STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AVMED, INC., d/b/a AVMED HEALTH ) PLAN, )

)

Petitioner, )

)

vs. )

) BROWARD COUNTY SCHOOL BOARD, )

)

Respondent, )

)

and )

) HUMANA, INC.; HUMANA MEDICAL ) PLAN, INC.; AND HUMANA HEALTH ) INSURANCE COMPANY OF FLORIDA, ) INC., )

)

Intervenors. )

Case No. 00-4927BID

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on January 30-31 and February 1, 2001, in Fort Lauderdale, Florida, before the Honorable William R. Pfeiffer, Administrative Law Judge of the Florida Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioners: Joseph M. Goldstein, Esquire

Shutts & Bowen, LLP First Union Center

200 East Broward Boulevard, Suite 2000 Fort Lauderdale, Florida 33301

For Respondent: Edward J. Marko, Esquire

Robert Paul Vignola, Esquire Office of the School Board Attorney

600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301

For Intervenors: Andrew S. Berman, Esquire

Young, Berman, Karpf & Gonzalez, P.A. 17071 West Dixie Highway

North Miami Beach, Florida 33160 STATEMENT OF THE ISSUE

Whether the School Board of Broward County's decision to award the contract in response to Request for Proposals, No. 210139V, for Group Medical Benefits, to Humana, Inc., Humana Medical Plan, Inc., and Humana Health Insurance Company of Florida, Inc. (collectively called "Humana") is contrary to the agency's governing statutes, the agency's rules or policies, or the request for proposal specifications.

PRELIMINARY STATEMENT

On November 6, 2000, the Superintendent of the Broward County School Board ("SBBC") posted its Notice of Intent to award a contract for group medical benefits resulting from Request for Proposals No. 21-139V ("RFP") to Humana. On November 9, 2000, SBBC awarded a contract to Humana. Petitioner, AvMed, Inc., d/b/a AvMed Health Plan ("AvMed"), timely filed a Formal Written Protest and Petition for Administrative Hearing.

The case was forwarded to the Division of Administrative Hearings on December 8, 2000, and an order was entered granting

Humana's motion to intervene on January 4, 2001. The parties waived the time frame set forth in Section 120.57(3)(e), Florida Statutes, and a formal hearing was scheduled for January 30 through February 2, 2000.

The parties filed a Prehearing Stipulation, Joint Stipulation of Facts, and admitted into evidence Joint Exhibits Numbered 1-31, 33-35, 37-38, 42-46, 48-59, 61, 63-69, 72, 75-79,

and 84. All other exhibits that had been designated as Joint Exhibits, with the exception of what became Petitioner's Exhibit

14 for identification, were admitted as Petitioner's Exhibits 1-

13 and 15-16. Petitioner's Exhibit 17, was admitted into evidence, and the Court took official recognition of Petitioner's Exhibit 14 for identification, which was the Complaint in the action of The School Board of Broward County, Florida v. Foundation Health, Verified Complaint for Declaratory Judgement, Breach of Contract, and Injunctive Relief, Case No. 00- 0178724(21)(Circuit Court, Broward County, Florida, filed on October 23, 2000).

Petitioner presented the testimony of Ms. Annie Lear Calloway; Mr. Robert Hunter Jindracek; Ms. Diane Arcara; Franklin L. Till, Jr., Ph.D.; Mr. Peter A. Joseph; and Paul D. Echner, Esquire. Respondent presented the testimony of

Mr. Ronald Weintraub and Mr. Jeffrey Angello. Intervenor did not present any additional testimony or exhibits.

The three-volume Transcript was filed February 22, 2001. On March 9, 2001, the parties provided their respective Proposed Recommended Orders which have been duly considered.

FINDINGS OF FACT

1. The Procurement

   
   

   1. The procurement at issue is for group employee medical insurance benefits for SBBC employees and their dependents. As one of its employee benefits, the SBBC provides health care insurance to approximately 26,000 employees. Generally, an employee must pay five percent of the premium if he or she is enrolled in a plan, other than a health maintenance organization plan, whose premium cost exceeds $212 per month. The employees can also purchase coverage for their eligible dependents.

   2. On July 10, 2000, the SBBC issued RFP No. 21-139V entitled "Group Medical Benefits for School Board Employees" (the "RFP").

   3. On July 31, 2000, the SBBC released Addendum Number One to the RFP that consisted of written responses to proposers' questions and minor changes to the RFP.

   4. Proposers were permitted to offer any or all of three healthcare delivery models or any combination of the three: a health maintenance organization ("HMO") model; a point of services ("POS") model; and a preferred provider organization ("PPO") model.

   5. SBBC reserved the right to contract for one or more models independently or contract for multiple models from the same proposer.

   6. SBBC received proposals from seven companies, including Humana, AvMed, HIP Health Plan of Florida, Inc. ("HIP"), and United Healthcare of Florida ("United"), on August 18, 2000, as scheduled by the RFP. The School Board evaluated the proposals through the Superintendent's Insurance Advisory Committee (the "Insurance Committee"), who then made a recommendation to the Superintendent, who in turn made a recommendation to the School Board.

   7. Prior to the issuance of this RFP, during the year 2000, health care coverage was provided to employees of SBBC through contracts with HIP and with Foundation Health, a Florida Health Plan ("Foundation"). Those contracts, at guaranteed premium rates, were to remain in effect through December 31, 2001.

   8. Due to enduring problems with HIP and Foundation, the School Board became concerned that both companies may be unable to continue to perform under their contract.

   9. In the course of communication with SBBC during 2000, Foundation requested to be released from further obligations as of December 31, 2000, under its existing contract awarded

      June 15, 1999, under the previously issued RFP No. 99-100E. The open enrollment period for 2001 health plan election by SBBC

      employees was scheduled for October 30, 2000. While HIP participated in the open enrollment process whereby SBBC employees could select their health care plans, Foundation did not participate. SBBC filed a lawsuit against Foundation on October 23, 2000, for relief including breach of contract.

   10. In June 2000, HIP was declared "impaired" by the Florida Department of Insurance ("DOI") and ceased the enrollment of new members as required for impaired insurers. DOI placed HIP under "administrative supervision" pending a sale or liquidation of the company. In a letter dated September 6, 2000, DOI notified SBBC that HIP’s enrollment of new members was suspended pending an acquisition or cash infusion to cure the financial deficit. Shortly thereafter, in a letter dated October 18, 2000, DOI notified SBBC that HIP had been acquired by a new owner, was free of the restrictions noted in the September 6, 2000, letter, and permitted to enroll new members.

