STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA CLARK AND COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1371BID

)

FLORIDA AGRICULTURAL AND )

MECHANICAL UNIVERSITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly assigned hearing officer, Diane Cleavinger, held a formal hearing in this matter on April 4, 1996, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Barbara A. Clark, Pro Se

270 First Avenue South, Suite 101 St. Petersburg, Florida 33701

For Respondent: George W. Butler, Jr., Esquire

Florida Agricultural and Mechanical University

Office of the General Counsel

300 Lee Hall

Tallahassee, Florida 32307 STATEMENT OF ISSUES

1. Whether Petitioner, Barbara Clark and Company has standing to protest the intended award of a contract for Request for Proposal Number 7112.

   
   

2. Whether Florida Agricultural and Mechanical University acted arbitrarily, capriciously, dishonestly or fraudulently in the award of Request for Proposal Number 7112.

   
   

3. Whether Respondent, Florida Agricultural and Mechanical University, is entitled to an award of attorney's fees and costs.

PRELIMINARY STATEMENT

This case concerns Florida Agricultural and Mechanical University's (FAMU) attempt to secure a Certified Public Accounting (CPA) Firm or individual to provide financial reporting assistance and overhead audits to disadvantaged business enterprises as outlined in Request for Proposal (RFP) Number 7112.

Petitioner Barbara Clark and Company and CPA Audit Services submitted proposals. CPA Audit Services was the winning proposer.

On February 27, 1996, FAMU received a notice of protest of its intended award of RFP Number 7112, CPA audit services from Petitioner. The protest was based on alleged unreliability of the rating system used by the RFP review committee.

By letter dated March 7, 1996, Petitioner submitted to FAMU, a formal written protest of the intended award of RFP Number 7112. The protest again raised the issue of inter-rater reliability.

On April 3, 1996, Petitioner filed a Unilateral Proposed Prehearing Statement with the Division of Administrative Hearings. Likewise on April 15, 1996, Respondent filed a Unilateral Proposed Prehearing Statement with the Division of Administrative Hearings and served its Proposed Prehearing Statement on Petitioner. Petitioner's Unilateral Statement indicated she did not have any witnesses or exhibits.

At the hearing, the Petitioner, appeared by conference telephone through its representative, Barbara A. Clark. Respondent appeared through its representatives at the Division of Administrative Hearings, in Tallahassee, Florida.

The Petitioner presented the testimony of Oscar Martinez, FAMU's Purchasing Director and offered three exhibits into evidence. Respondent did not present witnesses or offer any exhibits into evidence.

After the hearing Respondent filed a Motion for Attorney's Fees and submitted its Proposed Recommended Order. Petitioner did not submit a Proposed Recommended Order. The Respondent's proposed findings of fact have been considered and utilized in the preparation of this Recommended Order, except where such findings were not shown by the evidence, or were immaterial, irrelevant, cumulative or subordinate. Specific rulings on the Respondent's proposed findings are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is Barbara Clark and Company, a CPA firm. Barbara Clark owns and operates the company.

   
   

2. The Respondent issued a Request for Proposal, RFP Number 7112, for CPA audit services.

   
   

3. The Petitioner responded to the RFP along with four other proposers.

   
   

4. The award for RFP Number 7112, CPA audit services, was to be made to the two (2) companies who received the highest number of points based on individual evaluations by four (4) people selected for the RFP review committee.

   
   

5. The evaluation criteria to be used by the review committee members was specified in Section 1.16 of the RFP and involved review of the management and technical aspects of a given proposal.

   
   

6. The committee members for the RFP were instructed by the FAMU Purchasing Director to use the criteria as outlined in Section 1.16 in the process of evaluating the management and technical plans of the respective proposals and that each member should evaluate and score each proposal

   independent from the other committee members. The evaluations by each member were placed in a sealed envelope.

   
   

7. The proposals submitted in response to RFP Number 7112, CPA audit services, were reviewed by the evaluation committee members. After the members completed their review, they met as a group with the Purchasing Director. The sealed envelopes which contained the individual committee members' evaluation sheets for each proposal were opened and the points for each proposer were determined by adding the points for each respective proposal.

   
   

8. The evaluation of RFP Number 7112, CPA audit services, occurred pursuant to the evaluation criteria in RFP Number 7112, CPA audit services. No committee member testified. There was absolutely no evidence submitted by Petitioner which demonstrated that the committee members did not follow the specifications of the RFP. Likewise, there was a lack of evidence that the evaluation process established in the RFP was arbitrary or capricious.

