STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NON-SECURE DETENTION HOME, INC., )

)

Petitioner, )

)

vs. ) Case No. 99-2620BID

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, Susan B. Kirkland, held a formal hearing in this case on July 14, 1999, by video teleconference in Miami, Florida.

APPEARANCES

For Petitioner: Walter S. Pesetsky, Esquire

Pesetsky & Zack, P.A.

1367 Northeast 162nd Street North Miami, Florida 33162

For Respondent: Scott C. Wright, Esquire

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUE

Whether Respondent's proposed decision to award a contract to The Next Step Adolescent and Youth Community Center, Inc., pursuant to RFP No. K8025 is contrary to Respondent's governing statutes, rules, or policies or the proposal specifications.

PRELIMINARY STATEMENT

On April 27, 1999, Respondent, Department of Juvenile Justice, issued Request for Proposals for a non-secure detention program. Petitioner, Non-Secure Detention Home, Inc. (Non- Secure Detention Home) and The Next Step Adolescent and Youth Community Center, Inc. (Next Step) submitted proposals. On June 1, 1999, the Department posted the bid tabulations and recommended the contract be awarded to Next Step. On June 3, 1999, Non-Secure Detention Home, Inc., filed a protest of the recommended award. On July 1, 1999, Non-Secure Detention Home, Inc., filed an Amended Notice of Protest.

The case was forwarded to the Division of Administrative Hearings for assignment to an administrative law judge on July 2, 1999. Petitioner was originally referred to as Non-Secure Detention Services, Inc. This was a misnomer and the caption is changed to reflect Petitioner's correct name, Non-Secure Detention Home, Inc.

At the final hearing, Petitioner called the following witnesses: Ralph Parks, Walter Baskin, Kenneth Williams,

Allen Hepburn, and Xavier Moore. Petitioner's Exhibits 1-11 and

18 were admitted in evidence. Petitioner's Exhibits 12-17, which are letters of recommendation, were not admitted in evidence. Respondent called Eric Starke as its witness. Respondent's Exhibits 1-7 and 19 were admitted in evidence.

The parties agreed to file their proposed recommended orders ten days after the transcript was filed. The Transcript was filed on August 19, 1999. The parties timely filed their proposed recommended orders, which have been considered in rendering this Recommended Order.

FINDINGS OF FACTS

1. On April 27, 1999, Respondent, Department of Juvenile Justice (Department), issued and advertised RFP No. K8025, which was a request for proposals (RFP) for a 16-bed, non-secure detention program. Petitioner, Non-Secure Detention Home, Inc. (Non-Secure Detention Home) and The Next Step Adolescent and Youth Community Center, Inc. (Next Step) submitted proposals. Another provider submitted a proposal but it was rejected as nonresponsive and was not evaluated.

2. On June 1, 1999, the Department posted the tabulations for the RFP, recommending the contract be awarded to Next Step. Next Step received the highest number of points, 248.66, and Non-Secure Home Detention ranked second with 209.33 points.

3. Non-Secure Detention Home filed a protest on June 3, 1999, and an Amended Notice of Protest on July 1, 1999.

4. There were three evaluation committee members: Anna Bustamante, Kenneth Williams, and Allen Hepburn. Mr. Williams is a community youth leader supervisor with the Department.

   Mr. Hepburn is a juvenile probation officer supervisor, who supervises the court unit for the Department.

5. The RFP provides that the program is to be operated at a provider-leased or owned facility. Next Step indicated in its proposal that Next Step would be leasing two homes. One of the homes was to be leased from Reginald Rucker, who was the president and a member of the Board of Directors for Next Step. A copy of the lease was included with the proposal and stated that Reginald Rucker and his wife, Charlene Rucker, were to be the landlords. There was no indication in Next Step's proposal that the facility was owned by anyone other than Reginald and Charlene Rucker. The property is described as "Lot 9, in Block

   125 of Leslie Estates Section Fourteen, According to the Plat thereof, as Recorded in Plat Book 116, at Page 95 of the Public Records of Dade County." In May 1996 the property was sold by the Veteran's Administration to Reginal Rucker, Charlene Rucker, and Connie White.

6. Connie White is an employee of the Department, and a former employee at Non-Secure Detention Home. Ms. White's job duties do not include determining the facilities in which juveniles will be placed. For a two-week period, Kenneth Williams supervised Ms. White. At the time that the proposals were being evaluated, Mr. Williams was not supervising Ms. White

   nor was he aware that Ms. White had any interest in the property proposed to be leased by Next Step.

