STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PSYCHOTHERAPEUTIC SERVICES OF ) FLORIDA, INC., )
)
Petitioner, )
)
vs. )
) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )
)
Respondent, )
)
and )
) MENTAL HEALTH RESOURCE CENTER, ) INC., )
)
Intervenor. )
__ )
Case No. 05-2800BID
RECOMMENDED ORDER
Upon due notice, this bid protest was heard September 13- 15, 2005, in Tallahassee, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioner Psychotherapeutic Services of Florida:
Thomas R. Tatum, Esquire Jonathan M. Streisfeld, Esquire Brinkley, McNerney, Morgan,
Solomon & Tatum, LLP
200 East Las Olas Boulevard Suite 1900
Post Office Box 522
Fort Lauderdale, Florida 33301
John C. Sigler, Esquire Qualified Representative Brinkley, McNerney, Morgan,
Solomon & Tatum, LLP
200 East Las Olas Boulevard Suite 1900
Post Office Box 522
Fort Lauderdale, Florida 33301
For Respondent Department of Children and Family Services: Tom Barnhart, Esquire
Office of the Attorney General The Capitol, PL-01
Tallahassee, Florida 32399-1050
Diane G. LeRoy, Esquire Florida Department of Children
and Families
1317 Winewood Boulevard
Suite 2, Room 204
Tallahassee, Florida 32399
For Intervenors Mental Health Resource Center, Inc.,; The Harbor Behavioral Healthcare Institute, Inc.,; and Coastal Behavioral Healthcare, Inc:
Bruce Culpepper, Esquire
James Bruce Culpepper, Esquire Lisa Hurley, Esquire
Akerman Senterfitt
106 East College Avenue Suite 1200
Tallahassee, Florida 32301
For Intervenor Bayview Center for Mental Health, Inc.:
Gary J. Clarke, Esquire Frank Ranier, Esquire Sternstein, Ranier & Clarke
411 East College Avenue Tallahassee, Florida 32301
STATEMENT OF THE ISSUE
Whether Department of Children and Families' (DCF's) intent to award nine contracts for Florida Assertive Community Treatment (FACT), as set forth in Request for Proposal No.
01H05FP3 (RFP), to the Intervenors herein was contrary to that Agency's governing statutes, its rules or policies, or the specifications of the RFP, thereby being clearly erroneous, contrary to competition, arbitrary, or capricious.1/
PRELIMINARY STATEMENT
DCF solicited responses from prospective vendors, pursuant to a "Request for Proposals for Florida Assertive Community Treatment (FACT) Programs for Persons with Severe and Persistent Mental Illness, Procurement of February and September 2001 Awards," dated April 6, 2005, (RFP No. 01H05FP3). On June 27, 2005, DCF issued a Notice of Intent to award the nine contracts that Petitioner Psychotherepeutic Services of Florida, Inc. (PSFI), is contesting to Mental Health Resource Center (MHRC) (six contracts), to The Harbor Behavioral Healthcare Institute, Inc., (Harbor) (one contract), Coastal Behavioral Healthcare, Inc., (Coastal) (one contract), and Bayview Center for Mental Health, Inc., (Bayview) (one contract).
PSFI timely filed its original protest in the nine challenged district/regional areas. PSFI timely filed a Formal Written Protest and Petition for Administrative Hearing, which
was referred to DOAH on or about July 10, 2005. Prior to DCF's referral to DOAH, PSFI filed its Amended Formal Written Protest and Petition for Administrative Hearing. PSFI filed its Second Amended Formal Written Protest and Petition for Administrative Hearing after referral to DOAH but prior to the final hearing. Both amendments were permitted by Orders of record.2/
Petitions to Intervene by Mental Health Resource Center, Inc. (MHRC), Harbor Behavioral Healthcare Institute, Inc. (Harbor), Coastal Behavioral Healthcare, Inc. (Coastal), and Bayview Center for Mental Health, Inc. (Bayview), also were granted as reflected by Orders of record.
All time frames under Section 120.57(3) were waived, and the parties were accommodated with their selected dates of September 13-16, 2005, for final hearing.
In accordance with the August 10, 2005, Order of Pre- hearing Instructions, PSFI and the Intervenors filed a Joint Pre-Hearing Stipulation. DCF was not a signator to that document, but DCF filed Respondent's Pre-Hearing Statement, in which DCF stated it "generally adopt[ed] the statements and positions of the Intervenors set forth in the Joint Pre-Hearing Statement." At the commencement of the final hearing, DCF orally agreed to be bound by the "Concise Statement of Facts Admitted" within the other parties' Joint Pre-Hearing Stipulation. All agreed facts have been utilized in this
Recommended Order, but may have been slightly re-worded for tense and continuity with other facts as found.
MHRC, Harbor, and Coastal filed a Motion in Limine, asserting that PSFI should be prohibited from arguing any matter appropriate to a protest of the RFP's specifications. Upon consideration at the commencement of the final hearing, the Motion, as presented, was denied orally on the record, but PSFI announced that it was not directly or indirectly challenging the RFP specifications, which challenge would have been untimely. (See Finding of Fact 7 and the Conclusions of Law.)
Also before the taking of any testimony, John C. Sigler's Verified Motion for Pro Hac Vice Appearance on behalf of PSFI was heard, and Mr. Sigler, PSFI's general counsel, was accepted as its Qualified Representative for purposes of this case.
At hearing, PSFI presented the oral testimony of Stephen Poole, Jane Burke Streit, Kimberly Munt, Neil Meisler, and Gregory John McHugo, and the deposition testimony of Joanna Cardwell (P-24), Gene Costlow (P-25), Geovanna Dominguez (P-26), Marcie Gillis (P-27), Robert (Rob) Parkinson (P-28), Linda Pournaras (P-29), and Carol Eldeen-Todesco (P-30). Petitioner's Exhibits P-1 through P-32 were admitted in evidence.
Intervenors MHRC, Harbor, and Coastal presented the oral testimony of Stephen Poole. Exhibits MHRC 1 through 6, and Exhibits Bayview 1 through 3, were admitted in evidence.3/
DCF presented neither witnesses nor exhibits beyond those of the other parties.
Parts of a five-volume Transcript were filed on September 23, 2005, and on September 30, 2005.
Due to Hurricane Wilma, and by agreement of the parties, the last Proposed Recommended Order was accepted as timely filed on November 7, 2005. All proposals have been considered.4/
FINDINGS OF FACT
General Facts
On April 6, 2005, Respondent DCF's Mental Health Program Office issued a 215-page RFP 01H05FP3 for "Florida Assertive Community Treatment (FACT) Programs for Persons with Severe and Persistent Mental Illnesses Procurement of February and September 2001 Awards."
The FACT program is Florida's version of a nationally known model of community mental health intervention for individuals with severe and persistent mental illnesses known as the Program for Assertive Community Treatment (PACT). The PACT model of intervention manual published by the National Association for the Mentally Ill was the basis of developing Florida's adherence to the PACT model. The RFP specifies that proposers commit to PACT's evidence-based team approach.
This RFP is not a statewide procurement. It is a single document seeking proposals for 17 separate agency
districts/regions, of which Petitioner PSFI was then operating as the incumbent FACT provider in seven districts.
