STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHULMAN AND HOWARD, P.A., ) ET AL., )

)

Petitioner, )

)

)

vs. )

)

STATE OF FLORIDA, ) CASE NO. 95-3355BID DEPARTMENT OF REVENUE, ) CASE NO. 95-3356BID

) CASE NO. 95-3357BID

Respondent, )

and )

)

R. CRAIG HEMPHILL, )

)

Intervenor. )

)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, a Hearing Officer of the Division of Administrative Hearings, held a formal hearing in the above-styled case on July 25, 1995, in Tallahassee, Florida.

APPEARANCES

For Petitioner: William G. Cooper, Esquire

Toole, Beale & Cooper, P.A. 6900 Southpoint Drive, North Jacksonville, Florida 32216

H. Michael Madsen, Esquire

Messer, Vickers, Caparello, Madsen, Goldman & Metz, P.A.

215 South Monroe Street, Suite 701 Tallahassee, Florida 32302

Kenneth C. Pollock, Esquire

1401 Peachtree Street, Suite 500

Atlanta, Georgia 30309

For Respondent: Gene T. Sellers, Esquire

Brian F. McGrail, Esquire Office of the General Counsel State of Florida

Department of Revenue

501 South Calhoun Street Carlton Building, Room 204 Tallahassee, Florida 32301

For Intervenor: William E. Williams

Huey, Guilday, & Tucker, P.A. Highpoint Center, Suite 900

106 East College Avenue Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issue is whether the Department of Revenue (DOR) acted fraudulently, arbitrarily, illegally or dishonestly in the award of contracts for legal services regarding Child Support Enforcement (CSE) proceedings to R. Craig Hemphill, the Intervenor in this consolidated proceeding.

PRELIMINARY STATEMENT

This matter began April 1, 1995, when the DOR advertised for legal services for CSE proceedings. Two proposals were submitted in response to the request for CSE legal services in the combined Duval area (Duval, Nassau, and Baker Counties) and Clay County. Four proposals were submitted regarding legal services in St. Johns County.

On June 12, 1995, DOR issued a Notice Of Intent to award all three geographical area CSE contracts to Intervenor. Petitioner filed protests to the awards. Following filing of Petitioner's formal written protests and failed efforts to resolve the protest informally through mutual agreement, the matter was transferred by DOR to the Division of Administrative Hearings for conduct of formal proceedings.

At the final hearing, Intervenor's Motion To Strike was granted and certain portions of the formal protests dealing with non-relevant matters in each case were stricken. As noted in Intervenor's motion, certain protest allegations related exclusively to the respective obligations of Petitioner and Intervenor under a contractual agreement, either express or implied, and were immaterial to a determination of whether the action of the Department in proposing award of the contracts to Intervenor was fraudulent, arbitrary, illegal or dishonest.

Intervenor's Motion for Official Recognition of the Recommended and Final Orders in Reinhart et al. v. Department of Revenue et al., DOAH Case No. 94- 5404B1D was also granted, without objection, at the final hearing.

At the final hearing, Intervenor offered thirty-eight (38) exhibits, all of which were received in evidence. Petitioner presented the testimony of three

1. witnesses, and offered eight (8) exhibits of which seven (7) were admitted into evidence. Respondent presented no testimony or exhibits.

   
   

   A transcript of the final hearing was filed with the Division of Administrative Hearings on August 11, 1995. Proposed findings of fact contained in the proposed recommended orders submitted by the parties are addressed in the appendix to this recommended order.

   
   

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

   FINDINGS OF FACT

   
   

   Stipulated Facts

   
   

   The following facts in paragraphs 1-8 were set forth by the parties in a prehearing stipulation.

   
   

   1. The Solicitation of Proposals was advertised in Duval, Clay and St. Johns counties in a timely manner.

      
      

   2. Each of the applicants that requested in writing Solicitation of Proposals packages timely received a complete package from DOR containing instructions and documents to be submitted for consideration.

      
      

   3. The completed proposals were required to be submitted by May 12, 1995, at 3:00 p.m. to:

      
      

      Jean B. Long

      Richard P. Daniel Building

      111 Coastline Drive East Suite 508

      Jacksonville, Florida 32202

      
      

   4. The proposals were opened on May 12, 1995.

      
      

   5. A DOR committee, comprised of Clara Cross, Joan Zimmerman, and Richard Humphries, determined that Intervenor would be awarded the contract in all three county areas.

