Findings Of Fact On or about September 21, 1984, respondent, Department of Natural Resources (DNR), gave notice to approximately seventy-five qualified vendors that it would receive sealed bids on the following project: BID No. DNR 73-84/85-Furnish all labor and equipment necessary to maintain the youth Camp Swimming Pool at Wekiva Springs State Park, Apopka, Florida (Orange County) to comply with all state and county requirements. The bids were to be filed no later than 2:30 p.m., Thursday, October 11, 1984. At that time the sealed bids would be opened. All prospective bidders received an Invitation to Bid which contained sixteen general conditions, a contract for services, five specifications, and other pertinent general information. Of some significance was general condition five which required that "any questions concerning conditions and specifications . . . be directed in writing to (DNR) for receipt no later than ten (10) days prior to the bid opening." Also contained in the general information section was an admonition that it was the vendor's "responsibility . . . to raise any questions prior to bid opening concerning the specifications or bidding procedures as written," and that the interpretation of the agency would prevail. Petitioner, Shea Pool and Home Services, Inc., acknowledged that it read these provisions prior to submitting a bid. Only three bids were submitted by qualified vendors. The lowest bidder was All American Pool-N-Patio, Inc., which submitted a bid of $254 per month to perform the requested services. The next lowest bidder was Ariza Pool Service and Renovations, Inc. with a bid of $378 per month. Petitioner submitted the highest bid with an offer to provide the services for $475 per month. After checking the references of the lowest bidder, DNR gave notice of its intention to award the contract to l1 American Pool-N-Patio, Inc. on October 15, 1984. Thereafter, petitioner filed a protest on October 17, 1984, which triggered this proceeding. This was followed by a formal protest filed on October 26, 1984, which set out in greater detail the basis for its challenge. Petitioner contends various specifications in the Invitation to Bid are "defective" or "wasteful." Primarily, it asserts that the contract calls for excessive cleaning during the winter months when a pool is not normally used-- however, the pool is subject to being used on short notice year-round and therefore the all-inclusive cleaning provision is required. It also contends that a number of provisions are "vague" and that this hindered its efforts to properly prepare its bid. But petitioner made no effort to clarify any "ambiguities" before its bid was prepared even though such was required by the terms of the Invitation to Bid. Moreover, the greater weight of evidence supports a finding that the questioned specifications and conditions were sufficiently clear to allow all bidders to formulate a competitive bid. These include specifications relative to the vendor's liability, enforcement of the contract by the park manager, and the construction of an equipment room on the premises.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent award DNR 73-84/85 to All American Pool-N- Patio, Inc., and that petitioner's protest be DENIED. DONE and ORDERED this 12th day of March, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1985. COPIES FURNISHED: Daniel C. Shea 102 Camphor Tree Lane Altamonte Springs, Florida 32701 Andrew S. Grayson, Esquire Suite 1003, Douglas Bldg. 3900 Commonwealth Blvd. Tallahassee, Florida 32303
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $1,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 Filed November 8, 2011 1:10 PM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this 7 day of INV bY ember , 2011.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below-named persons by the method designated on this tay of VA) oe ae 2011. Richard Shoop, Agency Clé Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Tria Lawton-Russell James L. Parado, Esquire Office of the General Counsel Law Offices of Alan C. Gold, P.A. Agency for Health Care Administration 1501 Sunset Drive (Electronic Mail) Coral Gables, FL 33143 (U.S. Mail) Claude B. Arrington Tere M. Feal, President Administrative Law Judge All America ACLF Division of Administrative Hearings 808 West 1 Avenue (Electronic Mail) Hialeah, FL 33010 (U.S. Mail)
The Issue Whether the bids of Unisys and NCR were responsive to the Invitation to
Findings Of Fact Overview Invitation to Bid VH-2 (ITB) sought bids for full service hardware maintenance for approximately 3,500 computer terminals, printers, microcomputers and associated components and peripheral devices, located throughout the state. Upon acceptance of the lowest responsive bid, the State would enter into a six- month contract, renewable for two twelve-month periods. HRS officials considered whether to acquire the services through a Request for Proposal process or through an Invitation to Bid. The decision was made to pursue an ITB. The ITB was prepared by Harriet Parker, who, at the time, was the administrator of the HRS Data Center in Jacksonville, Florida. Ms. Parker's employment with HRS ended after the bidder's conference and after she had answered bidder's questions which came in after the bidder's conference. Ms. Parker was not employed by HRS when the bids received in response to the ITB were received. HRS issued the ITB on January 22, 1988. After a bidder's conference was held, HRS, on March 1 and 9, 1988, issued addenda to the