   11. HIP participated in the employee enrollment for the 2001 calendar year.

2. Issuance of RFP No. 21-139V

   
   

   1. In light of the circumstances surrounding its incumbent vendors for group medical benefits, SBBC decided to issue a new RFP for new contracts providing group medical benefits for SBBC employees and dependents. On July 10, 2000, SBBC released RFP

      No. 21-139V entitled "Group Medical Benefits for School Board

      
      

      Employees."

      
      

3. RFP Content

   
   

   1. Article 1, entitled "Required Response Form," requested general information about each proposer seeking to bid.

   2. Article 2.0 of the RFP entitled "Introduction" authorized proposers to quote any or all of three delivery models (HMO, POS, and PPO) for the employees and retiree groups and reserved the right for SBBC to award additional points to proposers who quoted all three delivery models. It also authorized SBBC to "contract for one or more models independently or to contract for multiple models from the same vendor."

   3. Article 2.0 of the RFP further stated that "Proposers must bid on the Current Plan Designs" and referred proposers to the then existing HIP certificates of coverage contained in Attachment G of the RFP. Proposers were invited to include one alternate plan for each delivery model quoted and referred proposers to a skeletal framework for such models contained in Attachment N of the RFP.

   4. Article 3, entitled "General Conditions," provided the RFP's deadlines and conditions. Section 3.7 indicated that "In a competitive procurement process no submissions made after the proposal opening, amending or supplementing the proposal shall be considered." However, Section 3.8 specifically authorized the

      Evaluation Committee and/or SBBC to "waive irregularities or technicalities in proposals received."

   5. Article 4 and Article 5 did not appear in the RFP at issue.

   6. Article 6, entitled "Interpretations," referred proposers who had questions to the SBBC purchasing department.

   7. Article 7 of the RFP was clearly marked as "Minimum Eligibility Criteria." In past RFP's, SBBC included extensive minimum eligibility criteria for proposers seeking to bid. In the RFP at issue, SBBC minimized the criteria to encourage competing proposals and to afford flexibility to SBBC in solving its immediate employee health care needs.

   8. Accordingly, Article 7 set forth only one minimum eligibility criterion. It stated:

      In order to be considered eligible for this assignment, proposer shall meet or exceed the following criteria:

      The proposer shall be licensed in good standing in the State of Florida to conduct health insurance business, and/or be a non- profit health care corporation licensed to transact business in Florida.

      
      

      All proposals which complied with Article 7 were considered by the agency. Any deviations in the proposals were contemplated by the Insurance Committee and considered in scoring the proposals.

   9. Article 8 of the RFP, entitled "Information to be included in the submitted proposal," requested applicants to

      organize their proposals in the specified manner. Subsections of Article 8 requested a Title Page (8.1), Table of Contents (8.2), Letter of Transmittal (8.3), Response Form (8.4), Notice Provision (8.5), and an Addenda Letter (8.6).

   10. Additional subsections in Article 8 of the RFP requested applicants to provide validation of their minimum eligibility (8.7), responses to the Attachment E questionnaire for each proposed plan (8.8), records of their experience and qualifications (8.9), a detailed plan for providing SBBC's requested scope of services (8.10), and a cost proposal for each plan (8.11).

   11. Noteworthy, Subsection 8.10.9 of Section 8.10 provided the applicant with proposed "assumptions/requirements" that "should be considered" when preparing a response to the RFP. For each proposed assumption listed in Subsection 8.10.9, three separate response columns were provided bearing the headings "Yes, Can Comply"; "Yes, Can comply but with deviations"; and "No, Cannot comply." For example, included within Subsection 8.10.9’s list of proposed assumptions to be considered by the applicant was the following:

       Variations in actual enrollment shall have no effect on your rate quotation. Your proposal shall be valid regardless of the actual enrollment mix, number of proposers, number of plan designs or outcome.

   12. By providing three separate response columns in the RFP, SBBC clearly invited a range of responses from proposers that would permit a proposal to differ from the proposed "assumptions/requirements."

   13. Although Section 8.11 of the RFP stated, in part, that "[n]o conditions or qualifications (e.g. participation requirement) to the quoted rates are acceptable," only Section

       8.7 specifically addressed the disqualification of a proposal.

       
       

       Section 8.7, entitled "Minimum Eligibility" clearly restated that the "Proposer shall validate each criteria stated in Section 7 as required in said Section. Failure to comply with the requirements of Section 7 will disqualify the proposal from further consideration." Disqualification arose not for non- compliance with an Article 8 component, but rather for a failure to satisfy the minimum eligibility criteria contained in

       Article 7.

       
       

   14. Section 8.10 of the RFP entitled "Scope of Services Provided," requested an explanation of the proposed plan. Specifically, it stated:

       The following services are requested by SBBC in the provision of group medical coverage to its employees and retirees (including KID’s programs). Clearly describe how the proposer can accomplish each of the following Scope of Services provided below. . . .

   15. Moreover, Article 9 of the RFP, entitled "Evaluation of Proposals," clearly reserved to the Insurance Committee "the right to short list the proposers, interview them, and negotiate any term, condition, specification or price with the selected proposer(s)." The wide latitude of discretion plainly conferred upon the Insurance Committee by this provision is consistent with the minimum eligibility criteria contained in Article 7 and with the reservation of the right in Article 2 to contract for one or more models independently or contract for multiple models from the same vendor(s).

   16. Article 10 of the RFP, entitled "Special Conditions" detailed general conditions of the RFP.

   17. Specifically, Section 10.37 of the RFP, entitled "Acceptance and Rejection of Proposals," provided that a proposal "may be rejected if it does not conform to the rules or requirements contained in this RFP." This section listed permissive grounds for possible RFP rejection including conditional proposals and instances in which the "proposer adds provisions reserving the right to accept or reject an award or to enter into a contract pursuant to an award or adds provisions contrary to those in the RFP."

   18. Finally, Article 11 of the RFP, entitled "Requirements of Agreement," clearly and separately identified a list of "provisions that are not subject to negotiation." There is no

       evidence in the record that any proposer included provisions in its proposal which conflicted with Article 11.

