vs. ) Case No. 99-4403BID
Respondent. )
Intervenor. )
Pursuant to notice, a formal hearing was held in this case on November 16, 1999, at Miami, Florida, and on November 17, 1999, at Fort Lauderdale, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Michael A. Piscitelli, Esquire
Mary M. Piccard, Esquire
Vezina, Lawrence, & Piscitelli, P.A.
For Respondent: Joseph M. Helton, Esquire
For Intervenor: Gary V. Perko, Esquire
Hopping, Green, Sams & Smith, P.A.
Whether Respondent's intended award of a contract to Ramsay Youth Services, Inc., pursuant to RFP No. K8027, is contrary to Respondent's governing statutes, applicable rules, or polices or the specifications of the request for proposals.
On August 13, 1999, Respondent, Department of Juvenile Justice (Department), issued a request for proposals to design, develop, implement, and operate a Moderate Risk Educational Conservation Corps Program. Petitioner, Youthtrack, Inc. (Youthtrack), and Intervenor, Ramsay Youth Services, Inc. (Ramsay), submitted proposals. On September 20, 1999, the Department posted the bid tabulations and recommended the contract be awarded to Ramsay.
Youthtrack filed a protest of the recommended award, and the case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge on October 18, 1999.
Ramsay filed a petition for leave to intervene, which was granted by Order dated October 27, 1999.
At the final hearing, Petitioner called the following witnesses: Daniel Wilson, Robert Rojas, Maria Elena Cadavid, Joan Berni, and Russell Dean. Petitioner's Exhibits 1-13 were admitted in evidence. Respondent called no witnesses and submitted no exhibits. Intervenor called Russell Dean as its witness and submitted no exhibits.
15 days after the Transcript was filed. The Transcript was filed on November 30, 1999. The parties timely filed their proposed recommended orders, which have been considered in rendering this Recommended Order.
On August 13, 1999, Respondent, Department of Juvenile Justice (Department), advertised and released a request for proposals (RFP) for the operation of a 62-bed Male Moderate Risk Residential Education Program in Dade County, Florida, RFP K8027.
Petitioner, Youthtrack, Inc. (Youthtrack), and Intervernor, Ramsay Youth Services, Inc. (Ramsay), submitted the only two proposals in response to the RFP.
On September 20, 1999, the Department posted an intended contract award to Ramsay. Based on the evaluations conducted by the Department, Ramsay received 401.66 points, and Youthtrack received 376 points.
The RFP requested proposals to design, develop, implement, and operate a Moderate Risk Residential Education Conservation Corps on land owned by the South Florida Water Management District located outside of Florida City. The RFP called for a daily capacity of 62 male youths who are committed to the Department after having been classified as a moderate risk to society. Youthtrack is the incumbent provider.
The RFP specified the proposal award criteria. The proposals were to be evaluated on the statement of work/program services, organizational capability, management approach, and past performance. The evaluation areas were assigned a maximum number of percentage points. Each area contained subcategories, which were assigned percentage points to equal the maximum number of percentage points that could be awarded in that particular category as follows:
Award Criteria
STATEMENT OF WORK/PROGRAM SERVICES 50
Soundness of Approach 25
Compliance with Requirements 25
ORGANIZATIONAL CAPABILITY 20
Soundness of Approach 10
Compliance with Requirements 10
MANAGEMENT APPROACH 20
Soundness of Approach 10
Compliance with Requirements 10
PAST PERFORMANCE 10
Historical implementation 2
Educational achievements 2
Recidivism rates 2
QA evaluation 2
Community involvement 1
CMBE subcontracting 1
In addition to the above criteria, ten bonus points were available for offerors who were certified minority business enterprises (CMBEs) or who utilized CMBEs as subcontractors.
The evaluators were to rate each category using the following rating system. A rating of excellent would receive a score of five. Criteria deemed to be very good would be rated as
a four. An adequate response for a category would be scored as a three. A rating of poor would garner a score of two. An unsatisfactory rating would be scored as one. If the criteria was not addressed in the proposal, a zero would be assigned.
