The Issue The issue presented was whether the Department of Children and Family Services was justified in terminating the provider's certification in accordance with Florida Administrative Code, Chapter 65B-11.
Findings Of Fact The Department of Children and Family Services is the state agency responsible for certification and regulation of supported living coaches, pursuant to Florida Administrative Code, Chapter 65B-11. Petitioner was issued by Respondent, a Home and Community-Based Waiver Services Provider Certificate for Supported Living Coaching. Petitioner was provided information which gave him the specific requirements of a supported living coach which Petitioner acknowledged. Petitioner was offered assistance and training but did not take advantage of the support. Petitioner was given notice by letter that an unannounced monitoring would occur within the week of April 13- 17, 1998, and two self-assessment monitoring checklists were included to be completed in order to be reviewed at the monitoring visit. The self-assessment checklists were not completed. On April 15, 1998, the monitors reviewed the information that was available and determined all 30 citations were unmet. Petitioner was informed of the deficiencies by letter dated April 17, 1998, and was given the opportunity to submit a Quality Improvement Plan (QIP). He was also informed that a follow-up visit would occur within 60 days of the acceptance of the QIP. Petitioner submitted his QIP by letter dated April 29, 1998, and did not dispute any of the findings of the monitors' report. The QIP was approved on May 22, 1998. On August 6, 1999, the monitors conducted a follow-up monitoring visit to determine if the QIP had been successfully implemented to bring Petitioner into compliance with the requirements of Florida Administrative Code Chapter 65B-11. The monitors appropriately determined that Petitioner was significantly out of compliance with 14 of the 30 citations unmet. By letter dated August 18, 1998, Petitioner was informed of his noncompliance and a moratorium from accepting new clients was placed on him in accordance with Florida Administrative Code Chapter 65-11.011. Petitioner was given the opportunity to submit a second QIP which had to be implemented within 30 days of its acceptance. Petitioner again submitted a QIP and again did not dispute any of the findings of the monitors' report. On October 23, 1998, the monitors conducted a second follow-up visit to determine if the second QIP had been successfully implemented. Again, Petitioner was significantly in noncompliance with 13 citations unmet. The Department informed Petitioner by letter dated November 3, 1998, of the noncompliance and of the termination of his certification as a supported living coach. Although Petitioner generally alleged at the hearing that he received disparate treatment by the Department, no reliable evidence was presented to support his claim.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order terminating Milton Taylor's Home and Community Based Services/HCBS Medicaid Waiver certification. DONE AND ENTERED this 21st day of January, 2000, 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 21st day of January, 2000. COPIES FURNISHED: Laura Smith, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Milton Taylor 15710 Herman Street Clearwater, Florida 33760 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact 1, The Agency issued one (1) Notice of Intent to Deny the renewal application of Petitioner, Vision Associates, Inc. d/b/a Bay Gardens Retirement Village (hereinafter “Petitioner” or “Facility’”’), an assisted living facility (License No. 7216). 2. The Notice of Intent to Deny the renewal application dated 07/31/09 notified the Facility that the Agency intended to deny the Facility’s renewal application based upon, inter alia, a demonstrated pattern of deficient performance and failure to meet minimum license requirements pursuant to Sections 408.815(1)(d) and 429.14, Florida Statutes. 3. The Facility received a Notice of Intent to Deny its license renewal application. By filing its Election of Rights (hereafter “EOR”) and electing Option 3, the Facility requested a formal hearing (Comp. Ex. 2). Filed April 21, 2010 3:59 PM Division of Administrative Hearings. 4. The cause was properly referred to the Division of Administrative Hearings for proceedings according to law, See, Section 120.57(1), Florida Statutes (2009). 5. By Order dated February 26, 2010, the Division of Administrative Hearings determined that no material issue of fact remained in dispute and relinquished jurisdiction to the Agency for Health Care Administration, a copy of which is attached hereto and incorporated herein (Ex. 3). 6. The facts, as alleged and found, establish that the Facility: a). Has demonstrated a pattern of deficient performance, b). Has been cited for one (1) or more cited Class I deficiencies, three (3) or more cited Class II deficiencies, and/or five (5) or more cited class III deficiencies on a single survey which were not corrected within the times specified, c). Failed to meet the minimum license requirements of Chapter 429, Part I, or related rules, at the time of license renewal, and d). Has been found guilty of at least one (1) act constituting a ground upon which application for a license may be denied. 7. The Agency action was the denial of the Facility’s license renewal application.