The April 6, 2005, RFP contemplated that DCF would contract in each district for an initial three-year term, with a potential three-year renewal provision. The total cost for these contracts, if renewed, is in excess of $100,000,000.00, making this a procurement of substantial size for DCF's Mental Health Program Office.
The April 6, 2005, RFP is DCF's second attempt to procure FACT contracts. DCF previously posted and withdrew an RFP for the same 17 contracts, due to concerns that its questions could give certain vendors an unfair advantage.
All vendors receiving the RFP had an opportunity to submit written questions about the RFP's contents. Several vendors submitted written questions. The questions and DCF's answers became part of the RFP and were published to all potential vendors prior to the submission of responses.
No potential vendor or proposer protested the written specifications and terms of the instant RFP. Therefore, the specifications are not at issue herein.
On May 23, 2005, DCF opened the proposals.
On June 27, 2005, DCF posted the results of its evaluation(s) in a document entitled "Proposal Tabulation and Notice of Intent to Award," indicating each applicant's score in
each of the 17 divisions/regions; indicating it would award to the proposer with the highest score; and providing a mechanism to resolve ties.
PSFI has protested DCF's Notice of Intent to Award for the following districts/regions in the April 6, 2005, RFP. The respective scores and intents to award are indicated:
District 4 - Jacksonville (highest score - MHRC)
Suncoast Region - New Port Richey (MHRC and Harbor tied for the highest score. Harbor is to be awarded the contract based on a tie-breaker procedure)
Suncoast Region - Pinellas (highest score - MHRC)
Suncoast Region - Hillsborough (highest score - MHRC)
District 7 - Rockledge (highest score - MHRC)
District 8 - North Fort Myers (highest score - Coastal)
District 8 - Naples (highest score - MHRC)
District 11 (south) - Miami (highest score - Bayview)
District 15 - Stuart (highest score - MHRC)
PSFI was the incumbent provider in seven of the foregoing nine protested districts. Bayview was the incumbent provider in the southern region of District 11.
PSFI did not protest the District 3 - Gainesville Notice of Intent to Award, wherein PSFI was the successful responder/proposer. Therefore, despite rhetoric to the contrary
at hearing, that region, where the same RFP and evaluation procedures accrued to PSFI's benefit, is not at issue herein.
Section 2 of the RFP provided:
The department reserves the right to reject any and all proposals, withdraw this RFP or to waive minor irregularities when to do so would be in the best interest of the State of Florida. Minor irregularities are defined as a variations from the request for proposal terms and conditions that does not affect the price of the proposal, or give the prospective vendor an advantage or benefit not enjoyed by other prospective vendors, or does not adversely impact the interest of the agency. At its option, the department may correct minor irregularities but is under no obligation to do so whatsoever. Correction or waiver of minor irregularities shall in no way modify the RFP requirements.
Stephen Poole is Senior Management Analyst and Supervisor of DCF's Mental Health Program Office. Mr. Poole has been involved with the FACT program since 2000, the first year DCF engaged in a statewide procurement of the program. At all times material to the instant RFP, Mr. Poole's main responsibility was to oversee the FACT initiative. He principally authored the RFP at issue. He had drafted three-to- four RFPs before this one. In developing the instant RFP,
Mr. Poole followed DCF's established internal review procedure. He was the sole point of contact for the instant RFP.
After review of an Agency for Health Care RFP, the subject of which was closely aligned in the mental health
subject area, Mr. Poole selected a 0-10 scoring range for the instant RFP, instead of DCF's historical 0-4 range, to allow individual reviewers more flexibility to score each item in a way that reflected that individual's assessment of each proposal. PSFI's objection to this 1-10 scoring range amounts to an argument that, "It's not the way we've always done it before," and is without merit.
DCF expertise and discretion designed the 1-10 rating methodology to give qualified, unbiased scorers latitude to use their own expertise while scoring the proposals. The Agency intended evaluators to have "great latitude," based on their own individualized background and experience, to score each response to each question within each proposal. It was a goal of this RFP that each evaluator would exercise his or her specialized professional education, training, and experience, thereby getting the best result for the Agency. By averaging the scores of three evaluators for each district/region, DCF intended to blend areas of expertise and minimize any irregularities of an individual evaluator that might turn up.
All responsive proposals were to be reviewed and rated for Fatal Criteria and Qualitative Requirements by a review panel of DCF personnel. Only proposals meeting the threshold test of Fatal Criteria were reviewed for Qualitative Requirements.
Because the basic requirements for a FACT team are the same from area to area, proposers filing in multiple districts/regions submitted the same or almost identical answers to many of the questions asked of them in the RFP.
For instance, PSFI submitted ten proposals in response to the RFP. These had identical text and appendices for RFP issues that were not district - or region-specific. Identical text applied to PSFI's responses to Qualitative Requirements 1, 2, 5, 7-14, 16-17, 19-23, 25, and 27-29. Other answers were tailored to the specific districts/regions.
MHRC's proposals for the FACT contracts in District
- Rockledge, District 15 - Stuart, Suncoast Region- Hillsborough, Suncoast Region - New Port Richey, Suncoast Region
- Pinellas, and District 8 - Naples, were identical, with the exception of the identification of the district/region number and the name of the FACT contract that is the subject of each proposal. PSFI also submitted a proposal for each of those contracts.
MHRC's proposal to retain its FACT contract in District 4 - Jacksonville is essentially the same as the other six proposals it submitted, except that the District 4 proposal describes aspects of MHRC's current FACT team in the present tense, whereas the other six proposals describe aspects of the
proposed FACT teams in the future tense. PSFI also submitted a proposal for that contract/district.
Bayview submitted only one proposal, and that was for renewal of its FACT team in District 11 (South) - Miami.
Coastal and PSFI submitted proposals for the FACT contract in District 8 - North Fort Myers.
Coastal was the only proposer for District 8 - Charlotte.
DCF appointed an Evaluation Team to review the 34 proposals received. The review was pursuant to the time line set forth in the RFP, as amended by an addendum issued by DCF.
The team of three evaluators always included two of DCF's Central Office employees, Kim Munt and Jane Streit, who each reviewed all 34 proposals for all 17 FACT contracts. For each contract, the third DCF employee on the evaluation team was a DCF employee, selected by the DCF FACT program supervisor in the district/region office where the respective contract would be carried out. The final score for each of 47 questions was the average score of the three evaluators.
Ultimately, the district/region office evaluators were Diovelis Stone (District 1), Ken Birtman (District 2), Lisa Cue (District 3), Gene Costlow (District 4), Robert Parkinson (Suncoast Region - Pinellas ), Michael Wade (Suncoast Region - New Port Richey), Geovanna Dominguez (District 7), Linda
Pournaras and Marcie Gillis (District 8) (see Findings of Fact 40-42 and 95-98), Joanna Cardwell (District 11), and Carol
Eldeen-Todesco (District 15).
PSFI complains that all, or most, of the foregoing evaluators had never worked on an RFP before and were insufficiently trained to evaluate this particular RFP, or not trained for it with mathematical precision.
On the contrary, all the evaluators received the training specifically designed for this RFP; many had prior FACT experience; and some had prior RFP experience, as related infra.
