STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SOUTH FLORIDA JAIL MINISTRIES, ) INC., )
)
Petitioner, )
)
vs. ) Case No. 00-1366BID
) DEPARTMENT OF JUVENILE JUSTICE, )
)
Respondent, )
)
and )
) ASSOCIATED MARINE INSTITUTES, ) INC., )
)
Intervenor. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on April 27, 2000, in Tallahassee, Florida, before Stuart M. Lerner, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Andrea V. Nelson, Esquire
Paul Sexton, Esquire
Thornton Williams and Associates
215 South Monroe Street Suite 600-A
Tallahassee, Florida 32302
For Respondent: Brian Berkowitz Esquire
Scott Wright, Esquire Department of Juvenile Justice 2737 Centerview Drive
Tallahassee, Florida 32399-3100
For Intervenor: Craig D. Varn, Esquire
227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302
STATEMENT OF THE ISSUE
Whether Petitioner's protest, challenging Respondent's "identif[ication of] Associated Marine Institute[s], Inc. for potential award(s) [of] the contract" advertised in RFP No.
K9018, should be sustained in whole or in part?
PRELIMINARY STATEMENT
On March 30, 2000, the Department of Juvenile Justice (Respondent) referred to the Division of Administrative Hearings (Division), pursuant to Section 120.57(3), Florida Statutes, Petitioner's formal written protest of the Department's "identif[ication of] Associated Marine Institute, Inc. for potential award(s) [of] the contract" advertised in RFP No.
K9018. In its protest, Petitioner had alleged the following:
PETITIONER submitted a fully responsive proposal that, if properly scored by the DEPARTMENT, would have resulted in the award of the contract for RFP No. K9018 to Petitioner. Instead, due to the errors described below, the DEPARTMENT improperly decided to award the contract to Associated Marine In[stitutes], Inc.
The stated reasons for awarding the contract for RFP No. K9018 to Associated Marine In[stitutes], Inc., are erroneous because the DEPARTMENT failed to follow its own specifications, the scoring of the proposals was arbitrary and capricious, and there were mathematical and clerical errors in the scoring.
The scoring of the proposal submitted by Associated Marine, In[stitutes] Inc. was erroneous and the scores were not properly transcribed from the individual technical evaluators' scoring sheets to the Technical Evaluation Scoring Summary. A score of "2" from one evaluator's scoring sheet was transcribed as a "3" on the scoring summary, resulting in an erroneous award of 10 points.
The scoring of the proposal submitted by PETITIONER was erroneous in that one technical evaluator scored PETITIONER on the erroneous conclusion that certain information was not included in PETITIONER'S proposal.
In fact, PETITIONER'S proposal had detailed information on the subject. Had the evaluator been aware of the information, which was readily apparent in [the] proposal, he would have provided PETITIONER a higher score by at least 10 additional points.
The proposal submitted by Associated Marine In[stitutes], Inc. did not comply with the RFP specifications regarding the number of pages in the proposal. However, the DEPARTMENT arbitrarily ignored its own specifications and scored that proposal as if it was fully compliant with the specifications. Had the DEPARTMENT applied its specifications, it would have scored the proposal of Associated Marine In[stitutes], Inc. far lower and the contract would have been awarded to PETITIONER. The DEPARTMENT'S actions provided Associated Marine In[stitutes], Inc., an unfair competitive advantage in relation to the proposal submitted by PETITIONER.
Scoring of the proposals by the DEPARTMENT was arbitrary and capricious, and failed to recognize the inherent weaknesses of the proposal submitted by Associated Marine In[stitutes], Inc. and the inherent strengths of the proposal submitted by PETITIONER. Among other things, the proposal submitted by Associated Marine In[stitutes], Inc., included unsound and potentially dangerous elements, its proposed staffing plans were unrealistic and flawed, QA
standards were not followed, its statistics cannot be applied to the population of the proposed facility, the cost of services offer[ed] far exceed current spending, and it budget description did not include vital information.
The specifications of the RFP, and the scoring of proposals by the DEPARTMENT were the result of a predetermination by the DEPARTMENT to award the contracts to Associated Marine In[stitutes], Inc., regardless of the actual merit of the proposals. PETITIONER was not able to attend the SSET meetings, in violation of the sunshine law, and the SSET meetings were not properly conducted. One of the technical evaluators, Michael Burns, should have been disqualified from evaluating the proposals, in that he had a conflict of interest due to his direct involvement in working with both the PETITIONER and Associated Marine In[stitutes], Inc. His prior experience with these two proposers created a substantial risk that he would evaluate their proposals on a basis other than the contents of the proposals.
The DEPARTMENT'S proposed action is contrary to the governing statutes, the DEPARTMENT'S rules and policies, and the proposal specifications. The proposed agency action is clearly erroneous, contrary to competition, arbitrary and capricious.
On April 4, 2000, Associated Marine Institutes, Inc., pursuant to Rule 28-106.205, Florida Administrative Code, filed an unopposed petition for leave to intervene in the proceedings before the Division. By Order issued April 6, 2000, the petition was granted.
On April 25, 2000, Petitioner filed an unopposed motion requesting leave to amend its formal written protest to add the following allegations:
The DEPARTMENT has failed to follow its own RFP specifications. The DEPARTMENT failed to follow K.7.7 Inquiries, by not providing copies of responses to written inquiries to PETITIONER but providing copies of the responses to other persons or firms who received RFP K9018.
The scoring of the proposal submitted by Associated Marine Institute[s], Inc. was erroneous in that technical evaluators scored sections K.4.1, K.7.10 and L.2.5 based on the erroneous conclusion that Associated Marine Institute[s], Inc. provided detailed information and support documentation on the subject when, in fact, it did not provide such information.
Scoring of the proposal submitted by Associated Marine Institute[s], Inc. was arbitrary and capricious in that its proposed staffing plans did not meet the minimum requirements of the DEPARTMENT.
At the outset of the final hearing, the undersigned granted Petitioner's motion. See Optiplan, Inc. v. School Board of Broward County, 710 So. 2d 569, 572 (Fla. 4th DCA 1998)("The hearing officer's denial of the motion to amend [the formal bid protest], in the absence of any alleged prejudice to the appellees, was an abuse of discretion.")
As noted above, the final hearing in this case was held on April 27, 2000. The following witnesses testified at the hearing: Maria Cadavid, Leonora Javier, Amy Bejarano, Terri Evans, Joan Berni, Michael Burns, and William Hoffman. In addition, the following exhibits were offered and received into evidence at the hearing: Petitioner's Exhibits 1 through 18, 20 through 24, and 26 through 31.
At the conclusion of the evidentiary portion of the final hearing, the undersigned, on the record, established a deadline (20 days from the date of the filing of the hearing transcript with the Division of Administrative Hearings) for the filing of proposed recommended orders. /1 The Transcript of the hearing (which consists of two volumes) was filed with the Division of Administrative Hearings on May 15, 2000.
On June 5, 2000, Petitioner and Respondent timely filed their Proposed Recommended Orders, and Intervenor filed a pleading giving notice that its was "adopt[ing], in whole, the Department of Juvenile Justice's Proposed Recommended Order." These post-hearing submittals have been carefully considered by the undersigned.
FINDINGS OF FACT
Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:
The Parties
Respondent is a state agency which, pursuant to Section 20.316, Florida Statutes, is "responsible for planning, coordinating, and managing the delivery of all programs and services within the juvenile justice continuum."
Petitioner and Intervenor are private providers of social services programs.
The Existing Program
Since March of last year, Petitioner, through a
subsidiary, has operated a 15-bed, moderate risk, residential halfway house program for females in Miami-Dade County (known as the Cove) pursuant to a contract with Respondent.
Respondent procured these services from Petitioner on an "emergency" basis without first attempting to obtain competitive sealed proposals.
Respondent's Notification of the Anticipated Release of RFP No. K9018
In early January of 2000, Respondent sent to various social service providers, including Petitioner and Intervenor, written notification of Respondent's intention to solicit, through a soon-to-be issued Request for Proposals (identified as RFP No. K9018), proposals to enter into a contract with Respondent to operate a "Fifteen (15) Bed Level 6 Residential Female Halfway House Program in Miami-Dade County" (which contract would replace Petitioner's "emergency" contract with Respondent).
The providers notified by Respondent were given a Notice of Availability form, which they were instructed to complete and return to Respondent if they were "interested in receiving a hard copy of this solicitation." On the Notice of Availability form, interested providers were asked to provide the following information: name, address, telephone number, vendor ID number, and contact person's name and title.
Petitioner and Intervenor were among those who submitted to Respondent a completed Notice of Availability form indicating
a desire to receive a "hard copy" of RFP No. K9018. Drafting of RFP No. K9018
Leonora Javier is employed by Respondent as a contract manager in Respondent's District 11.
Ms. Javier was assigned the task of drafting RFP No. K9018 (RFP).
She reviewed Respondent's Contract Manager's Manual, as well as previous requests for proposals that Respondent had issued, to determine what to include in the RFP.
Ms. Javier prepared a first draft of the RFP, which she circulated for review. After considering the reviewers' comments, she completed a final draft.
Issuance of the RFP
Respondent issued the RFP on or about January 11, 2000.
Petitioner and Intervenor were among those to whom Respondent mailed a "hard copy" of the RFP.
Contents of the RFP Section A
The first two pages of the RFP (Section A of the RFP) consisted of the standard "State of Florida Request for Proposal Contractual Services Acknowledgment" Form PUR 7033 (Rev. 6-1-98), which provided in pertinent part, as follows:
SEALED PROPOSAL: . . . All proposals are subject to the conditions specified herein. Those which do not comply with these conditions are subject to rejection. . . .
PROPOSAL OPENING: . . . A proposal may not be altered after opening of the price proposals.
PRICE, TERMS AND PAYMENT: . . .
(c) MISTAKES: Proposers are expected to examine the conditions, scope of work, proposal prices, extension, and all instructions pertaining to the services involved. Failure to do so will be at the proposer's risk. Total proposed prices based on best value negotiation will govern the award. . . .
AWARD: As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any minor irregularity or technicality in proposals received. Proposers are cautioned to make no assumptions, unless their proposal has been evaluated as being responsive. All awards made as a result of this proposal shall conform to applicable Florida Statutes.
INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the proposal opening. Inquiries must reference the date of proposal opening and proposal number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any person who is adversely affected by the agency's decision or intended decision concerning a procurement solicitation or contract award and who wants to protest such decision or intended decision shall file a protest in compliance with Chapter 28-110, Florida Administrative Code and State Purchasing Rule 60A-1.006(6),
F.A.C. Failure to file a protest within the
time prescribed in Section 120.57(3), F.S., shall constitute a waiver of proceedings under Chapter 120, F.S. . . .
11. LEGAL REQUIREMENTS: Applicable provision of the Federal, State, county and local laws, and all ordinances, rules and regulations shall govern development, submittal and evaluation of all proposals received in response hereto and shall govern any and all claims and disputes which may arise between person(s) submitting a proposal response hereto and the State of Florida, by and through its officers, employees and authorized representatives, or any other person, natural or otherwise,; and lack of knowledge by any bidder shall not constitute a cognizable defense against the legal effect thereof.
Section B
Section B.1. of the RFP described, in general terms, the services sought by Respondent. It provided as follows:
The Florida DEPARTMENT of Juvenile Justice (DJJ) requires a Fifteen (15) bed Moderate- Risk Level Six (6) Residential Female Halfway House Program to be located in DJJ District 11, Miami-Dade County. This is an existing program.
Section B.3. of the RFP indicated that the contract for the provision of these "services" would have an "effective date" of "July 1, 2000 or the date [the contract was] signed by both parties" and an expiration date of June 30, 2003.
Section C.
Sections C.1. and C.1.1. contained a detailed description of the work to be performed under the contract. They provided, in pertinent part, as follows:
Work Statement
The PROVIDER shall design, develop, implement, and operate a Level 6 Residential Female Halfway House residential program with
a daily capacity of 15 female youths who are committed to the DEPARTMENT after having been assessed and classified as moderate risk to public safety. The PROVIDER shall provide a staff secured residential commitment program utilizing the moderate risk residential program model, to serve female youth between the ages of 14 to 19 years of age that provides 24 hours per day, 7 days a week secure custody, care, treatment and supervision. All contractual requirements to provide service, support, and related performance shall be available and provided when the female youth enters the program.
The anticipated length of stay for each youth
is 6 to 9 months.
Manner of Service
The PROVIDER shall provide program components consistent with program requirements, and Department policies and manuals, which at a minimum, include the following:
Case Management Services . . . The PROVIDER shall provide services to the female youth, while she is in the PROVIDER'S care, which shall complement and support the plan for and re-integration into the community or independent living.