Conclusions Having reviewed the Notice of Intent to Deny dated July 31, 2009, attached hereto and incorporated herein (Comp. Ex. 1), and all other matters of record, the Agency for Health Care Administration (hereinafter “Agency”) finds and concludes as follows:
The Issue This matter is a bid protest filed by STATEWIDE challenging the DEPARTMENT's decision to award a contract for service of process services to All American Legal Service, Inc., (herein after All American). The DEPARTMENT's position was chat a company could meet the two years of experience in serving legal process requirement if key personnel had at least two years of experience. All American was the lowest bidder on ITB-DOT-95/96-9003. STATEWIDE was the second-lowest bidder. STATEWIDE protested, claiming the DEPARTMENT should have rejected All American's bid on the grounds that All American did not have two years of experience and had not identified its key personnel or provided the DEPARTMENT with copies of circuit court issued certifications to serve process. During the formal hearing on October 23, 1995, testimony was received that All American is the corporate successor of a firm that was formed approximately 23 months prior to the bid being submitted and had as part of its organization an independent contractor, Robert Simmons, who was a licensed process server and who lacked two years of experience in serving process at the time the bid was submitted. All American also retained the services of the founder and former owner, Jon C. Martin, to act as an advisor. Mr. Martin lacked two years of experience in serving civil process at the time the bid was submitted. The DEPARTMENT offered testimony that it did not require the bidding entity to have been in existence for more than two years so long as the company had employees (either direct employees or independent contractors) with the requisite experience. DEPARTMENT officials also testified that no personnel were considered key personnel by the DEPARTMENT. DEPARTMENT'S EXCEPTIONS TO RECOMMENDED ORDER The DEPARTMENT's first exception is rejected as irrelevant. The DEPARTMENT's remaining exceptions are rejected and need not be individually reached inasmuch as the conclusion of this Order is chat a decision to waive the two years of experience requirement in the bid documents would be an abuse of discretion. To describe a requirement as so essential as to require no consideration of the bid when it is not met, and later construe the bid documents as allowing waiver of the requirement is, by definition, without reason and arbitrary
Findings Of Fact The DOT issued ITB-DOT-95/96-9003 (the ITB) soliciting bids from contractors to provide for one year on an as-needed-basis to its General Counsel all services necessary to effectuate service of process, service of subpoenas, and service of other papers statewide in accordance with the applicable laws to be submitted on August 16, 1995. AALSI submitted the lowest bid for the ITB. Statewide submitted the second lowest bid for the ITB. Section 1.5 of the ITB, Joint Exhibit 1, stated as follows: GENERAL Bidders should meet the following minimum qualifications. Have been actively engaged in the type of business being requested for a minimum of two years. When submitting the bid, each bidder shall submit a written statement, (FORM D), detailing their qualifications which demonstrate they meet the minimum qualifications contained in Subparagraph 1.5.1.1. Bidders' failure to prove the above item(s) will constitute a non-responsive determination. Bids found to be non-responsive shall not be considered. (Emphasis in original.) A representative of the DOT testified and both parties agree that the word "should" in the provision above is mandatory and in context means "shall." It was important to DOT that bidders have at least two years experience in the business of serving process, and DOT intended to reject any bids which did meet this requirement. Exhibit "A" to the ITB, "Scope of Services," Section B.1, "Services Required," and B.5, "Who Shall Provide Services," provided respectively that: B.1 Services Required The contractor shall provide all services necessary to effectuate service of process, subpoenas and other papers throughout the state of Florida, and shall provide such services in accordance with the laws of the state of Florida. . . B.5 Who Shall Provide Services Services shall be provided by individuals in compliance with Chapter 48, Florida Statutes, and other applicable law. Section 48.29, Florida Statutes, requires that persons serving process be certified by the chief judge of each judicial circuit. The business being requested, as the term is used in the ITB, is all services necessary to effectuate service of process, subpoenas, and other papers throughout the State of Florida for civil actions in accordance with the laws of the State of Florida. No evidence was received that the DOT is involved with the service of arrest or search warrants. Paragraph 1.5.2, "Qualifications of Key Personnel," provides that: Those individuals who will be directly involved in the project should have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Department's Project Manager. Where State of Florida registration or certification is deemed appropriate, a copy of the registration of certificate should be included in the bid package. The ITB required that a bidder demonstrate that its key personnel had experience in providing all services necessary to effectuate service of process, subpoenas, and other papers throughout the State of Florida in accordance with the law. Form D asked bidders to answer the following questions: How many years has your business been serving process? In what counties are your currently serving process? Describe your current capabilities to serve process in the State. If you do not have the current capability to serve process in all counties of the State of Florida, describe the changes that you will make in order to be able to serve process in all counties. Describe the means by which your business would accomplish routine services of process on a statewide basis under the Scope of Services of the Invitation to Bid. Describe the means by which your business would accomplish priority service of process on a statewide basis under the Scope of Services of the Invitation to Bid. The ITB contained a provision which permitted it to waive minor informalities or irregularities in bids received which were a matter of form and not substance. The requirement that the bidder have two years experience is not, under the terms of the ITB, a waivable provision, but was part of the essential minimal requirements which the bidder must have. In response to the first question on Form D, AALSI responded: All American Legal Service, Inc. and its predecessor firm, Jon C. Martin & Associates, have been in business over two years and provides nationwide service for its existing clients. DOT accepted the representation of AALSI in evaluating whether it possessed the required two years of experience, and concluded AALSI was qualified. DOT also evaluated the other responses by AALSI to Form D to assess its approach to providing the scope of work required by the ITB, and concluded it was qualified. Evidence presented at hearing revealed that Jon C. Martin, a former law enforcement officer, had begun a private investigation business as a sole proprietorship in September, 1993. Mr. Martin, who testified at hearing, found that it was more profitable to serve process than to conduct investigations, and changed the emphasis of