4. Issuance of Addendum Number One

   
   

   1. Shortly after SBBC released the RFP, at least two proposers sought clarification of Subsection 10.37.6. On

      July 31, 2000, SBBC released Addendum Number One to the RFP which responded to proposers’ questions and made minor changes to the RFP. In the Addendum, SBBC addressed the following question: "Is SBBC stating in this section that ANY deviations from the Proposer, in response to RFP 21-139V, will result in the Proposer’s automatic rejection from this bid process? Please clarify." In response, the SBBC stated:

      There are provisions in this RFP which provide proposers the opportunity to submit an additional plan design for each delivery model quoted. See Section 2.0. However, a proposer who adds provisions to its proposals reserving the right to accept or reject an award, reserving the right to enter into a contract pursuant to an award, or add[s] provisions in its proposal which are contrary to the wording in the RFP, as amended, would have its proposal rejected.

      
      

5. The Proposals

   
   

   1. On August 18, 2000, proposals were submitted to SBBC’s Purchasing Department. SBBC received proposals from the following seven (7) proposers: AvMed; Beacon Health Plans, Inc. ("Beacon"); HIP; Humana; The Maxon Company ("Maxon"), UniPsych Corp. (UniPsych"); and United Healthcare of Florida ("United").

6. The Humana Proposal

   
   

   1. In its proposal, Humana responded "Please see comments on rate pages (Attachment D)" under the "No, Cannot comply" column in response to the proposed "assumption/requirement" in Subsection 8.10.9 of the RFP that "variations in actual enrollment shall have no effect on your rate quotation. Your proposal shall be valid regardless of the final enrollment mix, number of proposers, number of plan designs or outcome." Humana’s response to this portion of the RFP was identified to the Insurance Committee as a deviation from the RFP and was considered when scoring the proposals.

   2. The Financial Response Forms contained in Attachment D of Humana’s proposal for HMO, POS, PPO and modified PPO health products that were referenced in its response to Subsection

      8.10.9 stated as follows:

      
      

      The following contingencies apply:

      
      

      Rates and benefits are contingent upon a minimum of 10,000 employees enrolled in Humana plans.

      
      

      Proposed rates and benefits assume a maximum of two carriers.

      
      

      The competing carrier must have similar benefits, covered services, and plan types.

      
      

      SBBC’s incentive strategy must be such that the amount the employee is required to contribute to the Humana plan shall be equal to or less than the employee’s contribution toward the competitor’s plan.

      
      

      These provisions were actuarial assumptions reasonably used by Humana to price the benefits proposed to SBBC. Humana’s response to this portion of the RFP was identified to the Insurance Committee as a deviation from the RFP and considered when scoring the proposals.

   3. In response to Subsection 8.10.9 of the RFP, Humana also responded to the proposed "assumptions/requirements" that "[a]ctively-at-work provisions shall be waived for all participants" and that "[t]here shall be no exclusion provisions for pre-existing conditions, except for late entrants" by stating under the heading, "Yes, Can comply but with deviations" that it will waive those terms "if Humana is offered as full replacement." Humana’s response to these portions of the RFP was identified to the Insurance Committee as deviations from the RFP and considered when scoring the proposals.

   4. In its formal written protest, AvMed, in part, contests the portion of Humana’s proposal that states "[p]erformance guarantees will apply only if a minimum of 10,000 employees enroll in Humana plans." This response is consistent with the compliance matrix in Subsection 8.10.9 and with Section 10.42 of the RFP which stated that "SBBC may negotiate performance standards and performance guarantees with the selected proposer(s)." In addition, the performance standards guarantees,

      contained in Attachment K of the RFP, invited proposers to "[p]lease review the outlined proposed performance standards and liquidated damages."

   5. Although Humana labeled each plan design it proposed as an "alternate plan," it clearly sought to closely match them with the current HIP certificates of coverage contained in Attachment G of the RFP.

   6. While structured differently, Humana’s HMO (Alternative Plan 1) generally matched the benefits contained in the current HIP HMO certificate of coverage with minor variances in certain benefits. Humana offered slightly modified benefits by eliminating a $300 hearing aid benefit, requiring a co-payment of

      $10 for maternity office visits, providing a three-tier structure for retail and mail order prescriptions, slightly increasing the out-of-pocket maximums, and eliminating a benefit for mildly ill child care services. Humana however, offered enhanced benefits by including coverage for non-formulary retail and mail order prescriptions, and abolishing the limit on days/visits for physical, speech and occupational therapies, as well as home health care visits, and infertility treatment. The proposed modifications were considered by the Insurance Committee.

   7. Similarly, Humana’s proposed POS (Alternative Plan 1) generally matched the benefits contained in the current HIP POS certificate of coverage with minor differences. Humana offered

      modified benefits by omitting a $300 hearing aid benefit, using a three-tier structure for retail and mail order prescriptions, reducing visits for in-network mental health outpatient services, increasing the co-payment for in-network inpatient substance abuse, omitting coverage for in-network infertility treatment, increasing the co-payment for non-surgical spine and back treatment and limiting visits per year for the same, placing a maximum on benefits for in-network and out-of-network hospice care, and placing a $5 million limit on lifetime benefits.

   8. On the other hand, Humana offered enhanced benefits by eliminating limitations for in-network or out-of-network rehabilitation visits, providing coverage of out-of-network ambulance care, increasing covered days for skilled nursing facilities, increasing visits for home health care and omitting co-payments for in-network care and increasing covered visits and omitting benefit limits for out-of-network care, and increasing the out-of-network lifetime benefits limit.

   9. Humana’s HMO and POS proposals also offered networks of acute care hospitals, primary care physicians, and specialty physicians, that were far superior to other proposals. Humana's proposals were thoroughly considered by the Insurance Committee during the evaluation process.

   10. Moreover, due to past problems with the SBBC incumbent providers, a financial rating report of the proposers was given

       to the Insurance Committee. Humana was reported to have an AM Best rating of "A- (excellent)." Ratings of B+ and above represent those companies that are considered secure in their ability to meet their ongoing obligations to members.

7. The AvMed Proposal

   
   

   1. The AvMed proposal also contained health care delivery products corresponding to the Current Plan Designs contained in Attachment N of the RFP. However, their proposal failed to closely match the current HIP certificates of coverage contained in Attachment G of the RFP.