Care and Custody
The PROVIDER shall provide 24-hour daily supervision, custody and care of female youths placed in the program, with required supervision, custody and care. The PROVIDER shall effectively address security issues, creating an environment in which staff and female youth can focus on treatment and behavior change. The PROVIDER shall design and implement program systems, policies and practices that complement physical plant security. The PROVIDER shall submit a staffing proposal including all staff assigned to this program, included in the proposal. The PROVIDER'S security shall include, at a minimum:
Levels of staff and staff supervision reflected in staff to female youth ratios;
/2
Daily operating security procedures that monitor, control, and document movement of female youth;
Scheduled facility resident counts documented daily;
Random contraband inspections and/or under circumstances of suspicion;
Emergency procedures (written) for female youth disturbances/escapes;
Scheduled facility inspections on security features (doors, locks, gates, lights, etc.)
Development of Social Skill Enhancement
The PROVIDER shall provide female clients with recognized gender specific skills training programs including anger replacement training, social problem-solving and interpersonal communication skills training, coping skills training and self-control training. In its proposal responding to this request for proposal (RFP), the PROVIDER shall specify the manuals and curriculum for its proposed program application.
Diagnostic Evaluation Services . . . .
Transient Process and Outcome Evaluation . . . .
Treatment Modalities
The PROVIDER shall provide programs employing well-defined treatment models or theories that are applicable to female offenders. The PROVIDER shall identify and explain the treatment success rate and likelihood of client reoffending. The PROVIDER shall focus on eliminating behaviors that have contributed to the female youth's delinquency, and promote behavior and
competencies that encourage pro-social change and self-growth law-abiding behavior.
Transportation Services . . . .
Health Services . . . .
Mental Health Services and Substance Abuse Services . . . .
Counseling Services
The PROVIDER shall provide counseling techniques intended to resolve individual and family issues having negative impact on female youths. The provider shall provide a comprehensive treatment and counseling program. Female youths shall be provided to a variety of positive and challenging experiences that shall expand awareness and develop a sense of responsibility toward society.
Educational Services . . .
Pre-Vocational and Vocational Services . . . .
Job Training and Placement . . . .
Self-sufficiency Planning
The PROVIDER shall train female youth to be self-sufficient by completion of the program. The training shall include: financial/money management; employment; education/vocation/ career; medical/mental health; independent living skills; parenting skills, as applicable; and social skills. . . .
Gang Identification, Intervention Education and Counseling . . . .
Recreational and Leisure Time Activities . . . .
Community Involvement Opportunities
The PROVIDER shall coordinate and encourage female youth to participate in community
projects and activities. These projects and activities include, but shall not be limited to, supervised community work service hours, participating in group community service projects, activity with family members or other adults approved by the program and the DEPARTMENT and participation in school functions.
The PROVIDER shall provide programming for female youth to learn teamwork, and hands on supervision of environmental projects to maintain, restore and improve the ecology of the Everglades. The PROVIDER shall work with Federal, State and local government agencies to do a minimum of 240 work hours per month of Environmental Restoration Project such as public clean up, trail building, landscaping, repairing park structures, mosquito abatement, control burns and exhibition development. The PROVIDER shall effect all necessary inspections, investigations and safety precautions necessary to protect all persons entering land requiring restoration. The PROVIDER shall comply with all Occupational Safety and Health Administration (OSHA) and all federal, state and local health standards. Lease is incorporated by reference and is available through the contract manager.
Aftercare/Follow-up . . . .
Section C.2. of the RFP defined certain "service"- related terms used in the RFP. Among the definitions found in this portion of the RFP were the following:
Moderate-Risk Restrictiveness Level- This is one of the five restrictiveness levels authorized in statute. Youth assessed and classified for placement in programs in this restrictiveness level represent a moderate risk to public safety. Programs are designed for children who require close supervision but do not need placement in facilities that are physically secure. Programs in the moderate-risk residential restrictiveness level provide 24-hour awake supervision,
custody, care and treatment. Upon specific appropriation, a facility at this restrictiveness level may have a security fence around the perimeter of the grounds of the facility and may be hardware-secure or staff-secure. . . .
Quality Assurance (QA)- A statutorily mandated process utilized by the DEPARTMENT for the objective assessment of a program's operation, management, governance and service delivery based on established standards. . .
Treatment Model- The formalized intervention provided by a program or facility and which is based on a sound theoretical approach or treatment modality which is applicable to juvenile youths. Examples of formalized intervention or treatment models provided in juvenile justice settings include psycho- dynamic approaches such as individual, group and family therapy; behavioral approaches such as behavioral modification, guided-group interaction and peer culture and milieu therapy; cognitive-behavioral and psycho- educational approaches such as social skills training, problem-solving training and anger replacement training; life skills approaches which include drug/alcohol, academic, vocational and outdoor experiences interventions. . . .
Section D.
Section D.1. of the RFP addressed the subject of "quality assurance requirements" and provided as follows:
The PROVIDER acknowledges that in accordance with Section 985.412, Florida Statutes, the DEPARTMENT shall evaluate the PROVIDER's Program to determine if the PROVIDER is meeting satisfactory levels of performance for the quality assurance standards.
The PROVIDER shall meet all satisfactory levels of performance for the quality assurance standards and understands that if a PROVIDER fails to meet the established
minimum threshold, such failure shall cause the DEPARTMENT to cancel the PROVIDER'S contract unless the PROVIDER achieves compliance with minimum thresholds within 6 months or unless there are documented extenuating circumstances. In addition, the DEPARTMENT may not contract with the same PROVIDER for the canceled services for a period of 12 months.
The PROVIDER shall provide services in accordance with quality assurance standard for Juvenile Justice Residential Programs, December 1, 1998.
The PROVIDER shall participate in a minimum of one on-site quality assurance review of a similar type program for each program operated by the PROVIDER in another district during the contract year at the PROVIDER'S expense.
Section D.2. of the RFP discussed Respondent's "monitoring" of performance under the contract.
Section E.
Section E. of the RFP explained how performance would be measured under the contract.
Section F.
Section F. of the RFP contained information regarding "contract administration." It indicated, among other things that the contract to be awarded by Respondent would be a "fixed unit contract."
Section G.
Section G. of the RFP contained "special contract requirements." It provided, in pertinent part, as follows:
Method of Payment
Available Beds/Single Rate
The PROVIDER shall provide 15 beds, which shall be available at all times. The
DEPARTMENT will pay the PROVIDER $ available bed per day.
per
The PROVIDER shall make the contracted number of beds continuously available throughout the term of the contract. . . .
The invoice shall be submitted directly to the contract manager within ten (10) working days following the end of the month for which services were rendered. . . .
G.9. DEPARTMENT Furnished Property
The DEPARTMENT shall deliver to the PROVIDER, at the same time and location stated in the contract, the DEPARTMENT Property for facilities use, described below. A facility is defined as a building or series of buildings or other structure(s) including infrastructure for use in connection with this contract. The facility is located at 11000 SW 220th Street, Miami Fl 33170, and is available July 1, 2000, 12:00 a.m. /3 .
G.20.1 Residential PROVIDER of BHOS Services The Behavioral Health Overlay Services (BHOS) PROVIDER, as defined by the Agency for Health Care Administration, shall provide all necessary and appropriate treatment services, including mental health and substance abuse, to youth in need of such services. . . .
G. 26. Certified Minority Business Enterprise (CMBE) Self Contracting Plan
The PROVIDER shall make a good faith effort to provide certified minority business enterprise (CMBEs) opportunity to participate in contract performance. A certified minority business enterprise is defined as a firm certified by the Office of Minority Business Advocacy and Assistance Office within the Department of Labor and Employment Security to be a minority business enterprise.
G.27. Minority Business Enterprise Utilization Reporting Procedures
The PROVIDER shall submit to the contract manager, along with the monthly invoice, a listing of all payments made for supplies and services to Certified Minority Business Enterprises (CMBE[s]) during the invoice period. The listing shall specify the payments by CMBE code to each CMBE and will be in accordance with the format in Exhibit 4.
This clause is not applicable to Certified Minority Business Enterprises. . .
Section H.
Section H. of the RFP was entitled "RFP Clauses."
Among the "clauses" in this section was one which incorporated by reference in the RFP "all applicable state and federal laws, rules and regulations."
Section J.
Section J. of the RFP contained "representations, certifications, and other statements to offerors," including the following:
J.4. Certified and Qualified Minority The Offeror shall include a copy of its
current certification as a certified minority business enterprise eligible to do business in the State of Florida, as set forth in Section 287.09451, Florida Statutes, issued by the State of Florida Minority Business Advocacy and Assistance Office.
Additionally, the Offeror shall include a copy of the current CMBE certificate for all proposed CMBE subcontractors in order for the proposal to be considered for additional points under Section L.2.5. of the Award Criteria. . . .
Section K.
Section K. of the RFP set forth the following "instructions, conditions, and notices to offerors," among others:
K.1 Form PUR 7033
This is the only fatal criteria item since this form becomes the signature page for the contract.
Acceptance of the terms and conditions of this solicitation and any resulting contract is accomplished by signing only the front side of the Request for [P]roposal Acknowledgment Form, PUR 7033.
The State of Florida, Request for Proposal, Contractual Services Acknowledgment Form, PUR 7033, shall be signed and returned with the proposal by February 10, 2000 at 3:00 p.m.
EST to:
Leonora Javier, Contract Manager Address 3510 Biscayne Blvd. Suite 312
Miami, Florida 33137
Phone (305) 571-5705
Fax (305) 571-5745 . . .
K.4.1. Past Performance Submit documentation to support the following: . . .
6. CMBE prior utilization. {ADD} within the past five years in the State of Florida.
K.5. Cost Pricing Proposal
The Offeror shall submit a price proposal to support proposal costs. . . .
How to Submit a Proposal
The Offeror shall deliver the proposal or consecutively numbered volumes by hand, a document delivery service, or certified mail to the contact person. The proposal or consecutively numbered volumes shall be submitted in a sealed envelope . . . .
Number of Pages and Copies Required The Offeror's response to the request for proposal shall be submitted in two volumes:
1) Volume I shall consist of the offer for technical, management and organizational capability to deliver the services; and 2) Volume II shall consist of the price/cost offer that describes in detail the cost and pricing data associated with delivering the services. The Offeror's response to the proposal (volumes) shall be limited to 50, 8 1/2" X 11" pages (numbered consecutively), excluding graphic information, and the text pitch shall be no smaller than 10. For each Offeror's response to the proposal (volume), each additional page exceeding the required page limit will be disposed of and will not be considered as part of the proposal response. One original and 9 copies of the proposal (volumes) are required. At least one copy of the proposal of Volume I submitted to the Department shall contain an original signature (on Form PUR 7033) by an agent of the Offeror or an officer of the firm, who is authorized to bind the Offeror or firm to the proposal as submitted. . . .
K.7.4. Acceptance of Proposals
Changes, modifications or additions to the proposals submitted shall not be accepted by the DEPARTMENT after the deadline for submitting a proposal has passed.
Proposals not received at either the specified place, or by the specified date and time, or both, shall be rejected and returned unopened to the Offeror.
The DEPARTMENT reserves the right to reject any or all proposals or waive minor irregularities when to do so would be in the best interest of the State of Florida.
Failure to deliver services upon award will result in cancellation of the contract and legal proceedings based on the default will be initiated. . . .
Pre-Proposal Conference Not applicable to this RFP.
Inquiries
Copies of responses to written inquiries for clarification and/or amendments to the solicitation (RFP), will be sent by Certified Mail, Return Receipt Requested, to those persons or firms who receive a solicitation, and to other interested persons, who request (in writing) information concerning this solicitation (RFP). Inquiries need to be submitted to the contact person identified in section F.4. of this proposal. The Offeror is encouraged to submit FedEx, Overnite, Airborne or similar such billing number to receive solicitations in a timely fashion.
K.7.10. Certified Minority Business Enterprise (CMBE) Subcontracting Plan (Note: A CMBE Offeror in NOT entitled to additional points for utilization of a CMBE subcontractor(s) under Section L.2.5 of the Award Criteria)
The Offeror shall include a detailed subcontracting plan in every proposal in excess of $75,000. Each subcontracting plan shall include a percentage of the total proposed contract dollars the Offeror anticipates expending under subcontract to CMBEs as well as the type of services/commodities that will be subcontracted. The subcontracting plan shall be incorporated into the contract.