the business; however, Mr. Martin was not personally authorized to serve process nor did he serve any process until May, 1994, although he had served arrest warrants as a law enforcement officer. Mr. Martin used the services of qualified process servers to serve process in the central Florida region; however, these personnel were not employees of Martin. Mr. Martin was a member of the National Association of Professional Process Servers (NAPPS), whose members are qualified to serve process; and Mr. Martin used this service to find the names of persons qualified to serve process in those counties and jurisdictions in which he did not have employees or contract personnel. Mr. Martin changed the name of his business to All American Process, and ultimately incorporated under that name. Mr. Martin sold All American Process in May, 1995 to Andrew Forness and Forness' father, who changed the name of the corporation to All American Legal Service, Inc. Mr. Martin agreed to be an unpaid advisor/consultant to Mr. Forness after the sale. Mr. Forness has virtually no experience as a process server, and had never been qualified to serve process or served process until after May, 1995. Mr. Forness is dependent upon Robert Simmons, an independent contract process server, for daily advice on service of process. Mr. Forness has continued to use the network of personnel used by Mr. Martin, who are not employees of the business, and NAPPS to serve process. The business does employ two full-time, paid certified process servers, who reside and work in central Florida area. One of these employees, Noah Medeiros, was first authorized to serve process in Orange County in September 1995, and is not authorized to serve process in any other county in Florida. No information was provided on the other employee. Mr. Forness did not identify anyone as a key individual in the bid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That DOT not award the bid to AALSI which was determined to have been a nonresponsive bidder, and that it consider awarding the bid to the next lowest, responsive bidder, Statewide. DONE and ENTERED this 18th day of December, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1995. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-5035BID Both parties submitted proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraphs 1,2 Paragraph 1 Paragraph 3 Paragraph 2 Paragraph 4 Paragraph 3 Paragraph 5 Paragraph 4 Paragraphs 6,7 Paragraph 5 Paragraph 8 Paragraph 6 Paragraph 9 Paragraph 8 Paragraph 10 Paragraph 9 Paragraph 11 Paragraph 6 Paragraph 12 Conclusion of Law Paragraphs 13,14 Subsumed in Paragraph 13 Paragraphs 15-20 Subsumed in Paragraphs 16-18 Paragraphs 21-26 Subsumed in Paragraphs 18-19 Paragraph 27 Subsumed in Paragraphs 7,8 Paragraph 29 Ultimate finding Paragraph 30 Paragraph 14 Paragraph 31 Irrelevant Paragraph 32 Ultimate finding Respondent's Recommended Order Findings Paragraph 1,2 Subsumed in Paragraph 1 Paragraph 3 Paragraph 4 Paragraph 4 Paragraph 5 Paragraph 5 Paragraph 11 Paragraph 6 Subsumed in Paragraph 5 Paragraph 7 Subsumed in Paragraph 12 Paragraph 8 Not necessary Paragraph 9 Paragraph 13 Paragraph 10,11 Subsumed in Paragraph 14 Paragraph 12-16 Irrelevant or argument Paragraph 17 Paragraph 9 Paragraph 18-25 Irrelevant or argument Paragraph 26,27 Subsumed in Paragraphs 2,3 Paragraph 28-33 Subsumed in Paragraph 16 Paragraph 34-41 Subsumed in Paragraph 19 COPIES FURNISHED: J. Layne Smith, Esquire 2804 Remington Green Circle, Suite 4 Tallahassee, FL 32308 Thomas H. Duffy, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
The Issue Whether Respondent Florida Department of Health and Rehabilitative Services (HRS), acted illegally, dishonestly, fraudulently, arbitrarily or/and capriciously in determining to award the contract for RFP 95-142CM-FAP to Unisys Corporation (Unisys).
Findings Of Fact On November 14, 1994, HRS's Office of Information Systems distributed the RFP, entitled "FLORIDA System --Applications Programming Services." The RFP was designed to procure the programming services required by HRS to complete the software programming of, among other things, the state's federally mandated Child Support Enforcement System, and to maintain and enhance the system upon its completion. Upon selection of the winning proposal, HRS intended to enter into the contract for thirty-six months, renewable upon agreement of the parties for an additional 12 months. The cost proposal rates for the initial three-year term would be binding for any subsequent work on the project. HRS also reserved the right to acquire additional consulting services from the contractor for related activities for up to one year after the termination of the Contract. HRS began developing this RFP in the late spring or early summer of 1994 in anticipation of the expiration of the current contract with Deloitte for provision of applications programming services. Before release to prospective proposers, the RFP was approved by HRS' Office of Contract Services and the Information Technology Resources Procurement Advisory Commission (ITRPAC), a body consisting of various state officials including the head of the Division of Purchasing, which ensures that the RFP complies with state rules. In addition, various federal agencies approved the RFP before its release to prospective proposers. The RFP provided that 60 percent of the proposal scoring would be based on the technical proposals contained in the responses to the RFP, and that the remaining 40 percent of the score would be assigned to the costs as submitted in the proposals. After scoring and weighting of the scores, the weighted scores were to be combined to determine the winning proposal. The breakdown of scoring between technical and cost components is based upon HRS' standard practice and its experience with the format required by other state and federal agencies with whom HRS works. The division of the scores was also intended to ensure that an unqualified vendor did not secure the bid solely on the basis of low cost. The selection of the evaluation criteria and weighting of evaluation points for this RFP were subject to the discretion of the Department at the time the RFP was prepared. On December 12, 1994, HRS held a bidders' conference at which representatives of Deloitte and Unisys were in attendance. EVALUATION OF RESPONSES On January 6, 1995, Deloitte and Unisys submitted the only two proposals in response to the RFP. Both proposals were deemed responsive to the requirements of the RFP. HRS appointed a five member Evaluation Committee to review and evaluate the proposals. HRS provided training to the Evaluation Committee members specifically directed to the proper method for reviewing and scoring proposals submitted in response to the RFP. Each member of the Evaluation Committee was qualified by training, education and experience to review and evaluate the technical merits of each proposal. The RFP defined the criteria by which the proposals would be reviewed, scored and ranked by the Evaluation Committee, and the contract awarded. Included in the RFP were blank cost proposal forms which the proposers were to complete. Those forms did not include any blank spaces to be filled in referencing costs associated with any "renewal" periods or otherwise provide for including information about proposed costs for any renewal periods. The Evaluation Committee members each independently reviewed the technical proposals submitted in response to the RFP over a period of approximately two weeks. Committee members submitted the raw scores