      
      

   6. DOR issued its Notice of Intent to award the contracts for CSE legal services for the three counties to Intervenor on June 12, 1995.

      
      

   7. By its terms, the CSE contract is for an annual period to begin July 1, 1995 and extend through June 30, 1996.

      
      

   8. Petitioner was an unsuccessful applicant for the CSE contract in each of the three county areas.

      
      

      Additional Facts

      
      

   9. Effective July 1, 1994, DOR became the agency responsible for administering the Child Support Enforcement Program of the State of Florida.

      
      

   10. On or about April 1, 1995, DOR advertised its intention to award a contract to provide legal services for Child Support Enforcement ("CSE"), in Duval, Clay and St. Johns Counties. Reference to Duval County includes the areas of Duval, Nassau, and Baker counties.

       
       

   11. On or about April 10, 1995, DOR issued to prospective legal service providers its Solicitation of Proposals for Legal Service Contract for Child Support Enforcement Program (Functional Cost Base), (Solicitation).

       
       

   12. The Solicitations for Duval, Clay and St. Johns counties were identical with exception of identification of the separate geographical areas to be served under the three respective contracts.

   13. The purpose of the Solicitations was to obtain legal services for the three separate geographic areas because the existing contract for these areas with the firm of Schulman, Howard and Hemphill was to expire June 30,1995.

       
       

   14. The Solicitation documents set forth a description of the CSE program; a statement of need describing the services to be provided; a notification of manner and method for making inquiries of DOR; a schedule of events; and the criteria to be used in evaluating proposals submitted in response to the Solicitation.

       
       

   15. Each Solicitation informed prospective legal service providers that their proposals would be evaluated according to the criteria contained in Section V, paragraphs A through G, pages 3-7 of the Solicitation documents. Each Solicitation further informed prospective providers that the ". . . proposers with the top three scores will be interviewed by the evaluation committee. Scores will be ranked from the highest to the lowest, and the rankings will be given to the Program Administrator who will award the contract."

       
       

   16. In the "Statement of Need" section of each Solicitation, DOR advised prospective providers:

       
       

       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 insuring free and open competition among prospective proposers.

       
       

       To that end, the Department has departed

       from the hourly rate billing approach in favor of a fee for service approach in which the attorney will bill for services rendered at a specified rate per activity regardless of the amount of time actually spent. The Department has identified 22 separate functions which are more fully described in Attachment I in this package. The appropriations will place a cap on the amount the Department can pay for each of these functional classifications, and you are cautioned that any amount for which the proposal to perform services is made must not exceed that cap in any functional activity category. Any proposal in excess of any one

       of these caps will result in automatic rejection of the entire proposal.

       
       

   17. Each Solicitation contained a list of nine mandatory requirements in Attachment V. Those requirements were not awarded any points in the evaluation process. However, should a proposal fail to satisfy the mandatory requirements, it would be deemed unresponsive and would not be further considered.

       
       

   18. The Solicitation documents, under the criteria for "Technical Information and Cost," provided a form for the rating of proposals and the award of a maximum of 100 points in the following format:

       1. Provide a specific and detailed plan which clearly demonstrates the ability to handle the anticipated volume of cases and perform repetitive work. (0-10)

       2. Consideration as to Geographic Area (0-4)

       3. Firm Resources (0-15)

          1. Computer/Software to Manage High

             Volume Caseload (0-7)

          2. Forms (0-4)

          3. Telephone System/Fax/Courier (0-4)

       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)

          3. Customer Services and Accessibility to CSE Staff (5)

       5. Minority Ownership (0-5)

       6. References (0-5)

       7. Evaluation of Cost (0-21) Formula X * A = Z

          _ N

          A = 21 (Total Possible Points) X = Lowest Proposal

          N = This Proposal Z = Points awarded

          * = multiplication

          The above formula will be used to calculate the total points for each proposal using the total proposed cost in Attachment VI of the solicitation packet.

          
          

          TOTAL POINTS

          
          

   19. Beside each section or subsection of the foregoing form, a blank space was provided for the rating individual to write the numerical value selected.