Subcontracting plans shall be evaluated for additional points for non-CMBE Providers subcontracting with CMBE subcontractors. A copy of all CMBE subcontractor's' current CMBE certifications must be submitted with the proposal. Prior utilization of CMBE subcontracting shall be an evaluation factor and shall be used as a measure of Offeror's past performance under Section L.2.4 of the Award Criteria.
The total proposed dollar amount of the Contract: $
The total proposed dollar amount of the subcontracted services with CMBE subcontractors is: $
Percentage that will be subcontracted to CMBE subcontractors is: $
The following rating scale shall be used in the evaluation of subcontracting plans for non-CMBE Providers subcontracting with CMBE subcontractors:
PROPOSED CMBE RATING FACTOR SUBCONTRACTING
40% or more (of total
contract dollar amount) 50 points
30% | to | 39.99% | 40 | points |
20% | to | 29.00[sic]% | 30 | points |
10% | to | 19.99% | 20 | points |
Greater than 0% to 9.99% 10 points
0% 0 points
Section L.
Section L. of the RFP identified the "proposal award criteria." It provided as follows:
Chapter 287, F.S., requires that each RFP include the criteria to be used in determining acceptability of the proposal. Each proposal will be evaluated and subsequent award shall be made on the basis of maximum score, best value, and in the best interest of the State utilizing SSET Technical Proposal Evaluation criteria.
L.1. Fatal Item A proposal with a "no" response to the following question shall be rejected without further consideration.
Did the Offeror submit an original, signed State of Florida, Request for Proposal, Contractual Services Acknowledgement Form (PUR 7033)?
Yes No
** If above item is marked "NO" the evaluation process will STOP!
L. 2. Award Up to the following Criteria number of Evaluated
Points
Program Services 250 points Soundness of
approach 125
Compliance with Requirements 125
Organizational
Capability 100 points Soundness of
approach 50
Compliance with Requirements 50
Management approach 100 points Soundness of
approach 50
Compliance with Requirements 50
Past Performance 50 points Historical
Implementation 10
Educational Achievements 10
Recidivism
Rates 10
QA evaluation 10
Community Involvement 5
Prior CMBE Subcontracting 5
Sub Total Score points Maximum Possible Score 500
L.2.5 Additional Points Available
Is the Offeror a certified and qualified Minority Business Enterprise registered to do business in the State of Florida? (Current certificate shall be included in the proposal)
Included Not Included SCORE (50 points)
OR
Will the Offeror utilize a certified and qualified Minority Business Enterprise(s) registered to do business in the State of Florida as a Subcontractor? (Certificate(s) shall be included in the proposal)
Included Not Included SCORE (up to 50 points)
Note: A CMBE Offeror is NOT entitled to additional points for utilization of a CMBE subcontractor under L.2.5. of the Award Criteria.
Additional points TOTAL SCORE points
Respondent's Responses to Written Inquiries
Respondent received "written inquiries for clarification and/or amendments to the solicitation (RFP)," as described in Section K.7.7. of the RFP, from Intervenor, Ramsay Youth Services, Inc., First Corrections Corporation and Alternative Behavioral Services, /4 but not from Petitioner.
Ms. Javier drafted (for her supervisor, Maria Cadavid, District 11's contract administrator) written responses to these inquiries. She prepared three separate documents: one containing the inquiries made by Intervenor and the responses thereto (Response to Intervenor), another containing the inquiries made by Ramsay Youth Services, Inc. and the responses thereto (Response to Ramsay), and a third containing the inquiries made by First Corrections Corporation and Alternative
Behavioral Services and the responses thereto (Response to First Corrections).
Two of these three documents, the Response to Intervenor and the Response to Ramsay, addressed the requirements of Section K.7.2. (dealing with "number of pages"). These two documents read, in pertinent part, as follows:
Response to Intervenor
Question 18: Define and provide examples of the phrase "graphic information" as listed in Section K.7.2.
Response: All exhibits are considered "graphic information" as listed in Section K.7.2.
Question 19: Does the Department agree to expand the page limit for each offeror's response to the proposal from 50 pages to 75 pages?
Response: No. Please refer to previous response.
Response to Ramsay
Question 3: Regarding the page limitation, are the following items counted against the page limit?
Civil Rights Compliance Checklist PUR 7033
Weekly Schedule Resumes
Job Descriptions Staffing Patterns Corporate Documents Table of Contents
Response: The following are considered graphic material and do not count against the page limit:
Civil Rights Compliance Checklist No PUR 7033 No
Weekly schedule No
Budget Excel sheets Yes
Resumes No
Job Descriptions No
Staffing Patterns No
Corporate Documents No
Table of Contents No
Respondent opted to use facsimile transmission rather than "Certified Mail, Return Receipt Requested" (as it indicated, in Section K.7.7. of the RFP, it would) to expedite potential proposers' receipt of the written responses Ms. Javier had prepared.
After obtaining the "fax" numbers of all those who had submitted completed Notice of Availability forms, Respondent, on or about January 24, 2000, made a good faith effort to send them, by facsimile transmission, copies of these responses.
Petitioner, however, received a copy of only the Response to First Corrections. It received a copy of neither the Response to Intervenor, nor the Response to Ramsay.
Submission of Proposals
Three proposals were submitted in response to the RFP.
The three proposers were Intervenor, Petitioner, and Non-Secure Detention Home, Inc.
Intervenor's Submission
Intervenor's submission consisted of two volumes (Intervenor's Complete Proposal).
Volume I of Intervenor's Complete Proposal was a thorough, well organized, and thoughtful "offer for technical, management, & organizational capability" (Intervenor's Technical Proposal).
Intervenor's Technical Proposal contained 50 consecutively numbered pages, plus a completed Form PUR 7033, a table of contents, and other "graphic information" (as that term was clarified in the Response to Intervenor and Response to Ramsay).
Staffing
In its Technical Proposal, on numbered page 9, Intervenor addressed the issue of staffing levels and staff supervision as follows:
Care and Custody
AMI shall provide 24-hour daily supervision, custody and care of female youths placed in the program, with required supervision, custody and care. . . . AMI shall submit a staffing proposal including all staff assigned to this program, included in the proposal. AMI's security shall include, at a minimum:
1. Levels of staff and staff supervision reflected in staff to female youth ratios. The staffing plan [c]an be found in Section
K.4. as required by the RFP.
SFAS [South Florida Achievement School, the name of the program proposed by Intervenor] provides 24-hour awake supervision and residential care to students, seven days a week, 365 days a year. To insure a safe and secure environment, [there will be] a 1:10 staff to student ratio during awake hours and
1:12 ratio during sleeping hours. All off site activities will follow a ratio of 1:5.
Nighttime supervision is especially critical. The configuration of the student sleeping areas is designed to insure unobstructed supervision of each student. Night Counselors (during sleep time) make an initial check to insure that all students in the bedroom areas are accounted for.
The name of any student wishing to use the restroom is entered in the log and again when returning. The restroom area is within line of sight supervision by the Night Supervisor.
All students in bed must have their heads showing. Students are not allowed to pull blankets/sheets over their heads.
The Night Supervisor makes a formal count of all those under his/her supervision every hour and records this in the log.
Intervenor's "staffing plan" was described on numbered pages 47 and 48 of its Technical Proposal as follows:
Staffing Plan
The major strength of each AMI program is the program staff. The policy of offering opportunities for growth and cross training to current staff provides a ready pool of nearly 1,400 dedicated and trained professionals from which to draw. AMI agrees to maintain all services and requirements in compliance with the standards outlined in the State of Florida manuals that are referenced in the RFP. The programs will insure that all staff possess the proper credentials as outlined in the manuals.
As indicated earlier, SFAS will fall under the direct supervision of Regional Director, Ralph Parker. It is important to note that the leadership and exceptional cultural diversity of AMI's staff has created a unique market advantage for us in the states we currently serve. These programs are led by a
corporate team of professionals who are trained to understand the importance of residential programming and are willing to "do whatever it takes" to help turn around the lives of juveniles at SFAS. Our principle value is "KIDS FIRST," the diversity of our human resources is unmatched, our strategic plans are carried through to completion, our focus always points to our mission, and at the same time, we allocate our resources to analyzing data and obtaining reliable and measurable results from our programs.
The school will be headed by a Program Director, who will also serve as the Licensed Mental Health Professional. To assist with counseling efforts, the Life Skills instructor will also have an MSW degree. Job descriptions for the following positions are available upon request and conform to the requirements of the State. Copies have not been included due to the page limitations set by the RFP. Staff to student ratios are 1:10 (wake hours) and 1:12 (sleeping hours). The table below provides the proposed staffing plan for SFAS:
SFAS Staffing Plan | |
Position Title | Weekly Hours |
Program Director | 40 |
Administrative Assistant | 40 |
Education Director | 40 |
ESE Instructor | 40 |
Instructor/Counselor | 40 |
Computer Instructor | 40 |
Life Skills Instructor/ | |
Case Manager (MSW) | 40 |
Food Services Supervisor | 40 |
P.E. Recreational | |
Instructor | 16 |
Environmental Instructor | 16 |
P.E. Instructor | 16 |
Environmental Instructor | 16 |
Night Supervisor | 40 |
Night Supervisor | 40 |
Night Counselor | 16 |
Night Counselor | 16 |
It is not unreasonable to conclude, based upon a review of the foregoing portion of Intervenor's Technical Proposal, that Intervenor has proposed to provide adequate "[l]evels of staff and staff supervision reflected in staff to female youth ratios," as required by Section C.1.1. of the RFP.
"Assistance Dog Training Program"
On numbered pages 24 and 25 of its Technical Proposal, Intervenor described an "Assistance Dog Training Program," that it proposed to implement at South Florida Achievement School "in partnership with Canine Companions for independence, the largest and longest operating organization training assistance dogs for the disabled."
Intervenor noted (in the second paragraph on numbered page 24) that it "has a fully operational Assistance Dog Training Program at the Space Coast Marine Institute . . . in Melbourne, Florida, . . . a Level 6 residential program for males funded by the Department of Juvenile Justice."
It then went on to state the following regarding the benefits of an "Assistance Dog Training Program":
The Assistance Dog Training Program has a proven track record of dramatic gains in
self-confidence, academic progression and the lessening of negative behaviors in at-risk youngsters. Our experience to date has been remarkable. Listed below are the results of a similar assistance dog training program for at-risk youngsters after one year of operation: /5
Enrollees (Students Directly Involved in Training of Dogs)
Attendance- Improved by 73.4%
Number of referrals for Problem Behavior- Decreased by 89.2%
Average GPA- Increased 32.1%
Entire School (Dogs Participated in All School Activities)
Suspension Rate- Decreased by 51.2% Calls Requiring the School's Resource Officer- Decreased by 26.5%
Through contact with and the responsibility for the care and training of assistance dogs, the lives of the students will be enhanced and opportunities will open.
On numbered page 25 of its Technical Proposal, Intervenor set forth an "Assistance Dog Training Implementation Plan," which read, in part, as follows:
The students of SFAS will begin their Assistance Dog Training experience in the Puppy Raising Program under the supervision of one program staff member who will be trained by Canine Companions for Independence. The students participating in the Puppy Raising Program will be responsible for all of the young dog's care, socialization and the teaching of basic commands. At about one and a half years of age, the dogs are then returned to Canine Companions for Independence Training Center in Orlando, Florida for eight additional months of advanced training. . . .
The trained dogs change lives, those of our participating students and the disabled recipients. . . . Statistical results indicate that the benefits to the SFAS students involved in this unique project may result in:
An overall 10% increase in self-esteem- Recorded by a pre and post-test that was administered to participating students in other programs.
A 50% decrease in absenteeism- This statistic was . . . noted when measured against these same students prior attendance.
The Assistance Dog Training Program has an important place within the programs of AMI. Its addition is exciting, new and can make a tremendous difference in youngsters we serve.
. . .
Frederick D. Kremer, AMI, Director of Corporate Development, is currently responsible for the implementation of our first Assistance Dog Training Program at the Space Coast Marine Institute (SCMI). Mr.
Kremer will oversee the SFAS Assistance Dog Training Program. He will insure that this program is successful and is a meaningful experience for the girls. Canine Companions for Independence, through their regional office in Orlando, will oversee the quality and progress of the program at the SFAS Program. The program staff and Mr. Kremer will remain in close contact with CCI. In addition to the increases in self-esteem, academic progression and many other positives of this component, AMI will offer a vocational out growth once this program is implemented. . . .