   2. The HMO product offered to SBBC by AvMed differed from the HIP model of coverage, at minimum, in the following respects:

      Current

      Benefit Description		Certificate	AvMed Proposal
      Maternity outpatient	visits	No co-payment Per visit	$10 co-payment per visit
      Family Planning – sterilization		$10 co-payment (office visit) $50 co-payment (hospital)	$100 co-payment
      Physical, Speech and Occupational Therapy		No co-payment 60 days from 1st day of treatment for acute	$10 co-payment 24 days per condition
      Skilled Nursing Facility		No co-payment 30 days/	$25 co-payment per day, up to
      		calendar year; 100 days/ lifetime	20 days/ contract year

      Second Medical Opinion from No co-payment $10 co-payment a participating provider per visit

      
      

      Testing for Learning $200 co-payment No Benefits Disabilities for children

      5 years and older

      
      

      Second Medical Opinion from 40% of No Benefits a Non-participating charges

      provider within the service area

      
      

      Durable Medical Equipment No co-payment $50 co-payment

      $5,000 annual $500 annual

      limit limit

      
      

      Mildly Ill Child Care $10 co-payment No Benefits Services (a qualified Limited to 3

      participating provider days per arranged by carrier to calendar year per care for a sick child family coverage

      (up to age 12) during subscriber normal business hours

      
      

      Infertility Treatment No co-payment No Benefits (ncludes testing, counseling, $6,000 max per

      artificial insemination, lifetime in-vitro fertilization and

      injectable drugs)

      
      

      Prescription Drugs – $3 = 90 day $9 = 90 day Mail Order supply supply

      
      

      AvMed's proposed differences in benefits were identified and evaluated by the Insurance Committee during the evaluation of proposals.

   3. Moreover, the POS product proposed by AvMed as corresponding to the Current Plan Design differed in the following respects:

      Benefit Description		Current Certificate	AvMed Proposal
      Family Planning – Sterilization (in network)		$10 co-payment (office) $200 co-payment (hospital)	$10 co-payment per visit
      Family Planning – sterilization (out-of-network)		$10 co-payment (office) $200 co-payment	No Benefits
      		(hospital)
      Physical, Speech and Occupational Therapy visits (in-network)		No co-payment 20 visits per condition 80 visits per year	$10 co-payment 24 (in-network) condition
      Skilled Nursing Facility (in-network)		No co-payment up to 30 days calendar year	$25 co-payment per day, up to 20 days/ contract year
      Second Medical Opinion from a participating provider		No co-payment	$10 co-payment
      Second Medical Opinion from non-participating provider within Service area	a	No co-payment	No Benefits
      Testing for Learning Disabilities for children 5 years and older		No co-payment	No Benefits
      Durable Medical Equipment (in-network)		No co-payment $5,000 annual Limit	$50 co-payment $500 annual limit
      Durable Medical Equipment		65% of URC After Deductible $5,000 annual	$50 co-payment $500 annual limit
      		limit
      Mildly Ill Child Care Services (a qualified		$10 co-payment limited to 3	No Benefits

      participating provider days per calendar arranged by carrier to care year per family

      for a sick child (up to coverage subscriber age 12) during normal

      business hours

      
      

      Infertility treatment No co-payment No Benefits (includes testing, counseling, $6,000 max per

      artificial insemination, lifetime in-vitro fertilization and

      injectable drugs)(in-network)

      
      

      Hospice Care (out-of-network) No co-payment No Benefits

      210 days lifetime limit

      
      

      Prescription Drugs – Retail $7 (formulary) No Benefits (out-of-network) $21 (non-formulary)

      
      

      Prescription Drugs – mail $7 (formulary) $21 (formulary) order (in-network) $21 (non- $63

      formulary) (non-formulary) Similarly, AvMed's proposed differences in benefits were thoroughly considered by the Insurance Committee during the evaluation process.

   4. AvMed submitted additional deviations in its proposal.

      
      

      Subsection 8.10.1 of the RFP listed a scope of services and requested each proposer to describe how their proposal could accomplish each item. One service listed was "Customer service lines for employees in Area Code 954, as well as a toll-free line for employees residing outside the 954 Area Code." The provision of customer service lines within the 954 area code is important for serving SBBC’s employees as many telephones within the school system will not dial an outside call in excess of 7 digits.

   5. In responding to Subsection 8.10.1 of its proposal, AvMed stated that it "offers toll free customer service lines for all members" which is "accessible from all locations inside and outside of the 954 area code." Due to the inability to access 800 service on several school properties, this response was identified to the Insurance Committee as a deviation from the provisions of the RFP and considered when scoring the proposals.

   6. Subsection 8.10.2 of the RFP requested proposers to describe how they can "participate and share in the cost of an independent employee satisfaction survey." In its proposal, AvMed stated its willingness to participate in the survey but was silent as to sharing in the survey cost. AvMed’s response was identified to the Insurance Committee as a deviation from the RFP and considered when scoring the proposals.

   7. Although Attachment E of the RFP instructed each proposer to "[p]rovide your organization’s most recent financial ratings (e.g., Moody’s, S&P, AM Best)," AvMed failed to provide

      it.

      
      

   8. As a result, an independent report was prepared and

      
      

      submitted to the Insurance Committee during the evaluation process reflecting the AM Best rating of AvMed’s financial status as "Bq (Fair)." The rating indicated that AvMed had not solicited the Best’s rating but was derived from publicly available financial data as well as other reliable information.

      Ratings of B and below are considered vulnerable with respect to their ability to meet their ongoing obligations to members.

      Specifically, a "B" rating denotes an ability to meet current obligations to members, but financial strength is vulnerable to adverse changes in underwriting and economic conditions.

8. The HIP Proposal

1. In its proposal, HIP also responded to the portion of Subsection 8.10.9 concerning "variations in actual enrollment" under the response column marked "Yes, can Comply but with deviations." HIP’s response stated, "At the request of the School Board of Broward County, HIP is willing to work with the School Board to reduce PPO rates." Its response comported with Subsection 8.10.9, was submitted to the Insurance Committee as a deviation from the RFP, and was considered when scoring the proposals.

2. Section 10.42 of the RFP stated that SBBC may negotiate performance standards and guarantees with the selected proposer(s). In its Proposal, HIP agreed to this provision and responded that it had reviewed and understood its obligations under Section 10.8 of the RFP which concerned, in part, damages upon provision of non-conforming services. Similarly, HIP indicated a willingness to negotiate performance guarantees in its response to Attachment K of the RFP.