7. Allen Hepburn knows Connie White. He also knows Connie White's sister, Gladine White, both socially and professionally. Mr. Hepburn is acquainted with Gladine White's husband. Mr. Hepburn attends the same church as Connie White and Gladine White. He does not know either Reginald Rucker or his wife, Charlene Rucker. Mr. Hepburn was not aware that Connie White had any interest in the property which Next Step proposed to use if it received the contract.

8. The RFP set out the proposal award criteria. The proposals were to be evaluated on the statement of work, organizational capability, management approach, and past performance. The evaluation areas were weighted with 65 percent for statement of work, 10 percent for organizational capability,

   15 percent for management approach, and 10 percent for past performance. The percentage used in the evaluation of past performance was subdivided as follows:

   Historical Implementation	1%
   Educational achievements	5%
   Recidivism rates	2%
   QA evaluation	2%
   Community involvement	1%
   CMBE subcontracting	1%

   
   

9. The RFP stated:

   
   

   Offers without prior Department contract experience shall receive a rating based on

   the average score of the other competing offers in evaluating their proposals in accordance with stated criteria.

   
   

   This provision of the RFP was not protested within the time frames provided in Section 120.57(3), Florida Statutes, and the RFP.

10. Fifty points was the maximum number of points which could be awarded for past performance. The past performance evaluation consisted of five areas which could receive from zero to ten points. The evaluators were given a scale by which to award points. If the proposal did not address an area, zero points would be awarded. If the proposal response were deemed unsatisfactory, two points would be awarded. Four points would be awarded for a poor proposal response. An adequate proposal response would be worth six points. If the proposal was evaluated to be very good, it would receive eight points. An excellent proposal response would be awarded the maximum of ten points.

11. For the past performance section, Non-Secure Detention Home garnered 12 points from Mr. Williams, 21 points from

    Ms. Bustamante, and 26 points from Mr. Hepburn for a total of

    
    

    59 points.

    
    

12. Next Step did not have previous experience with the Department. Evaluator Hepburn gave Next Step a total of two points for the past performance section. Ms. Bustamante awarded

    Next Step ten points for the past performance portion.

    
    

    Mr. Williams gave Next Step a total of six points for past performance. The RFP required that Next Step be given the average of the other competing proposals because Next Step did not have previous experience.

13. Non-Secure Detention Home had the only other competing proposal for the solicitation. Eric Stark, a contract manager for the Department, attempted to apply the provision in the RFP by averaging the scores that each of the evaluators had given Non-Secure Detention Home for past performance and using that average in computing the total scores from each of the evaluators. The average score given to Non-Secure Detention Home was 19; thus a rating of 19 was applied in the evaluation of the past performance of Next Step in lieu of the original scores given by the evaluators.

14. The RFP requires the following:

    
    

    The PROVIDER shall comply with the Department of Juvenile Justice, Office of the Inspector General's Statewide Procedure on Background Screening for Employees, PROVIDERS, and Volunteers. The PROVIDER agrees, to comply with the requirements for background screening as mandated in Section 985.01, Florida Statutes. Failure to comply with the Department's background screening procedure could result in cancellation of the contract.

    
    

15. Reginald Rucker was a former employee of Non-Secure Detention Home. Mr. Xavier Moore, the Executive Director for

    Non-Secure Detention Home, made a request to the Department of Juvenile Justice to do a preliminary FCIC/NCIC and DHSMV screening check on Mr. Rucker. According to Mr. Moore the screening did not indicate a problem with Mr. Rucker being employed by Non-Secure Detention Home. Mr. Rucker was employed with Non-Secure Detention Home from 1997 until June 10, 1999.

16. On October 4, 1995, an Order to Seal Records Pursuant to Section 943.058, Florida Statutes, and Florida Rule of Criminal Procedure 3.692 was issued in the Circuit Court of the Ninth Judicial Circuit in and for Osceola County, Florida, sealing all records pertaining to Reginald Rucker's arrest on January 13, 1990, by the Florida Highway Patrol for cocaine and marijuana possession. The order stated that Mr. Rucker was not adjudicated guilty of charges stemming from the arrest.

17. The RFP did not require the proposers to submit a financial statement or audit; however, the evaluators were asked to rate the proposals based on whether an acceptable financial statement or audit was included. Neither Next Step nor

    Non-Secure Detention Home submitted a financial statement or audit. Next Step received the following points for its non- existent financial statement: eight points from Mr. Hepburn; zero points from Mr. Williams; and zero points from Ms.

    Bustamante. For its nonexistent financial statement Non-Secure Detention Home received the following scores: six points from

    Mr. Hepburn; a N/A which equated to zero points from Mr. Williams; and six points from Ms. Bustamante.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(3), Florida Statutes.

19. Pursuant to Section 120.57(3)(f), Florida Statutes, the burden of proof rests with Non-Secure Detention Home as the party protesting the Department's proposed contract awards. Section 120.57(3)(f) further provides:

    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. . . .