It is Intervenor's intention (as its senior vice- president of corporate and support services, William Hoffman, testified at hearing), should it be awarded the contract advertised in RFP No. K9018, to limit participation in the "Assistance Dog Training Program" to only those SFAS residents for whom participation would be appropriate (those who are not uncomfortable being around dogs and do not have a history of animal abuse) and to have the one or two dogs these residents (in teams of 2 or 3) would care for and train remain at the facility only during the day (and not at night, when they would be housed
in a volunteer's or staff member's house). Although Intervenor did not provide these details regarding the program (that were revealed by Mr. Hoffman during his testimony at hearing) in its Technical Proposal, neither did it make any statements in its Technical Proposal indicating that it intended to implement the program in a manner inconsistent with its present plans (as described by Mr. Hoffman).
There has been no showing that Intervenor would be prohibited, by operation of local land use law, from implementing its proposed "Assistance Dog Training Program"; nor has it been established that the implementation of the program would not yield the benefits described on numbered pages 24 and 25 of Intervenor's Technical Proposal.
CMBEs
On numbered page 34 of its Technical Proposal, Intervenor stated that "[it] and its affiliates currently utilize Certified Minority Business Enterprises (CMBEs located throughout the state of Florida" and that "[s]ervices are contracted and provided in the following areas: Travel Agencies, Temporary Employment Agencies, Janitorial Services, Landscaping and Lawn Services, Contractors, Pest Control, Computer Sciences, Florist, Food and Catering, Auto Repairs and Towing." It then went on to list (on that same page and on the following page) "some of the Minority and Women CMBEs currently being used" and to give, where available, the amount (in "total dollars") of business done with
these listed CMBEs ("World Express International," "Lawn Company Grass Experts," "A1 Kleaning Klinic," "George Harris Lawn Service," "Snelling Temporary Agency," "Office Temporary Team," "Quality Applique," "Tempwise," "First Rate Pest Control," "Laser Action Plus," and "Diane's Creations").
On numbered page 37 of its Technical Proposal, Intervenor advised that, "[s]ince [it] is a non-profit organization and does not fall into a realm of being owned by any specific group, individual or organization, [it is] not eligible for certification as a CMBE.
Intervenor's "Certified Minority Business Enterprise (CMBE) Subcontracting Plan" was set forth on numbered page 50 of Intervenor's Technical Proposal. It provided as follows:
Subcontracting plans shall be evaluated for additional points for non-CMBE providers subcontracting with CMBE subcontractors. A copy of all CMBE subcontractors' current CMBE certifications must be submitted with the proposal. Several of these certificates are available in Appendix 12.
The total proposed dollar amount of the contract $465,375.00
The total proposed dollar amount of the subcontracted services with CMBE subcontractors is $88,421.00
Percentage that will be contracted to CMBE subcontractors is 10-19.99%
Appendix 12 of Intervenor's Technical Proposal contained certifications for the following "CMBE subcontractors": Snelling Personnel Services; A-1 Kleaning Klinic, Inc.; StaffWorks, Inc.; Consultis (Computemp of Tampa, Inc.); D & A
Building Services, Inc.; Excel Business Products; Thomas Janitorial and Cleaning Service; Data America (Ashlyn Corporation); Have Broom Will Travel; Aasys Group, Inc.; Bowen Travel Service (Varsity Enterprises, Inc.; TempWise, Inc.; and Tomlin Temporary Services, Inc.
It can be gleaned from a review of these certificates and the other documents included in Appendix 12 of Intervenor's Technical Proposal the "type[s] of services/commodities" the following of these "CMBE subcontractors" offer: StaffWorks, Inc. ("permanent" and "temporary" staffing and "consulting" in "information systems," "sales and marketing," "administrative" matters, "accounting," and "clerical" matters); Consultis (Computemp of Tampa, Inc.)("information technology staffing solutions"); D & A Building Services, Inc.("janitorial services, window cleaning, pressure cleaning, caulking and other building services"); Excel Business Products (business products); Thomas Janitorial and Cleaning Service (cleaning services); Data America (Ashlyn Corporation)("computer hardware, software, service, training, and computer supply items"); Have Broom Will Travel (cleaning and janitorial services); and TempWise, Inc. ("temporary and permanent staffing" services).
The names of the remaining "CMBE subcontractors" whose certifications were included in Appendix 12 of Intervenor's Technical Proposal, with the exception of Aasys Group, Inc., suggest what "type[s] of services/commodities" they may offer.
Petitioner's Submission
Petitioner's submission consisted of two volumes (Petitioner's Complete Proposal).
Volume I of Petitioner's Complete Proposal contained the "technical" component of its submission (Petitioner's Technical Proposal).
Volume II of Petitioner's Complete Proposal contained its "price/cost offer" (Petitioner's Cost Proposal).
Petitioner's Complete Proposal contained 47 consecutively numbered pages (which included a completed Form PUR 7033 and a table of contents), plus "exhibits" that were appended thereto.
Staffing
On numbered page 11 of its Complete Proposal, Petitioner stated the following regarding "supervision and staffing":
Close supervision is absolutely and critically essential. The young women committed to the facility are designated as moderate risk. Close and consistent supervision is a vital ingredient in ensuring the program's success and acceptance within the community. Twenty-four (24) hour, awake, sight and sound supervision with the prescribed staff to client ratio (1 staff per
8 youth during waking hours, /6 1 staff per
12 youth during sleeping hours, 1 staff per 5 youth while transporting) is provided on a continuous basis by direct-care staff who are in constant sight and sound of the residents. All staff are trained and alerted to female specific issues of supervising young women.
Managers provide direct supervision to direct-care staff. This approach supports
the policy of security being an integral part of treatment and avoids the typical
treatment-security dichotomy. The Program Director and designated supervisory staff [are] responsible for on-call coverage.
Numbered page 35 of Petitioner's Complete Proposal contained an organizational chart for the Cove. The chart reflected that Sara Leidtke "LMHC" reports directly to the Director of Adolescent Services, Amy Bejarano.
The following page (numbered page 36) contained an organizational chart for Agape Family Ministries, the entity (of which Petitioner is the parent) that operates the Cove. It reflected that the Cove employs a "LMHC."
The "resumes for professional staff members" were set forth on numbered pages 37 and 38 of Petitioner's Complete Proposal. Among these "resumes" was that of the "therapist," which read as follows:
The qualifications for this position is a Master's Degree in a human services discipline such as social work, mental health counseling, marriage and family therapy, psychology, rehabilitation, counseling, etc. plus two years relevant work experience; or a Doctoral Degree plus one year relevant work experience. A license is required. Duties and responsibilities include providing all B- HOS services which include counseling to individuals, groups, and families using recognized therapeutic techniques, behavioral planning, evaluation of client needs, development and coordination of treatment plans, may prepare diagnostic evaluation and administer psychological tests, may participate in community education programs, may develop and/or deliver in-service
training to other service staff, provides clinical supervision to other clinical staff, may be responsible for coordination of certain services or projects within a program. This is a full time position.
Numbered page 39 of Petitioner's Complete Proposal set forth a "staffing plan," which gave the "name," "title," and "weekly hours" of those who would be members of the Cove staff. Among those named was Sara Leidtke. Next to her name (under "title") was "LMHC" and "40 (BHOS)" (under "weekly hours"). According to the "staffing plan," the total "weekly hours" for all staff members combined would be 384. (Intervenor's "staffing plan" reflected that there would be a total of 496 "weekly hours" for all staff members combined.)
CMBEs
On numbered pages 39 and 40 of its Complete Proposal, Petitioner discussed its "past performance." In its discussion, Petitioner made no mention of any "CMBE prior utilization."
Petitioner's "subcontracting plan" was included as a one-page, unnumbered exhibit appended to its Technical Proposal and Cost Proposal.
The first paragraph of this "subcontracting plan" was a verbatim recital of the first paragraph (following the "note") of Section K.7.10. of the RFP.
The remainder of the "subcontracting plan" read as follows:
The total proposed dollar amount of the contract: $408,843.00
The total proposed dollar amount of the subcontracted services with CMBE subcontractors is: $13,920.00
The percentage that will be subcontracted to CMBE subcontractors is: 3.4%
Nowhere else in its Complete Proposal did Petitioner provide any other information or documentation (such as certifications) relating to its CMBE "subcontracting plan."
Source Selection Evaluation Team
A Source Selection Evaluation Team (SSET) was formed to evaluate the technical proposals that had been submitted in response to RFP No. K9018.
Three District 11 employees were selected to serve on the SSET: Joan Berni, Michael Burns, and Terri Evans.
Each of these employees had the necessary qualifications, in terms of his or her experience and knowledge, to competently discharge his or her duties as a SSET member.
Ms. Berni is a program administrator in District 11 in charge of special projects. She has been employed by Respondent since 1998, during which time she has served as an evaluation team member on multiple occasions.
From 1968 to 1986, Ms. Berni was employed by Respondent's predecessor, the Department of Health and Rehabilitative Services (HRS). During this period, she served as an intake specialist and manager in HRS' Division of Children, Youth and Families, and as a deputy district administrator (in
District 10). While serving in these positions, she "reviewed hundreds of proposals."
Mr. Burns is now, and has been for the last ten years (a portion of which time he worked for HRS), a commitment manager. As a commitment manager, he conducts commitment conferences and makes recommendations to the court concerning delinquent youth committed to Respondent.
Ms. Evans is a senior juvenile probation officer. As such, she supervises delinquent youth on community control. She has been in her present position for one year and has been an employee of Respondent since May of 1996.
The February 17, 2000, Meeting of the SSET
The SSET members met as a group on the morning of February 17, 2000, with the new contract manager for RFP No. K9018, Jounice Dunson, and her supervisor, Ms. Cadavid.
At the meeting, the SSET members were each given copies of the RFP, the "technical" components of the three proposals submitted in response to the RFP, a document entitled "Briefing for Source Selection Evaluation (SSET) Team Members and Advisors," a "SSET Technical Proposal Evaluation Score Sheet," a "Department of Juvenile Justice Conflict of Interest Questionnaire," and a memorandum from Ms. Cadavid, which described the "recommended review process." /7
In addition, at the meeting, SSET members were provided with verbal instructions, among which was the following (as
described in the minutes of the meeting): "if a [CMBE] certification is not seen hold for verification when the team meets again."
SSET Technical Proposal Evaluation Score Sheet
The SSET Technical Proposal Evaluation Score Sheets (Score Sheets) that were distributed to the SSET members directed them to "[u]se the following rating scores to rate the . . . evaluation criteria" (as described in Section L.2.1 through
L.2.4. of the RFP): if "[t]he proposal exceeds all technical specifications and requirements for all program components" and "is innovative, comprehensive, and complete in every detail," it should receive a "rating" of "excellent" and a "score" of 5; if "[t]he proposal meets all technical specifications and requirements for all program components," "is comprehensive and complete in every detail," and "contains some innovative details for some of the program components," it should receive a "rating" of "very good" and a "score" of 4; if "[t]he proposal meets all technical specifications and requirements for all program components," it should receive a "rating" of "adequate" and a "score" of 3; if "[t]he proposal does not meet all technical specifications and requirements for all program components, or it does not provide essential information to substantiate the offeror's ability to provide the service," it should receive a "rating" of "poor" and a "score" of 2; if "[t]he proposal: 1. Contains errors and/or omissions in major areas of the program
components; 2. Demonstrates the offeror's lack of understanding of the technical specifications and requirements for program components; or 3. Fails to substantiate the offeror's ability to provide the service," it should receive a "rating" of "unsatisfactory" and a "score" of 1; and if "[t]he offeror's proposal addresses none of the program components," it should receive a "rating" of "not addressed" and a "score" of 0.
The Score Sheets further instructed that, for each "score" above 3, the evaluator give (in the space provided) a "narrative description" of the "strengths" of the proposal (with respect to the evaluation criterion in question) and, for each score below 3, the evaluator give (in the space provided) a "narrative description" of the "weaknesses" of the proposal (with respect to the evaluation criterion in question).
The Score Sheets contained the following instructions with respect to the scoring for "evaluation criterion" L.2.5:
QUESTION 1. Is the Offeror a Certified Minority Business Enterprise, as verified by its certification of its conducting business in the State of Florida as a CMBE which is included in its proposal or as verified on the Florida Department of Labor website, as referenced by J.4. of the RFP.
ANSWER: Circle one of the following:
YES NO
(If the answer to this question is YES, give a score of 5 and stop here. If the answer to the question is NO, give a score of 0 and go on to question 2.)
QUESTION 2. If the Offeror is a non-CMBE provider, did the offeror include with its proposal the subcontracting plan for all proposed CMBE subcontractors, as required by K.7.10.
ANSWER: Circle one of the following:
YES NO
(If the answer to this question is NO, give a score of 0. If the answer to this question is YES, then use the following rating scale for the score.
If the total CMBE subcontract dollars are equal to 40% or more of the total proposed contract price, use "5."