Three Department employees served on the technical evaluation committee: Robert Rojas, Anne McVey, and Joan Berni. Mr. Rojas is the facilities superintendent for the Department's Miami Halfway House, which is a 28-bed moderate risk facility similar to the 62-bed facility addressed in the RFP at issue. Ms. Beri is a program administrator over probation units in the north area.
Maria Elena Cadavid served as the contract administrator for the RFP. She was responsible for overseeing the development of the RFP, the evaluation process, and the integrity of the procurement process.
On September 15, 1999, Ms. Cadavid held a meeting with two of the evaluators to distribute the RFP, the Ramsay and Youthtrack proposals, and a memorandum of instructions. In addition to the instructions within the memorandum, the evaluators were provided with copies of a sample scoring sheet and an "Evaluation Factor Guide" as attachments to the memorandum.
Ms. Berni did not attend the September 15 meeting. At the beginning of the evaluation process, the RFP, the proposal,
and the instruction memorandum with attachments were delivered to her office.
Once the technical evaluation was complete, the cost proposals were to be evaluated by Martha Bermudez. The members of the technical evaluation committee were not provided with the cost proposal.
During the evaluation process, Mr. Rojas could not determine whether Youthtrack intended to provide psychiatric services to residents who were not eligible for Medicaid. In a letter attached to Youthtrack's proposal as an Appendix, (CPC), states that individual therapy and case management services are provided to eligible clients. In Mr. Rojas' past experience with (CPC), services had been provided only to Medicaid eligible clients. Mr. Rojas called Ms. Cadavid and asked whether Youthtrack's separate cost proposal included a budget item for mental health services that are not billable to Medicaid.
Mr. Rojas was trying to determine the level of mental health services to be provided by Youthtrack's proposed subcontractor, (CPC). Ms. Cadavid told Mr. Rojas that there was no such budget item and that he did not need to take it into consideration. She did not provide Mr. Rojas with a "bottom-line" price or any other budget information from the Youthtrack proposal. Mr. Rojas concluded that Youthtrack would not provide mental health care unless the individual was eligible for Medicaid.
The Department maintains a Contract Manager's Manual (Manual), which "establishes policy, assigns responsibilities, and prescribes implementing procedures for soliciting and evaluating Offeror's proposals." Section 9.3.2.a of the Department's Manual provides:
Technical as well as cost (price) proposals will be submitted to the Contract Manager who will provide technical proposals to the technical evaluators. The technical evaluation will be conducted independent of the cost (price) evaluation. Technical evaluators (unless the district appoints only one team) will not have access to cost data at any time prior to the decision. In the case of one team, the team shall complete the technical evaluation of all technical proposals before beginning the evaluation of the cost proposals. In this context, cost data does not include information required for types and quantities analysis such as labor hours, personnel qualifications, equipment and material list, and other non- rate information. Technical personnel may examine such data even if it is extracted from the cost proposal. However, they may not be given access to the complete cost proposal.
The September 15 memorandum stated:
Each Section of the rating sheet has a section for comments. It is requested that you explain your rationale for the scoring of the proposal under each section.
The manual provides that the individual evaluators will prepare narratives, which is to be the principal means available to do a comparative analysis of the offers. The narratives are to include as a minimum the following:
What is offered;
Whether it meets or fails to meet the evaluation standard;
Any strengths or weaknesses; and
An assessment of the Offeror's proposal approach and ability to perform.
Mr. Rojas included comments on his scoring sheets for Youthtrack and Ramsay. The other evaluators, Ms. McVey and Ms. Berni, did not provide any comments on their scoring sheets for either proposal.
The Manual provides that the individual narratives are to be consolidated into an evaluation report that is prepared by the evaluation team. The Manual contemplates that "the strengths and weaknesses determined by the individual team members are to be distilled into an integrated, team consensus, preferably by group discussion."
Based on the Manual, the evaluation report is done after both the technical and cost proposals have been evaluated. The evaluation report may be done in any format, but it must include the following information:
Narrative assessment of the technical evaluation;
An analysis of the Offeror's cost (price) (realism, completeness, and reasonableness); and
Results of evaluating contractual considerations and any other general considerations that were evaluated by the SSET [Source Selection Evaluation Team].
