STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUVENILE SERVICES PROGRAM, INC. )

)

Petitioner, )

)

vs. )

) CASE NO. 96-5982BID FLORIDA DEPARTMENT OF JUVENILE )

JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 14, 1997, a formal administrative hearing was held in this case in Tallahassee, Florida, before Richard Hixson, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dominic E. Amadio, Esquire

Republic Bank Building, Suite 305

100 34th Street North

St. Petersburg, Florida 33713

For Respondent: Scott C. Wright, Assistant General Counsel Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUES

The issues for determination in this case are: 1) whether the Respondent’s decision to award a contract to operate a juvenile work release halfway house program to the Henry and Rilla White Foundation was clearly erroneous, contrary to competition, arbitrary, or capricious; and 2) whether the award of the contract is void as a matter of law because of procedural

violations by the selection committee and the Respondent.

PRELIMINARY STATEMENT

On December 9, 1996, Petitioner, JUVENILE JUSTICE PROGRAM, INC., filed a formal protest of the award of a contract by Respondent, FLORIDA DEPARTMENT OF JUVENILE JUSTICE, to the Henry and Rill White Foundation in response to RFP #I6P05 Work Release Halfway House Program. On December 27, 1996, the case was transmitted to the Division of Administrative Hearings to conduct further proceedings in this matter. Pursuant to the request of the parties, the formal hearing in this matter was continued to February 14, 1997.

At hearing Petitioner presented the testimony of two witnesses, Diane Rosenfelder, Senior Management Analyst with Respondent; and Fred Michael Mauterer, Senior Management Analyst Supervisor with Respondent. Respondent presented no witnesses. Four joint exhibits C, D, E, and F, were received in evidence.

A transcript of the hearing was filed March 4, 1997.

Respondent filed a Proposed Recommended Order on March 19, 1997. Petitioner filed a Proposed Recommended Order on March 24, 1997.

FINDINGS OF FACT

1. Petitioner, JUVENILE SERVICES PROGRAM, INC. (JSP), is a Florida-based private not-for-profit corporation which was founded to serve troubled youths and their families.

2. Respondent, FLORIDA DEPARTMENT OF JUVENILE JUSTICE (DJJ), is the agency of the State of Florida with the statutory authorization for planning, coordinating, and managing programs for the delivery of services within the juvenile justice consortium. Section 20.316, Florida Statutes.

   RFP #16P05

   
   

3. On September 27, 1996, Respondent DJJ advertised and released a Request For Proposal (RFP) #16P05 to provide a Work Release Halfway House for Delinquent Males in District IX, serving Palm Beach County, Florida.

4. In response to the RFP, four bids were submitted to DJJ by the following parties: the Henry and Rilla White Foundation, Total Recovery, Inc., Psychotherapeutic Services Inc., and Petitioner JSP.

5. The DJJ bid selection committee of evaluators for the RFP were Jack Ahern, Steve Brown, Jaque Layne, Patricia Thomas, and from the Office of Budget Finance, Fred Michael Mauterer. The contract manager for the RFP was Diane Rosenfelder.

6. On October 28, 1996, each DJJ evaluator was sent a package consisting of a copy of the RFP, which included the evaluation sheet, a copy of each proposal submitted to DJJ, a conflict of interest questionnaire, a certificate of compliance, a description of the proposal selection process, and instructions. Each package sent to the evaluators had a different colored cover sheet which identified the specific

   evaluator.

7. After completing the evaluations, each evaluator returned the signed conflict of interest forms, and certificates of compliance to Diane Rosenfelder. The evaluations were identified by the color of the cover sheets, as well as the signed conflict of interest forms and certificates of compliance.

8. DJJ initially intended to provide each evaluator with an Award Preference Form which were to be used in the event the final evaluation scores were very close. The Award Preference Forms, however, were inadvertently omitted from the packages sent to the evaluators.

9. The evaluation process resulted in the Henry and Rilla White Foundation receiving the highest average score of 391.50 points. Petitioner JSP received the second highest average score of 360.50 points.

10. The award of points was determined by each evaluator which is indicated by the evaluator checking the box on Section 5 of the evaluation sheet, or by filling in the appropriate point score. The contract manager, Diane Rosenfelder, corrected addition errors on the scoring sheets.

11. The budget part of the evaluation was completed by Fred Michael Mauterer, Senior Management Analyst Supervisor.

12. In accordance with the evaluation scores, DJJ determined that the best response was submitted by the Henry and Rilla White Foundation which was awarded the contract. On November 8, 1996, Petitioner JSP filed a timely Notice of Protest

    of the award, which was supplemented on December 9, 1996 with the required posting of a $5000 bond.

    Alleged Errors and Discrepancies in the Evaluation Process

    
    

13. Petitioner JSP alleges that several errors in the evaluation process require that the contract award to the Henry and Rilla White Foundation be set aside and that the RFP be reissued and rebid. Petitioner first alleges that the bid selection committee failed to follow the certain instructions during the evaluation process.

14. The instructions were prepared by the contract manager Diane Rosenfelder. The instructions were not required by rule or policy of DJJ. The contract manager considered the instructions advisory in nature.

