate statement of the evaluation committee's finding but, as a statement of fact, is contrary to the weight of all evidence presented.

4. Paragraph 17 is rejected as irrelevant.

5. Paragraph 18 is rejected as irrelevant.

6. Paragraph 19 is rejected as irrelevant.

7. Paragraph 20 is rejected as not supported by the record cited and/or ultimate fact not supported by record.

8. Paragraph 21 is rejected as irrelevant. The terms of the Solicitation are not in dispute.

9. As to the overall computations, paragraph 22 is accepted as the evaluation committee's results but is erroneous as to the fact that the Intervenor's proposal should have been scored as the committee results indicated. At the minimum, if the Intervenor's proposal were to be deemed responsive (which is contrary to the conclusion of this order), the Intervenor should have received no points for references and no points as a MBE. If scored on that basis, the Intervenor would have not received a higher averaged score than Petitioner.

10. Paragraph 28 is rejected as vague, irrelevant or contrary to the weight of the credible evidence. The evaluation committee members may have been "competent" in the performance of their regular job duties but at least one member was "incompetent" due to bias to serve on the review team. Further, the record is clear that committee members were uncertain as to how to score at least one section of the proposal, minority ownership, and that no definite criteria as to how to do so was provided.

11. Paragraph 32 is rejected as irrelevant and contrary to the weight of the evidence since it is unlikely a biased employee would be selected for committee membership.

12. Paragraph 33 is rejected as irrelevant as knowledge of the bias was not known at the time of the selection.

13. Paragraph 34 is rejected as irrelevant.

14. Paragraph 35 is rejected as irrelevant or repetitive.

15. Paragraph 45 is rejected as incomplete statement of fact.

16. Paragraphs 49 through 55 are rejected as irrelevant.

17. To the extent that the fact stated in paragraph 56 attempts to reiterate the Instructions, it is accepted; however, the Solicitation, the Instructions, and the way committee members understood the evaluation process would be handled cannot be reconciled into one concise statement of fact.

18. As to Paragraph 57, it is accepted the Instructions gave no criteria as to how to evaluate attorney experience in terms of case volume.

19. Paragraph 58 is rejected as irrelevant and/or as contrary to the ultimate fact of this case; proposals containing "unidentified attorneys" were to be rejected, therefore, point assignment is irrelevant. The committee should not have evaluated a nonresponsive proposal.

20. Paragraph 59 is rejected as irrelevant. Scores awarded to Petitioner have not been challenged.

21. Paragraphs 62 through 76 are rejected as irrelevant to the extent that the accuracy of Intervenor's proposal is defended. The evaluation committee reviewed the proposals based upon the facts presented and were not required to verify the accuracy of the representations contained therein. The criteria they applied, or lack thereof, did not relate to years of practice, etc.

22. Paragraph 77 is rejected as argument.

23. Paragraph 79 is rejected as contrary to the weight of the evidence. The Solicitation required documentation of minority ownership in order to receive credit if the business has not been certified.

24. Paragraph 80 is rejected as contrary to the weight of the credible evidence.

25. Paragraph 81 is rejected as an incomplete statement of fact not supported by the weight of the credible evidence or irrelevant. It is accepted Mrs. Thomas purchased 15 shares of stock in the Intervenor for $15.00.

26. With regard to paragraph 82, it is accepted that Mrs. Thomas executed an application for MBE certification representing she is an American woman.

27. Paragraph 84 is rejected as contrary to the evidence presented. The application submitted was incomplete and did not document standing as a minority owner.

28. With regard to paragraph 87, it is accepted that the portion of the application attached to the Intervenor's proposal was dated May 4, 1995, and represented that Mrs. Thomas had purchased the fifteen shares on or about April 30, 1995.

29. Paragraphs 88 through 93 are rejected as irrelevant.

30. With regard to paragraph 94, it is accepted that the $15.00 check represented to be that used to acquire Mrs. Thomas' shares was made payable to "Thomas + Associates."

31. Paragraphs 95 through 100 are rejected as irrelevant or, if relevant, contrary to the weight of credible evidence.

32. Paragraph 101 is rejected as argument.

33. Paragraph 104 is rejected as contrary to the weight of the evidence.

34. Paragraph 105 is rejected as contrary to the weight of the evidence.

35. Paragraph 106 is rejected as argument or irrelevant.

36. Paragraph 111 is rejected as argument or contrary to the weight of the evidence.

37. Paragraph 112 is rejected as irrelevant or, if relevant, accepted as indicative of why committee members were confused as to the importance of following the Instructions and Solicitation guidelines to assure all proposers treated in fair manner.

38. With regard to paragraph 113, it is accepted that the Intervenor's proposal was scored 5 points for references; however, such scoring was contrary to the terms of the Instructions, the Solicitation, and was arbitrary and capricious. Further, since Intervenor's references were nonresponsive to the directions, this proposal should not have been reviewed; if reviewed, it should have received no points.

39. Paragraph 114 is rejected as contrary to the weight of all evidence.

40. Paragraph 115 is accurate as to the score given the Petitioner's proposal but such score was entered arbitrarily and contrary to the Instructions and Solicitation directives.