In Section 9.3.7, the Manual further provides:
The objective of the proposal evaluation report is to present a summary of the evaluation of each proposal against
solicitation requirements based on established evaluation criteria.
The proposal evaluation report encompasses information derived from the results of the evaluation of the proposals. It is an official record of the evaluation of proposals and supporting rationale and, therefore, shall be maintained as a portion of the official contract file.
On September 20, 1999, the evaluation committee reconvened to hand in their scores and to allow the contract manager to ensure that there were no math errors. During the meeting, the evaluators were instructed that the points entered under "Criteria" headings on the score sheets should equal the sum of the points of the underlying subfactors. This instruction comports with the directions on the scoring sheets. As a result of this clarification, Mr. Rojas made changes to his criteria scores so that they equaled the sum of his subfactor scores.
Mr. Rojas lowered his criteria scores for Youthtrack by 58 points and increased his criteria score for Youthtrack by ten points.
For Ramsay's proposal, Mr. Rojas lowered the criteria scores by
13 points.
After the scores were tabulated and averaged, a summary of the scoring was prepared and signed by each of the evaluators. The summary stated that Ramsay's average score was 401.66 and that Youthtrack's was 376.00. Ms. Cadavid reported these scores to Ronald E. Williams, the Department's Senior Juvenile Justice Manager, who posted the results and recommended award of the contract to Ramsay by memorandum dated September 20. 1999.
At the final hearing, it was noted by Ms. Cadavid that an error had occurred in calculating the average scores.
Ms. McVey's score for Ramsay was listed as 500 points, rather the
510 points that was listed on Ms. McVey's score sheet. When the correct 510-point score from Ms. McVey is used, Ramsay's average score is 405, which is 29 points higher than Youthtrack's average score.
If an offeror was a CMBE, the RFP required the following:
The Offeror, if applicable, shall include a copy of certification or proof of registration (letter) as an eligible certified minority business enterprise to do business in the State of Florida, as set forth in Section 287.0945, Florida Statutes. To be an eligible minority vendor/offeror you shall possess current certification issued by the State of Florida Minority Business Advocacy and Assistance Office.
If an offeror planned to use CMBEs as subcontractors, the RFP required the following:
The Offeror shall include a subcontracting plan in every proposal in excess of $75,000. Each subcontracting plan must include the percentage of the total proposed contract dollars the offeror anticipates expending under subcontract to CMBE's as well as the type of services/commodities that will be included as subcontracts. The subcontracting plan shall be incorporated into the contract. Minority Business Enterprise subcontracting shall be an evaluation factor and shall be used as a measure of provider past performance. The clause is not applicable to registered CMBE's.
The Ramsay proposal contained a list of the CMBE vendors with whom Ramsay intended to subcontract, the dollar amounts of the intended contracts, and the types of goods or services to be performed by the CMBE subcontractors. Ramsay also included CMBE certificates for three of the subcontractors. Ramsay intended to subcontract raw food products with a minority vendor in the amount of $90,520, but no vendor was listed and no certificate was provided.
Youthtrack's proposal contained the following as Youthtrack's CMBE subcontracting plan:
As an equal opportunity employer and national member of the National Association of Blacks in Criminal Justice (See Appendix), Youthtrack will continue to diligently pursue the development of subcontracts with available minority business enterprise contractors. This will be accomplished by consulting Department of Labor and Employment Security, Minority Business Advocacy & Assistance Office, and by utilizing its Business Commodity Directory for Dade County. Furthermore, Youthtrack has established a goal of spending a minimum of 10% of the programs' goods and services budget on goods and services procured from local minority business enterprises. Services to be provided may include mental health services, vocational and educational services and facility maintenance services such as refuse removal, pest control, clothing, etc.
Currently Youthtrack's Hurricane program is
in the process of finalizing an agreement with Rockdale Auto Services which is a minority owned business, for the provision of auto repair services, and with Dr. Peterson, whose medical practice is a certified minority business, for the provision of health services.