from their technical evaluations to Karin Morris, the HRS System Program Administrator. The cost proposals were opened and scored on January 20, 1995 by Ms. Morris. The RFP provided, in Section 6.0, that a comprehensive, fair, and impartial evaluation would be conducted of all proposals received. The RFP also provided for the grouping of evaluation criteria into six categories with points assigned as follows: - Mandatory Requirements 0 points - Management Summary 0 points - Corporate Capabilities 200 points - Project Staff 200 points - Technical Approach 100 points - Project Workplan 100 points - Cost 400 points Section 6.0 of the RFP also contained the following language: Selection of the successful proposer will be based on the proposal that is determined to be in the best interest of the department, taking into consideration cost and other criteria set forth in the RFP. Further, the RFP provided, in Section 6.1, that: An Evaluation Committee will be established to assist the department in selection of the winning contractor(s). All proposals not meeting the mandatory requirements will be rejected. The committee will evaluate the technical approach, corporate capabilities and project staff of all responsive proposals. The committee will rank proposers by the resulting scores and make a recommended award. The committee will summarize their findings and prepare an evaluation report to the Deputy Secretary for Administration. The report will then be presented to the Secretary of HRS. The Secretary will review the final report, pertinent supporting materials and make the determination of the final award, taking into consideration cost and other evaluation criteria set forth in the RFP. The Secretary reserves the right to take any additional administrative steps deemed necessary in determining the final award. (Emphasis added). Most importantly, Section 6.3(D) of the RFP dealing with the evaluation of the cost proposals stated: The points awarded for the three cost evaluation categories will be totaled and added to the points awarded for technical evaluation cate- gories 3 through 6 to determine the winning proposer. (Emphasis added). After reviewing and comparing the weighted scores of both proposals, the Evaluation Committee issued a "Final Report," with recommendations, on January 30, 1995. The weighted technical scores reflected in the Evaluation Committee's Final Report are as follows: DELOITTE UNISYS Corporate Capabilities 200 186.36 Project Staff 200 159.07 Technical Approach 100 76.62 Project Workplan 100 76.73 TOTAL 600 499 The weighted cost scores were: DELOITTE UNISYS Fixed Price Tasks 10.0 2.27 Monthly Price 357.90 380.0 Hourly Price 7.77 10.0 TOTAL 375.67 392.2 Totaling all categories as required by paragraph 6.3(D) of the RFP, the Department's Evaluation Committee arrived at the following final ranking: DELOITTE UNISYS Technical Proposal 600 499 Business Proposal 376 392 TOTAL 976 891 Based upon the Evaluation Committee's scores, Deloitte's demonstrated technical capability is 20 percent higher than that of Unisys. Under the terms of the RFP, there was no discretion involved in scoring the cost portion of the proposals, including the weight to be accorded costs in the final overall scoring to determine the winning bidder. Based upon HRS' inclusion of the specific criteria in the RFP, the cost portion scoring was merely a mechanical calculation. Both of the proposers' cost proposals fall within the agency's budgetary limits for the current year for accomplishing the work requested by the RFP. Four of the five members of the HRS Evaluation Committee recommended award of the contract to Deloitte, in the following language: Deloitte & Touche scored higher in all areas including recommendations. Deloitte and Touche is the incumbent contractor and therefore there are no risks associated with the transition. Deloitte understood the requirements of the RFP and addressed them more completely in their proposal. Therefore, it is our recommendation that the contract should be awarded to Deloitte & Touche. (Emphasis added). One member of the Evaluation Committee recommended the decision be left to the Secretary of HRS. None of the members of the HRS Evaluation Committee recommended award of the contract to Unisys. HRS SECRETARY'S DECISION TO AWARD TO UNISYS On January 27, 1995, prior to preparation of the recommendations contained in, or the issuance of, the Evaluation Committee's Final Report, HRS Secretary James Towey convened a meeting with Deputy Secretary Lowell Clary, John Holland, Bill Belleville and the department's legal counsel to discuss the contract award process, a draft of the Evaluation Committee's Final Report and other matters the Secretary felt relevant to HRS' ultimate decision on the RFP. At the meeting, Towey was informed by Bill Belleville that Deloitte's proposal was the "best." Towey was also informed by John Holland and Bill Belleville that both companies could perform under the contract. However, neither Holland's nor Belleville's assessments were based on responses to the RFP, but rather upon their own experience with the two vendors outside of this RFP process. Belleville conceded that he believed that a proposer was qualified to perform the contract by merely meeting the "mandatory" requirements of the RFP, a category that was accorded zero points in the scoring criteria. Informed that both companies could perform under the contract, Towey "zeroed in" on costs as the major consideration for the award of the contract. At the meeting, he considered a present-value calculation of the payments that the State would make over the course of a contract, if the contract had been for a 48 month term. The calculation had been prepared by Dean Modling, an HRS senior management analyst supervisor, although the RFP had been approved by the Department of Management Services without provision for such an analysis. The RFP not inform proposers that a present-value analysis would be performed and provision for the present-value of a contract was not included in the scoring criteria for the proposals. Present value calculation became an issue when it was raised and discussed at the January 27, 1995 meeting, and subsequently used in the Secretary's decision to award the contract to Unisys. Towey also considered, in deciding to award the contract to Unisys, a calculation of "raw costs," provided after the January 27, 1995 meeting. These "raw costs" were presented on two charts. Both added up the amounts submitted by each proposer for fixed price tasks and monthly costs, over 36 months. Although the RFP did not request, and neither proposer submitted costs for a 48 month contract, the two charts included a calculation for a hypothetical 48 month contract using the same monthly payments submitted for the 36 month contract. In addition, one of the two charts included a 5.8 percent factor for overtime, which was also not addressed by the RFP or by the proposals submitted in response to the RFP. There was no evaluation criteria contained in the RFP which dealt with the issue of "raw costs" over the term of the contract. Prior to the decision to award to Unisys, HRS never performed and Towey never considered a present value analysis for the 36 month contract period provided for in the RFP. Finally, as a result of concern expressed at the January 27, 1995 meeting regarding whether Unisys could handle the immediate tasks required by the contract, including requirements of the Child Support Enforcement and federal certification programs, Towey considered whether there