If the total CMBE subcontract dollars are from 30 to 30.99% /8 of the total proposed contract price, use "4."
If the total CMBE subcontract dollars are from 20 to 20.99% /9 of the total proposed contract price, use "3."
If total CMBE subcontract dollars are from 10 to 19.99% of the total proposed contract price, use "2."
If total CMBE subcontract dollars are greater than 0 to 9.99% of the total proposed contract price, use "1."
If the total CMBE subcontract dollars are 0% of the total proposed contract price, use "0."
The Scoring of Proposals
Each member of the SSET, without collaboration with any other member of the team, reviewed and evaluated the "technical" components of the three proposals that had been submitted in response to RFP No. K9018 and entered their scores on the Score Sheets they had been provided for that purpose.
In discharging their duties as SSET members, they made a good faith effort to evaluate the proposals based upon what
they understood the RFP to require. (Ms. Cadavid attempted to help them better their understanding by providing them with her interpretation of certain evaluation criteria.)
SSET members acted honestly and without any unfair bias, partiality, or favoritism.
They turned in their completed Score Sheets after meeting individually with Ms. Dunson and Ms. Cadavid on February 23, 2000.
The following are the scores that Petitioner and Intervenor received:
For Program Services (Soundness of Approach): Petitioner- 4 (from Ms. Berni), 3 (from Mr. Burns), and 5 (from Ms. Evans)
Intervenor- 4 (from Ms. Berni), 5 (from Mr. Burns), and 3 (from Ms. Evans)
For Program Services (Compliance with Requirements)
Petitioner- 4 (from Ms. Berni), 2 (from Mr. Burns), and 4 (from Ms. Evans)
Intervenor- 4 (from Ms. Berni), 2 (from Mr. Burns), and 3 (from Ms. Evans)
For Organizational Capability (Soundness of Approach)
Petitioner- 3 (from Ms. Berni), 3 (from Mr. Burns), and 5 (from Ms. Evans)
Intervenor- 4 (from Ms. Berni), 4 (from Mr. Burns), and 3 (from Ms. Evans)
For Organizational Capability (Compliance with Requirements)
Petitioner- 3 (from Ms. Berni), 3 (from Mr. Burns), and 4 (from Ms. Evans)
Intervenor- 4 (from Ms. Berni), 3 (from Mr. Burns), and 3 (from Ms. Evans)
For Management Approach (Soundness of Approach)
Petitioner- 3 (from Ms. Berni), 3 (from Mr. Burns), and 3 (from Ms. Evans)
Intervenor- 4 (from Ms. Berni), 4 (from Mr. Burns), and 3 (from Ms. Evans)
For Management Approach (Compliance with requirements)
Petitioner- 3 (from Ms. Berni), | 3 | (from | Mr. |
Burns), and 3 (from Ms. Evans) Intervenor- 4 (from Ms. Berni), | 3 | (from | Mr. |
Burns), and 3 (from Ms. Evans) | |||
For Past Performance Historical Implementation Petitioner- 4 (from Ms. Berni), | 4 | (from | Mr. |
Burns), and 5 (from Ms. Evans) Intervenor- 5 (from Ms. Berni), | 3 | (from | Mr. |
Burns), and 3 (from Ms. Evans) | |||
Educational Achievements Petitioner- 2 (from Ms. Berni), | 3 | (from | Mr. |
Burns), and 4 (from Ms. Evans) Intervenor- 5 (from Ms. Berni), | 3 | (from | Mr. |
Burns), and 3 (from Ms. Evans) | |||
Recidivism Rates Petitioner- 4 (from Ms. Berni), | 3 | (from | Mr. |
Burns), and 4 (from Ms. Evans) Intervenor- 3 (from Ms. Berni), | 3 | (from | Mr. |
Burns), and 3 (from Ms. Evans) | |||
QA evaluation Petitioner- 3 (from Ms. Berni), | 3 | (from | Mr. |
Burns), and 3 (from Ms. Evans) Intervenor- 4 (from Ms. Berni), | 3 | (from | Mr. |
Burns), and 3 (from Ms. Evans) | |||
Community Involvement Petitioner- 4 (from Ms. Berni), | 3 | (from | Mr. |
Burns), and 5 (from Ms. Evans) Intervenor- 4 (from Ms. Berni), | 3 | (from | Mr. |
Burns), and 4 (from Ms. Evans) | |||
Prior CMBE Subcontracting Petitioner- 0 (from Ms. Berni), | 0 | (from | Mr. |
Burns), and 0 (from Ms. Evans) Intervenor- 4 (from Ms. Berni), | 3 | (from | Mr. |
Burns), and 3 (from Ms. Evans) |
Additional Points Available (CMBE Offeror or Use of CMBE Subcontractors)
Petitioner- 1 (from Ms. Berni), 1 (from Mr. Burns) and 1 (from Ms. Evans)
Intervenor- 2 (from Mr. Berni), 2 (from Mr. Burns), and 2 (from Ms. Evans)
On the Score Sheet he used to evaluate the "technical" component of Petitioner's proposal, in the space provided for "strengths and weaknesses," next to the score (2) he gave for the criterion, "Program Services, Compliance with Requirements," /10 Mr. Burns wrote: "No assurance of Licensed Mental Health Professional on campus 40 hrs/wk."
Mr. Burns was unclear as to what the reference to "LMHC" in Petitioner's proposal meant.
Had he known, at the time that he was evaluating Petitioner's proposal, that "LMHC" was an acronym for licensed mental health counselor, he "may have" (as he testified at hearing) scored Petitioner's proposal higher than he did for the criterion, "Program Services, Compliance with Requirements," but he would not have given Petitioner a score (for that criterion) any higher than a 3.
The Tabulation of the SSET Members' Scores
Ms. Dunson and Ms. Cadavid tabulated the points on Ms. Berni's, Mr. Burns', and Ms. Evans' Score Sheets; determined (in light of the provisions of Section L. of the RFP) the "weight" to be given the scores for each evaluation criterion; and then prepared charts (Technical Evaluation Scoring Summaries) which showed that Petitioner had received "weighted" total scores of
358, 422, and 284 from Ms. Berni, Ms. Evans, and Mr. Burns, respectively, for an average "weighted" total score of 354.67, and that Intervenor had received "weighted" total scores of 421, 331, and 366 from Ms. Berni, Ms. Evans, and Mr. Burns, respectively, for an average "weighted" total score of 372.67.
The Technical Evaluation Scoring Summary of the scores Intervenor received should have reflected that Ms. Evans had given Intervenor a 3 (not a 2) for the "Additional Points Available" (CMBE Offeror or Use of CMBE Subcontractors) criterion
/11 and that, therefore, the total number of points Intervenor had received from Ms. Evans (when properly "weighted") was 321 (not 331) and Intervenor's average "weighted" total score was
369.33 (not 372.67). This error, however, did not have an effect on the ultimate outcome of the evaluation of the "technical" components of the proposals. Even if this error had not been made, Intervenor would still have had the highest average "weighted" total score.
There has been no showing that any other errors were made by Ms. Dunson and Ms. Cadavid in preparing the Technical Evaluation Scoring Summaries.
On February 24, 2000, Ms. Cadavid sent the following memorandum to Ron E. Williams, a senior juvenile justice manager with Respondent:
The SSET Committee composed of Joan Berni, PA; Terri Evans, SJPO; and Michael Burns HSPM; completed the Evaluation/Scoring of all proposals submitted for RFP K9018, 15 Bed
Level 6 Female Residential Halfway House Program, that closed on February 10. 2000. Please note that no proposals were rejected.
The bid tabulations for all proposals are as follows:
Proposer Name Points Awarded Associated Marine
Institute[s], Inc. 372.67
South Florida Jail
Ministries 354.67
Non-Secure Detention
Home Inc. 261.00
The Proposal evaluation SSET committee recommends an award to Associated Marine Institute[s], Inc
If you have any questions please advise
Mr. Williams "concurred" with the recommendation Notice of Posting and Contract Award
Thereafter, Respondent issued a Notice of Posting and Contract Award, which provided, in pertinent part, as follows:
The department opened proposals received in response to Request for Proposal number K9018, titled 15 Bed Level 6 Residential Female Halfway House Program, Miami-Dade County on February 10, 2000 at 3:05 p.m.
Pursuant to Chapter 120.57(3), Florida Statutes, the posting of this Notice of Intent to Contract will commence on February 29, 2000, at 9:05 a.m. and continue for 72
hours until March 3, 2000, at 9:05 a.m.
The department's selection team, according to Chapter 287.057(15), Florida Statutes, has identified Associated Marine Institute[s], Inc. for potential award(s) for the contract.
The following list identifies offerors who submitted proposals in response to this
competitive procurement and provides the total score and ranking for each.
Offeror's name Points Awarded
Associated Marine
Institute[s], Inc. 372.67
South Florida Jail
Ministries 354.67
Non-Secure Detention
Home Inc. 261.00
Failure to file a protest within the time prescribed in s. 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes. All bids/proposals accepted by the State are subject to the State's terms and conditions and any and all additional terms and conditions submitted by the bidders/proposers are rejected and shall have no force and effect. Offers from provides listed herein are the only offers received timely as of the above opening time and date. . . . .
Petitioners' Protest
Petitioner timely protested the decision announced in Respondent's Notice of Posting and Contract Award.
Evaluation of Cost Proposals
An evaluation of cost proposals has yet to be conducted.
CONCLUSIONS OF LAW
With certain exceptions not applicable to the instant case, state agencies (including Respondent) must purchase commodities and contractual services through the solicitation of competitive sealed bids or proposals. Section 287.057, Florida Statutes.
It has been said on more than one occasion that competitive bidding/proposing requirements, such as those imposed upon state agencies, have as their purpose and object the following:
[T]o protect the public against collusive contracts; to secure fair competition upon equal terms to all bidders; to remove not only collusion but temptation for collusion and opportunity for gain at public expense; to close all avenues to favoritism and fraud in various forms; to secure the best values for the [public] at the lowest possible expense; and to afford an equal advantage to all desiring to do business with the [government], by affording an opportunity for an exact comparison of bids.
Wester v. Belote, 103 Fla. 976, 138 So. 721, 723-24 (Fla. 1931); Harry Pepper and Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190, 1192 (Fla. 2d DCA 1977).
In soliciting and accepting competitive bids or proposals, Respondent has wide discretion. See Department of Transportation v. Groves-Watkins Constructors, 530 So. 2d 912, 913 (Fla. 1988); Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So. 2d 505, 507 (Fla. 1982).
Its discretion with respect to these matters, while broad, is not unbridled. It must exercise its discretion in a manner that is not illegal, dishonest, fraudulent, arbitrary, unreasonable, capricious, or in any other way that would subvert or undermine the purpose and object of competitive bidding/proposing. See Department of Transportation v. Groves Watkins Constructors, 530 So. 2d 912, 913-14 (Fla. 1988); Caber
Systems v. Department of General Services, 530 So. 2d 325, 336 (Fla. 1st DCA 1988); Couch Construction Company, Inc. v.
Department of Transportation, 361 So. 2d 172, 175 (Fla. 1st DCA 1978); Wood-Hopkins Contracting Company v. Roger J. Au and Son, Inc., 354 So. 2d 446, 450 (Fla. 1st DCA 1978).
A state agency, like Respondent, that seeks to obtain commodities or services through the solicitation of competitive sealed proposals must comply with the requirements of Section 287.057, Florida Statutes, which provides, in pertinent part, as follows:
Unless otherwise authorized by law, all contracts for the purchase of commodities or contractual services in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO /12 shall be awarded by competitive sealed bidding. An invitation to bid shall be issued which shall include a detailed description of the commodities or contractual services sought; the date for submittal of bids; and all contractual terms and conditions applicable to the procurement of commodities or contractual services, including the criteria which shall
include, but need not be limited to, price,
to be used in determining acceptability of the bid. . . .
When an agency determines in writing that the use of competitive sealed bidding is not practicable, commodities or contractual services shall be procured by competitive sealed proposals. A request for proposals
/13 which includes a statement of the commodities or contractual services sought and all contractual terms and conditions applicable to the procurement of commodities or contractual services, including the criteria, which shall include, but need not be limited to, price, to be used in determining acceptability of the proposal
shall be issued. If the agency contemplates renewal of the commodities or contractual services contract, it shall be so stated in the request for proposals. The proposal shall include the price for each year for which the contract may be renewed.