As to the several evaluators' individual abilities to analyze problems associated with FACT, no competent, credible evidence demonstrated that any reviewer was deficient in cognitive ability, thought processes, or reason; nor was it demonstrated that there was any specific bias or favoritism practiced by any evaluator.
Specifically, although DCF evaluator Jane Streit's DCF employment did not deal directly with FACT teams, Ms. Streit has earned a Ph.D. in clinical psychology and has 12 years' experience working in the mental health field. DCF evaluator Kim Munt possesses a Master of Science degree and was an Operations Review Specialist in the combined contract management unit for DCF's program offices of Substance Abuse and Mental Health, where she reviewed the model contract attached to the
RFP as Attachment One. She also had participated in three previous RFPs. Other individual qualifications of the district evaluators specifically challenged in this proceeding are described infra.
Although there is testimony that the evaluators' reading of the RFP before the Initial Meeting, when the evaluators received their specific instructions, followed by formalized training in how to evaluate the proposals, with feedback and testing of the evaluators' understanding of that training, might have been a more desirable approach than the one used, there is no legal requirement for such institutionalized training of bid evaluators, nor is there any other requirement that agencies use "professionalized" bid evaluators.
Qualitative Requirement 26 related to the financial stability of the proposing vendors, and was scored by three other evaluators: Cindy Grammas, Janet Holley, and Phyllis McMillman. Petitioner has not challenged any of the scores given for Question 26.
On or about May 23, 2005, Mr. Poole read instructions on the proper procedures for reviewing and scoring the proposals to the evaluators at an Initial Meeting of Evaluators. The attending evaluators had an opportunity to ask questions. There was an opportunity for discussion, but no detailed discussion ensued. Afterwards, the evaluators returned to their work
locations and independently reviewed the proposals assigned to them.
At the Initial Meeting, each evaluator certified that the instructions had been reviewed and discussed as follows:
Instructions and Certification for Evaluation Team For Request for Proposal (RFP) 01H05FP3, Released 4/06/05
I agree to read and apply the following list of instructions detailing my responsibilities as an evaluator for RFP 01H05FPH3:
? I will read RFP #01H05FP3 and any addenda in preparation for scoring proposals in response to this RFP.
? I will review the scoring methodology contained in subsection 6.3 entitled, "RFP Rating Methodology," specifically the definition of values attributed to the scores, "0", "1-3", "4-6", "7-9", and "10"
as applicable in the scoring of all questions.
? I understand a mandatory review of any scoring variance of more than a value of "7" will take place when it is reported.
? I understand the RFP is the sole source of evaluating all proposals.
? I understand the use of the term "Considerations" is to be used as a guide to assist the evaluator.
? I understand that vendors not currently operating a FACT team will respond to questions as if they will be operating a FACT team in the future or that they will give information about other programs they provide to demonstrate their responsiveness and understanding of the question at issue
even though it may not be directly linked to the operation of a FACT team.
? I will not use any personal or professional opinions, knowledge or perceptions either positively or negatively that I may possess about any of the vendors submitting proposals that I am evaluating.
? I understand I have the authority to cease searching any proposal for responses to questions if the response is not in the section indicated.
? I understand that I am to evaluate ALL questions in the RFP with the exception of question number 26 that will be scored by auditors and/or accountants.
? I understand I must record a justification for each score that is to be included in the "Note to Evaluator" section of the Scoring Protocol, and to minimally include a page number reference and/or a brief, written rationale.
? I understand that I must sign a Conflict of Interest Questionnaire/Statement indicating that I have no conflict of interest with any of the vendors submitting a proposal.
? I understand that if a conflict of interest exists, I am required by these instructions to disclose such conflict and excuse myself from scoring any proposals in which a conflict exists.
? I understand that I must sign each and every scoring sheet, known as the Scoring Protocol.
? I understand that I am to begin the scoring of each proposal with a base score of "0" and build a higher score, such as a "1", "2", "3", "4", "5", "6", "7", "8", "9",
or "10, as applicable, to be awarded based on the merits of the response.
? I understand the definitions of each of the values used in the scoring or the protocol and acknowledge a copy of those definitions was provided to me.
? I understand that I am to score the proposals independent of other proposals.
? I understand that I am not to discuss my scoring with other evaluators and that I am not to ask questions of other evaluators during the review and scoring of proposals.
? I understand I am permitted to direct questions to Stephen Poole, FACT procurement officer for this RFP, concerning the scoring of the proposals and that I was provided the following phone numbers to call should I have a question: Office phone: (850) 410- 1188 or SC 210-1188; home phone: (850) 422-
1109.
? I understand that I must attend the Debriefing Meeting scheduled for June 23 and June 24, 2005, in person.
? I understand that ALL written documents that I have in my possession concerning RFP #O1H05FP3 must be returned at the Debriefing Meeting. These documents include any and all copies of RFPs, any and all proposals and any and all Scoring Protocols and notes that may have been made separately but not included on the Scoring Protocols.
I certify that these instructions were discussed openly in a publicly scheduled meeting and that I affix my signature to this certification indicating my understanding of and compliance with the instructions.
Signature Date
Representing
Each evaluator also had to sign a Conflict of Interest Form designed to assure that he/she had no conflict of interest with any of the vendors submitting proposals that he or she would evaluate.
Robert (Rob) Parkinson, the district evaluator for the Suncoast Region - Pinellas, inadvertently failed to check "yes" or "no" to the question, "Are there any other conditions that may cause a conflict of interest?" Mr. Poole did not notice Mr. Parkinson's omission when he collected the conflict of interest statements.
However, by signing the Instructions and Certification of the evaluation team, Mr. Parkinson certified that if a conflict of interest existed, he was required to disclose such conflict and to excuse himself from scoring any proposals in which a conflict existed. There is no affirmative evidence that Mr. Parkinson had any conflict of interest for his performance as an evaluator or was biased or prejudiced for or against any of the competing proposers. Therefore, the missing check mark is a minor irregularity which does not evidence bias, prejudice, or preference, and the check's absence should not discount
Mr. Parkinson's participation as an evaluator or discount any scores he rendered. (See, also Findings of Fact 79-84.)
Linda Pournaras and Marcie Gillis discussed the RFP they had gotten off the DCF website during their car trip to Tallahassee for the Initial Meeting of the evaluators, during a time prior to their receiving any instructions or signing their certifications at the Initial Meeting with Mr. Poole.
Ms. Pournaras related her prior RFP experiences, but was clear that Ms. Gillis should listen carefully at the Initial Meeting, follow only those instructions, score independently, and not consult anyone but the authorized contact person (Mr. Poole) after the Initial Meeting closed. Despite PSFI's characterization of this conversation and speculation as to the conversation on Ms. Pournaras' and Ms. Gillis' return trip, the depositions of both women show that Ms. Gillis was not instructed to rely on Ms. Pournaras' interpretations of any RFP and did not do so, even though Ms. Pournaras was her supervisor. The evidence shows that what she was permitted to score,
Ms. Gillis scored independently.
However, Ms. Gillis, the originally-assigned district evaluator for her district, checked "yes" to the question, "Have you been employed by any of the potential bidders/entities listed within the last 24 months?" By way of full disclosure,
she also wrote, "I worked for PSF[I] Naples from 2-04 to 2-05. I do not have a conflict of interest however."