       
       

   20. A maximum of ten additional points could be awarded as the result of personal interviews of offerors. In this regard, each Solicitation provided that ". . . only the top three candidates will be selected for an interview."

       
       

   21. Under the terms of the Solicitation, prospective legal service providers were required to provide a detailed written plan demonstrating ability to process referrals or case establishment activities. Each Solicitation specifically provided that this ". . . detailed plan must identify existing resources and proposed resources." Id. This section of each Solicitation also required that proposals include resumes ". . . on all firm attorneys who will be assigned to the contract . . . ." Id. There was no requirement in any

       Solicitation or evaluation criteria that attorneys to be assigned to the contract actually be employed by a prospective legal service provider at the time of the submission of its offer.

       
       

   22. The portion of the evaluation criteria dealing with "Consideration as to Geographic Area" required an explanation of a prospective provider's ". . . present office location and/or proposed office locations. "

       
       

   23. There was no requirement that a prospective legal service provider have actually secured a specific office location at the time of submitting an offer.

       
       

   24. The Solicitation contained an evaluation category entitled "Firm Resources" which was allocated a total of 15 points in the evaluation process. A maximum of 7 points was allocated to the category "Computer/Software to Manage High Volume Caseload" which required prospective providers to include a description of ". . . any automation or special equipment which you will utilize or which you will secure for use under this contract if your proposal is accepted." Nothing in the Solicitation or the evaluation criteria required that a prospective legal service provider actually own any automation or special equipment described in its offer at the time the offer was submitted.

       
       

   25. The "Firm Resources" category also allocated 4 points for "legal forms," and the Solicitation in this regard provided as follows:

       
       

       Identify legal forms that are presently available to be used to perform child support work. Include family law legal forms or other legal forms that are presently computer generated. If you do not presently have computer generated capabilities, demonstrate your ability to obtain computer generated forms.

       
       

   26. Finally, the Firm Resources category accorded 4 points for "Telephone System /Fax /Courier" services. Prospective providers were requested to indicate the number of telephone lines available, and whether a prospective provider had the capability to provide fax and courier services for delivery of legal documents.

       
       

   27. The evaluation criteria provided a maximum of 40 points for "Time and Personnel to be Devoted to Child Support Work." Of this 40 points, a maximum of

       10 points was awarded according to staffing ratio of attorneys to paraprofessionals. Twenty-five points was awarded based on the level of attorney experience in child support, family law, enforcement and collection and trial or appellate experience. A maximum of 5 points was also allowed for customer services and accessibility to child support staff. Nothing in the Solicitation or the evaluation criteria required that legal or nonlegal staff actually be employed by a prospective legal service provider at the time his offer was submitted.

       
       

   28. The evaluation of costs was governed by a specific formula set forth in the Solicitation. However, the Solicitations for Duval, St. Johns and Clay County areas each contained a total reimbursement cap which could not be exceeded by prospective legal services providers without having their proposals deemed nonresponsive.

   29. Under the heading "Copyright and Right to Data," the Solicitations provided as follows:

       
       

       Where activities supported by this contract produce writing, sound recordings, pictorial reproductions, drawing or other graphic representation and works of any similar nature, the department has the right to use, duplicate and disclose such materials in whole or in part, in any manner, for any purpose whatsoever and to have others acting on behalf of the department to do so. If the materials so developed are subject to copyright, trademark, or patent, [then] legal title and every right interest claim or demand of any kind in and to any

       patent trademark or copyright or application for the same will vest in the State of Florida Department of State for the exclusive use and benefit of the state . . .

       
       

   30. Each prospective legal services provider was required to sign a certification agreeing to "be available for consultation with the department and the current providers, as needed, for at least 30 days prior to the effective date of the contract in order to accomplish a smooth transfer of files and data."

       
       

   31. Under terms of each Solicitation, all proposals were to be evaluated by a "committee of qualified persons who are familiar with child support services." Further, the Solicitations directed that "[t]he committee will review, analyze and complete a rating sheet for each proposal."

       
       

   32. Both Petitioner and Intervenor timely submitted offers in response to the Solicitations for Duval, Clay and St. Johns Counties. In addition, the firm of Upchurch & Parsons and John Galleta, Jr. also submitted proposals for St. Johns County.