Evaluation of proposals shall include consideration of the total cost for each year as quoted by the offeror. To assure full understanding of and responsiveness to the solicitation requirements, discussions may be conducted with qualified offerors. The offerors shall be accorded fair and equal treatment prior to the submittal date specified in the request for proposals with respect to any opportunity for discussion and revision of proposals. The award shall be made to the responsible offeror /14 whose proposal is determined in writing to be the most advantageous to the state, taking into consideration the price and the other criteria set forth in the request for proposals. The contract file shall contain the basis on which the award is made.
When the purchase price of commodities or contractual services exceeds the threshold amount provided in s. 287.017 for CATEGORY TWO, no purchase of commodities or contractual services may be made without receiving competitive sealed bids or competitive sealed proposals . . . .
If less than two responsive bids or proposals for commodity or contractual services purchases are received, the department or the agency may negotiate on the best terms and conditions. The agency shall document the reasons that such action is in the best interest of the state in lieu of resoliciting competitive sealed bids or proposals. . . .
(15) For requests for proposals, a selection team of at least three employees who have experience and knowledge in the program areas and service requirements for which contractual services are sought shall be appointed by the agency head to aid in the selection of contractors for contracts of
more than the threshold amount provided in s.
287.017 for CATEGORY FOUR. /15 . . .
(17) Each agency shall establish a review and approval process for all contractual services contracts costing more than the threshold amount provided for in s. 287.017 for CATEGORY THREE /16 which shall include, but not be limited to, program, financial, and legal review and approval. Such reviews and approvals shall be obtained before the contract is executed. . . .
The agency must also comply with all applicable rules adopted by the Division of Purchasing of the Department of Management Services (DMS) pursuant to the authority granted in Section 287.042, Florida Statutes.
Among these rules adopted by DMS is Rule 60A- 1.002(10), Florida Administrative Code, which provides as follows::
Right to Waive Minor Irregularities for Commodities or Contractual Services -- The agency shall reserve the right to waive any minor irregularities in an otherwise valid bid or proposal or offer to negotiate.
Variations which are not minor cannot be waived.
A "minor irregularity," as used in Chapter 60A-1, Florida Administrative Code, is defined in Rule 60A-1.001(16), Florida Administrative Code, as "[a] variation from the invitation to bid/request for proposal terms and conditions which does not affect the price of the bid/proposal or give the bidder or offeror an advantage or benefit not enjoyed by other bidders or offerors, or does not adversely impact the interests of the agency." See Air Support Services International, Inc. v.
Metropolitan Dade County, 614 So. 2d 583, 584 (Fla. 3d DCA 1993)("Public bid requirements may not be materially altered subsequent to the submission of bids."). "[A]lthough a bid [or proposal] containing a material variance is unacceptable, not every deviation from the [bid or proposal specifications] is material. It is only material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition." Tropabest Foods, Inc. v.
Department of General Services, 493 So. 2d 50, 52 (Fla. 1st DCA 1986). If it does not provide the bidder with such a palpable competitive advantage, it constitutes a minor irregularity that should be waived by the agency. See Intercontinental Properties, Inc. v. Department of Health and Rehabilitative Services, 606 So. 2d 380, 386 (Fla. 3d DCA 1992)("There is a very strong public interest in favor of saving tax dollars in awarding public contracts. There is no public interest, much less a substantial public interest, in disqualifying low bidders for technical deficiencies in form, where the low bidder did not derive any unfair competitive advantage by reason of the technical omission."); Robinson Electrical Co., Inc. v. Dade County, 417 So. 2d 1032, 1034 (Fla. 3d DCA 1982)("[T]he purpose of competitive bidding is to secure the lowest responsible offer and
. . . the County may waive minor irregularities in effectuating that purpose.").
An unsuccessful bidder/proposer may file a protest with the soliciting state agency challenging the agency's contract award or, if no award has been made, the agency's decision to reject all bids/proposals. The protest must be resolved in accordance with the "uniform rules or procedure" in accordance with Section 120.57(3), Florida Statutes, which provides as follows:
Additional procedures applicable to protests to contract bidding or award.--
Agencies subject to this chapter shall utilize the uniform rules of procedure, which provide procedures for the resolution of protests arising from the contract bidding process. Such rules /17 shall at least provide that:
The agency shall provide notice of its decision or intended decision concerning a bid solicitation or a contract award as follows:
For a bid solicitation, notice of a decision or intended decision shall be given by United States mail or by hand delivery
For any decision of the Department of Management Services concerning a request by an agency for approval of an exceptional purchase under part I of chapter 287 and the rules of the Department of Management Services, notice of a decision or intended decision shall be given by posting such notice in the office of the Department of Management Services.
For any other agency decision, notice of a decision or intended decision shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail or other express delivery service, return receipt requested.
The notice required by this paragraph shall contain the following statement: "Failure to file a protest within the time prescribed in s. 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes."
Any person who is adversely affected by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after filing the notice of protest. With respect to a protest of the specifications contained in an invitation to bid or in a request for proposals, the notice of protest shall be filed in writing within 72 hours after the receipt of notice of the project plans and specifications or intended project plans and specifications in an invitation to bid or request for proposals, and the formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter. The formal written protest shall state with particularity the facts and law upon which the protest is based. Saturdays, Sundays, and legal holidays shall be excluded in the computation of the 72-hour time periods provided by this paragraph.
Upon receipt of the formal written protest which has been timely filed, the agency shall stop the bid solicitation process or the contract award process until the subject of the protest is resolved by final agency action, unless the agency head sets forth in writing particular facts and circumstances which require the continuance of the bid solicitation process or the contract award process without delay in order to avoid an immediate and serious danger to the public health, safety, or welfare.
1. The agency shall provide an opportunity to resolve the protest by mutual agreement between the parties within 7 days, excluding Saturdays, Sundays, and legal holidays, after receipt of a formal written protest.
If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and legal holidays, after receipt of the formal written protest, and if there is no disputed issue of material fact, an informal proceeding shall be conducted pursuant to subsection (2) and applicable agency rules before a person whose qualifications have been prescribed by rules of the agency.
If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and legal holidays, after receipt of the formal written protest, and if there is a disputed issue of material fact, the agency shall refer the protest to the division for proceedings under subsection (1).
Upon receipt of a formal written protest referred pursuant to this subsection, the director of the division shall expedite the hearing and assign an administrative law judge who shall commence a hearing within 30 days after the receipt of the formal written protest by the division and enter a recommended order within 30 days after the hearing or within 30 days after receipt of the hearing transcript by the administrative law judge, whichever is later. Each party shall be allowed 10 days in which to submit written exceptions to the recommended order. A final order shall be entered by the agency within 30 days of the entry of a recommended order. The provisions of this paragraph may be waived upon stipulation by all parties.
In a competitive-procurement protest, no submissions made after the bid or proposal opening amending or supplementing the bid or proposal shall be considered. /18 Unless otherwise provided by statute, the burden of
proof shall rest with the party protesting the proposed agency action. /19 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 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. /21
The "de novo proceeding" that, pursuant to the mandate of Section 120.57(3), Florida Statutes, must be conducted by an Administrative Law Judge "[i]n a competitive-procurement protest, other than a rejection of all bids," where there are disputed issues of material fact is "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" based upon the information that was available to the agency at the time it took such action. State Contracting and Engineering Corporation v. Department of Transportation, 709 So. 2d 607, 609 (Fla. 1st DCA 1998); see also Fairbanks North Star Borough School District v. Bowers Office Products, Inc., 851 P.2d 56, 60 (Alaska 1992)("The determination of whether the school district had a reasonable basis for its decision should be made based on the information
the school district had at the time it awarded the contracts."). The standard of review the Administrative Law Judge is required to employ in evaluating the "protested" agency action is a deferential one. If the Administrative Law Judge concludes that the agency's procurement action had a reasonable basis in fact and law, the Judge may not recommend that the agency reverse its action, even if the Judge, had he or she been in the agency's position, would have taken a different course of action. /22 Compare with Herbert F. Darling, Inc. v. Beck, 442 F.Supp. 978, 981 (W.D. N.Y. 1977)("The question before the court on the defendants' motion for summary judgment is whether the Regional Administrator's decision disapproving the proposed award to Darling had a rational basis. . . . This standard of review is designed to ensure that judicial deference is given to the well- reasoned decisions of E.P.A. officials in interpreting the agency's own procurement and contracting regulations. A
court may not set aside agency action solely because it would have interpreted the bidding procedures or the regulations differently had it made the initial determination."); Latecoere International, Inc. v. Department of the Navy, 19 F.3d 1342, 1355-56 (11th Cir. 1994)("This standard requires a disappointed bidder to show 'either that (1) the procurement official's decisions on matters committed primarily to his own discretion had no rational basis, or (2) the procurement procedure involved a clear and prejudicial violation of applicable statutes or
regulations.' . . . This deferential standard reflects the respect that reviewing courts are required to accord to agencies in their evaluation of bids and in their interpretation and application of procurement regulations. . . . 'While contracting officers may not opt to act illegally, they are entitled to exercise discretion upon a broad range of issues confronting them, including considerations of price, judgment, skill, ability, capacity, and integrity in the selection of businesses with whom the government will enter into contracts.'
Accordingly, reviewing courts should be concerned with whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion. . . . Proof that the award lacked a reasonable basis generally establishes arbitrary and capricious action. Thus, if a reviewing court: finds a reasonable basis for the agency's action, the court should stay its hand even though it might, as an original proposition, have reached a different conclusion as to the proper administration and application of the procurement regulations. Only when the court concludes that there has been a clear violation of duty by the procurement officials should it intervene in the procurement process and proceed to a determination of the controversy on the merits."); Cincom Systems, Inc. v. United States, 37 Fed. Cl.
663, 671-72 (1997)("Contracting officials may properly exercise wide discretion in their evaluation of bids and the application of procurement regulations. . . . It is well-settled that courts
should respect acts of procuring officials when they exercise their discretionary functions. . . . The court should not substitute its judgment for that of a procuring agency and should intervene only when it is clear that the agency's determinations were irrational or unreasonable. . . . It is the burden of the aggrieved bidder to demonstrate that there is no rational basis for the agency's determination.").
In the instant case, Petitioner is challenging the Respondent's action (announced in the Notice of Posting and Contract Award) of "identif[ying] Associated Marine Institute[s], Inc. for potential award(s) [of] the contract" advertised in RFP No. K9018.
In its Formal Bid Protest (as amended), Petitioner, for the first time, takes issue with the "specifications of the RFP," which, it claims, "were the result of a predetermination by the DEPARTMENT to award the contract to Associated Marine In[stitutes], Inc." Having opted to submit a proposal in response to the RFP, rather than file a timely protest contesting its provisions (or request, pursuant to Section K.7.7. of the RFP, that these provisions be amended), Petitioner has waived its right to initiate such a challenge. See Section 120.57(3)(b), Florida Statutes ("With respect to a protest of the specifications contained in an invitation to bid or in a request for proposals, the notice of protest shall be filed in writing within 72 hours after the receipt of notice of the project plans
and specifications or intended project plans and specifications in an invitation to bid or request for proposals, and the formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter."); see also Optiplan, Inc. v. School Board of Broward County, 710 So. 2d 569, 572 (Fla. 4th DCA 1998)("[W]ith respect to the constitutional challenge to the RFP's specifications because it awarded points tied to race- based classifications, we agree with the hearing officer that Optiplan waived its right to contest the School Board's use of the criteria by failing to formally challenge the criteria within
72 hours of the publication of the specifications in a bid solicitation protest. The purpose of such a protest is to allow an agency to correct or clarify plans and specifications prior to accepting bids in order to save expense to the bidders and to assure fair competition among them."); Capeletti Brothers, Inc. v. Department of Transportation, 499 So. 2d 855, 857 (Fla. 1st DCA 1987)("The evidence reflects that Capeletti had the plans and specifications at least two weeks prior to the bid-letting and failed to make any objection to the contract goals. The purpose of the bid solicitation protest provision is to allow an agency, in order to save expense to the bidders and to assure fair competition among them, to correct or clarify plans and specifications prior to accepting bids. A failure to file a
timely protest constitutes a waiver of chapter 120 proceedings."); U.S. Foodservice, Inc. v. School Board of Hillsborough County, 1998 WL 930094 (Fla. DOAH 1998)(Recommended Order)("Section 120.57(3)(b) establishes the duty to challenge specifications when the ITB is issued, not after the award. If the protestor fails to file its protest in a timely fashion after the issuance of the ITB, the protestor waives its right to challenge the specifications."); Advantage Services of South Florida, Inc. v. Department of Management Services, 1996 WL 1060082 (Fla. DOAH 1996)(Recommended Order)("The thrust of the petition filed in this case is a challenge to the specification that required a manufacturer's certification for equipment bid.