would be any risk of transition if Unisys were unable to hire some of Deloitte's employees and subcontractors should he decide to award the contract to Unisys. Towey specifically requested Deputy Secretary Clary to research this issue. In order to obtain information, Clary had HRS personnel directly contact Deloitte's subcontractors. Clary responded to Towey three days later on January 30, 1995, the day before the decision by Towey to award the contract to Unisys, that Deloitte's subcontractors would not be prohibited from working for Unisys. Consideration of overtime and risk of transition were not criteria contained in the RFP, nor were these elements evaluated and scored by the HRS Evaluation Committee. By way of a January 31, 1995 memorandum to Clary announcing the award of the contract to Unisys, Towey stated: I have now had an opportunity to review the report of the evaluators of this RFP, the recommendations contained therein, the raw data submitted with the proposals, and the RFP. I understand the nature of the project and its importance to the agency. Based upon my review of the information presented to me and my understanding of similar projects in the past, my decision is to award the contract to Unisys as the proposal most advantageous to the state of Florida, taking into consideration the price and other criteria set forth in the RFP. Although I have considered the risk of transition to a new contractor, I find that I am unable to ignore the dollar savings which will result in awarding the contract to Unisys. Since you and your staff have assured me that both companies are technically competent to perform the work, I believe the monetary savings outweigh any risk that might exist in the transition of contractors. Therefore, I have determined that it is in the state's best interest to award the contract to Unisys. Please take whatever steps are necessary to implement this decision. (Emphasis added). By his actions, Towey exercised more than the prerogative conferred by the RFP to "take any additional administrative steps deemed necessary in determining the final award" and actually evaluated criteria other than that contained in the RFP in reaching his decision to award the contract to Unisys. Further, in awarding the contract to Unisys, Towey effectively altered the relative weight of the criteria as specified in the RFP. Towey relied upon the advice of Clary. Illustrative of Clary's perspective is his testimony at the final hearing that he believed the 60/40 weighting contained in the RFP to be inapplicable to decision making by the Secretary of HRS. Neither Bill Belleville nor John Holland reviewed, in detail, the proposals submitted in response to the RFP. Neither performed their own independent analysis of the responses. Further, Clary never reviewed the RFP nor the proposals submitted in response to the RFP. In the course of his decision making process with regard to award of the contract to Unisys, Towey relied on the advice of Clary, Belleville and Holland, referred to by Towey as his "top managers", despite their undisputed lack of familiarity with the Deloitte and Unisys proposals. While his memorandum dated January 31, 1995, states he reviewed the RFP, Towey admitted in his testimony at the final hearing that he had not personally reviewed the document. Further, he never reviewed or performed his own analysis of the two proposals submitted in response to the RFP. The members of the Evaluation Committee members were the only persons to fully and carefully evaluate the two proposals and score them under the criteria contained in the RFP. Since that time, no one else from HRS has attempted to reevaluate or re-score the proposals. Neither Towey nor anyone else involved in the January 27, 1995 meeting disagrees with the analysis and scoring of the proposals by the Evaluation Committee. PRESENT-VALUE ANALYSIS Section 1.2 of the RFP, states, in part: This RFP will result in a thirty-six month contract. Further, Section 4.12(C) of the RFP states, in part: Upon selection of the winning proposal, the department shall enter into a contract for thirty-six (36) months. Although the possibility of renewal of the contract for a maximum of a single, one year term is contained in the RFP, there is no provision in the RFP which requires that HRS renew the contract after 36 months or that the contractor accept a renewal after 36 months for any specific term. By the terms of the RFP, any renewal of the contract for a period beyond the 36 month term is subject to negotiation between the contractor and the department. While proposals submitted by Unisys and Deloitte commit to maintaining the same costs in the event of renewal, negotiation as to the length, price and staffing for any renewal period less than a year, is not excluded by the terms of the RFP. Neither HRS nor the contractor is bound, under the terms of the RFP, to any extension of the contract. HRS' own manual, HRSP 75-3, entitled "Developing a Request for Proposal," states, in the section on contract renewals: If Contract Renewals have been provided for in this RFP, include the following recommended language in the Special Provisions subsection of the RFP: This contract may be renewed on a yearly basis not to exceed two (2) years beyond the initial contract or for a period no longer than the term of the original contract whichever period is longer. Such renewals shall be contingent upon satisfactory performance evaluations as determined by the department and shall be subject to the availability of funds. As specified in the provider's response to the RFP/ITB, the total cost for the contract under the' first year renewal will not exceed $ and the second year renewal will not exceed $ . Each renewal shall be confirmed in writing and shall be subject to the same terms and conditions set forth in the initial contract. (Emphasis added). Another in-house document at HRS is HRS manual, HRSM 75-2 (May 1, 1994 update), entitled "Contract Management System for Contractual Services". Chapter 5 of that document, entitled "Contractual Procurement Requirements," states, in pertinent part: The dollar amount and the manner in which the costs for the . . . renewals will be calculated must be specified in the response to the RFP and in the resulting contract document. By contrast, the RFP contains none of the language specified in either HRS manual regarding renewal. Section 4.12(c) of the RFP merely states: This contract term shall be renewable for a max- imum of a one year term upon the mutual agreement in writing of the contractor and the department. (Emphasis added). Terms of the RFP did not invite proposers to submit a specific cost or any other information for a renewal period or explain how costs for a renewal period would be calculated. Neither did the RFP contain any language that renewals would be conditioned on satisfactory performance by the contractor. Proposers, on blank cost forms, were requested in the RFP to provide HRS with their proposed prices for fixed price items, monthly costs and hourly costs. The forms, contrary to the requirements of HRS manuals applicable in situations where information for a renewal term is requested, did not provide a place for proposers to indicate costs for any renewal term or to demonstrate how those costs were calculated. Both contractors understood that any renewal would be subject to negotiation. The "Standard Contract" contained in the RFP provides only for a term of 36 months and a cost for that specific contract term. Consistent with the terms of the RFP that the