15. The instructions stated that the members of the bid selection committee should not contact each other with respect to the proposals under evaluation. The evaluators, however, were permitted to contact the contract manager who would record all questions and answers. There were instances in which the contract manager did not record questions from the evaluators to the contract manager. There is no evidence that the evaluators contacted each other regarding the proposals during the evaluation process.

16. The instructions asked the evaluators to explain high or low scores given to the proposals under consideration. None of the evaluators made specific explanations of high or low

    scores. The contract manager who prepared the instructions considered this instruction discretionary, and there is no evidence that any score given by an individual evaluator was without basis.

17. The evaluators were instructed to provide page numbers from the proposals used to score each item. None of the evaluators complied with this instruction. As indicated above, however, there is no evidence that the actual scores give by the evaluators were without basis.

18. As set forth above, none of the evaluators received the Award Preference Form. This form was to be used in the case of very close scoring of the proposals. The actual scores from the bid selection committee reflected a clear preference for the proposal submitted by the Henry and Rilla White Foundation. Accordingly, there was no demonstrated need for DJJ to rely upon the Award Preference Forms in making its decision to award the contract.

1. The letter of introduction sent to the bid selection committee members from the contract manager stated that the proposal score sheets and the evaluators award preference and the best interest of the district would be considered in determining the award. The contract manager considered this statement advisory in nature. DJJ has not promulgated specific standards relating to the best interest of District IX; however, the proposal evaluation forms sent to the bid selection committee

   inherently include criteria setting out standards for the determination of the best proposal for the district.

2. The evidence reflects that one of the evaluators, Patricia Thomas, erroneously checked the box on each proposal which gave each of the proposals fifty points as certified minority enterprises, and erroneously wrote “50” as a point count on one evaluation score sheet. None of the proposals included a copy of the certification for minority enterprise as required by Section 287.0945, Florida Statutes, and the contract manager recognized that the evaluator had made a mistake in this regard. In response to this error, the contract manager consulted her supervisors. Because each proposal was awarded the same points, DJJ did not consider the evaluator’s error as prejudicial to any proposal or to the bid selection process, and did reject the evaluator’s scoring of the proposals. There is no showing that Petitioner JPS was prejudiced by DJJ’s decision in this regard.

3. The contract manager added signature lines to the last page of the evaluation sheets. Some of the sheets were returned unsigned from the evaluators. There is no DJJ requirement that the evaluation sheets specifically contain the signatures of the evaluators. The contract manager did not consider the signature page mandatory, and the evaluation proposal score sheets were clearly identified by both color coding and the certificates of conflict signed by the evaluators.

4. There is no evidence that the procedural discrepancies

   affected the substance of the evaluator’s scoring of the proposals, nor did the procedural discrepancies prejudice the evaluators’ consideration of Petitioner’s proposal.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this action. Sections 120.57(1) and 120.57(3), Florida Statutes.

6. Section 120.57(3)(f) specifically provides:

   
   

   (f) In a competitive-procurement protest, no submissions made after the bid or proposal opening amending or supplementing the bid or proposal shall be considered. Unless otherwise provided by statute, the burden of proof shall rest with the party protesting the proposed agency action. In a competitive-procurement protest, other than a rejection of all bids, the administrative law judge shall conduct a de novo proceeding to determine whether the agency’s proposed action is contrary to the agency’s governing statutes, the agency’s rules or policies, or the bid or proposal specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious. In any bid-protest proceeding contesting an intended agency action to reject all bids, the standard of review by an administrative law judge shall be whether the agency’s intended action is illegal, arbitrary, dishonest, or fraudulent.

7. As indicated above, the statutory standard for de novo review in a bid challenge requires that the evidence establish that the agency’s determination is clearly erroneous, contrary to competition, arbitrary, or capricious. The evidence fails to meet this standard.

8. The only clear error demonstrated in this case related to the mistaken award of points by one evaluator for certified minority enterprises. This error, however, inured to the benefit of each proposal. The contract manager took immediate steps to insure that none of the proposals was prejudiced by the error. Under these circumstances, the one evaluator’s mistake does not by itself establish that the entire proposal evaluation process, nor the agency’s proposed action is clearly erroneous.

9. There is no showing that the agency’s action is contrary to competition, arbitrary or capricious. The contract manager did not arbitrarily change any evaluation scores, nor did she otherwise affect the substance of the scoring process.

10. Although there were several procedural discrepancies in the evaluation process, there was no demonstrated prejudice to Petitioner which would require that all bids be rejected.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent enter a final order upholding the proposed agency action to award the contract to the Henry and Rilla White Foundation, and dismissing the Petition filed in this case.

DONE and ORDERED this 23rd day of April, 1997, in Tallahassee, Florida.

RICHARD HIXSON

Administrative Law Judge

Division of Administrative Hearings DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1997.

COPIES FURNISHED:

Dominic E. Amadio, Esquire Republic Bank Building, Suite 305

100 34th Street North

St. Petersburg, Florida 33713

Scott C. Wright, Assistant General Counsel Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to the Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 96-005982BID

Orders for Case No: 96-005982BID