ITB, which contained changes to the ITB. Additionally, the addendum issued on March 1, 1988 contained written responses to questions submitted by potential bidders. The ITB and addenda were reviewed by the Information Technology Resource Procurement Advisory Council. Five companies submitted bids: RAM Systems, Inc., Data Access Systems, Inc., Instrument Control Services, Inc., NCR, and Unisys. The bid of RAM Systems, Inc. was rejected as untimely. The remaining four bids were timely filed. Ms. Parker appointed three HRS employees to serve on the bid evaluation committee which reviewed the bids received in response to the ITB. The three employees were: Vincent C. Messina, a Data Communications Specialist III, James R. Hall, a Data Processing Manager II, and Hilda Fowler Moore, an administrative assistant. All three committee members were employees at the HRS Data Center in Jacksonville, Florida. At its first meeting, the committee reviewed the four bids to determine if they were in the format requested in the ITB. This review was solely as to form, instead of content. After the meeting, each committee member prepared cost extension sheets for each bid, in accordance with the method set forth in the ITB, to determine which bidder was the lowest. At the next meeting, the committee members compared the cost extension sheets each had prepared. While there were differences between them, each member had the bids ranked in the same order. The committee determined that Data Access Systems, Inc. was the lowest bidder, NCR the next lowest, then Unisys and, finally, Instrument Control Services, Inc. After further review, the bid of Data Access Systems, Inc. was rejected as nonresponsive. The committee then decided to concentrate their review on the bids of NCR, now the lowest bidder, and Unisys, now the second lowest bidder. The bid of Instrument Control Services, Inc. was laid aside, since it was the high bidder. After reviewing the content of the NCR and Unisys bids, the committee determined that both bids were responsive. Since NCR was the lowest bidder, the committee decided NCR should be awarded the bid. The Notice of Intent to award the bid was posted on April 5, 1988. Unisys timely filed its notice of intent to protest, and its formal written protest and request for a hearing. Review Standards Used by Committee The committee was not given any direction on how to evaluate the bids, and no instructions on how to determine a bid was responsive. The committee members never discussed the meaning of the terms "minor irregularity or "material deviation" and were never told the meaning of these terms. Finally, the committee members neither sought nor received legal advice on how to evaluate certain provisions contained in the bids. Mr. Messina interpreted his role on the committee to be to compare the items in each bid with the ITB. Reviewed his role as determining whether the wording of the bid would be sufficient to supply the State with a viable service agreement. His determination of whether a bid was responsive was not based on a word for word comparison of the bid with the ITB, but on an overall impression of what each bid contained. Mr. Hall reviewed the bids to make sure that each bidder was meeting what the ITB required. His main focus in reviewing each bid was whether the wording of the bid gave that bidder an advantage over another bidder. At the time of reviewing the bids, Ms. Fowler Moore's understanding of what constituted a "material deviation" was that it would be a major change which would affect an issue or an item in some way. She understood a "minor irregularity" to be a lesser difference. The committee as a group believed that there would be further review of their decision and that some differences between the bids and the ITB would be worked out later by others. The committee members did not think that their decision would be the final decision. The ITB, General Provisions The ITB, including attachments and the two addenda consisted of over 150 pages. The ITB contained a number of mandatory requirements. The ITB explained these as follows: MANDATORY REQUIREMENTS Introduction The State has established certain requirements with respect to bids to be submitted by bidders. The use of "shall", "must" or "will" (except to indicate simple futurity) in this Invitation To Bid indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with this (sic) Invitation To Bid requirements, provides an advantage to one bidder over other bidders, has a potential significant effect on the quantity or quality of items bid, or on the cost to the State. Material deviations cannot be waived. The words "should" or "may" in this Invitation To Bid indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature, will not in itself cause rejection of a bid. (Emphasis in original) On page 5, the ITB provided that "any Bid which fails to meet the mandatory requirements stated in this Invitation to Bid shall be rejected." On page 1, the ITB provided that "Bids containing terms and conditions conflicting with those contained in the invitation to bid shall be rejected. On page 6, the ITB, in describing the format to be used, provided that "there is no intent to limit the content of the Bid. Additional information deemed appropriate by the bidder should be included." The addendum issued on March 1, 1988, contained the following: Q. Can a bid contain options that HRS will consider, providing all mandatories are met? If all mandatories are met, bidder may submit options for HRS consideration. These need