contract was for a 36 month term, HRS submitted, on more than one occasion, materials to ITRPAC. In those materials, HRS represented that the proposed budget amounts of $25 million and $28 million for the project were for a three year term contract. The Notice of Award which HRS issued stated that a three year contract was to be awarded. Although the RFP addressed staffing at a maximum of 107 persons, HRS was aware that 100 percent staffing might not always occur. Section 2.l(B)(5) of the RFP permits 90 percent of the maximum staffing level at a given time without the vendor incurring a penalty. At one point in the RFP preparation, a draft of the RFP required 95 percent staffing. Even that level was considered by HRS to be too restrictive and anti-competitive and was amended to 90 percent out of fear that a 95 percent staffing level would discourage submission of competitive proposals. The 90 percent figure was also used in the RFP to account, in part, for projected attrition of contractor employees that HRS had historically experienced on this project. From the standpoint of budgetary allowances by HRS for the project, it is realistic to believe that the job will be staffed at somewhere between 90 percent and 95 percent rather than at the maximum staffing level of 107 employees. Although Section 4.15(D)(5) of the RFP states that the State is not responsible for paying contractor's employees for leave or vacation time, the testimony of Petitioner's financial expert, Dr. Elton Scott, establishes that a reasonable assumption is to assume that each employee is entitled to, and would take, at least two weeks vacation. Such an assumption should also be included when performing a present value analysis, particularly when assuming 100 percent staffing. Depending on budget allocations for this project, it is possible that HRS would only require that the contractor provide as few as 46 employees. The present value calculation performed by HRS indicated that, over 48 months, at 100 percent staffing (107 employees), the monetary cost of awarding the contract to Unisys would be approximately $500,000 less than the cost of awarding the contract to Deloitte, a savings of approximately 1.5 percent over the term of the contract. As demonstrated by HRS' subsequent present value calculation performed at final hearing in this cause, for the 36 month actual contract period, at maximum staffing, HRS would realize a savings of no more than $39,802 by awarding the contract to Unisys, a savings of less than 2/10ths of 1 percent. None of HRS' present value calculations accounted for leave/vacation time or for any staffing levels under 100 percent for any other reasons. Based upon the terms of the RFP, the language of HRS' procurement manuals, and the expert testimony of Dr. Scott, any valid present-value analysis should have included a 36 month term contract. Any such analysis should also have taken into account varying levels of staffing, leave/vacation time, and overtime if staffed at the minimum required. A properly performed present-value analysis indicates that Deloitte's proposal is less expensive than the Unisys proposal in the following amounts over a 36 month contract term, at the staffing levels indicated: Employees Leave/Vacation Time Overtime Deloitte Savings 107 2 weeks none $12,791 96 none none $109,062 96 none 5.8 percent $ 18,327 46 none none $844,473 (Pet. Exh. 15) The only scenario in which the Unisys proposal is less costly than the Deloitte proposal, using the proper present value analysis, would be at 107 employees, with no accounting for leave time. This unlikely future scenario would result in a savings of no more than $47,378, or less than 2/10ths of l percent of the contract amount over 36 months. Because it requires an up-front payment of more than $1,600,000 (as compared to $78,000 for Deloitte), the Unisys proposal places the State of Florida at substantially more financial risk than the Deloitte proposal in the event of nonperformance by Unisys. On February 1, 1995, HRS posted its notice of intent to award the Contract to Unisys. Deloitte filed its timely notice of intent to protest on February 3, 1995, and filed its timely formal protest and request for hearing on February 13, 1995.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which declines the award to Unisys and takes into account the foregoing findings of fact and conclusions of law when deciding the future course of contracting for the services sought by the RFP. DONE and ENTERED this 12th day of May, 1995. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made with regard to purposed findings of fact submitted by the parties. Intervenor's Proposed Findings: Adopted. Adopted as to 1st sentence. Remainder not relevant with exception of last sentence which is adopted. Rejected, subordinate to HO findings. Accepted. Rejected, subordinate to HO findings. 6.-7. Rejected, cumulative. 8. Accepted. 9.-10. Rejected, subordinate to HO findings. Accepted. Rejected, subordinate to HO findings. Accepted. Rejected, cumulative. 15.-17. Rejected, subordinate. 18.-20. Rejected, relevance. 21.-22. Accepted. 23. Rejected, subordinate to HO findings. 24.-25. Accepted. 26.-29. Rejected, subordinate to HO findings. 30. Accepted. 31.-36. Rejected, subordinate. Rejected, weight of the evidence. Rejected, opinion, weight of the evidence. 39.-41. Rejected, subordinate. Respondent's Proposed Findings: 1.-3. Adopted, not verbatim. 1.-6. Adopted by reference. 7. Rejected, relevance. 8.-9. Rejected, cumulative, unnecessary. 10.-12. Accepted. 13. Rejected, cumulative. 14.-16. Accepted. Rejected, weight of the evidence. Rejected, relevance. Rejected, weight of the evidence. 20.-21. Rejected, argument. 22.-23. Rejected, subordinate to HO findings. 24. Rejected, argument. 25.-27. Rejected, subordinate, weight of the evidence. 28.-29. Rejected, relevance. 30.-31. Rejected, subordinate. Rejected, weight of the evidence. Rejected, subordinate, weight of the evidence. Rejected, relevance. 35.-36. Rejected, cumulative. Rejected, weight of the evidence. Accepted. Rejected, argument, weight of the evidence. Rejected, relevance, argument. 41.-42. Rejected, argument. Rejected, subordinate. Rejected, 20 percent difference, improper characterization. Rejected, relevance, argument. Rejected, argument, subordinate. Rejected, redundant, subordinate. Rejected, legal conclusion. Rejected, relevance, argument, lack of credible evidence. Rejected, weight of the evidence. Rejected, subordinate. Rejected, weight of the evidence. Rejected, relevance. Rejected, argumentative, legal conclusion. Rejected, legal conclusion, argument. Rejected, legal conclusion. Petitioner's Proposed Findings Of Fact: 1.-43. Accepted, though not verbatim in some instances. 44. Subordinate to HO findings. 45.-48. Accepted. Subordinate. Accepted. Subordinate. 52.-70. Accepted. COPIES FURNISHED: William E. Williams, Esq. Red D. Ware, Esq. Huey, Guilday & Tucker, P.A. 106 E. College Ave., Ste. 900 Tallahassee, FL 32301 William A. Frieder, Esq. Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 W. Robert Vezina, III Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Dr. Tallahassee, FL 32302 Steven A. Blaske Unisys Corporation 4151 Ashford Dunwoody Rd. Atlanta, GA 30319 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Kim Tucker, Esq. Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue Whether the Petitioner should be fined $11,000.00 and have its license revoked for failing to correct a Class III deficiency and for a Class II deficiency related to the same set of facts.