Ms. McVey had awarded Youthtrack ten bonus points for minority subcontracting. At the September 20 meeting, the evaluators were told that the CMBE bonus points could not be awarded unless the offeror submitted CMBE certificates from the Department of Labor with the proposal. As a result of this directive, the ten bonus points awarded to Youthtrack by
Ms. McVey were deducted. Neither Mr. Rojas nor Ms. Berni awarded Youthtrack bonus points for CMBE subcontracting.
In his evaluation comments, Mr. Rojas questioned the caseload assignments for Youthtrack's case management personnel. Youthtrack included a staffing plan in Appendix I of its proposal, indicating that case management would be provided by four team leaders and two counselors. Mr. Rojas was under the impression that the two counselors would be providing the case management for the 62 children. His notes on Ramsay indicated that Ramsay had three case managers. Mr. Rojas scored Ramsay a three for Section 1.2.2.1 and scored Youthtrack a 2 for the same section dealing with the soundness of approach for organizational capability.
Mr. Rojas concluded that Youthtrack had not provided for communicating gang information to the police based on the Department's Policy No. 8.09 regarding street gangs. The policy establishes elaborate procedures for identifying members of street gangs, controlling their behavior, housing them in Department facilities and interfacing with other law enforcement
and community groups. The RFP included requirements that the offerors comply with several Department policies which were specifically identified; however, Policy No. 8.09 was not part of the RFP and was not referenced in the RFP. Mr. Rojas downgraded Youthtrack's proposal for not complying with Policy No. 8.09.
Mr. Rojas made the same comment concerning street gang information when he evaluated Ramsay's proposal and downgraded Ramsay's proposal for not complying with Policy No. 8.09.
Mr. Rojas testified that Youthtrack's proposal failed to provide for submission of progress reports every 30 days.
Mr. Rojas notes state that Ramsay also failed to provide 30-day progress reports. Youthtrack and Ramsay both provided for 30-day progress reports in their proposals.
In his notes on his evaluation of Youthtrack's proposal, Mr. Rojas stated, "The offeror does not clearly demonstrate a designated health authority." On page 44 of its proposal under the section describing the health services which will be provided, Youthtrack states:
Health Services are provided by the Physicians Office of Florida City who is our designated health authority and provides medical services in accordance with the 1998 Department of Juvenile Justice Health Services Manual. In the event that the youth require hospital services, Homestead Hospital is located fifteen miles from the program and has indicated in writing its intent to enter into a cooperative agreement with Youthtrack for such services.
In an appendix to its proposal, Youthtrack included a letter from Physician's Office of Florida City, indicating that it was providing the medical services. In another appendix to its proposal, Youthtrack included a proposal for Claudia Hall Peterson, D.O., of Homestead, Florida, to serve as the designated health authority. Thus, when Youthtrack's proposal is read in its entirety, there is an internal conflict as to who will serve as the designated health authority. In light of this discrepancy on the face of Youthtrack's proposal, Mr. Rojas' comment was not arbitrary, capricious, or clearly erroneous.
The RFP requires that the offeror provide mental health services which include psychopharmacological therapy. Youthtrack stated in its proposal that CPC would provide mental health services, and that youths placed on psychotropic medications would be under the direct medical care of the prescribing physician and that a psychiatrist from CPC would provide medication for the treatment of mental health disorders.
Mr. Rojas commented that Youthtrack's proposal did not include a consulting psychiatrist for psychopharmacology. At hearing, Mr. Rojas explained his view, that it was not sufficient for
Youthtrack to state that psychiatric services were to be provided by its subcontractor, CPC. Mr. Rojas was looking for the name of a specific psychiatrist that would be used by the subcontractor. Mr. Rojas also based his comment on the Department's protocol requiring one person to oversee all medication; however, this
protocol was not included in the RFP. Mr. Rojas had scored Youthtrack a "2" for soundness of approach for
the management approach category and had scored Ramsay a "3" for the same subfactor.