Mr. Poole did not replace Ms. Gillis with someone who had not worked for one of the proposers and did not substitute another District 8 representative. Ms. Pournaras testified that she thought she spoke with Mr. Poole about replacing Ms. Gillis, but considering the evidence as a whole, all that is clear is that Ms. Pournaras and Ms. Pournaras's own supervisor decided that Ms. Gillis would not review any PSFI proposals and that Ms. Gillis would review the Coastal proposal.
As a result, Ms. Gillis reviewed an unopposed Coastal proposal for the Charlotte County contract and reviewed the Coastal proposal for North Fort Myers. Ms. Pournaras reviewed the PSFI proposal competing with the Coastal proposal for North Fort Myers and the PSFI and MHRC proposals for Naples.
At the Initial Meeting, all the evaluators were given blank Scoring Protocol sheets to use in recording their scores for each of the Qualitative Requirements. Each was 48 pages long. Page One contained a reprint of the Rating Methodology set forth in Section 6.3 of the RFP. Each of the remaining pages provided a scoring sheet for an individual Qualitative Requirement from Sections 6.3.1 to 6.3.10 of the RFP, comprised of (a) a reprint of the question and related considerations; (b) a place to record a numerical score, and (c) the "Note to
Evaluator" section, which required the evaluator to state: "(2) Where in the proposal you relied upon for the score: (cite page number & paraphrase rationale for score)." (Emphasis supplied).
Because of the detail of the foregoing items that went with each individual evaluator during each scoring, the fact that each and every evaluator did not keep a copy of the Instructions and Certification with him/her to refer to while they scored the proposals is without any practical significance.
The evaluators were also instructed in the Instructions and Certification to "record a justification for each score that is to be included in the 'Note to Evaluator' section of the Scoring Protocol, and to minimally include a page number reference and/or a brief, written rationale." (Emphasis supplied).
In fact, some evaluators provided a comprehensive written justification, some provided a page number only, some provided both, occasionally, someone slipped up and provided no justification; and one district evaluator only provided justifications where he felt a particular scoring range required it. The last was Mr. Costlow in District 4 - Jacksonville.
Mr. Costlow felt encouraged to present as much detail as possible, but he also felt he was only required to justify scores he assigned below and above the average range of 4-6 and that the midway range was adequate or satisfactory, so that
justifications there were optional. Nonetheless, his comments in justification mostly relate to a proposal's being satisfactory. His justifications were not considered significant nor his scores at great variance with other scores during the Debriefing, when adjustments were made to resolve any irregularities in the scoring system.
Mr. Poole testified that the Note to Evaluator Section should have included the same "and/or" language contained in the Instructions and Certification, but he did not explain this to the evaluators. He did not interpret what "and/or" meant in the Instructions and Certification. He felt at the Initial Meeting and at the Debriefing (see Findings of Fact 82, 105, 110, and 112-113), that it was up to the evaluators to justify their answers as they saw fit within the options given.
There is no meaningful difference between the "Instructions and Certification" and the "Note to Evaluator," sufficient to invalidate the actual "scoring" of the several evaluators, despite one item using "&" and the other using "and/or." Therefore, it is also determined that the inconsistencies and occasional omissions of some evaluators on the "justification" portions are minor and waiveable irregularities.
The RFP, in SECTION 6: PROPOSAL EVALUATION CRITERIA AND RATING SHEET, required DCF to review and rate each
responsive proposal for Fatal Criteria and Qualitative Requirements in accordance with the evaluation criteria set forth in the RFP.
The RFP Rating Methodology for the proposals was set forth in SECTION 6.3 of the RFP, in pertinent part as follows:
When vendors' proposals are screened and meet fatal criteria requirements, the qualitative requirements will be scored based on the factors listed below:
The maximum number of points that can be scored is 470. Proposals failing to achieve at least 75 percent, or 353 points of the
470 total points, will not be eligible for a FACT contract.
One of PSFI's assigned flaws for this RFP and the bidding process is that Mr. Poole provided to the evaluators no definitions of the foregoing terms. Yet it seems this is
precisely where the flexible nature of the RFP was intended to be addressed by each individual evaluator's specialized education, training, and experiences.
The Qualitative Requirements of the RFP are set forth in paragraph 6.3.1, sub-paragraphs 1-47 of the RFP. Those requirements required DCF to determine the existence and quality of "evidence" in each responsive proposal of the Qualitative Requirements set forth in the RFP. PSFI faults the RFP and the bidding process because the RFP contained no definition of "evidence."
However, at the Initial Meeting of Evaluators,
Mr. Poole had instructed the evaluators to review the Responses to Written Inquiries, which had also become part of the RFP, (see Finding of Fact 6), and which contained the following explanation of "evidence" to be used by evaluators to score any question:
Written Inquiry No. 25
25. What would you consider "evidence" in cases where statistics or documents can't be provided? For example, in the case of "evidence that the individual is the focal point of all activity generated by the team?"
Response:
Evidence does not necessarily need to be statistics or documents but a detailed explanation about the vendor's vision, values, policies, procedures, and how they directly relate to the individual being the focal point of all activity generated by the
team. Any statistics or documents directly related to the issue would strengthen the response.
On its face, the first Consideration under Qualitative Requirements 33-38 and 40-41 sought evidence that the proposer could meet each respective performance measure. Some of the evaluators interpreted the thrust of these items to request that the vendor propose a plan for meeting the performance measure. Others looked in the proposals for evidence that the proposer had a good past performance record and a plan for performance of the present RFP. Although PSFI elicited a variety of explanations of how different evaluators' respective thought processes worked, no inconsistency by a single evaluator among proposals was affirmatively demonstrated. No inconsistency within a single district or region (except for North Fort Myers, see infra.) was affirmatively demonstrated. No favoritism toward, or prejudice against, any proposer was affirmatively demonstrated. No scorer preferences for incumbent providers with a "history" was demonstrated.
PSFI alleges as a flaw in this RFP and its bidding process that multiple evaluators created scoring scales for themselves, by restricting themselves to narrow portions of the 1-10 scale.
Each of the 47 questions provided several delineated "Considerations" for the evaluator to use as guidelines in
determining whether the evidence offered by the proposer demonstrated the specific information requested. None of the 47 questions could be answered "yes" or "no." Each of the questions required a narrative response, except for Question 26. (See Finding of Fact 33.)
One of the RFP instructions (see Finding of Fact 35), stated that the evaluators were to begin scoring each question with a base score of zero and build up to 10, based on the merits of the response. PSFI established that Ms. Streit, one of the two central office evaluators, did not do this.
Ms. Streit described her scoring as "narrow," and she believed that an experienced vendor would likely start with an average score and then she would grade higher if the response merited more points. The scores she assigned ranged from six to nine. Although she did not begin scoring each question with a base score of zero, she did start each proposal's analysis at the average range (4-6) and adjusted her score based on the strength of the response. Her scores for PSFI's proposals ranged from 365-368 and for the MHRC proposals from 367 to 370. This amounts to three deviation points' difference for each of these competitors.
Ms. Streit's rationale was consistently applied for each of the 46 questions she reviewed. Her approach was technically contrary to the instructions, but it did not
unbalance the scores. It did not de-level the playing field. It was a distinction without a significant difference.5/ Assuming, arguendo, but not finding, that PSFI were entitled to three additional points across the board, it would not alter the final tabulation in any of the districts/regions where MHRC was the high scorer.