   1. The United Healthcare Proposal

      
      

3. In its formal written protest, AvMed argued that portions of the United proposal were non-responsive requiring rejection of the proposal. In its proposal, United described certain rating assumptions utilized by its actuaries to prepare the rate quoted to SBBC. The assumptions generally concerned circumstances and the status quo existing under SBBC’s current providers and included an assumption that 50 percent of the eligible employees would participate in the coverage. The assumptions were identified to the Insurance Committee as deviations from the RFP and were considered when scoring the proposals.

4. United also reserved the right to revise its quotation if the benefits or service requirements were changed. United Healthcare's reservation did not render conditional the rates offered for the benefits specified in the proposal and is consistent with Article 2 of the RFP which notified proposers that benefit levels may be subject to change due to changes in SBBC’s collective bargaining agreements.

5. Subsection 10.37.2 of the RFP provides that a proposer will not be excused from "full compliance with the RFP specifications and other contract requirements if the proposer is awarded the contract." United agreed to Subsection 10.37.2 in its proposal and, consistent with Section 9.4, acknowledged that

   a formal agreement was to be negotiated and executed. United also stated that its proposal relied upon information provided by SBBC. In the event that such information proved false, United reserved the right to adjust its proposal.

6. Section 10.16 of the RFP set forth the priority of documents in the event of a conflict of terms. While United suggested the parties conduct a conference to discuss any disputes, it concurred that the process described in Section

   10.16 should be used as the primary method for resolution.

   
   

7. Section 10.19 of the RFP included a hold harmless agreement. The provision included a statement that the proposer would be liable for damages or loss to SBBC arising from the proposer’s negligence. United expressly agreed to Section 10.19, but stated that it would not indemnify clients for the acts of network providers. The statement does not conflict with the provisions for indemnifying SBBC and clarifies any mistaken inference that United was assuming responsibility for the acts of third persons over whom United lacked control.

8. Similarly, Subsection 10.31.2 of the RFP set forth a proposer’s obligations to indemnify SBBC and Subsection 10.31.1 set forth SBBC’s obligation to indemnify a proposer. United’s response to the subsectioins did not refute its obligations to indemnify SBBC, but simply reiterated its prior statement

   regarding an inability to indemnify enrollees for the acts of network providers over whom United lacked control.

9. Subsection 10.41(a) of the RFP provided that no rate increase could occur until the end of any applicable rate guarantee period. Consistent with Section 9.4 which provided that any term or condition may be negotiated by the Insurance Committee with the selected proposer(s), United responded in its proposal that these requirements will be discussed if United is considered a finalist.

10. As discussed earlier, Section 10.42 of the RFP provided that "SBBC may negotiate performance standards and performance guarantees with selected proposer(s)." Attachment K of the RFP invited each proposer to review certain "proposed" performance standards and liquidated damages. United properly responded to Attachment K, stating that the performance guarantees had been endorsed by its executive leadership and acknowledged that the allocation of fees at risk would be mutually agreed upon if United were selected as a finalist.

11. Section 10.8 of the RFP addressed liquidated damages for non-conforming services and the filing of actions in Broward County courts. Consistent with Section 10.42’s provision for the negotiation of performance standards and guarantees, United agreed to negotiate the issue of damages. In addition, United suggested use of alternative dispute resolution by the parties.

    1. Evaluation and Scoring of Proposals

       
       

12. The ultimate decision to issue the RFP and award contracts was made by SBBC. SBBC’s Superintendent maintains a standing committee known as the Insurance Committee which provides advice and input to the Superintendent regarding insurance issues, including the development of an RFP as well as the review and scoring of the proposals which are submitted in response to the RFP. The Insurance Committee makes recommendations to the Superintendent who, in turn, makes recommendations to SBBC.

13. Section 9.1 of the RFP at issue was entitled "Evaluation of Proposals" and set forth the following process and criteria for the scoring of the proposals:

    The Superintendent’s Insurance Advisory Committee (hereinafter referred to as "Committee") shall evaluate all proposals received, which meet Section 7.0 Minimum Eligibility Requirements, according to the following criteria:

    
    

    CATEGORY MAXIMUM POINTS

    
    

    1. Experience and Qualifications 30

    2. Scope of Services Provided 30

    3. Minority/Women Business 10

       Participation

    4. Cost of Services Provided 30

    TOTAL 100

    Additional points were awarded to proposers who quoted all three delivery models pursuant to Article 2.

14. SBBC retained an independent consulting firm ("Consultant") to assist in the development of the RFP and the review and evaluation of the proposals. In addition to the Consultant, staff including SBBC’s Director of Benefits, Director of Risk Management, Director of Purchasing, M/WBE Compliance Director and legal counsel served as technical resources for the Insurance Committee at each meeting.

15. The Insurance Committee met at least eight times and in excess of 39 hours to analyze, evaluate, score, and recommend an awardee from the proposals. All meetings were recorded and transcribed by a court reporter and entered into this record.

16. Copies of the RFP, Addendum No. 1 and of the various proposals were provided and available at each Insurance Committee meeting. The Consultant prepared a voluminous document entitled "Analysis of Proposals" which was divided into sections corresponding to each of the health care delivery products submitted in the proposals. Each section provided a side-by-side comparison of each proposal submitted. Each section was further divided into subsections corresponding to experience and qualifications, scope of service and M/WBE that comprised the evaluation criteria categories other than cost. The Analysis of Proposals was provided and explained in detail to the Insurance Committee.

17. The Consultant presented a document entitled "Listing of Proposal Deviations," which addressed the minimum eligibility criteria, scope of services, and other portions of the RFP. It provided a side-by-side comparison of each proposal and was thoroughly explained to the Insurance Committee.

18. The Consultant also prepared a document entitled "Benefit Comparison," which provided a side-by-side analysis of the health care benefits submitted by each of the proposers and was thoroughly explained to the Insurance Committee.

19. The Consultant prepared and presented an additional document entitled "Comparison of Existing Contract Costs and Proposed Costs by Plan Type" ("Cost Comparisons") which provided a side-by-side comparison by plan type along with cost and enrollment data for SBBC’s current benefits programs.

20. Again, the Consultant hired an outside analyst to prepare a report regarding the financial stability of each proposer. It was presented and explained to the Insurance Committee on two occasions.

21. Upon review of the proposals, the Insurance Committee immediately recommended rejection of the proposal submitted by UniPsych on the following grounds:

    Reject proposal from Unipsych Benefits of Florida. Proposer did not meet the Minimum Eligibility Criteria specified in Section 7.0.