       
       

   33. In evaluating offers in response to the Solicitations, DOR developed a set of Evaluation Committee Procedures. These procedures established a protocol which dealt with appointment of evaluation committee members; election of a chairperson; distribution of proposals to evaluation committee members; review for compliance with mandatory requirements; meetings regarding compliance with mandatory requirements; independent evaluation of proposals; recording of evaluation proposals; references; overall scoring of proposals; interviews; points for interviews; and contract award.

       
       

   34. The Evaluation Committee Procedures, in the category of "overall scoring of proposals," provided that:

       
       

       After all members of the evaluation committee, including the chairperson, have independently completed their evaluations of the proposals,

       the chairperson will collect all the evaluations, calculate the average score for each proposal, and rank them in order from highest to lowest.

   35. Further, the Evaluation Committee Procedures provided, after fully evaluating proposals received in response to the Solicitations, that:

       
       

       [S]cores which result must be ranked from the highest to the lowest and the chairperson (if other than the Program Administrator) must then give the rankings to the Program Administrator who will issue the letter . . . giving notice of the decision to award the contract. The award shall be given to the highest ranked proposer . . . .

       
       

   36. DOR's Evaluation Committee reviewed, evaluated, scored and ranked the proposals received in response to the Solicitations for Duval as follows:

       
       

       RESPONDENT		AVERAGE SCORE
       Craig Hemphill		103.67
       Schulman, Howard		99.0
       	INDIVIDUAL SCORES
       TEAM MEMBERS R.	CRAIG HEMPHILL	SCHULMAN, HOWARD
       Clara Cross	105	99
       Rick Humphries	104	98
       Joan Zimmerman	102	100
       Averages	103.67	99

       
       

   37. DOR's Evaluation Committee reviewed, evaluated, scored and ranked the proposals received in response to the Solicitations for St. Johns County as follows:

       
       

       RESPONDENT	AVERAGE SCORE
       Craig Hemphill	97.67
       Schulman, Howard	93
       John Galletta, Jr.	59
       Upchurch & Parsons, P.A.	84
       INDIVIDUAL SCORES
       TEAM MEMBERS R. CRAIG SCHULMAN	JOHN UPCHURCH
       HEMPHILL HOWARD	GALLETTA & PARSON
       Clara Cross 99 93	61 83
       Rick Humphries 98 92	57 82
       Joan Zimmerman 96 94	59 87
       Averages 97.67 93	59 84

       
       

   38. DOR's Evaluation Committee reviewed, evaluated, scored and ranked the proposals received in response to the Solicitations for Clay County as follows:

       
       

       RESPONDENT AVERAGE SCORE

       Craig Hemphill 99.67

       Schulman, Howard 95.0

       INDIVIDUAL SCORES

       
       

       TEAM MEMBERS	R. CRAIG HEMPHILL	SCHULMAN, HOWARD
       Clara Cross	101	95
       Rick Humphries	100	94
       Joan Zimmerman	98	96
       Averages	99.67	95

       
       

   39. By letter dated June 12, 1995, DOR furnished Petitioner and Intervenor with notice of its intent to award the legal services contract for Duval to Intervenor.

       
       

   40. By letter dated June 12, 1995, DOR furnished notice of its intent to award the legal services contract for St. Johns County to Intervenor.

       
       

   41. By letter dated June 12, 1995, DOR gave notice of its intent to award the legal services provider contract for Clay County to Intervenor.

       
       

   42. On or about June 13, 1995, Petitioner filed a civil action against Intervenor alleging breach by Intervenor of alleged common law fiduciary duties owed to Petitioner attendant upon Intervenor's response to the Solicitation. In that action, Petitioner seeks "compensatory damages" and other equitable relief.

       
       

   43. The law firm of Schulman, Howard and Hemphill, P.A. was formed in 1987. Since October 1, 1987, the firm has provided legal services for child support enforcement for Clay, St. Johns, Nassau, Baker and Duval Counties. The firm is currently providing services for this geographic area under contracts scheduled to expire June 30, 1995 but which, as a result of Petitioner's protest of the award to Intervenor, have been extended through August 31, 1995.