Findings Of Fact The Agency is the state agency responsible for the licensing and regulation of ALF's in the State of Florida. The Petitioner is licensed to operate Woodland Field, Inc., as an ALF in Jacksonville, Florida. Robert Cunningham was called as a witness for the Agency. He is a Health Facilities Evaluator II. His duties include performing surveys of different health care facility types. Mr. Cunningham was familiar with Woodland Field because he had surveyed Woodland Field, Inc. Mr. Cunningham identified the Agency's composite Exhibit 1, item 1, as a copy of a letter to Ms. Wallace reporting himself and Audrey Deas, R.N.'s findings of the state appraisal survey of February 14, 2002. Mr. Cunningham found that one staff member on duty at the time of the survey, who was hired in 2001, did not have a Level I background screening on file. See Tag A511, Exhibit 1, item 1. Mr. Cunningham also testified that a staff worker must have a Level I background screening. Mr. Cunningham discussed the employee with Ms. Harriett Wallace and made her aware of the fault, and that it was a Class III deficiency. Mr. Cunningham gave the facility a 30-day period up to and including March 16, 2002, to correct the deficiency. Mr. Cunningham identified the Agency's composite Exhibit 1, item 2, as a copy of a follow-up survey conducted on March 15, 2002, by himself and Audrey Deas. On the follow-up of March 15, 2002, Mr. Cunningham testified that he found Tag A511 uncorrected. The employee who did not meet background screening requirements in February was still there in March. Additionally, it was determined that this person had committed disqualifying offenses. See Tag A1115. Mr. Cunningham testified that he surveyed the facility a day earlier than the full 30 days given for the correction because a plan of correction submitted by the facility showed everything to be corrected on or before March 15, 2002, or a day early. However, the Petitioner had until the following day to effect the correction. Mr. Cunningham cited Tag A1115 because of the police report that he received from Protective Services of Department of Children and Family Services suggested further problems with this particular employee. Robert Dickson was called as a witness for the Agency. Mr. Dickson is employed by the Agency in the Jacksonville Field Office as a Health Facility Evaluator Supervisor. Mr. Dickson supervised Mr. Cunningham and others in the Jacksonville Field Office. Mr. Dickson is familiar with Woodland Field, Inc. Mr. Dickson identified the Agency's Composite Exhibit 1, item 3, as a copy of a recommendation for sanction drafted by himself and approved by his supervisor's designee on March 23, 2002, based on the on-site visits February 14 and March 15, 2002. Petitioner was originally cited for a Class III deficiency, Tag A511. Upon re-inspection, Petitioner was again cited for an uncorrected Class III deficiency, Tag A511, which warranted a fine. The Class II deficiency, Tag A1115, pertaining to the disqualified employee being retained in the facility and a Class III deficiency, Tag A511, pertaining to the employer who was not in compliance with Level I background screening requirements were the bases for levying the second fine on Petitioner. However, it is noted that both cited violations relate to the same factual predicate. Both citations relate to the employment of Pamela Harvey. Petitioner could have come into compliance merely by firing her. At the time of the second inspection, the Petitioner had initiated a background check on Pamela Harvey and been advised by FDLE that Pamela Harvey was cleared for employment. The source of Pamela Harvey's disqualification may have been communicated orally to Wallace by Cunningham, but there is uncertainty about whether the Department had provided Wallace a copy of the disqualifying record. There was no uncertainty about Pamela Harvey's clearance by FDLE. A conflict existed at this point between agencies regarding clearance of Pamela Harvey, and it was incumbent upon the Agency to provide Wallace with a copy of the disqualifying record and resolve the conflict, not just cite Petitioner for an alleged violation. Ms. Wallace had initiated the paperwork for the background screen of the subject employee after the first survey, and around the 1st of March, received notice from Tallahassee that the employee was cleared. Ms. Wallace notified Mr. Cunningham that she had received a clear report from Tallahassee. See Petitioner's Exhibit 2. Therefore, she had complied with the screening requirement for which she was originally cited. She had appropriate documentation. Mr. Cunningham verbally advised Ms. Wallace about the employee's arrest, but did not provide her a written copy of the file which AHCA had received from the Protective Services of the Department of Children and Family Services. The reviewing personnel in AHCA had the information on the employee; however, the FDLE, from whom an employer requests a background check did not have the record of conviction. Over the next several months, the Petitioner continued to submit information to FDLE and receive back an all clear on Harvey. The Agency's witnesses could not state with certainty that they ever gave the Petitioner a copy of the information from the Department of Children and Family Services.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing both complaints. DONE AND ENTERED this 6th day of December, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 6th day of December, 2002. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403 Harriett Wallace, Administrator Woodland Field, Inc. 8236 Moncrief-Dinsmore Road Jacksonville, Florida 32219 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive, Suite 3116 Tallahassee, Florida 32308
Findings Of Fact In March 1987 DHRS published a Request for Proposal (RFP) for a Comprehensive Manpower Employment Service Programs for Refugees and Entrants (Exhibit 5) which established a time frame for bidders to submit proposals to provide services for the year beginning July 1; 1987 and ending June 30, 1988; established criteria for the services to be provided; and contained all information necessary for a bidder to submit an acceptable bid. Pursuant to this RFP, Hillsborough County, Lutheran Ministries of Florida, Inc., and Catholic Social Services submitted proposals to provide the services authorized by federal statute to be provided to refugees and entrants predominantly from Cuba/Haiti and Indochina. Pursuant to this RFP; bidders are required to submit a plan which identifies the services to be provided and a line item budget of anticipated allowable costs that will be incurred in the delivery of the services. Each bid is to be reviewed by at least three HRS employees familiar with the objectives and requirements of this social services program using the rating sheet as shown in an appendix to the RFP. The raters grades are totalled, and the contract is to be awarded to the bidder whose proposal is determined, through the evaluation process, to be most advantageous to the State, taking into