Petitioner failed to timely raise a challenge to this requirement and is barred from incorporating such challenge in the instant case."); Great Atlantic Boiler Services, Inc. v. Department of Corrections, 1992 WL 881152 (Fla. DOAH 1992)(Recommended Order)("[T]o the extent petitioner may disagree with the specifications in the ITB, by failing to timely file a protest to the specifications, it waived its right to do so."); Winchester Properties v. Department of Transportation, 1990 WL 749626 (Fla. DOAH 1990)(Recommended Order)("[T]o the extent that Petitioner seeks to show that there was no rational basis for the weighting of the evaluation criteria used by the Department, particularly the allotting of only a total of 30 points for the cost factor, that challenge is untimely. Any challenge a bidder has to the
relative weighting of various review criteria must be made within
72 hours of the time the RFP is issued, not when an intended award has been noticed. . . . Thus, any contention the Petitioner has concerning the weighting of the various evaluation criteria is untimely and has been waived."); Jones Floor Covering, Inc. v. Department of General Services, 1990 WL 749297 (Fla. DOAH 1990) (Recommended Order)("Jones Floor failed to file a timely protest when bids were solicited, and raised no question about the specifications with which it did not comply, until after the bids were opened and the agency's intention to award to another bidder was announced. Because no bidder followed '[t]he proper procedure for contesting [a bid specification] . . . by filing a bid solicitation protest within seventy-two hours of receipt of the project plans and specifications,' . . . questions about the propriety and wisdom of particular specifications are no longer open. . . . Because the requirements appear in the specifications and because no timely protest was made to the specifications, they are conclusively established as criteria for evaluating the bids."); Apolinar v. Professional Construction Services, 663 So. 2d 17, 19 (La. 1995), wherein the Supreme Court of Louisiana stated the following:
We granted certiorari in the present case to decide whether our holding in the Calcasieu decision requires a conclusion that the inclusion of any provision relating to wages in the bid specifications for a public works contract constitutes a violation of the Public Bid Law, even if the provision does not fix a minimum wage. Upon reviewing the
record on certiorari, however, we conclude that PCS is not entitled to raise this issue. PCS did not qualify its bid or in any manner object to the provision prior to the time of bidding. Nor did PCS file a declaratory judgment action to have this term of the bid specifications declared invalid. Rather, PCS submitted an unqualified bid to perform the work in accordance with the specifications, as did every other bidder on the project.
Some states have enacted procedures for protesting bid requirements, recognizing that it is necessary for a bidder to protest timely any objectionable provision in bid specifications in order to allow the public body an opportunity to correct or clarify the specifications at a time when correction or clarification will be meaningful to all bidders. /23 But even in the absence of a statutory procedure, requiring timely objections assures fair competition among bidders by having the same specifications apply to all bids.
We therefore conclude that PCS has waived any objections to the terms of the bid specifications and cannot now be heard to say that it need not pay the overtime wages that every bidder agreed to pay when the bids were submitted. While PCS perhaps may question the validity of the pertinent provision by protesting timely in bidding on future projects or by filing a declaratory judgment action if such a provision regularly is included in the District's bid specifications for public works projects, the validity of the provision in the contract bid upon and entered into by PCS long ago is no longer subject to challenge.
Moreover, the record is devoid of evidence demonstrating that the RFP was designed to either favor Intervenor or prejudice Petitioner.
Petitioner not only challenges the contents of the RFP, it also alleges, among other things, that the outcome of
"the scoring of the proposals by the Department" was "predetermin[ed]" and not based upon "the actual merits of the proposals." Such an allegation is a very serious one, which brings into question the integrity of, not only the evaluation process, but of those who participated in it.
A determination that these individuals engaged in such intentional wrongdoing must be based upon "hard facts," not mere "suspicion or innuendo." See CACI, Inc.-Federal v. United States, 719 F.2d 1567, 1581-82 (Fed. Cir. 1983)("We have carefully reviewed the record in this case. We conclude that the Claims Court ruling that the Department's award of the contract to Sterling would be 'arbitrary, capricious, and an abuse of discretion' because of the possibility and appearance of impropriety is not supported by the record and therefore is not a proper basis for enjoining award of the contract. The Claims Court based its inferences of actual or potential wrongdoing by the Department on suspicion and innuendo, not on hard facts. The kind of inquiry and analysis the Claims Court made in this case, which is without factual basis, ascribed evil motives to four members of the Technical Evaluation Committee in their handling of the bids, was clearly erroneous and did not justify an injunction against the government's award of the contract to Sterling."). An examination of the evidentiary record in the instant case reveals no such "hard facts."
Neither does the evidentiary record demonstrate that
any of the members of the SSET, /24 including Mr. Burns (whom Petitioner accuses of having a disqualifying "conflict of interest"), entered the evaluation process having already formed an opinion about any of the proposers that made him or her unable to fairly evaluate any of the technical proposals; nor has it been shown that any evaluator gave any score to any proposer that was not based on the evaluator's fair and honest judgment as to how well, in light of the information available to the evaluator, the proposer met the evaluation criteria set forth in the RFP.
To the extent that the SSET members may have relied on their experience and knowledge regarding matters addressed in the RFP and the technical proposals, it was not improper for them to have done so. It would make little or no sense to require the members of an evaluation committee to be experienced and knowledgeable, as does Section 287.057(15), Florida Statutes, in cases, like the instant one, and then, once they have been appointed to the committee, to forbid them, in discharging their duties as evaluators, from relying on the experience and knowledge that qualified them to serve on the committee.
In its Proposed Recommended Order, Petitioner contends, for the first time, that, "because she had no training or experience, Ms. Evans was basically unqualified to evaluate the proposals submitted in response to RFP No. K9018, and her inability to the employ the informed logic contemplated by Section 287.057(15), Florida Statutes, made her scoring arbitrary
and capricious." It does not appear, however, that Respondent acted in derogation of the provisions of Section 287.057(15), Florida Statutes, in appointing Ms. Evans to serve on the SSET. Given that Ms. Evans had worked as a senior juvenile probation officer responsible for supervising delinquent juveniles on community control for approximately one year and had been an employee of Respondent since May of 1996, it was not unreasonable for Respondent to have concluded, at the time of Ms. Evans' appointment to the SSET, that she had the experience and knowledge required by Section 287.057(15), Florida Statutes, to allow her to serve on the SSET. /25 ` In any event, even assuming, arguendo, that Respondent's appointment of Ms. Evans to the SSET constituted a violation of the requirements of Section 287.057(15), Florida Statutes, it has not been shown that such error in any way prejudiced Petitioner. (Ms. Evans gave Petitioner's technical proposal a "weighted" total score of 422,
101 points higher than the "weighted" total score she gave Intervenor's technical proposal, and she was the only SSET member who awarded Petitioner more points than Intervenor.)
Also without merit is Petitioner's claim that the SSET members acted in violation of the "public meeting" requirements of the Sunshine Law (Section 286.011, Florida Statutes). The members of the SSET met together as a group on only one occasion, February 17, 2000. At this meeting, no "official acts" were taken. Accordingly, there was no obligation, under to the
Sunshine Law, to have given reasonable public notice of the meeting and to open the meeting to the public. /26
Petitioner further contends that Respondent "failed to comply with the requirement of Section [K.]7.7. of the RFP to distribute to all proposers all responses to the written inquiries of the proposers" in that Petitioner "never received the response that clarified the page limitations for the proposals." According to Petitioner, this "caused [it] to submit less information in support of its proposal than it would have otherwise done, placing it at a competitive disadvantage in relation to Intervenor and any other proposer who received [Respondent's] response." While the record evidence establishes that Petitioner never received the Response to Intervenor and the Response to Ramsay, both of which addressed the requirements of Section K.7.2. (dealing with "number of pages"), such evidence is insufficient to demonstrate that Respondent failed to make a good faith effort to provide these responses to Petitioner, nor (more importantly) does it show, to the undersigned's satisfaction, that, had Petitioner received these responses, it would have (as it now claims) included more information in its Complete Proposal. (Had there been additional "information" that Petitioner wanted to include in its Complete Proposal, it surely would not have (as it did) submit a proposal which had less than
50 consecutively numbered pages.)
Petitioner makes the further argument that Respondent "failed to follow the RFP specifications in section K.7.2 Number of Pages" (which, according to Petitioner, "plainly limits the number of pages in a bid proposal") by "not determining that Intervenor's bid proposal exceeded the 50-page limit" and "not disposing of the additional pages over the 50-page limit." The meaning of Section K.7.2. of the RFP, however, contrary to the assertion made by Petitioner, is not "plain" and unambiguous. Construing Section K.7.2. as requiring that "Volume I" (the technical proposal) and "Volume II" (the cost proposal) combined not exceed 50 pages ("excluding graphic information") is a reasonable interpretation of the language used in that section of the RFP, but it is not the only reasonable interpretation. The language is sufficiently ambiguous to also be reasonably susceptible of the construction given it by Respondent, that is, that the section's 50-page limit ("excluding graphic information") applies to each separate volume, not to both volumes combined. /27 Intervenor's Complete Proposal complies with Section K.7.2. of the RFP, as so (reasonably) construed by Respondent.
Petitioner also takes issue with the scores it and Intervenor received from the SSET members, claiming that the scoring was "arbitrary and capricious and failed to recognize the inherent weakness of the proposal submitted by [Intervenor] and the inherent strengths of the proposal submitted by PETITIONER."
The record evidence, however, fails to support these claims.
It has not been shown that Intervenor's total point award, as compared to Petitioner's total point award, was unreasonably high (taking into consideration Intervenor's and Petitioner's Technical Proposals in their entireties /28 and in view of all of the evaluation criteria set forth in the RFP).
/29 Furthermore, in treating Intervenor's (and Petitioner's) failure to specifically list in their CMBE subcontracting plans "the type of services/commodities that [would] be subcontracted," as well as their failure to include a "copy of all CMBE subcontractor's' current CMBE certifications" in their proposals, as "minor irregularities" that should be waived (pursuant to Section K.7.4 of the RFP), the members of the SSET acted reasonably. See Overstreet Paving Company v. Department of Transportation, 608 So. 2d 851, 852 (Fla. 2d DCA 1992)("At the outset of this brief analysis, we observe that, assuming Overstreet and Asphalt Pavers had each inadvertently omitted these two DBE forms and random luck was the only reason that their bids were stacked next to one another on the table, DOT would still clearly have had the discretion to overlook the omission of this form as a minor, technical discrepancy.").
In short, there is no valid reason to disturb the total scores Intervenor and Petitioner received from the members of the SSET. When properly "weighted" and averaged these scores are as follows: Intervenor- 369.33 (not 372.67 as indicated in
the Notice of Posting and Contract Award), and Petitioner- 354.67.
Pursuant to Section L. of the RFP, "maximum score" is a factor, but not the only factor, to be considered in deciding to whom the contract advertised in the RFP should be awarded. "Best value" is another factor that must be taken into account. It is impossible to make a determination as to which (complete) proposal offers the "best value" without reviewing and evaluating both the technical and the cost proposals submitted by each of the proposers. /30 This Respondent has yet to do. Accordingly, its "identif[ication of] Associated Marine Institute[s], Inc. for potential award(s) [of] the contract" advertised in RFP No. K9018 was premature.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that Respondent issue a final order rescinding its "identif[ication of] Associated Marine Institute[s], Inc. for potential award(s) [of] the contract" advertised in the RFP on the ground that such action was premature in the absence of any determination as to which of the proposals submitted in response to the RFP offered the "best value," but not granting any of the other relief sought by Petitioner except for the correction of the Technical Evaluation Scoring Summary of the scores Intervenor received to reflect that Ms. Evans gave Intervenor a 3 (not a 2)
for the "Additional Points Available" (CMBE Offeror or Use of CMBE Subcontractors) criterion and that, therefore, the total number of points Intervenor received from Ms. Evans (when properly "weighted") was 321 (not 331) and Intervenor's average "weighted" total score was 369.33 (not 372.67).
DONE AND ENTERED this 23rd day of June, 2000, in Tallahassee, Leon County, Florida.
STUART M. LERNER
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 23rd day of June, 2000.
ENDNOTES
1/ The parties stipulated that the undersigned would have 40 days from the date of the filing of the hearing transcript to issue his recommended order.
2/ "Staff-to-youth ratios" are discussed in Chapter 4, Section
of the Department's Residential Commitment Services Manual, which provides as follows:
Program staff to be included in the staff-to- youth ratio include treatment staff and custody and supervision staff. Custody and supervision staff are those staff employed by the program whose primary responsibilities are to vigilantly supervise youth, maintain control of youth and provide for the safety of the public, youth and staff in the program. Treatment staff are those staff who are employed by the residential commitment
program and have direct contact with the youth as a part of their assigned duties.