       
       

   44. Since 1987, the principals in the Petitioner law firm were Warren Schulman, Joseph W. Howard, and R. Craig Hemphill. In March, 1995, Warren Schulman became seriously ill with a brain tumor requiring surgery. Schulman's last day of work was March 29 1995, and he continues to be unable to work.

       
       

   45. As a result of Schulman's illness, serious doubts arose between Howard and Hemphill as to whether the firm would continue. Negotiations between Howard and Hemphill as to whether the firm would continue commenced in April and culminated in a letter of May 5, 1995 from Hemphill to counsel for Petitioner indicating Hemphill's intention to terminate his association with Petitioner on May 9, 1995.

       
       

   46. As early as April 14, 1995, Howard was aware that Hemphill might submit his own independent offer in response to the Solicitation. Consequently, Howard began preparation of an offer on behalf of Petitioner, and Hemphill began preparation of his own independent offer.

       
       

   47. On May 12, 1995, Howard submitted an offer in response to the Solicitations on behalf of Petitioner, and Intervenor submitted his independent offer in his own name.

       
       

   48. Prior to submission of the offers on May 12, 1995, Howard, on April 22, 1995, and again on May 10, 1995, submitted copies of Petitioner's draft offers to Hemphill. These drafts were voluntarily furnished to Hemphill by Howard, and were furnished notwithstanding Howard's perception that Hemphill

       would likely submit a separate proposal independent of Petitioner. Both draft proposals were incomplete, and only the draft of May 10, 1995, contained a copy of Petitioner's cost proposal.

       
       

   49. Both Petitioner and Hemphill bid the maximum allowable cost under the Solicitations, and Howard concedes that Hemphill obtained no competitive advantage as the result of having been furnished a copy of Petitioner's cost proposal prior to the offer submission date of May 12, 1995.

       
       

   50. Further, as evidenced by dissimilarities in the remaining portions of their offers and the virtually identical similarity of Petitioner's offers to the offers it submitted in 1992 (now a matter of public record subject to access by any prospective legal service provider), Hemphill did not obtain any competitive advantage by his receipt from Howard of copies of Petitioner's draft proposals prior to May 12, 1995. This finding is buttressed by Howard's concession that the low-cost portions of Intervenor's offer were "much more detailed" than those of Petitioner because Intervenor "had more knowledge about those areas, and there was a lack of information on my drafts."

       
       

   51. In his offers, Hemphill indicated that his office location would be 337-C East Bay Street, Jacksonville, Florida, or an "alternative location . . . across the street from the Duval County Courthouse in the event a new location becomes necessary."

       
       

   52. There was office space available for lease at 337 East Bay Street, Jacksonville, Florida, on May 12, 1995. As established at the time of final hearing in this cause, which by definition precedes the 30 day transition period provided for in the Solicitations, Intervenor had secured office space at 10 South Newnan Street, Jacksonville, Florida; a location which Petitioner concedes would serve as well to service the contracts as the location at 337-C East Bay Street.

       
       

   53. In his offer, Intervenor listed a variety of computer generated legal forms which he proposed to utilize in servicing the contracts. Petitioner concedes that all computer generated legal forms identified in Intervenor's offer are the property of the State of Florida and could have been obtained by Intervenor from public records.

       
       

   54. In response to the Solicitation request that offerors identify any automated or special equipment which would be utilized or which would be secured for use under the contract, Intervenor described a system which he had utilized over a number of years. As noted previously in these findings of fact, potential service providers were not required to own any computer or other special equipment at the time of the submission of an offer. Further, as conceded by Petitioner, Intervenor could easily purchase on the open market the equivalent of the computer equipment described in Intervenor's offer.

       
       

   55. In his offers, Intervenor listed the names of several paraprofessional and nonlegal staff and five attorneys whom he proposed to utilize in servicing the contracts. Specifically, this portion of Intervenor's offer provided that:

       
       

       Proposed staffing is based upon receiving contracts to perform child support enforcement legal services for the Department of Revenue in a five county area . . . In the event that fewer than all five counties are granted, fewer attorneys will be assigned to the

       contract, but the staff will essentially be the same, with fewer hours assigned to performing the contract.