    Additionally, proposer was deemed non- responsive to the requirements of this RFP for submitting a proposal for behavioral health care services only.

    
    

22. On October 30, 2000, the Insurance Committee met and scored the proposals submitted by the proposers. The score sheets were structured to correspond to the evaluation criteria contained in the RFP. Three of the 11 members of the Insurance Committee testified at the formal hearing. Each stated that in scoring the proposals, he/she applied the evaluation criteria contained in the RFP to the materials submitted to him/her as a Committee Member for analysis of the proposals as well as the presentations made by the Consultant, technical staff, and proposers.

23. The proposals of AvMed, Beacon, HIP, Humana, Maxon, and United were determined by the Insurance Committee to meet the RFP’s minimum eligibility requirements and each of these proposals was scored in accordance with the RFP. The scoring tabulation for the top four plans under each health care delivery model were as follows: HMO: Humana (Alternate Plan 1) 81.73 points; HIP (Match Current Plan) 79.82 points; AvMed (Match Current Plan) 75.63 points; United (Self-Insured Plan) 69.91 points; POS: Humana (Alternate Plan 1) 78.27 points; AvMed (Match

    Current Plan) 75.55 points, HIP (Alternative Plan 1) 75.27 points; HIP (Match Current Plan) 75.23 points; Modified PPO:

    United (Self-Insured Plan) 77.09 points; HIP (Match Current Plan)

    
    

    76.56 points; Humana (Alternative Plan 1) 73.19 points; Maxon

    
    

    60.45 points; PPO: Humana (Alternative Plan 1) 77.37 points; HIP (Match Current Plan) 77.00 points; United (Self-Insured Plan)

    74.63 points; HIP (Alternative Plan 1) 73.83 points.

    
    

24. Upon review of the scores for the 11 Insurance Committee Members, eight members scored Humana’s HMO (Alternative Plan 1) higher than AvMed’s HMO (Match Current Plan), nine members scored Humana’s HMO (Alternative Plan 1) higher than AvMed’s HMO (Alternate Plan 1), seven members scored Humana’s POS (Alternative Plan 1) higher than AvMed’s POS (Match Current Plan), and seven members scored Humana’s POS (Alternative Plan 1) higher than AvMed’s POS (Alternative Plan 1).

    1. Short-Listing , Negotiations and Recommendation

    
    

25. After the proposals were scored pursuant to Section 9.1, the Insurance Committee was authorized to recommend award to the top-ranked proposer, to recommend award to more than one top- ranked proposer, to short-list the top-ranked proposers for further consideration or to reject all proposals received.

26. After scoring the proposals, the Insurance Committee chose the top four proposed plans for each health care delivery product.

27. After scoring the proposals, the Insurance Committee received a copy of a letter sent to the Superintendent by the

    chief executive officer of HIP. In this letter, HIP described three scenarios for the provision of medical benefits to SBBC employees in 2001 involving the continued provision of medical benefits by HIP under its existing contract with SBBC.

28. The Insurance Committee determined it was impractical for each proposer’s representative to participate in post-scoring interviews and return for post-scoring negotiations. As such, the Insurance Committee voted to consolidate interviews and negotiations and provided each short-listed proposer, including AvMed, the opportunity to participate in interviews/negotiations with the Insurance Committee. Thereafter, each short-listed proposer was invited to attend a meeting of the Insurance Committee to negotiate and bind the proposer to contract terms.

29. Humana negotiated a number of its terms with the Insurance Committee. AvMed was willing to negotiate the provision of a telephone service line within the local area code.

30. Upon completion of the interviews/negotiations, the Insurance Committee voted to withhold the options of POS and modified PPO plans to employees due to minimal past enrollment interest. The Insurance Committee carefully considered at least four combinations of plans submitted in the proposals as well as eight combinations of plans submitted in the proposals with plans provided under HIP’s current contract.

31. The Insurance Committee briefly considered combining AvMed’s HMO (Match Current Plan) with Humana’s Modified PPO (Alternative Plan 1); however, the terms of Humana’s proposal eliminated it from consideration in the proposed configuration.

32. Another combination of plans discussed coupled AvMed’s HMO (Match Current Plan) with Humana’s HMO (Alternative Plan 1) and Humana’s PPO (Alternative Plan 1). The terms of Humana’s proposal eliminated it from consideration in the proposed configuration.

33. The Insurance Committee also considered the combination of AvMed’s HMO with United’s PPO and the combination of Humana’s proposed HMO (Alternative Plan 1) and PPO (Alternative Plan 1) with the HMO and PPO plans provided by HIP under its current contract with SBBC. The individual Insurance Committee Members each ranked their top five combinations of plans. Their rankings were totaled and sent to the Superintendent of Schools as the Committee’s recommendation.

34. Of the five combinations forwarded to the Superintendent, the Insurance Committee’s top-ranked combination of plans coupled Humana’s proposed HMO (Alternative Plan 1) and PPO (Alternative Plan 1) with the HMO and PPO plans provided by HIP under its current contract with SBBC. The fifth-ranked combination coupled AvMed’s proposed HMO (Match Current Plan) with United’s PPO product.

35. Upon receipt and review of the recommendation, the Superintendent determined that SBBC’s collective bargaining agreements required that it continue to provide POS and Modified PPO plans to employees and directed the Insurance Committee to modify its recommendation to include them.

36. The Insurance Committee reconvened and voted to add the POS and Modified PPO plans submitted by Humana to the combination previously recommended. Humana had the highest scored POS plan in the evaluation process and its Modified PPO was short-listed for consideration. AvMed did not propose a Modified PPO product under the RFP.

37. The revised recommendation which included the POS and Modified PPO products was forwarded to and accepted by the Superintendent. He posted the recommendations/tabulations dated November 6, 2000, and recommended to SBBC that it award a contract to Humana for its HMO (Alternative Plan 1), POS (Alternative Plan 1), Modified PPO (Alternative Plan 1) and PPO (Alternative Plan 1) plans to be offered to SBBC employees along with the existing HMO, POS, Modified PPO and PPO plans under HIP’s current contract with SBBC.

38. AvMed timely filed a Notice of Protest on November 9, 2000. The School Board awarded a contract to Humana under the RFP on November 9, 2000, declaring an immediate and serious danger to the public health, safety, or welfare pursuant to

    Section 120.57(3)(c), Florida Statutes, and on November 20, 2000, AvMed timely filed its Formal Written Protest.

