STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWN SCHOOLS OF FLORIDA, INC., )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent, )

)

and )

)

THREE SPRINGS, INC., )

)

Intervenor. )

Case No. 01-3020BID

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 5, 2001, in Tallahassee, Florida, before

1. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

   APPEARANCES

   
   

   For Petitioner: David C. Ashburn, Esquire

   Hope Keating, Esquire Greenberg Traurig, P.A.

   101 East College Avenue Tallahassee, Florida 32301

   
   

   For Respondent: Brian D. Berkowitz, Esquire

   Richard M. Coln, Esquire Department of Juvenile Justice 2737 Centerview Drive

   Tallahassee, Florida 32399-3100

   For Intervenor: Cynthia S. Tunnicliff, Esquire

   Brian A. Newman, Esquire Pennington, Moore, Wilkinson,

   Bell & Dunbar, P.A.

   215 South Monroe Street, Second Floor Post Office Box 10095

   Tallahassee, Florida 32302-2095 STATEMENT OF THE ISSUE

   Whether the proposed action to award a contract to the Intervenor, Three Springs, Inc., is clearly erroneous, contrary to competition, arbitrary, or capricious.

   PRELIMINARY STATEMENT

   
   

   On June 4, 2001, the Department of Juvenile Justice posted a Notice of Intended Contract Award for Request for Proposal Number R4H01. Such notice identified Three Springs, Inc., for the potential award of the contract for the Elaine Gordon Treatment Center. Offerors responding to the Request for Proposal (RFP) were Three Springs, Inc., and Brown Schools of Florida, Inc.

   Upon receipt of the notice of the intended award to Three Springs, Inc., Brown Schools of Florida, Inc., timely filed a notice of its intent to protest the proposed award. On June 15, 2001, Brown Schools of Florida, Inc., filed a Petition for Formal Administrative Proceedings. As the issues listed in that petition were unresolved, the matter was forwarded to the Division of Administrative Hearings for formal proceedings on July 26, 2001.

   The Petitioner, The Brown Schools of Florida, Inc. (BSF), alleged that the Respondent, Department of Juvenile Justice, had illegally and inappropriately scored the proposals for the Elaine Gordon Treatment Center by not following the RFP specifications or by considering information outside the proposal submitted. Additionally, the Petition claimed the evaluators demonstrated a bias in assessments of BSF's proposal.

   The Petition to Intervene filed on behalf of Three Springs, Inc. (TSI), was granted on August 1, 2001. All parties agreed that the formal hearing of the matter would be held September 5, 2001.

   At the hearing, the Petitioner and Respondent jointly filed Exhibits numbered 1 through 13 that have been received into evidence. Additionally, the Petitioner presented the deposition testimony of Ken Mason (BSF Exhibit 1), Jennifer Gallman (BSF Exhibit 2), and Perre Edwards (BSF Exhibit 3). Laura Schuck, Kirk Zeppi, and Barbara Manakas testified on behalf of the Petitioner. Petitioner's Exhibit 4 was also received in evidence.

   The Intervenor's Exhibits numbered 1 through 6 were admitted into evidence. Additionally, Richard Block testified on behalf of TSI.

   All parties executed a Pre-Hearing Stipulation that was filed with the Division of Administrative Hearings on September 5, 2001.

   The transcript of these proceedings was filed with the Division of Administrative Hearings on September 24, 2001. Thereafter, all parties timely filed proposed recommended orders that have been considered in the preparation of this order.

   FINDINGS OF FACT

   
   

   1. In April of 2001, the Department of Juvenile Justice (Department) issued a Request for Proposals (RFP) for proposals to design and operate a 50 bed high-risk sexual offender program in Broward County, Florida for male youth ages 10-18. Such facility, known as the Elaine Gordon Treatment Center, was to be operated 24 hours per day, seven days per week.

   2. Two entities timely submitted proposals for the facility: BSF and TSI. Their responses were submitted on May 8, 2001.

   3. Three Department employees (Jennifer Gallman, Ken Mason, and Barbara Manakas) were to evaluate the proposals based upon the criteria identified in the RFP.

   4. The Department gave each of the evaluators a score sheet upon which to calculate each proposal relative to the RFP criteria. The evaluators assigned scores ranging from 0 to 5 for each listed item. The evaluator's score was then multiplied

      by an assigned weight to calculate an overall score for the criterion.

   5. After all the computations were completed, Jennifer Gallman scored TSI at 325 and BSF at 346.

   6. Similarly, Ken Mason scored TSI at 399 and BSF at 399.

      
      

   7. Barbara Manakas scored TSI at 326 and BSF at 282.

      
      

   8. The scores from the three evaluators were then averaged to reach scores of 342.33 for TSI and 337.33 for BSF.

   9. On June 4, 2001, the Department posted its Notice of Intended Contract Award and identified TSI as the offeror with the highest score (and therefore the intended recipient for the contract).