Mr. Rojas made comments on his scoring sheets concerning lack of integration with Youthtrack's staff and CPC and particularly questioned the interaction with the individual therapist. Youthtrack lists two individual therapists in its programming staffing. In the narrative of its proposal, Youthtrack states that when one-on-one counseling is needed, the youth will be referred to Youthtrack's overlay counselors and other local specialized service providers. The narrative also mentions overlay case managers from CPC. The narrative further talks about individual counseling being provided by "our staff." In another section on individual counseling, the proposal indicates that some individual counseling will be done by employees of Youthtrack and some will be done by the subcontractor. The proposal is unclear if the individual therapists are employees of Youthtrack or of the subcontractor's overlay counselors. It does not indicate that the individual therapists in the staffing plan are the ones referred to in the narrative. Additionally, it is not clear from Youthtrack's program staffing chart which other staff members are employees of Youthtrack and which staff members are employees of the
subcontractor. Mr. Rojas' comments were not arbitrary, capricious, or clearly erroneous.
Mr. Rojas' score sheet included a note stating, "no ranking uniform issued to offenders." Mr. Rojas was concerned at the time he evaluated the proposals that the children were not being classified at the time of admission. Youthtrack's classification takes place at the orientation level which follows the admission process. Mr. Rojas was concerned about security during the admission time Mr. Rojas made a similar comment concerning Ramsay's proposal. Mr. Rojas' comment was not arbitrary, capricious, or clearly erroneous.
Mr. Rojas gave Youthtrack two points out of a possible five points for community involvement under the category of past performance. As explained in his score sheet comments and at hearing, Mr. Rojas based his score at least in part on Youthtrack's failure to have executed a contract with Everglades National Park for the operation of a recycling plant, despite the fact that Youthtrack is the incumbent provider. Youthtrack claims that Mr. Rojas required more of Youthtrack because it was the incumbent provider. Youthtrack overlooks that the category, is historical implementation; thus, the evaluators looking at what Youthtrack had done in the past and how it has conducted itself on the current contract is relevant. Mr. Rojas did not penalize Youthtrack because it was the incumbent provider.
Youthtrack's representative conceded at the final hearing, that there was no evidence that Mr. Rojas, or any of the other evaluators, was prejudiced against Youthtrack or in favor of Ramsay.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.57(1) and (3), Florida Statutes.
Pursuant to Subsection 120.57(3)(f), Florida Statutes, Youthtrack, as the party protesting the Department's proposed contract award, has the burden of proof. Youthtrack has requested that the proposals be reevaluated. Subsection 120.57(3)(f) also provides:
In a competitive-procurement protest, other than a rejection of all bids, the administrative law judge shall conduct a denovo 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 State Contracting and Engineering Corporation v. 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. 3rd DCA 1992)(interpreting the phrase 'de novo hearing' as it is used in bid protest proceedings before the 1996 revision of the Administrative Procedure Act.)
Youthtrack should have been awarded the ten bonus points for its CMBE subcontracting plan. The RFP did not require the offerors to submit CMBE certificates with the subcontracting plan. Youthtrack complied with the requirements of the RFP and is was clearly erroneous to deny Youthtrack the bonus points.
The average bonus points which should have been awarded to Youthtrack is ten points.
Youthtrack's argument that Mr. Rojas incorrectly evaluated Youthtrack's proposal as it related to reporting gang information and 30-day progress reports is irrelevant since
Mr. Rojas made the same comments concerning Ramsay's proposal. Both proposals received the same score of "2" on the compliance with requirements section for Section L.2.1.2. While Mr. Rojas may have made an error, Youthtrack was not prejudiced by the error.
It was not inappropriate for Mr. Rojas to contact
Ms. Cadavid concerning whether Youthtrack had included a budget item for mental health services not covered by Medicaid. The
Manual states that certain information may be extracted from the cost proposal and reviewed by the technical team. Cost data used for types and quantities analyses and other non-rate information may be examined by the technical team. The information which
Mr. Rojas sought is the type of information which is available to technical evaluators.