41. Paragraph 116 is rejected as irrelevant or, if relevant, indicative of why the scoring of references was unfair or prejudicial to Petitioner since written statements regarding references or from references were not specified under the Solicitation directions.

42. Paragraphs 117 through 123 are rejected as irrelevant given the standard of review set forth in Groves-Watkins. However, should the Groves- Watkins decision be held to not apply, the following rulings for the cited paragraphs would be applicable:

    Paragraph 117 is accepted. Paragraph 118 is accepted.

    Paragraphs 119 and 120 are rejected as contrary to the weight of the evidence or an incomplete statement of fact.

    Paragraph 121 is a correct statement of the testimony but is rejected as contrary to the weight of all evidence presented.

    Paragraph 122 is rejected as contrary to the weight of all evidence. Paragraph 123 is rejected as irrelevant.

43. Paragraph 124 is rejected as argument.

44. Paragraph 126 is rejected as irrelevant.

45. Paragraph 127 is accepted to extent that the named attorneys were to work on the cited contract; however, they were also identified to work on the other contracts as were two unidentified attorneys. Thus, the Intervenor contemplated more attorneys would be needed to cover the work encompassed by the three contracts.

46. Paragraph 128 is accepted to the extent that the named attorneys were documented; however, it is un-refuted that two additional unnamed attorneys, who Intervenor acknowledged would be required, were not documented.

47. Paragraphs 129 and 130 are rejected as irrelevant.

48. With regard to paragraphs 131, 132, and 133, it is accepted that the evaluation committee failed to require the documentation specified by the Instructions and the Solicitation and reviewed the Intervenor's proposal anyway. This was arbitrary and capricious. The Department has not articulated a rational basis for the decision to waive the requirements for one proposer when the proposal itself clearly represented two attorneys would be hired in order to perform the work.

49. Paragraph 134 is rejected as contrary to the weight of credible evidence.

50. Paragraph 143 is rejected as argument or irrelevant.

51. With regard to Paragraph 145, it is accepted that Ms. Howell's perception (erroneous) of the Petitioner's firm was that it had failed to computerize; however, her scoring of the Petitioner's plan and resources was tainted by her lack of unbiased opinion of the firm from past experience unrelated to the proposal or the Department's future plan.

52. Paragraphs 146 through 150 are rejected as irrelevant.

53. Paragraph 151 is rejected as repetitive, unnecessary, and addressed above.

54. Paragraph 153 is rejected as irrelevant.

55. With regard to paragraph 157 it is accepted that if Ms. Whitfield knew of a bias, she would not knowingly appoint or recommend that individual to an evaluation committee; otherwise rejected as irrelevant to the facts established in this case.

56. Paragraph 159 is rejected as argument.

57. Paragraphs 160 through 168 are rejected as irrelevant.

58. Paragraphs 169 and 171 are rejected as not supported by the weight of credible evidence.

59. Paragraphs 172, 173, and 174 are rejected as not supported by the record cited.

60. Paragraph 175 is rejected as irrelevant.

COPIES FURNISHED:

Gary P. Sams Carolyn S. Raepple

Hopping Green Sams & Smith, P.A.

123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314

Jeffrey F. Thomas

Thomas and Associates, P.A. 789 South Federal Highway

Suite 209

Stuart, Florida 34994

Larry Fuchs Executive Director

Department of Revenue

104 Carlton Building Tallahassee, FL 32314-6668

Linda Lettera General Counsel

Department of Revenue Post Office 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.

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

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

STATE OF FLORIDA DEPARTMENT OF REVENUE

PICKETT, FANELLI & O'TOOLE,

Petitioner,

vs.

DEPARTMENT OF REVENUE, CASE NO. 95-3138BID DOR NO. 95-4-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 11, 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 and intervenor timely filed exceptions to the Recommended Order.

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 awarding the child support enforcement (CSE) legal services contract for Palm Beach County intrastate cases to the Intervenor, Thomas & Associates, Attorneys at Law, P.A. (Thomas) The petitioner, Pickett, Fanelli, & O'Toole, P.A. (Pickett) timely challenged the proposed award.

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 and intervenor'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 65 of the Recommended Order, with the exception of paragraph 54. Each of the exceptions filed by the Department and Thomas is denied because competent, substantial evidence exists to support the findings in the Recommended Order, except that the exception filed regarding

paragraph 54 of the Recommended Order is granted. The hearing officer's finding in paragraph 54 stated that Thomas received five points from each of the evaluation committee members for minority ownership. The record reflects, and Pickett concurs, that one of the evaluation committee members awarded Thomas three points and another committee member awarded Thomas four points.

Therefore, the exception is granted.

CONCLUSIONS OF LAW

The Department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order. Each of the exceptions to the conclusions of law in the Recommended Order filed by the Department and Thomas 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 to the mandatory terms of the Instructions and Solicitation and the contract to provide child support enforcement legal services for Palm Beach County intrastate cases shall be awarded to Petitioner Pickett.

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

Executive Director

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

Don Pickett

Pickett, Fanelli, & O'Toole

330 Clematis St., Suite 201 West Palm Beach, Florida 33401

Gary P. Sams Carolyn S. Raepple

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

123 S. Carlton St.

Post Office Box 6526

Tallahassee, Florida 32314

Docket for Case No: 95-003138BID

Orders for Case No: 95-003138BID