    
    

20. In State Contracting and Engineering Corporation vs.

    
    

    Department of Transportation, 709 So. 2d, 607, 609, (Fla. 1st DCA 1998), the First District Court of Appeal opined on the role of the administrative law judge in a bid protest proceeding and

    stated:

    
    

    [T]he phrase 'de novo hearing' is used to describe a form of intra-agency review. The judge may receive evidence, as with any formal hearing under section 120.57(1), but

    the object of the proceeding is to evaluate the action taken by the agency. See Intercontinental Properties, Inc. v. State Department of Health and Rehabilitative Services, 606 So. 2d 380 (Fla. 3d DCA 1992) (interpreting the phrase 'de novo hearing' as it was used in bid protest proceedings before the 1996 revision of the Administrative Procedure Act).

    
    

21. Non-Secure Detention Home claims that Mr. Williams and Mr. Hepburn were influenced by their acquaintance with

    Connie White. Non-Secure Detention Home's claim is without merit. Whether Mr. Williams or Mr. Hepburn knew Ms. White either socially or professionally is irrelevant. Neither Mr. Williams nor Mr. Hepburn was aware that Ms. White had an interest in the property which would be utilized by Next Step in carrying out the contract; thus, neither evaluator would have made a connection between Ms. White and the proposal submitted by Next Step.

22. Non-Secure Detention Home also claims that it was a conflict of interest for a contract to be awarded to Next Step because Ms. White was an employee of the Department and owned property which would be leased to Next Step for use in the contract. Again Non-Secure Detention Home's claim fails.

    Ms. White did not evaluate the proposals nor did she influence the evaluation of the proposals. Her job duties did not include determining which facility would house the juveniles; thus, she

    had no control over how many juveniles would be sent to Next Step if Next Step were awarded the contract.

23. Non-Secure Detention Home argues that Next Step should not have been awarded 19 points for past performance because Next Step did not have any past performance. The RFP requires that if a proposer does not have past performance that the proposer be given the average score of the other competing proposals. Non-Secure Detention Home submitted the only other competing proposal because the third proposal had been eliminated as nonresponsive and was not evaluated by the evaluation committee. Thus, the Department averaged the scores given to Non-Secure Detention Home and awarded that score to Next Step. The Department acted appropriately in using the provision in the RFP concerning the rating of a proposer who lacked previous experience.

24. It should be noted that the RFP provision could have been interpreted as awarding the same number of points that each evaluator gave Non-Secure Detention Home because the average of Non-Secure Detention Home and other competing proposals would have been the actual number of points awarded to Non-Secure Detention Home. If this had been done Next Step would have been awarded a total of 59 points rather than 57 points for past performance.

25. The RFP requires that the providers comply with background screening. The background screening would be done prior to the contracting but was not required to be done in order to submit a proposal. Non-Secure Detention Home argues that because Mr. Rucker had records sealed by a circuit court, he would not meet the background screening requirement. The court order stated that Mr. Rucker had not been adjudicated guilty of the charges and did not state that Mr. Rucker had pled nolo contendere to the charges.

26. While Mr. Rucker had been employed by Non-Secure Detention Home, he had gone through a background screening and had remained in the employment of Non-Secure Detention Home after the screening, which would indicate that he had successfully passed the screening. Non-Secure Detention Home has failed to demonstrate that Mr. Rucker would not have successfully passed the background screening or that he would not qualify for an exemption pursuant to Section 985.01(2)(c), Florida Statutes.

27. The RFP did not require the submission of a financial statement or audit. Neither proposal included a financial statement, which means that both proposer should have been awarded zero points for the financial statement. Non-Secure Detention Home, Inc., received 12 points and Next Step received eight points for this area. If the points awarded were deducted

    from each of the proposer's total scores, Next Step would still have more points than Non-Secure Detention Home, Inc.

28. Non-Secure Detention Home has failed to establish that the Department's intent to award the contract to Next Step was contrary to the Department's governing statutes, rules or policies or the RFP. The Department's actions were not clearly erroneous, contrary to competition, arbitrary, or capricious.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered awarding the contract for a 16-bed, non-secure detention program to The Next Step Adolescent and Youth Community Center, Inc. and dismissing the protest of Non-Secure Detention Home, Inc.

DONE AND ENTERED this 14th day of September, 1999, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1999.

COPIES FURNISHED:

Walter S. Pesetsky, Esquire Pesetsky & Zack, P.A.

1367 Northeast 162nd Street

North Miami Beach, Florida 33162

Scott C. Wright, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

William G. "Bill" Bankhead, Secretary Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Robert N. Sechen, 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

10 days from the date of 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: 99-002620BID

Orders for Case No: 99-002620BID