to be clearly identified in a separate section of the bid. The bid price should not be based on HRS acceptance of options. The ITB contained the standard language that "Any questions concerning conditions and specifications shall be directed in writing . . . for receipt no later than ten (10) days prior to the bid opening," and gave bidders the opportunity to dispute the reasonableness, necessity and competitiveness of the terms and conditions of the ITB. On page 3, the ITB provided: Contractual Mandatories A bidder's response to this Invitation To Bid shall be considered as the bidder's formal offer. The signing of the contract by the Department shall constitute the Department's written acceptance of the successful Bid and a copy of the signed contract shall be forwarded to the successful bidder. The contract for services required by this Invitation To Bid is contained herein. The contract included in the -ITB incorporated and made part of the contract both the ITB and the successful bidder's bid. Comparison of the NCR Bid with the ITB The NCR bid contained numerous changes to the provisions of the ITB. These changes are set forth below. Supplemental Bid Sheets Pages 146 and 147 of the ITB consisted of a form which each bidder was to complete and return as part of its bid. The form stated that "each designated paragraph in this Invitation to Bid must be addressed. The bidder must initial the designated item indicating concurrence." The form set forth 47 items. The layout of the form, showing the first two items for illustration purposes, was as follows: TITLE RESPONSE INITIALS Introduction Understood and Agreed Mandatory Requirements Understood and Agreed The NCR bid contained initials in the appropriate place for all items. On thirteen of the items, NCR's bid contained the words "as per Bidder's Proposal" typed under the words "Understood and Agreed" as shown in the following example: TITLE RESPONSE INITIALS Introduction Understood and Agreed as per Bidder's Proposal Mandatory Requirements Understood and Agreed as per Bidder's Proposal The words inserted by NCR related to the items in the line directly above the inserted words. The committee members interpreted the insertion of the words "as per Bidder's Proposal" in different ways. Mr. Messina interpreted it to mean that NCR was agreeing to the terms of the ITB and was offering the State something better and different which the State could accept or reject. He thought the differences would be worked out later; that the differences were more a "legal matter" than something the committee could solve. Mr. Hall interpreted it to mean that NCR agreed to the provisions of the ITB as some of the provisions had been changed by NCR. Ms. Fowler Moore interpreted it to mean that the items for which "as per Bidder's Proposal" was added were qualified and the ones where nothing was added were not qualified. Limitation of Remedies The addendum issued on March 1, 1988 contained two new pages which became part of the contract section of the ITB. These new pages were numbered 23A and 23B. In its bid, NCR changed the wording of page 23A. The relevant portions of page 23A of the NCR response are set forth below: Limitation of Remedies Contractor's entire liability and the State's exclusive remedy shall be as follows: In all situations involving performance or non-performance of machines or programming maintained or serviced [furnished] under this Agreement, the State's remedy is (1) the adjustment or repair of the machine or replacement of its parts by Contractor, or, at Contractor's option, replacement of the machine [or correction of programming] errors, or (b) if, after repeated efforts, Contractor is unable to install the machine or a replacement machine, model upgrade or feature in good working order, or to restore it to good working order, or to make programming operate, [all as warranted,] the State shall be entitled to recover actual damages to the limits set forth in this Section. * * * Contractor's liability for damages to the State for any cause whatsoever, and regardless of the form of action, whether in contractor or in tort including negligence, shall be limited to the greater of $100,000 or the actual amount laid by the State to the Contractor for the services provided under this Agreement [appropriate price stated herein for the specific machines that caused the damages or] that are the subject matter of or are directly related to the cause of action.... Contractor shall hold and save the State harmless for any and all suits and judgements against the State for personal injury or damage to real or personal property up to the value of the Agreement at the time this Agreement is terminated caused by Contractor's tortious conduct in the performance of this Agreement.... (Underlined words were added by NCR, brackets indicate words NCR struck through). The committee members felt that these changes either were necessary, enhanced the language in the ITB, or would not have much of an effect on the contract. From a legal standpoint, however, the committee was not sure what the changes meant. The committee members felt that they were not qualified to determine whether the changes constituted a material deviation and believed that decision would be made by someone else after the committee was finished. The changes made by NCR to the first paragraph help to clarify the document to meet the provisions of the ITB. The ITB was not for the purchase of machines or programming, but for the servicing of hardware. The changes made to