Youthtrack argues that its subcontractor will provide mental health services to all children in the program. However, the letter submitted from the subcontractor indicates that it will provide mental health services to eligible clients. Based on Mr. Rojas' experience the term "eligible clients" usually referred to clients who were eligible for services covered by Medicaid. Additionally, the subcontractor had provided services pursuant to other contracts to those clients who were eligible for Medicaid services. Mr. Rojas' evaluation concerning the provision of mental health services was not arbitrary, capricious, or clearly erroneous.
Mr. Rojas' comment that Youthtrack did not clearly demonstrate a designated health authority is justified based on the conflicting information in Youthtrack's proposal.
Mr. Rojas' evaluation of the historical implementation section of Youthtrack's proposal was appropriate. The purpose of the section is to make a judgement upon the offeror's past performance, which Mr. Rojas did.
Mr. Rojas's comment concerning no ranking uniform issued to offenders is valid. He was concerned for security reasons that the offenders were not classified at admission but rather at orientation, which followed admission.
Youthtrack took issue with requiring the evaluators to change their scores so that the overall score for a category was equal to the sum of the scores for the subfactors. The evaluation criteria in the RFP clearly showed that the scores for the subfactors would be the overall score for the category. If the evaluators did not feel that they had correctly evaluated a particular category, they could have advised Ms. Cadavid at the September 20, 1999, meeting, but there was no evidence that the evaluators felt that their overall scores for a particular category should be greater than the sum of the subfactors.
Youthtrack argues that the evaluation process was fatally flawed because all the members of the technical team did not record comments on their score sheets and did not prepare an evaluation report as discussed in the Manual. The evaluators did not completely follow the procedures outlined in the Manual. However, there was no evidence presented that the failure of two of the evaluators to make comments on their score sheets and the lack of an evaluation report prejudiced Youthtrack. If Youthtrack felt that the evaluations by Ms. McVey and Ms. Berni were not appropriate, they could have ascertained the reasoning for the evaluators' scoring by deposing them or asking for a
debriefing as set forth in the Manual. The procedural errors were not fatal to the procurement process. See Juvenile Services Program, Inc. v. Florida Department of Juvenile Justice, 20
F.A.L.R. 2752, 2755 (DJJ 1997).
Mr. Rojas' comments concerning lack of integration between Youthtrack's staff and its subcontractor and concerning the interaction with the individual therapists were not inappropriate.
Mr. Rojas did err in his conclusion that Youthtrack had only two case managers. The program staffing shows that six individuals will have responsibility for case management. There is a detailed description of the team managers' responsibilities included in Youthtrack's proposal. Mr. Rojas also erred in determining that Youthtrack had to specifically name a physician who would be administering medications for mental health problems. Youthtrack's proposal is clear that a psychiatrist from CPC would administer the medications.
Although there was an error in not awarding ten bonus points to Youthtrack and in Mr. Rojas' evaluation concerning the number of case managers and the provision of psychopharmacology services, the additional points that would be gained would not equal or exceed the number received by Ramsay. If Youthtrack's proposal were given a score of "3" for Section L.2.3.1 and a score of "3" for Section L.2.2.1, it would only acquire an additional 20 points from Mr. Rojas' evaluation, which would
equate to an average of 6.67 points. When the average bonus points and the average points for Sections L.2.2.1 and L.2.3.1 are added to Youthtrack's average score, the total is 392.67 points, which is below the points earned by Ramsay.
Youthtrack has failed to demonstrate that the intended contract award to Ramsay is arbitrary, contrary to competition, capricious, or clearly erroneous.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED
That a final order be entered dismissing Youthtrack's petition.
DONE AND ENTERED this 14th day of January, 2000, in Tallahassee, Leon County, Florida.
SUSAN B. KIRKLAND
Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2000.
William G. "Bill" Bankhead, Secretary Department of Juvenile Justice
Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive
Mary M. Piccard, Esquire
Vezina, Lawrence & Piscitelli, P.A.
Joseph M. Helton, Jr., Esquire Department of Juvenile Justice 2737 Centerview Drive
Gary V. Perko, Esquire
Hopping, Green, Sams & Smith, P.A.
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.