MHRC and PSFI were the only proposers scored in District 4 - Jacksonville, in District 7 - Rockledge, in District 8 - Naples, and in District 15 - Stuart. In Suncoast - New Port Richey, Harbor and MHRC were tied for first place against PSFI. The scoring in District 8 - North Fort Myers, was an anomaly. (See Findings of Fact 95-98 and Conclusion of Law 135.)
Kim Munt, the other central office reviewer, conceded that she might have become more lenient in her scoring over time and, due to the sheer size of the proposals and the need to adhere to the scoring process, she may have had a different "focus" from time-to-time.
Ms. Munt initially reviewed proposals randomly, but half-way through the 36 proposals, she began scoring by district.
Ms. Munt scored the following PSFI and MHRC proposals:
MHRC | PSFI | ||||||||
June | 20 | (Stuart) | 380 | June | 21 | (Stuart) | 346 | ||
June | 20 | (Naples) | 380 | June | 17 | (District | 4) | 338 | |
June | 18 | (District | 4) | 379 | June | 13 | 345 | ||
(Hillsborough) | |||||||||
June | 16 | (Pinellas) | 388 | June 10 (New Port Richey) | 361 | ||||
June | 12 | (New Port | 379 | June 9 (Pinellas) | 357 | ||||
Richey)
June 11 379 June 9 (Naples) 358
(Hillsborough)
May 24 (Rockledge) 362 May 31 (Rockledge) 314
The above table indicates that Kim Munt gave her lowest score for MHRC on May 24 for Rockledge (362) and she gave her lowest score for PSFI on May 31 for Rockledge (314). While she may not have been "lenient" in scoring the Rockledge proposals, it appears that Ms. Munt was not "more lenient" as she evaluated the proposals. She consistently scored the MHRC proposals higher than the PSFI proposals for the numerous districts for which services were sought by DCF. In fact, MHRC received its lowest score (362) from Ms. Munt in the Rockledge competition, which score of 362 was higher than any score received by PSFI, even though every PSFI proposal was scored later, when Ms. Munt was allegedly "more lenient."
Rearranging the foregoing information, Ms. Munt's scores display a scoring pattern that shows no consistent correlation to which proposer's proposal was scored first.
Also, Harbor, which tied with MHRC in Suncoast - New Port Richey, was scored on June 11, 2005, in-between Ms. Munt's scorings of MHRC and PSFI. (See Findings of Fact 73-78.)
MHRC-Pinellas June 16 388 higher 7 days later
PSFI-Pinellas June 9 361
MHRC-New Pt. | Richey | June | 12 | 379 | higher 2 days later | |
PSFI-New Pt. | Richey | June | 10 | 357 | ||
MHRC-Stuart | June | 20 | 380 | |||
PSFI-Stuart | June | 21 | 346 | lower 1 day later | ||
MHRC-Naples | June | 20 | 380 | higher 11 days later | ||
PSFI-Naples | June | 9 | 338 | |||
MHRC-District | 4 | June | 18 | 379 | higher 1 day later | |
PSFI-District | 4 | June | 17 | 338 | ||
MHRC-Hillsborough | June | 11 | 379 | |||
PSFI-Hillsborough | June | 13 | 345 | lower 2 | days | later |
MHRC-Rockledge | May 24 | 362 | ||||
PSFI-Rockledge | May 31 | 314 | lower 6 | days | later | |
PSFI was scored before MHRC five times out of the seven contracts in dispute. Between them, and in each of those instances, MHRC scored better. However, in three of these, and in four out of the seven districts, there was only one-to-two days' difference in the scoring dates. Ms. Munt believed, and it is only logical that, any loss of focus or any margin for inconsistency would be less where there is less time between
scorings (see Finding of Fact 106, n.6), but additionally,
Ms. Munt consistently scored MHRC higher than PSFI, whether her rating date for MHRC preceded, or was subsequent to, her rating date for PSFI. MHRC's scores by Munt are compact and vary only from 362 to 388; of these, there are five MHRC scores 379 to
380. PSFI's scores by Ms. Munt are less compact. They vary 314 to 361 points, and PSFI received its lowest score on the last day of Ms. Munt's scoring.
The narrow range of Ms. Munt's MHRC scores June 11-20, from 379 to 388 (nine points) is reasonable, given that MHRC's proposals were virtually identical. Her PSFI scores, June 9-21, range from 338 to 361 (a greater spread of 22 points), and present some cause for concern. Nonetheless, given the evidence as a whole and the fact that PSFI's proposals contained identical responses to only 22 questions, the diversity in her scores cannot be determined to be unfair, capricious or arbitrary. PSFI's "bias via the increased leniency of central office evaluator Ms. Munt" theory is not proven.
Some evaluators' scores show variations in scoring for identical proposals with similar provisions, but these are explainable by the reasons stated above, by other differences by district, and by innocent human error or confusion in an evaluation as complex as this one. In the absence of some direct evidence of arbitrariness, capriciousness, or bias, or
some clear demonstration that these variables could have altered the final tabulation in any district/region, these minor irregularities are of no practical significance and may be waived.
Facts Limited to District 4 - Jacksonville
MHRC and PSFI were the only providers who had proposals scored by DCF for District 4 - Jacksonville.
For District 4 - Jacksonville, MHRC received an averaged score of 377.00 for its proposal, and PSFI received an averaged score of 366.00.
DCF's District 4 - Jacksonville evaluator was Gene Costlow. Mr. Costlow had no preference for any vendor, scored all competitors similarly, and believed MHRC provided more information than had been requested in the RFP.
The scores for MHRC and PSFI are as follows:
MHRC PSFI
Kim Hunt 379 338
Jane Streit 370 365
Gene Costlow 355 325
Facts Limited to Suncoast Region - New Port Richey
DCF scored three proposals for the Suncoast Region - New Port Richey FACT contract, with Intervenor Harbor receiving a score of 379.00, MHRC receiving a score of 379.00, and PSFI receiving a score of 362.67.
In Suncoast Region - New Port Richey, the scoring reflects a first place tie between Harbor and MHRC, making PSFI the third place provider.
DCF notified the providers in the Proposal Tabulation and Notice of Intent to Award, that it intended to post results of the tiebreaker evaluation on Monday, July 11, 2005. DCF broke the tie and later noticed its intent to award the Suncoast Region - New Port Richey FACT contract to Harbor.
DCF's Suncoast Region - New Port Richey evaluator was Mike Wade.
Ms. Munt scored PSFI on June 10, 2005, (361); scored Harbor on June 11, 2005, (393); and scored MHRC on June 12, 2005, (379). This is a tight period of "focus" so no "more lenient trend" is likely. The scores do not get progressively higher each day, so no "more lenient trend" is evident in her scores.
In Suncoast Region - New Port Richey, the scores for MHRC, Harbor, and PSFI are as follows:
MHRC Harbor PSFI
Kim Munt 379 393 361
Jane Streit 367 369 370
Mike Wade 364 363 347
Facts Limited to Suncoast Region - Pinellas
DCF scored five provider proposals for the Suncoast Region - Pinellas FACT contract. MHRC received a first place score of 396.00. A provider known as "Suncoast Center" received a second place score of 370.00. PSFI received a third place score of 352.00. A fourth place score of 349.00 was assigned to "Northside". A fifth place score of 315.67 was assigned to "Directions for Mental Health".