       
       

   56. Although several of the nonlegal staff, and two attorneys listed in Intervenor's offer are currently employed by Petitioner, Petitioner has never had employment contracts with any of its legal or nonlegal personnel. As a result, there is no contractual bar to their employment by Intervenor.

       
       

   57. Two attorneys employed by Petitioner and listed by Intervenor in his offer, have indicated a willingness to work for Intervenor should he be awarded the contracts. Without consideration of these two attorneys, from the standpoint of scoring under the evaluation criteria, Intervenor still received the maximum number of points allowable for attorney experience.

       
       

   58. There was no evidence presented as to nonavailability of any of the legal and nonlegal staff identified in Intervenor's offers in the event of contract award to Intervenor.

       
       

   59. Intervenor's offer responded in all material respects to the Solicitation and DOR's proposed award of the contracts to Intervenor has not been shown to be inappropriate. Petitioner concedes, through deposition testimony of Howard, that it is unaware of any conduct by any member of the Department's Evaluation Committee in reviewing, evaluating, scoring and ranking the responses to the Solicitations that would constitute fraud, dishonesty or illegality.

       
       

       CONCLUSIONS OF LAW

       
       

   60. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter under Sections 120.53(5) and 120.57(1), Florida Statutes (1993 and Supp. 1994).

       
       

   61. The burden of proof is on the party asserting the affirmative of an issue in an administrative proceeding. Florida Department of Transportation v.

       J.W.C. Company Inc., 306 So. 2d 778 (Fla. 1st DCA 1981). To meet this burden, the Petitioner must establish by a preponderance of the evidence facts upon which the allegations in its Petitions are based. The Petitioner has failed to meet that burden in this case.

       
       

   62. DOR elected to secure necessary contractual legal services required in the Solicitations by competitive sealed proposals and proceeded to advertise for proposals. DOR's Solicitation met all of the requirements set out in the definition of "request for proposals" contained in Section 287.012(16), Florida Statutes, including specific and definitive evaluation criteria.

       
       

   63. Section 287.012(17) and (18), Florida Statutes, provide as follows:

       
       

       1. "Responsive bid" or "responsive proposal" means a bid or proposal submitted by a responsive, and responsible or qualified, bidder or offeror which conforms in all material respects to the invitation to bid or request for proposals.

          * * *

       2. "Responsive bidder" or "responsive offeror" means a person who has submitted a bid or proposal

which conforms in all material respects to the invitation to bid or request for proposals.

1. After the offers in response to the Solicitation were received, DOR reviewed the offers, properly determined that each offer was responsive to the requirements of the Solicitation, and each of the offers was thereafter evaluated, scored and ranked. Petitioner contends that Intervenor's proposal was not responsive in that on the date when offers were submitted, Intervenor had no specific office location; did not own the computer equipment described in Intervenor's offer; and listed among his proposed staff legal and nonlegal personnel that were at the time employed by Petitioner.

   
   

2. Petitioner's contentions ignore both the purpose of the request for proposal process, and the specific provisions of the Solicitation documents upon which the offers in this proceeding were based. The Solicitation package did not require that an offeror have either a specific office location under lease at the time of responding to the Solicitation; that computer equipment already be purchased; or that legal and nonlegal staff be actually employed by an offeror at the time of proposal submittal. The language of the Solicitation is couched in terms such as "proposed resources," "proposed office locations" and equipment which a proposer "will utilize" or "will secure for use" if awarded the contract.

   
   

3. The use of this language by DOR clearly indicates a recognition that a potential provider need not have made the financial commitment to actually secure the resources necessary to service the contracts until receiving notice of the Department's notice of award. See, Reinhart et al. v. Department of Revenue et al., DOAH Case No. 94-5404BID (Final Order dated May 11, 1995).

   
   

4. The Petitioner also argues that the Evaluation Committee Procedures contained additional criteria not disclosed in the Solicitation packages, but distributed solely to the Evaluation Committee. This contention is without merit. Petitioner alleges that while the Solicitation package does not declare that DOR will award the contract to the highest ranked proposer, the Evaluation Committee Procedures do contain such a requirement. Petitioner asserts that the provision in the Evaluation Committee Procedures indicating that the award will be given to the highest ranked proposer is contrary to the declarations in the Solicitation package in that "it directs an award based on costs, rather than determining the highest level of legal services." Contrary to Petitioner's allegations, the record in this proceeding clearly establishes that "cost" accounted for a maximum of 21 points out of a possible 110 total points under the scoring criteria contained in the Solicitation package.