    CONCLUSIONS OF LAW

    
    

    1. General Conclusions

       
       

39. The Division of Administrative Hearings has jurisdiction in this matter pursuant to Section 120.57(3), Florida Statutes, and the parties to this proceeding have standing.

40. Section 120.57(3)(f), Florida Statutes, provides that:

    
    

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

    
    

41. In Scientific Games, Inc. v. Dittler Brothers, Inc.,

    
    

    586 So. 2d 1128 (Fla. 1st DCA 1991), the First District

    identified the scope of discretion conferred upon an agency during the competitive procurement process:

    The Hearing Officer need not, in effect, second guess the members of the evaluation committee to determine whether he and/or other reasonable and well-informed persons might have reached a contrary result.

    Rather, a "public body has wide discretion" in the bidding process and "its discretion, when based on an honest exercise" of the discretion, should not be overturned "even if it may appear erroneous and even if reasonable persons may disagree." Department of Transportation v. Groves-Watkins Constructors, 530 So. 2d 912, 913 (Fla.

    1988)(quoting Liberty County v. Baxter’s Asphalt & Concrete, Inc., 421 So. 2d 505 (Fla. 1982)

    
    

42. Pursuant to Section 120.57(3)(f), Florida Statutes, the burden of proof rests with the party opposing the proposed agency action. AvMed must sustain its burden of proof by proving its allegations by a preponderance of the evidence. Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

    1. Award was not Contrary to Statute

       
       

43. AvMed asserts that the scoring of the proposals by the Insurance Committee was clearly erroneous, arbitrary, capricious and contrary to competition in violation of Section 120.57.(3)(f), Florida Statutes. At the formal hearing, AvMed put on the testimony of three of the 11 Insurance Committee Members. These members testified that they scored the proposals

    by applying the RFP’s evaluation criteria to the information contained in documentation and presentations provided to them concerning the proposals. Due to the passage of time and the complexity of the procurement, the three Insurance Committee Members were unable to precisely reconstruct their scores at the formal hearing. However, AvMed failed to satisfy its burden of showing arbitrary or capricious scoring conducted by these three Insurance Committee Members and failed to present any evidence regarding erroneous scoring of proposals by any Insurance Committee Members.

44. In Nobles, Varum & Hodges, Inc. v. Department of Natural Resources, 1993 WL 943515 (DOAH Case No. 92-4671BID, Recommended Order issued August 2, 1993), a protest was filed regarding an intended award of contracts for surveying services. In considering whether a proposal’s ranking was arbitrary, the Recommended Order stated that "an arbitrary act has been characterized as one that is unsupported by facts or logic." AvMed has failed to meet its burden of demonstrating that the proposal scoring was unsupported by facts or logic.

45. The record demonstrates that the members of the Insurance Committee were given adequate guidance for their scoring of the proposals. A copy of the portion of the RFP explaining the evaluation procedures, scoring criteria, and potential scores for each criterion was distributed to each

    Insurance Committee member prior to scoring. The score sheets utilized by each Insurance Committee member were structured to correspond to the scoring criteria and potential scores specified in the RFP and were prepared in a manner that would obtain a score from each Insurance Committee member for each proposed health care delivery product on each scoring criteria.

46. The evaluation process for this RFP entailed at least eight Insurance Committee meetings collectively spanning over 39 hours of discussions and presentations by proposers and technical staff. The Committee members reviewed at least two double-sized banker’s boxes of proposals and proposal analysis tools. AvMed examined three of the 11 Committee members and requested each to detail his or her scoring rationale. While their respective testimony provided an exhaustive review of the evaluation process, the Petitioner failed to demonstrate that their decision process or conclusion was arbitrary or capricious or clearly erroneous.

47. The Insurance Committee members were afforded a degree of discretion and latitude within the RFP which, when coupled with the complex and subjective nature of the products being evaluated and the information provided to the Insurance Committee, would permit the scores that resulted in this procurement. The three Committee Members who appeared at the formal hearing each testified that he or she was given all of the

    information required to score the proposals; that he or she received, reviewed, and understood the materials provided for evaluation of the proposals; and that he or she scored the proposals utilizing the scoring criteria contained in the RFP. Each understood that the presentations and hand-outs provided in the evaluation process were tailored to directly correspond to and assist them in their scoring of the proposals. The testimony of the three Committee members demonstrated a logical basis for their proposal scoring and is supported by the record.

48. AvMed appeared to suggest that even a slight scoring aberration must be deemed to be arbitrary if a Committee Member is unable to reconstruct the precise basis for the individual scores approximately three months after the evaluation. This argument is unreasonable and is rejected.

49. AvMed failed to establish that Humana’s alleged contingencies gave Humana any competitive advantage. While AvMed’s representative indicated that Humana's terms conferred a competitive advantage, the contention is unsupported by the evidence. In fact, the record demonstrates that Humana’s terms were identified to the Insurance Committee as deviations and were considered to Humana’s disadvantage. The Insurance Committee discussed Humana’s terms after scoring and reaffirmed that those deviations were considered in scoring. Further, the terms of

    some of its proposals eliminated Humana, and not AvMed, from consideration in certain combinations of health care products.

    1. The Short Listed Proposers were Responsive to the RFP

       
       

50. With the exception of UniPsych Corp., all proposers were responsive to the RFP having met the minimum eligibility criteria of Article 7, and had their proposals considered and scored by the Insurance Committee taking into account any deviations.

51. In its financial response forms submitted under Attachment D of its proposal, Humana appropriately listed four "contingencies" upon which it based the rates quoted to SBBC. While at least one contingency could be viewed as a participation requirement, Humana’s contingencies were underwriting assumptions reasonably necessary for rate calculations. Their terms were identified to the Insurance Committee as deviations considered in scoring.

52. AvMed argues that Humana’s contingencies are precluded by Section 8.11 of the RFP. Section 8.11 informed proposers that no conditions or qualifications (e.g., participation requirement) to the quoted rates were acceptable but did not state that inclusion of such conditions or qualifications would result in rejection of a proposal. In fact, numerous other provisions in the RFP including Article 7, Article 8, Section 8.7, Section 8.10, Subsection 8.10.9, Section 9.4, Section 10.9 and Article 11

    reaffirmed SBBC’s intention that eligible proposals need only satisfy the minimum eligibility criteria contained in Article 7

53. SBBC repeatedly stated in the Addendum that all proposals would be considered. Subsection 8.10.9 invited alternative proposals regarding employee distribution that would permit the inclusion of Humana’s terms. Section 8.7 specified the minimum eligibility criteria as an express basis for disqualification of a proposal and no other element set forth in Article 8 of the RFP carried this express penalty. In addition, Humana’s contingencies are clearly outside the scope of Article

    11 which listed the specific terms that were not subject to negotiation under Section 9.4 of the RFP.