As such, DCF has noticed its intent to award the Suncoast Region - Pinellas FACT contract to MHRC, and PSFI is the third place proposer for that FACT contract.
Neither Suncoast Center nor Northside have intervened.
DCF's Suncoast Region - Pinellas evaluator was Robert (Rob) Parkinson. Mr. Parkinson had worked with PSFI Fact teams, but he had no preference in vendors. He read the RFP several times before the Initial Meeting. He evaluated consistently. Mr. Parkinson independently scored all the proposals he reviewed on June 17, 2005, except for Question 27. At the Debriefing Meeting, he discovered that the Question 27 Protocol Sheet was missing from his initial scoring packet. He got the necessary sheet. He took time to review relevant portions of each proposal and then left the meeting room to score Question 27 on all the proposals. He took about 25 minutes to score one question on the several proposals assigned to him, and he did
this before any debriefing of scores began for his area of the state. He did not discuss his, or anyone else's, score at any time other than as permitted at the part of the Debriefing Meeting for his part of the state. He did not hear any other person's scores for his part of the state called out before he had scored all the proposals for Question 27. He is found to have scored independently.
For this part of the state, Ms. Munt scored all the ranked proposers between June 8, 2005, and June 16, 2005, so that she was scoring every one-to-three days in this area, and her "focus" was therefore fairly tight.
The scores for MHRC and PSFI are as follows:
MHRC PSFI
Kim Munt 388 357
Jane Streit 368 370
Rob Parkinson 405 319
Facts Limited to Suncoast Region - Hillsborough
DCF scored four proposals for the Suncoast Region - Hillsborough FACT contract, which included MHRC with a score of 376.00, an entity known as "Mental Health Care" with a score of 362.00, PSFI with a score of 358.00, and an entity known as "Northside" with a score of 344.67.
DCF noticed its intent to award the Suncoast Region - Hillsborough FACT contract to MHRC, and PSFI is the third place proposer for that FACT contract.
Neither Mental Health Care nor Northside have intervened.
DCF's Suncoast Region - Hillsborough evaluator was Mike Wade.
Ms. Munt scored PSFI after MHRC and Northside after she scored PSFI, so no increasing leniency is shown by her scores in this locale.
The scores for MHRC and PSFI are as follows:
MHRC | PSFI | |
Kim Munt | 372 | 345 |
Jane Streit | 367 | 371 |
Mike Wade | 362 | 348 |
Facts Limited to District 7 - Rockledge
Intervenor MHRC and PSFI were the only providers that had proposals scored by DCF for District 7 Rockledge, with MHRC receiving a first place score of 395.42 and PSFI receiving a second place score of 378.67.
DCF has noticed its intent to award the District 7 FACT contract to MHRC, and PSFI is the second place proposer for that FACT contract.
DCF's District 7 - Rockledge evaluator was Geovanna Dominguez, who is an adult mental health specialist in District 7, where she acts as a FACT team liaison.
The scores for MHRC and PSFI are as follows:
Kim Munt | MHRC 361 | PSFI 314 |
Jane Streit | 367 | 369 |
Geovanna Dominguez | 431 | 443 |
Facts Limited to District 8 - North Fort Myers
95 Intervenor Coastal and PSFI were the only providers that had proposals scored by DCF for the District 8 FACT contract, with Coastal receiving a first place score of 399.67 and PSFI receiving a second place score of 350.00.
As such, DCF has noticed its intent to award the District 8 - North Fort Myers FACT contract to Coastal Behavioral, and PSFI is the second place proposer for that FACT contract.
DCF's District 8 - North Fort Myers' evaluators were Linda Pournaras, who evaluated and scored PSFI's proposal, and Marcie Gillis, who evaluated and scored Coastal's proposal.
The scores for Coastal and PSFI are as follows:
Coastal PSFI
Kim Munt 386 341
Jane Streit 373 370
Marcie Gillis 413
Linda Pournaras 332
Facts Limited to District 8 - Naples
Intervenor MHRC and PSFI were the only providers who had proposals scored by DCF for the District 8 - Naples FACT contract, with MHRC receiving a first place score of 381.33 and PSFI receiving a second place score of 356.67.
As such, DCF has noticed its intent to award the District 8 - Naples FACT contract to MHRC, and PSFI is the second place proposer for that FACT contract.
DCF's District 8 - Naples evaluator was Linda Pournaras.
The scores for MHRC and PSFI are as follows:
Kim Munt | MHRC 380 | PSFI 358 |
Jane Streit | 367 | 369 |
Linda Pournaras | 370 | 333 |
Facts Limited to District 11 Miami
Intervenor Bayview and PSFI were the only providers who had proposals scored by DCF for the District 11 FACT contract, with Bayview receiving a first place score of 393.33 and PFSI receiving a second place score of 377.67.
As such, DCF has noticed its intent to award the District 11 FACT contract to Bayview, and PSFI is the second place proposer for that FACT contract.
DCF's District 11 evaluator was Joanna Cardwell.
Like Mr. Parkinson in Suncoast - Pinellas, Ms. Cardwell also was missing a Question 27 protocol sheet and discovered it was missing upon her arrival at the Debriefing Meeting. She got the necessary sheets from Mr. Poole while in the room set aside for the debriefing. She then independently reviewed and scored the proposals assigned to her with regard to that question during a break and before any scores for her part of the state were called out. She is found to have scored independently.
Ms. Streit and Ms. Munt had never previously dealt with PSFI or Bayview. Ms. Munt reviewed the Bayview and PSFI proposals back-to-back on the last two days of the evaluation period, June 21, 2005, for PSFI and June 22, 2005, for Bayview. She did not believe there could be much change in her focus in that short period, and it is found that there was not.6/
The scores for Bayview on June 22, 2005, and for PSFI, on June 21, 2005, excluding Criteria 26, are as follows:
Bayview PSFI
Kim Munt 372 348
Jane Streit 366 365
Joanna Cardwell 411 410
Facts Limited to District 15 - Stuart
Intervenor MHRC and PSFI were the only providers who had proposals scored by DCF for the District 15 FACT contract, with MHRC receiving a first place score of 379.69 and PSFI receiving a second place score of 366.00.
As such, DCF has noticed its intent to award the District 15 FACT contract to MHRC, and PSFI is the second place proposer for that FACT contract.
DCF's District 15 evaluator was Carol Eldeen-Todesco.
Ms. Eldeen-Todesco had some problems scoring all the proposals and even started over once. She, like Ms. Streit, started scoring in the middle range but was consistent. She considered PSFI's proposals harder to read than MHRC's proposals. She could not find one answer concerning daily nursing staffing in the format of the PSFI proposal. Therefore, she gave PSFI a "one" score on that question. Because her score on that question was so far deviant from that of the other two evaluators on her team, the process described in the RFP's instructions for scoring variances greater than seven was used during the Debriefing Meeting. After a team caucus, Ms. Eldeen- Todesco changed her score from "one" to "eight" in favor of PFSI. Petitioner has suffered no inequity in this bid procedure through the foregoing process.