   
   

9. The two (2) proposers that received the highest number of points were recommended for the award of RFP Number 7112, CPA audit services.

   
   

10. Petitioner's proposal was not evaluated as having either of the highest point totals for RFP Number 7112, CPA audit services and therefore did not receive an award of the contract.

    
    

11. The FAMU Purchasing Director, Oscar Martinez, sent to each proposer by certified letter, return receipt, notification of the intended award of RFP Number 7112, CPA audit services, to the two proposers with the highest number of points.

    
    

12. The FAMU Purchasing Director, Oscar Martinez, discussed the results of RFP Number 7112, CPA audit services, with Barbara Clark after he mailed the intended award notification to the proposers. A mathematical error in the calculation of points for one of the proposers was discovered and corrected.

    The error had no effect on the rankings of the proposers and was therefore an immaterial discrepancy in the award of the RFP.

    
    

13. Petitioner utterly failed to establish that the intended award pursuant to RFP Number 7112, CPA audit services, was not in good faith and not the result of a fair, full and honest exercise of the agency's discretion in making such an award. Likewise Petitioner utterly failed to establish that Respondent acted arbitrarily or capriciously in its intended award of RFP Number 7112, CPA audit services.

    
    

14. After a review of the evidence Petitioner's protest of the intended award of RFP Number 7112, CPA audit services, was clearly without merit and lacked factual or legal support and was therefore frivolous and improper. Indeed the barest attempt was made by Petitioner to prepare or pursue evidence for the hearing in this matter.

    
    

15. Although Respondent consulted with Petitioner and provided Petitioner information regarding RFP Number 7112, CPA audit services, Petitioner persisted in pursuing its protest of the intended award of the RFP.

    
    

16. Petitioner continued its protest of RFP Number 7112, CPA audit services, long after it was or should have been aware that it had no factual or legal grounds for such a protest causing Respondent's attorney to spend 13 hours in preparation for this case. However, Respondent did not submit an affidavit

    from another attorney who reviewed the file and number of hours spent by Respondent's attorney and attested to the reasonableness of the hours spent or the fee charged. Therefore, Respondent's motion for attorney's fees is denied.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

18. In this case, Petitioner has the burden of proof in this matter. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). Petitioner has not shown that Respondent has acted fraudulently, arbitrarily, illegally, or dishonestly. Department of Transportation v. Groves-Watkins Constructors, 530 So. 2d 912 (Fla. 1988).

    
    

19. Petitioner has not shown that Respondent did not act in good faith or that Respondent's intended award was not the result of a fair, full and honest exercise of the agency's discretion in making such an award.

    
    

20. Attorney's fees are available in frivolous proceedings. Section 120.57(1)(b)5, Florida Statutes allows for the award of attorney's fees against any party which files a pleading or other paper for any improper purpose. Section 120.59(b), Florida Statutes allows sanctions on nonagency parties who participate in administrative proceedings for a frivolous or improper purpose.

    
    

21. Petitioner's action was frivolous in this case. However, Respondent did not establish entitlement to an award of attorney's fees in this case. Therefore Respondent is not entitled to the relief sought in its Motion for Attorney's Fees.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED:

That the protest be dismissed.

DONE and ENTERED this 29th day of May, 1996, in Tallahassee, Leon County, Florida.

DIANNE CLEAVINGER, 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 29th day of May, 1996.

APPENDIX CASE NO. 96-1371

1. The facts contained in paragraphs 1-28 of Respondent's proposed findings of fact are adopted, in substance, in so far as material.

COPIES FURNISHED:

George W. Butler, Esquire Florida Agricultural and

Mechanical University Office of the General Counsel

300 Lee Hall

Tallahassee, Florida 32307

Barbara A. Clark

Barbara A. Clark and Company

270 First Avenue South, Suite 101 St. Petersburg, Florida 33701

Frank T. Brogan, Commissioner Department of Education

The Capitol

Tallahassee, Florida 32399-0400

Michael Olenick, Esquire Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Bishop Holifield, Esquire Florida Agricultural and

Mechanical University

300 Lee Hall

Tallahassee, Florida 32307-3100

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: 96-001371BID

Orders for Case No: 96-001371BID