54. Furthermore, Section 10.9 stated that the RFP shall be interpreted and construed according to Florida law including Section 112.08(2)(a), Florida Statutes, which permits SBBC to engage in simultaneous negotiations with those insurance companies that have submitted reasonable bids and are found to be fully qualified and capable of meeting all servicing requirements.

    1. The Award Does not Violate SBBC's Rules, Policies or RFP

       
       

55. AvMed argued that Humana’s terms rendered its proposal conditional under Subsection 10.37.3.6 by giving Humana the right to accept or reject an award. This argument is rejected. The invited terms are elements of Humana’s proposal. Humana did not

    have the ability to withdraw its proposal due to the inclusion of the terms. Rather, the proposal and all of its terms were available for SBBC to accept if it so desired. Further, the contingencies cannot be deemed contrary to the provisions of the RFP since Section 8.10.9 was structured to encourage Humana to respond in a variety of ways regarding enrollment variations.

56. AvMed further alleges that procedural discrepancies occurred with regard to the conduct of negotiations in this procurement. In Juvenile Services Program, Inc. v. Florida

    Department of Juvenile Justice, 1997 WL 105 2891 (DOAH Case No. 96-5982BID), the Recommended Order held that any alleged procedural deficiencies must be demonstrated by the evidence to have affected the substance of the evaluators’ scoring of the proposals, that the procedural discrepancies prejudiced the evaluators’ consideration of the protestor’s proposal, or that the procedural deficiencies in the evaluation process caused demonstrable prejudice to the protester. AvMed has failed to demonstrate through substantial competent evidence that it was adversely affected by any procedural discrepancies.

57. AvMed asserts that the Insurance Committee was precluded from conducting negotiations under the RFP until SBBC’s governing board selected a proposer. AvMed relies on Section 9.4 that states, "[i]n the event that an agreement between SBBC and the selected proposer(s) is deemed necessary, at the sole

    discretion of SBBC, the Committee will begin negotiations with the selected proposer(s)." The provision provides that the ultimate decision whether to enter into a contract is reserved to SBBC’s governing board.

58. Section 9.4 does not divest the Insurance Committee of the authority conferred upon it by SBBC under the RFP. Section

    9.2 permits the Insurance Committee to recommend award to more than one top-ranked proposer and Section 9.4 permits the Insurance Committee to negotiate any term, condition, specification or price with the selected proposer(s). The RFP plainly intended to give the Insurance Committee wide discretion in making a recommendation. Section 9.3 of the RFP expressly permitted the Insurance Committee to interview short-listed proposers in order to make an award recommendation.

59. It would be incongruous to construe the RFP as divesting the Insurance Committee of its broad negotiation authority if it elected to short-list the scored proposals. In addition, Section 112.08(2)(a), Florida Statutes, permits SBBC to undertake simultaneous negotiations with those proposers which have submitted reasonable and timely bids and are found by SBBC to be fully qualified and capable of meeting all servicing requirements. Of the proposers under this RFP, only UniPsych failed to meet that threshold.

60. AvMed also contests the Insurance Committee’s decision to consolidate the interviews with short-listed proposers and the negotiation phase of the procurement. The action was not taken until after scoring and did not prejudice the scoring of AvMed’s proposal. Furthermore, the strict construction of the RFP urged by AvMed would have precluded it from participating in negotiations until after such time as negotiations failed with each of the proposers that scored higher than AvMed. In light of the scoring, AvMed would not have otherwise been permitted to engage in negotiations until such efforts had failed with Humana and HIP for the HMO plan and with Humana for the POS plan. Plainly, the consolidation of interviews and negotiations benefited AvMed and did not constitute a procedural discrepancy that requires rejection of the recommended award to Humana.

61. AvMed also argues that a November 1, 2000, letter from SBBC’s incumbent carrier (HIP) provided to the Insurance Committee presented an improper influence on the proceedings. The HIP letter post-dates the scoring of the proposals and could not have adversely influenced AvMed’s scores. The letter described three different scenarios under which the SBBC’s employee health benefits might be configured to coordinate the continuation of benefits under HIP’s existing contract with any award that might result from this procurement.

62. The of input from SBBC’s incumbent carrier in this regard was not improper and merely identified some of the benefits configurations available to SBBC. The Insurance Committee did not constrain itself to the benefits configurations suggested by HIP. In considering the benefits configurations available to SBBC, the Insurance Committee discussed four configurations involving the continuation of services by HIP under its existing contract as well as eight configurations that would discontinue HIP’s present services. The Insurance Committee voted upon these various configurations and forwarded their top five ranked configurations to the Superintendent. Of those configurations recommended to the Superintendent, three involved the continuation of services by HIP under its current contract and two did not.

    1. General Conclusion

    
    

63. AvMed has not proven by a preponderance of the evidence that the actions of SBBC or the posted recommendations violate Florida Statutes, or SBBC's policies or RFP, or are clearly erroneous, contrary to competition, arbitrary, capricious or fraudulent.

RECOMMENDATION

Based upon the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that the School Board of Broward County, Florida enter a Final Order dismissing the Formal Written Protest filed by AvMed, Inc. d/b/a AvMed Health Plan.

DONE AND ENTERED this 9th day of May, 2001, in Tallahassee, Leon County, Florida.

WILLIAM R. PFEIFFER

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 9th day of May, 2001.

COPIES FURNISHED:

Andrew S. Berman, Esquire

Young, Berman, Karpf & Gonzalez, P.A. 17071 West Dixie Highway

North Miami Beach, Florida 33160

Joseph M. Goldstein, Esquire Shutts & Bowen, L.L.P.

First Union Center

200 East Broward Boulevard, Suite 2000 Fort Lauderdale, Florida 33301

Edward J. Marko, Esquire Robert Paul Vignola, Esquire School Board of Broward County

600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301

Dr. Frank L. Till, Jr., Superintendent School Board of Broward County

600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 10 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 00-004927BID

Orders for Case No: 00-004927BID