The scores for MHRC and PSFI are as follows:
MHRC | PSFI | |
Kim Munt | 380 | 346 |
Jane Streit | 367 | 372 |
Carol Eldeen- Todesco | 365 | 370 |
Debriefing, Totaling-up, and Expert Testimony
After the evaluators finished scoring their proposals, they met again for a Debriefing Meeting in Tallahassee. Mr. Poole tabulated the scores and averaged them to produce a final score for each proposal. The Agency's methodology for averaging the three independent scores had, as intended, effectively leveled and blended the divergent independent opinions.
The following results were posted by the Respondent for the nine districts that Petitioner is challenging:
District 4
-Mental Health Resource Center Score: 377
-PSFI Score: 346 (below
the 353 threshold)
Suncoast Region, Hillsborough
-MHRC Score: 376
-Mental Healthcare Score: 362
-PSFI Score: 358
-Northside Score: 344(below
the 353 threshold)
Suncoast Region, New Port Richey
-The Harbor Score: 379
-MHRC Score: 379
-PSFI Score: 362
Under a tie-breaker evaluation process, Harbor was declared the winner.
Suncoast Region, Pinellas
-MHRC Score: 396
-Suncoast Score: 370
-PSFI Score: 352
-Northside Score: 349
-Directions for Mental Health Score: 315
(The last three vendors were below the 353 threshold.)
District 7, Rockledge
-MHRC Score: 395.42
-PSFI Score: 378.67
District 8, North Fort Myers
-Coastal Behavioral Score: 399.67
-PSFI Score: 350 (below
the 353 threshold)
District 8, Naples
-MHRC Score: 381.33
-PSFI Score: 356.67
District 11
-Bayview Score: 393.33
-PSFI Score: 377.67
District 15
-MHRC Score: 379.69
-PSFI Score: 366
The foregoing scores include the scores given for Question 26, which asked for financial resources required to successfully operate a FACT team.
PSFI was permitted to present the opinion of an expert statistician concerning the diverances of all the independent evaluators' scores. However, statistical analysis of divergent bid scoring is not generally accepted as probative of anything.7/ Herein, Petitioner's expert applied a concept called Intraclass Correlation Coefficient (ICC), which purports to measure agreement among all the independent raters in this case. It does not measure capriciousness, fairness, arbitrariness, or any other deficiency of the public entity bid process recognized by custom, rule, policy, or statute. Previously, it has been applied mostly to psychiatric diagnoses/studies and has never been tested as to public procurement. Petitioner's expert acknowledged that ICC deals in assuming that being able to get all reviewers' scores close to a mean, so that they are "repeatable," suggests what a "true score" might be, but that a "true score" is a purely theoretical concept, and that divergence of scores between reviewers does not necessarily indicate unfair competition. His process does not even determine whether the outcome of scoring would be different if measurement error were as represented. Therefore, Petitioner's expert's calculations and test is discredited for this case.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sub-sections 120.57 (1) and (3), Florida Statutes.
All the parties have standing in this cause.
Issues raised by the Second Amended Petition and/or its predecessor petitions, but upon which no evidence was presented and which were not discussed in Petitioner's Proposed Recommended Order are deemed abandoned.
Likewise, any argument addressing the specifications is considered untimely as a matter of law. (See Finding of Fact 7.) Petitioner lost the opportunity to challenge the RFP specifications when it missed that statutory window of opportunity prior to submitting its proposal. It is well- settled law that having failed to institute a timely challenge to the RFP specifications, the protestant is now powerless to directly or indirectly attack or modify the terms of the RFP. R. N. Expertise v. Miami-Dade Co. Sch. Bd. DOAH Case No. 01- 2663BID, (RO 2/04/2002; FO 03/13/2002); Optiplan, Inc. v. Sch. Bd. of Broward County, 710 So. 2d 569 (4th DCA 1998); Arcadia of South Florida, Inc. v. Dept. of Management Services, DOAH Case No. 94-6454 (RO 03/13/95; FO 04/21/95); Resta v. Division of State Employees, Inc., DOAH Case No. 92-0337BID (RO 02/20/95; FO
04/13/92); Capeletti Bros. Inc. v. Dept. of Transportation, 499 So. 2d 855 (Fla. 1st DCA 1987).
The duty to go forward and prove its position by a preponderance of the evidence is upon Petitioner, PSFI.
Section 120.57(3) provides, in pertinent part:
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 solicitation specifications. The standard of proof for such proceeding shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious.
An agency action is clearly "erroneous" if it results from substantial procedural error or a clear misapplication of the law or is contrary to the clear weight of the evidence. Black's Law Dictionary, page 228 (5th Ed. 1979).
"A capricious action is one which is taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic, or is despotic." Agrico Chemical Co. v. State Department of Environmental Regulation, 365 So. 2d 759, 793 (Fla. 1st DCA 1978), cert. den., 376 So. 2d 74 (Fla. 1979).
"Contrary to competition" is best understood by its plain and obvious meaning, i.e. against or in opposition to competition. "The purpose of the competitive bidding process is to secure fair competition on equal terms to all bidders by affording an opportunity for an exact comparison of bids." Harry Pepper and Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190 (Fla. 2nd DCA 1977).
Within these definitions, PSFI demonstrated a single, non-minor irregularity in a single district/region that is sufficient to meet its burden. That is with regard to the assignment of Linda Pournaras and Marcie Gillis to each evaluate a single proposal for District 8 - North Fort Myers, with
Ms. Pournaras scoring PSFI's proposal and Ms. Gillis scoring Coastal's proposal. Although this was done to avoid even a perception of impropriety because Ms. Gillis had worked for PSFI until February 2005, it was not done through the contract contact person, Mr. Poole. More importantly, having different district evaluators each rate only one of the two competing proposals had the effect of providing two separate scoring systems for PSFI and Coastal in that district/region. This cobbled-together scoring methodology deprived the competing proposers of the expertise of one or the other team members, and it was contrary to the competition built into such a flexible scoring system as was devised here by the Agency. Therefore,
those scores should be discarded and that portion of the RFP re- advertised.
The remainder of the challenge is quite another matter.
Each proposer herein used its own format to submit its individual perspectives, philosophies, and abilities to attain the goals set forth in the RFP in subjective, narrative explanations of its ability to operate FACT teams. Yet, Petitioner contends that less deference should be given to DCF's manner in which it implemented the Rating Methodology herein, chiefly regarding its failure to truly define the different levels of "capability" therein and the manner in which its evaluators scored the proposals, because this particular RFP, among all other RFPs, does not fit within the general statutory definition of an RFP. PSFI's theory is that the services that have been sought by this RFP are not "a solution to a stated need where it is not practicable for the agency to define the scope of the work," (see Section 287.012 (22), Florida Statutes), because the overall decision to use a FACT system throughout the state had already been made. In other words, Petitioner contends that although this situation is labeled an RFP by the soliciting Agency and was responded-to in a variety of formats by all potential vendors as if it were an RFP, it is actually an invitation to bid (ITB) or some hybrid of an RFP and
an ITB, because of the detail required for FACT or PACT compliance. PSFI's idea is that its theory of "non-RFP-ability" should preclude any leeway for subjectivity in scoring. This argument is not persuasive in this case, with this RFP. An Agency is entitled to great latitude in how it secures the services which that Agency's expertise has determined to be needful.