consideration program and organizational capability, previous experience and understanding of the project (Exhibit 5 p. 25) Five qualified raters evaluated the proposals submitted by the bidders. The totals of the grades given by these raters, four of whom testified in these proceedings, was 603 for Petitioner and 1360 for Lutheran Ministries, thereby indicating the bid by Lutheran Ministries to be far superior to the bid by Hillsborough County. For the past three years, Lutheran Ministries has held the contract to provide services to refugees and entrants while Hillsborough has held the contract, also from HRS, to operate a program intended to mitigate the impact on counties affected by the large influx of Cubans and Haitians entering this country at the time of the Mariel boat lift and after. The former funds are social services funds and the latter are designated Targeted Funds. Although both funds are operated out of the same DHRS office, they are distinct and separate appropriated funds. The 1986 Legislature failed to provide Targeted Funds for the year beginning January 1, 1988. Accordingly, there will be no Targeted Funds awarded to Hillsborough County to use after December 31, 1987. Apparently to preserve the jobs to carry out assistance to various aliens, Hillsborough County submitted its bid to provide services to refugees similar to the services it has been providing to immigrees. Petitioner's bid provided for payment of salaries totaling $40,197 for six months, travel costs for six months and specialized transportation costs for six months. Petitioner apparently intended to use the anticipated funds, if its bid was accepted, to continue the staff employed in carrying out the mission to be accomplished with Targeted Funds for the six months between January 1, 1988 and June 30, 1988, with their salaries for the first six months (July - December 1987) paid from Targeted Funds. Having submitted a bid which clearly shows only six month funding for personnel and certain travel costs, Petitioner's contention that the raters misinterpreted the proposed program year is without merit. Although the bid proposal showed it was for the period July 1 1987 to June 30, 1988, the cost for one year's operation was not shown and Petitioner's bid was properly downgraded for this reason. That Petitioner's proposal was intended as a substitution and/or continuation of the Refugees/Entrants Employment Services (REES) program which it had administered for the past three years is shown in their proposal (Exhibit 2 p. 7) that "Effective July 1; 1987; the REES program will increase its level of services by adding 0JT and day care to its comprehensive employment." It shows targeted assistance dollars funding comprehensive employment and transportation for the first six months of the program year through December 31, 1987. Such language rightfully led the raters to question what type services would be provided to the refugees under Petitioner's proposal. Petitioner's contention that bid proposals were not rated on their individual merit, but rather were compared to each other, not only is unsupported by any evidence but also every rater who testified stated that no comparison of bids was made. The remarks on the rating sheets which were relied upon by Petitioner to support this contention disclose another failure by Petitioner to comply with the RFP. The RFP (Exhibit 5) provided under Part IV General Information (p. 13) that specific questions regarding the RFP and its provisions should be addressed to Millie Coten and that an original and nine copies of the proposal are required. The Hillsborough County audit which was required as a part of the proposal comprised some 80 or 90 pages, which was nearly half of the proposal submitted. In order to eliminate the cost of reproducing 10 copies of this audit, Jimmy Keel, director, Department of Public Assistance for Hillsborough County, called Michael Simmons, district budget officer for HRS Tampa office to see if they had to include audits in all of these copies. Simmons told Keel that since there would be only five raters, if the audit was included in five copies of the bid, that would be acceptable. Simmons was not the contact officer in the RFP to answer questions regarding the RFP and no evidence was presented that he had such authority. This discrepancy in complying with the RFP came to light during a meeting of the raters when it was discovered that at least two of them did not have a complete bid from Petitioner. Petitioner's contention that it was rated on criteria not contained in the RFP is allegedly supported by raters' comment on the rating sheets that the salaries for those running the program proposed by Petitioner are too high. For the four positions proposed by Petitioner to run the program, the annualized salary is in excess of $80,000. The cost of providing the proposed services for one year is expected to be less than $80,000. In looking at proposed salaries in such bids, the raters use salaries paid HRS employees for similar duties and responsibilities as well as common sense. The fact that some such standard is used to determine the appropriateness of salaries in bids received should surprise no one. It is well understood by people bidding on HRS service projects that such a salary comparison is made to determine the appropriateness of salaries to be paid by contractors providing the contracted for service. The contention by Petitioner that it was rated on criteria not contained in the RFP is without merit. Petitioner's next contention that raters were not familiar with all of the definitions and requirements of the RFP was supported by no credible evidence. The four raters who testified all stated unequivocally that they fully understood the definitions and requirements of the RFP. The second allegation to support this position involved the fact that as a governmental agency Hillsborough County does not have a board of directors and articles of incorporation and because of this did not receive maximum points on their rating item. This position is not supported by the evidence. The grades of less than maximum on those items were changed to give Petitioner the maximum grade score before the totals were added. Finally, Petitioner's contention that the raters were confused by, and misunderstood the contents of, Petitioner's proposal yet failed to contact Petitioner for clarification not only is not supported by any credible evidence, but also ignores the RFP requirement (Part V p. 20) that: It is the responsibility of the applicant to develop the proposal as clearly and succinctly as possible in order to avoid misinterpretation of the information presented. Proposals will be reviewed and evaluated solely on the basis of the information contained therein. No evidence was submitted by Petitioner to show that even if Petitioner had been incorrectly rated on some of the rating sheets, a change in those ratings would have brought Petitioner's total score, and hence rating, up to that attained by Lutheran Ministries so as to make Petitioner the successful bidder.