   10. The Petitioner timely filed the instant challenge to the proposed award to TSI.

   11. The Petitioner currently operates the Elaine Gordon Treatment Center. On May 8, 2001, the same date the proposals were due for the instant RFP, the Petitioner received a "cure notice" from the Department citing alleged deficiencies at the Elaine Gordon Treatment Center. The purpose of the notice was to advise the provider (BSF) that the agency intended to take action on the alleged deficiencies.

   12. The allegations of the notice surprised Petitioner's management as it had been working in tandem with the Department

       to correct deficiencies that had occurred at the facility and were well known to the parties.

   13. One of the evaluators for the instant RFP was aware of the cure notice and the alleged deficiencies. That evaluator scored the BSF proposal approximately 40 points lower than the proposal submitted by the Intervenor.

   14. The Petitioner asserts that the evaluator's assessment of the BSF proposal was biased. In essence, the Petitioner theorizes that an evaluator considering only the information within the four corners of the proposals would have more objectively scored the Petitioner's proposal. Petitioner maintains that the evaluator's bias is demonstrated by the written comments on the forms that are positive for the Intervenor, but are inappropriately silent or negative toward the Petitioner.

   15. In support of these assertions, the Petitioner relies in part on an e-mail sent by the evaluator to a superior that stated:

       If I am aware of deficiencies in operating programs may I include my knowledge (such as results of DJJ QA reviews) in scoring this item or do I have to use only the information provided in the proposal?

       
       

   16. The evaluator was aware of quality reviews (QA reviews) wherein the Petitioner had been deemed unsatisfactory.

       That rating had led to the cancellation of a Department contract with the Petitioner in Palm Beach County.

   17. The evaluator maintains that despite a reference to the outside information she possessed (specifically cited in one section of her assessment of the Petitioner's proposal), she judged the instant proposal on the merits of the information contained within the proposal itself. Nevertheless the contract cancellation she referred to had occurred a couple of years ago.

   18. The other two evaluators did not consider such outside information in scoring the proposals. Neither evaluator knew of the alleged deficiencies at the subject facility or of the history in Palm Beach County.

   19. The evaluators were also obligated to review a second portion of the proposals known in this record as "the cost proposal." One evaluator refused to consider that information in scoring the contested portions of the proposal. That is, she would not consider data included in the cost proposal to clarify or augment the technical response even if such information helped to more fully understand the first portion.

   20. In comparing the scores, if the Petitioner's scores were increased to allow for additional points and TSI's points are not reduced, the overall scoring of the RFP would not change. That is, the overall result of the proposal calculations would not change the outcome of the intended award.

       Only if TSI's scores are lowered could the result change. The unchallenged, unbiased evaluators gave TSI scores comparable to the third evaluator. TSI's score fairly relates to the responses it submitted for the RFP.

       CONCLUSIONS OF LAW

       
       

   21. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(3), Florida Statutes.

   22. The issue in this matter is whether the proposed action is contrary to governing statutes, Department rules or policies, or the RFP's specifications. In reviewing this issue the standard of proof is whether the action was clearly erroneous, contrary to competition, arbitrary or capricious. The Petitioner bears the burden of proof in this regard and it has failed to meet its burden.

   23. While it is concluded one evaluator wrongly deflated the Petitioner's score, it cannot be concluded the Intervenor's score was wrongly inflated. The scores achieved by the Intervenor were consistent among all three evaluators. The two evaluators who did not consider information from outside the four corners of the responses scored the Intervenor's proposal consistent with the third evaluator. While the Petitioner's score was improperly deflated by the evaluator who had knowledge of outside information, it cannot be concluded that the

Intervenor achieved an unfair competitive edge due to the Petitioner's deflated score. Had the Petitioner achieved higher scores from the biased evaluator, the overall scores would have still favored the Intervenor. Thus it must be concluded that the proposed agency action is sustainable. The Department's proposed action is not clearly erroneous, contrary to competition, arbitrary or capricious. See Section 120.57(3), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order dismissing the challenge filed by the Petitioner.

DONE AND ENTERED this 25th day of October, 2001, in Tallahassee, Leon County, Florida.

J. D. PARRISH 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 25th day of October, 2001.

COPIES FURNISHED:

David C. Ashburn, Esquire Greenberg Traurig, P.A.

101 East College Avenue Tallahassee, Florida 32301

Brian D. Berkowitz, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Cynthia S. Tunnicliff, Esquire Pennington, Moore, Wilkinson, Bell

& Dunbar, P.A.

215 South Monroe Street, Second Floor Post Office Box 10095

Tallahassee, Florida 32302-2095

William G. Bankhead, Secretary Department of Juvenile Justice Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 01-003020BID

Orders for Case No: 01-003020BID