Otherwise, Petitioner's thrust is that a flexible rating system is contrary to competition. For this, PSFI relies, at least in part, upon language gleaned from the Recommended Order in R. N. Expertise Inc. v. Miami-Dade County School Board, et al, DOAH Case No. 01-2663BID (RO: 02/04/02), which adds to the foregoing more widely accepted definition of "contrary to competition," (see Conclusion of Law 124), these definitions taken from the statute: ". . . Thus, agency action that is inconsistent with the efforts of two or more rivals to secure the agency's business by offering the most favorable terms is 'contrary to competition,'" and ". . . Thus, from Section 287.001 can be derived an articuable standard of review. Actions that are contrary to competition include those which:
(a) create the appearance of and opportunity for favoritism; (b) erode public confidence that contracts are awarded equitably and economically; (c) cause the procurement process to be genuinely
unfair or unreasonably exclusive; or (d) are unethical, dishonest, illegal, or fraudulent."
Assuming arguendo, but not ruling, that it is appropriate to graft the language of the R. N. Expertise, Inc. case onto the previously stated test, PSFI has not timely challenged the RFP's specifications. PSFI also has not introduced evidence of any measurably different scoring methodology or measurably different scoring scale than that set out in the RFP. PSFI has not introduced evidence of undue influence to affect competition, capricious scoring by the evaluators, bias among the evaluators, collusion of comparing scores, that any evaluator favored one proposer over another, or that any awards were made erroneously.
PSFI also did not demonstrate any error in the makeup of the evaluator panel or instructions given to the panel, except for the Fort Myers scoring anomaly.
Overall, DCF made a valid policy decision to emphasize the independence of evaluators in the scoring process. The independence of the evaluators, the variety of their expertise, and the size and complexity of this particular procurement process invited a wide range of scores. The individuality of the proposer's formats and the respective internal cross-referencing of the various proposals would be at least mildly confusing to anyone. It is reasonable to conclude
that if evaluators scored each proposal independently as instructed, they might assign a different score to the same response on some questions. Ranges of scores could be expected in light of the complex, voluminous, subjective narrative responses elicited by the detailed questions of the RFP. The range of scoring on PSFI's exhibits do not show an unreasonable or invalid range which would suggest arbitrary, capricious, or biased scoring.
PSFI failed to offer any evidence to show, other than in the Fort Myers situation, that the different scores received by PSFI's and the Intervenors' proposals were a result of error, arbitrariness, capriciousness, or actions causing unfair competition.
PSFI did not establish that the scores given to these proposals were erroneous so that the error would raise PSFI's score to the highest score.
PSFI's Second Amended Petition should be dismissed on the merits.
Based on the foregoing Findings of Facts and Conclusions of Law, it is
RECOMMENDED that the Department of Children and Family Services enter a Final Order that discards all bids in District
- North Fort Myers, and awards a FACT team contract to the
declared highest scorer in each of the other districts challenged in this case.
DONE AND ENTERED this 21st day of February, 2006, in Tallahassee, Leon County, Florida.
S
ELLA JANE P. DAVIS
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 21st day of February, 2006.
ENDNOTES
1/ Petitioner's Proposed Recommended Order attempts to divide this issue into three categories: (1) ". . . clearly erroneous, contrary to competition, arbitrary, or capricious, resulting in the intended award being contrary to the DCF's governing statutes, rules, or policies, or the specifications of the Request for Proposal; (2) whether DCF's implementation of the scoring methodology provided for in the RFP secured fair competition or equal terms to all bidders by affording an opportunity for an exact comparison of bids; and (3) whether DCF's implementation of the scoring methodology provided for in the RFP was so fatally flawed and fundamentally unfair that a rejection of all bids is required." While some of the foregoing is merely semantics, it is noted that the parties are bound by their pre-hearing stipulation(s) and by Petitioner's oral response to the Motion in Limine, discussed infra.
Therefore, the issue herein is as stated in the body of this Recommended Order.
2/ Specified concerns were narrowed by these documents to include, whether the required rating methodology was adequately explained to and applied by members of the review panel; whether each of the DCF central office evaluators actually read and rated each proposal for each location; whether inconsistent scoring by one of the two central office reviewers (Munt) resulted in unequal competition; whether inconsistent scoring by district reviewers was a result of bias; whether reviewers took into account "evidence, omissions, and misrepresentations" when scoring Sections 3 and 5.3(8) of the various proposals; and whether the reviewers properly adhered to DCF's instructions for evaluating proposals.
3/ Regardless of the Table of Contents of the Transcript, the admission of these exhibits is reflected by the actual text of the Transcript and the notes of the undersigned Administrative Law Judge.
4/ The proposals total 154 pages.
5/ By starting at 4-6 instead of at zero, Ms. Streit made the scoring harder on herself but more lenient for every proposer.
6/ Although his testimony is entirely discounted (see Finding of Fact 115), even PSFI's expert agreed that scoring two proposals in such a time proximity would result in less variation and greater consistency than if spread out further.
7/ Consultech of Jacksonville v. Dept. of Health, DOAH Case No. 03-0129BID (RO 04/29/03). Blue Cross and Blue Shield of Florida, Inc. v. Agency for Health Care Administration, DOAH Case No. 95-3635BID (RO 09/27/95). Unisys v. Dept. of Health and Rehabilitative Services, DOAH Case No. 89-0003BID (RO 03/14/89).
COPIES FURNISHED:
Gregory Venz, Agency Clerk Department of Children and
Family Services Building 2, Room 204B 1317 Winewood Boulevard
Tallahassee, Florida 32399-0700
John Copeland, General Counsel Department of Children and
Family Services Building 2, Room 204
1317 Winewood Boulevard
Tallahassee, Florida 32399-0700
Thomas R. Tatum, Esquire Jonathan M. Streisfeld, Esquire Brinkley, McNerney, Morgan,
Solomon & Tatum, LLP
200 East Las Olas Boulevard Suite 1900
Post Office Box 522
Fort Lauderdale, Florida 33301
John C. Sigler, Esquire Qualified Representative Brinkley, McNerney, Morgan,
Solomon & Tatum, LLP
200 East Las Olas Boulevard Suite 1900
Post Office Box 522
Fort Lauderdale, Florida 33301
Tom Barnhart, Esquire
Office of the Attorney General The Capitol, PL-01
Tallahassee, Florida 32399-1050
Diane G. LeRoy, Esquire Florida Department of Children
and Families
1317 Winewood Boulevard
Suite 2, Room 204
Tallahassee, Florida 32399
Bruce Culpepper, Esquire James Bruce Culpepper, Esquire Lisa Hurley, Esquire
Akerman Senterfitt
106 East College Avenue Suite 1200
Tallahassee, Florida 32301
Gary J. Clarke, Esquire Frank Ranier, Esquire Sternstein, Ranier & Clarke
411 East College Avenue Tallahassee, Florida 32301
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 |
|---|---|---|
| Apr. 26, 2006 | Agency Final Order | |
| Feb. 21, 2006 | Recommended Order | All assigned regularities in the Request for Proposal evaluation were minor and waiveable, except where different scorers used some for different purposes. |