   
   

5. Further, there is a clearly discerned intention that the contract award should go to the higher ranked proposal, else there would be no purpose served in evaluating and scoring the proposals. Although there could conceivably exist some reason for departing from the ranking to award a contract, no such basis exists in the record of this case. There was no evidence presented to support the conclusion that DOR acted in any way contrary to the requirements of Chapter 287, Florida Statutes, the Solicitation package or the Evaluation Committee Procedures in receiving, reviewing, evaluating, scoring and ranking the proposals submitted in response to the Solicitation.

   
   

6. The evidence establishes that Intervenor's offer conforms in all material respects to the requirements contained in the Solicitation. There is no evidence that DOR acted illegally, fraudulently, dishonestly or arbitrarily in receiving, reviewing, evaluating, scoring and ranking the proposals.

7. Strong public policy favors award of contracts to the best proposal received in response to a request for proposals, and an equally strong public policy exists against disqualifying the best proposal for technical deficiencies which do not confer an economic advantage on one participant over another in the competitive procurement process. An agency is granted wide discretion in this regard. Liberty County v. Baxter's Asphalt and Concrete, 421 So. 2d 505 (Fla. 1982); Intercontinental Properties v. DHRS, 606 So. 2d 380 (Fla. 1st DCA 1992).

   
   

8. In the instant case, Intervenor's offers were deemed best. Petitioner has failed to establish that Intervenor's offers contained any material deviation sufficient to meet the test set out in Harry Pepper & Associates, Inc.

v. City of Cape Coral, 352 So. 2d 1190 (Fla. 2d DCA 1978). There is no evidence of any competitive advantage or benefit to Intervenor, economic or otherwise.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that DOR enter a Final Order dismissing Petitioner's Formal Notice of Protest and awarding the CSE Legal Service Contracts for St. Johns County, Clay County and Duval/Nassau and Baker Counties to R. Craig Hemphill.

DONE AND ENTERED this 11th day of September, 1995, in Tallahassee, Leon County, Florida.

DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1995.

APPENDIX

In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made with regard to purposed findings of fact submitted by the parties.

Petitioner's Proposed Findings:

1.-10. Accepted.

11.-12. Rejected, subordinate to HO findings. 13.-17. Rejected, relevance.

1. Accepted as to first two sentences, remainder rejected as not relevant and speculative.

2. Rejected, not supported by weight of the evidence, relevance and hearsay.

3. Rejected, subordinate to HO findings.

4. Rejected, relevance.

5. Rejected, subordinate.

6. Rejected, argument, relevance.

7. Rejected, legal conclusion.

8. Rejected, argumentative, legal conclusion.

Respondent's Proposed Findings:

1.-11. Adopted, not verbatim.

1. Rejected, subordinate to HO findings.

2. Rejected, relevance.

14.-25. Accepted. Intervenor's Proposed Findings:

1.-46. Accepted, though not necessarily verbatim.

COPIES FURNISHED:

William G. Cooper, Esquire 6900 Southpoint Drive, North Suite 500

Jacksonville, FL 32216

Patrick Loebig, Esquire Brian McGrail, Esquire Gene Sellers, Esquire

Office of the General Counsel Department of Revenue

204 Carlton Building

501 South Calhoun Street Tallahassee, FL 32301

William E. Williams

Huey, Guilday, & Tucker, P.A.

106 East College Avenue, Suite 900 Tallahassee, FL 32301

H. Michael Madsen, Esquire Messer, Vickers, et al.

215 S. Monroe Street, Suite 701 Tallahassee, Florida 32302

Kenneth C. Pollock, Esquire

1401 Peachtree Street, Suite 500

Atlanta, GA 30309

Linda Lettera, Esquire Department of Revenue

204 Carlton Building

501 South Calhoun Street Tallahassee, FL 32399-0100

Larry Fuchs, Exec. Dir. Department of Revenue

104 Carlton Building

501 South Calhoun Street Tallahassee, FL 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.

Docket for Case No: 95-003355BID

Orders for Case No: 95-003355BID