Factors to Consider When Establishing Staffing Ratios. Due to the varying features of each residential commitment program and the varying characteristics of the juvenile offenders they serve, staff-to-youth ratios may differ somewhat from program to program even within the same restrictiveness level. Therefore, when establishing minimum staff- to-youth ratios for each residential commitment program, it is incumbent upon the District Juvenile Justice Manger, the departmental representative negotiating the contract (in the case of a provider program) and the director of the state or privately operated program to carefully assess the program's ability to provide adequate supervision relative to the following factors.
Location of the program (environmentally secure with little opportunity for youth to access the community or located with relatively easy access to the community);
Timely access to additional resources in the event of a security or safety breach, facilitated by the following:
Collocation of resources, such as in a campus arrangement (separate units of a large program or a program sharing a campus with other programs);
Arrangements with local law enforcement and the fire department and
Contingency staffing plans.
Visual lines of sight within the facility and on the facility grounds and the degree to which staff can provide direct visual supervision of youth;
Physical security features of the facility (discussed in the Physical Plant Security and Safety section of this chapter of the manual);
Competence levels of staff (impacted by selection and training of staff, as well as performance standards set for staff);
Types of activities, i.e., group activities within the facility grounds, off- campus activities, work projects wherein youth are using work tools, etc. and
Assessed risk levels of youth; i.e., a youth assessed as a risk should not be allowed to go off campus nor participate in a work project, wherein he has access to a work tool(s) which could be used as a weapon or means of escape.
Each residential commitment program's established minimum staffing ratios for day, evening and night shifts, as well as work projects and off-campus activities (except for a maximum-risk program which is restricted from off-campus activities), must be clearly documented in writing and included in contract language for a privately operated program.
Recommended Staffing Ratios. District Juvenile Justice Managers and other departmental staff who are responsible for negotiating contracts with providers, as well as directors of moderate, high and maximum- risk state and privately operated residential commitment programs, should consider the following guidelines when establishing their minimum staffing ratios:
WILDERNESS PROGRAM (moderate and high restrictiveness levels):
DAY: 1:10
EVENING: 1:10
NIGHT: 1:12
OFF-CAMPUS ACTIVITIES: 1:5 MODERATE:
DAY: 1:10
EVENING: 1:10
NIGHT: 1:12
OFF-CAMPUS ACTIVITIES: 1:5
HIGH-RISK:
DAY: 1:8
EVENING: 1:8
NIGHT: 1:12
OFF-CAMPUS ACTIVITIES: 1:5 MAXIMUM-RISK:
DAY: 1:8
EVENING: 1:8
NIGHT: 1:12
OFF-CAMPUS ACTIVITIES: N/A
Note: due to the variance of program models within the low-risk restrictiveness level from host homes to wilderness programs, recommended staff ratios are not included.
Departmental representatives responsible for negotiating contracts for residential commitment programs, District Juvenile Justice Managers and program directors of state and privately operated programs should exceed the guidelines for staff-to-youth ratios presented above whenever necessary to ensure the provision of appropriate custody and supervision and maintain security and safety of staff, youth and the public.
Off-Campus Activities. During activities taking place away from the program, including expeditionary projects and work projects, the recommended minimal staff-to-youth ratio is 1:5. More intensive staff-to-youth ratios must be provided if the activity or circumstances surrounding the activity dictate that closer supervision is necessary. Staffing during these activities could be enhanced through the use of mobile communication equipment. Programs are expected to comply with FDJJ 8.08 Residential Commitment Programs: Off-Campus Activities of Youth and Public Safety policy when engaging in off-campus work projects.
Work Projects. Work projects within the facility and on facility grounds typically involve activities during which youth are using work tools. These tools could be used
as weapons or assist in escape activity. Therefore, in order to provide sufficient staff coverage to ensure the safety and security of staff and youth, such work projects warrant increases in staffing ratios over the recommended minimum day shift ratios.
3/ This is the facility from which Petitioner operates the existing program.
4/ First Corrections Corporation and Alternative Behavioral Services made a joint inquiry.
5/ This "assistance dog training program" "similar" to one at SCMI is a Tampa co-educational program run by Canine Companions for Independence(a fact that Intervenor did not reveal in its Technical Proposal).
6/ Chapter 4, Section II.C. of the Department's Residential Commitment Services Manual only requires that there be a 1:10 staff-to-youth ratio during "waking hours" for moderate-risk youth.
7/ They were not provided with the responses to written inquires that Ms. Javier had prepared.
8/ This should have actually read "from 30 to 39.99%" to be consistent with the provisions of Section K.7.10 of the RFP. This error, however, had no impact on the scoring of the proposals.
9/ The range set forth in Section K.7.10 of the RFP was "from 20 to 29.00%." It is obvious from a reading of that section of the RFP, however, that the "29.00%" should actually have been "29.99%." Indicating on the Score Sheets that the range was "from 20 to 20.99%" instead of "from 20 to 29.99%" was an error, but it was a harmless one that had no impact of the scoring of the proposals.
10/ Mr. Burns also gave Intervenor a score of 2 for this evaluation criterion.
11/ This error was made inadvertently.
12/ "[T]he threshold amount provided in s. 287.017 for CATEGORY TWO" is $25,000.00.
13/ A "request for proposals," as used in Chapter 287, Part I, Florida Statutes, is described in Section 287.012(15), Florida Statutes, which provides as follows:
"Request for proposals" means a written solicitation for competitive sealed proposals with the title, date, and hour of the public opening designated. The request for proposals is used when the agency is incapable of specifically defining the scope of work for which the commodity, group of commodities, or contractual service is required and when the agency is requesting that a qualified offeror propose a commodity, group of commodities, or contractual service to meet the specifications of the solicitation document. A request for proposals includes, but is not limited to, general information, applicable laws and rules, functional or general specifications, statement of work, proposal instructions, and evaluation criteria. Requests for proposals shall state the relative importance of price and any other evaluation criteria.
14/ A "responsible offeror, as used in Chapter 287, Part I, Florida Statutes, is defined in Section 287.012(13), Florida Statutes, as "a person who has the capability in all respects to perform fully the contract requirements and has the integrity and reliability which will assure good faith performance."
15/ "[T]he threshold amount provided in s. 287.017 for CATEGORY FOUR" is $150,000.00.
16/ "[T]he threshold amount provided in s. 287.017 for CATEGORY THREE" is $50,000.00.
17/ These "uniform rules of procedure" are found in Rules 28- 110.001, 28-110.002, 28-110.003, and 28-110.004, Florida
Administrative Code.
18/ See also Rule 60A-1.002(11), Florida Administrative Code, which provides as follows:
Bid Modification for Commodities or Contractual Services -- A bidder or offeror may not modify its bid or proposal after bid or proposal opening.
19/ "'As a general rule the comparative degree of proof by which a case must be established is the same before an administrative tribunal as in a judicial proceeding- that is, a preponderance of the evidence. It is satisfied by proof creating an equipoise, but it does not require proof beyond a reasonable doubt.'" Florida Department of Health and Rehabilitative Services v.
Career Service Commission, 289 So. 2d 412, 415 (Fla. 4th DCA 1974); see also Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute. . . ."); cf. Board of Trustees of the Internal Improvement Trust Fund v. Levy, 656 So. 2d 1359, 1363 (Fla. 1st DCA 1995)("The burden of proving abuse of agency discretion is upon the challenger of the rule, who must meet that burden with a preponderance of the evidence").
20/ An "arbitrary" action is "one not supported by facts or logic, or [is] despotic." A "capricious" action is "one which is taken without thought or reason or [is] irrational[]." Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.
2d 759, 763 (Fla. 1st DCA 1978); see also Board of Clinical Laboratory Personnel, v. Florida Association of Blood Banks, 721 So. 2d 317, 318 (Fla. 1st DCA 1998)("An 'arbitrary' decision is one not supported by facts or logic. A 'capricious' action is one taken irrationally, without thought or reason."); Dravo Basic Materials Company, Inc., v. Department of Transportation, 602 So. 2d 632, 634 n.3 (Fla. 2d DCA 1992)("If an administrative decision is justifiable under any analysis that a reasonable person would use to reach a decision of similar importance, it would seem that the decision is [not] arbitrary.").
21/ This last sentence of Section 120.57(3), Florida Statutes, represents a codification of the holding in Department of Transportation v. Groves-Watkins Constructors, 530 So. 2d 912, 913 (Fla. 1988) that, where a state agency's decision to reject all bids/proposals is challenged, "the hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly" in making its decision. (Pursuant to Chapter 96-159, Laws of Florida, the title of the undersigned and of all other Hearing Officers of the Division was changed to Administrative Law Judge, effective October 1, 1996.)
22/ This is similar to the deference that must be given by a reviewing court to the interpretation of a statute, ordinance, or rule by the agency responsible for its administration. See PW Ventures, Inc. v. Nichols, 533 So. 2d 281, 283 (Fla. 1988)("At the outset, we note the well established principle that the contemporaneous construction of a statute by the agency charged with its enforcement and interpretation is entitled to great
weight. . . . The courts will not depart from such a construction unless it is clearly unauthorized or erroneous."); Las Olas Tower Company v. City of Fort Lauderdale, 742 So. 2d 308,313 (Fla. 4th DCA 1999)("Generally, a reviewing court should defer to the interpretation given a statute or ordinance by the agency responsible for its administration. . . . Of course, that deference is not absolute, and when the agency's construction of a statute amounts to an unreasonable interpretation, or is clearly erroneous, it cannot stand."); Amisub (North Ridge Hospital), Inc. v. Department of Health and Rehabilitation Services, 577 So. 2d 648, 649 (Fla. 1st DCA 1991)("[A]n administrative agency is afforded wide discretion in interpreting statutes which it administers. The agency's statutory construction is entitled to great weight, and is not to be overturned on appeal unless clearly erroneous.")
23/ In a footnote, the Court noted that Florida was one such state.
24/ All three members of the SSET testified at the final hearing.
25/ While Ms. Evans may not have been familiar with, and able to recite, each and every one of the Respondent's policies regarding residential commitment, she had access to written materials and other resources that could have provided her with any necessary information about these policies that (going into the evaluation process) she was lacking.
26/ "Governmental advisory committees which have offered up structured recommendations such as here involved--at least those recommendations which eliminate opportunities for alternative choices by the final authority--have been determined to be agencies governed by the Sunshine Law." Silver Express Company v. District Board of Lower Tribunal Trustees of Miami-Dade Community College, 691 So. 2d 1099, 1101 (Fla. 3d DCA 1997).
27/ While (as Petitioner points out in its Proposed Recommended Order) the parenthetical "volumes" is used in the second sentence of Section 7.2. of the RFP to clarify the term "Offeror's response to proposal," in the very next sentence, after that very same term, the clarifying parenthetical "volume" (not "volumes") appears.
28/ Petitioner has criticized isolated components of Intervenor's Technical Proposal, including Intervenor's "staffing plan" and its "Assistance Dog Training Program." Even if such criticism were justified (and it does not appear from a review of the evidentiary record that it is), that would not mean that the
SSET members, viewing Intervenor's Technical Proposal as a whole, acted unreasonably in giving it the scores they did.
29/ While it appears that Mr. Burns, in scoring Petitioner's Technical Proposal for the criterion, "Program Services, Compliance with Requirements," overlooked information that was set forth in the proposal (albeit not clearly) that reflected that a licensed mental health counselor would be at the Cove 40 hours a week, it has not been demonstrated that the score he gave Petitioner was unreasonably low. (The undersigned rejects, as unsupported by the record evidence, Petitioner's suggestion that giving it a score of less than 4 for the criterion, "Program Services, Compliance with Requirements" was "clearly erroneous, contrary to competition, arbitrary and capricious.").
30/ Section L. of the RFP cannot be reasonably construed to provide otherwise. See also Section 9.2.1 of Respondent's Contract Manager's Manual ("Source selection awards are based on an integrated assessment of each Offeror's cost (price) criterion and specific criteria.")
COPIES FURNISHED:
Brian Berkowitz, Esquire Scott Wright, Esquire
Department of Juvenile Justice 2737 Centerview Drive
Tallahassee, Florida 32399-3100
Andrea V. Nelson, Esquire Paul Sexton, Esquire
Thornton Williams and Associates
215 South Monroe Street Suite 600-A
Tallahassee, Florida 32302
Craig D. Varn, Esquire
227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302
William G. 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.
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 24, 2000 | Agency Final Order | |
| Jun. 27, 2000 | Recommended Order | The selection of a proposer for potential award of a contract was premature where cost proposals had not yet been evaluated. |