the second paragraph enhance HRS's position and help to clarify the language. HRS's position is enhanced because under the ITB language the limitation would have been the greater of $100,000 or $0 since the ITB did not contain prices for specific machines. Again, the stricken language would apply to a purchase agreement and not to a service contract. The change to the third paragraph has the effect of nullifying the hold harmless clause, since "the value of the Agreement at the time this Agreement is terminated" is zero. Bid Bond On page 3, the ITB required bidders to submit a bid bond or bid guarantee in the amount of $10,000. If the successful bidder failed to execute a contract within ten days after notification of award, the bid guarantee was to be forfeited to the State. The bid bond submitted by NCR contained the following language: NOW, THEREFORE, the condition of the obligation is such that, if the said principal shall be awarded the said contracts and shall within (*) days after receiving notice of the award enter into a contract. . . *to be negotiated between said principal and said obligee. Since NCR's bid bond left the period of time within which to enter into a contract to be negotiated, the bid bond was not in compliance with the ITB's requirements. Invoicing On page 21, the ITB set forth certain requirements for invoices. One of the requirements was that "the invoice will include a detail list of costs for parts replaced listed on each malfunction incident report." This information was important to Ms. Parker in order for HRS to know what it was paying for, even though the contract price included both parts and labor. NCR's bid had the quoted language stricken through. On page 12, the ITB required that "Invoices for payment must be submitted to the State monthly, with at least the same level of detail found in Attachment A." Page 13 of NCR's bid, under the caption "Invoices," stated that "NCR agrees to conform with the existing payment plans as established in previous agreements between NCR and the State of Florida Comptroller's Office." The committee members did not think that the requirement that the invoice contain the cost of replacement parts was important. They assumed that they would not receive this information from the winning bidder, since they were not receiving it from the existing contractor. The committee members did not know what the previous agreements were between NCR and the Comptroller's Office. The committee assumed that NCR's response would be sufficient to meet HRS's needs. Configurations The addendum issued on March 1, 1988, contained a new page 26 for the ITB, which contained the following language: Full service maintenance for microcomputers will include the following configuration: Up to 768KB RAM plus up to one memory expansion card, up to two 5 1/4 inch 360KB or up to two 1.2MB floppy disk drives, up to 20MB hard disk, enhanced graphics capability, monochrome or color monitor, and an ICC card if required for network communications. This full service maintenance configuration was developed to include features that are basic to microcomputers connected to the HRS Data Communications Network and are, therefore, the maintenance responsibility of the Data Center. Machine features that are not included in this configuration are not covered by the maintenance contract resulting from this ITB. Enhancements that may be on a microcomputer covered by the maintenance contract but would not themselves be covered include, but are not limited to: local area network (LAN) cards, 40MB hard disk, 3 1/2 inch floppy disk drive and Bernoulli Boxes. Maintenance of these enhanced features are the responsibility of the user. (emphasis added) NCR, in listing its price for servicing certain equipment, assumed configurations that are less than those stated in the ITB. For example, NCR did not include hard disks in its configuration for some equipment. Hard disk drives are some of the more expensive items to repair and replace in computers. The committee members did not compare the configurations in the NCR bid with those in the ITB. Therefore, they did not take into account the differences between the two in determining that the NCR bid was responsive. Termination of the Contract Page 11 of the ITB provided that: The State reserves the right to cancel maintenance coverage for any single piece of equipment or any number of pieces of equipment or the entire contract upon thirty (30) days written notice to the Contractor. NCR in its bid provided that: Withdraw/Termination Neither party shall be deemed to be in default of this agreement, or of any contract entered into pursuant to it unless, as a condition precedent thereto, the other party shall have first given written notice describing with reasonable detail the condition which it perceives to be a default as outlined in Attachment D and the Bidder's Proposal, and within sixty (60) days following receipt thereof, the party receiving such notice shall have failed or refused to correct such condition. Both parties shall make all reasonable efforts to correct any problems which may lead to termination of the agreement. The evaluation committee noticed this difference, and felt that this was an area to be looked at by other persons who would do a final review. Engineering Changes The ITB, on pages 12 and 13 stated that: Cost of maintenance shall include installation of all announced engineering changes applicable to any piece of equipment covered by this contract. All engineering changes which the manufacturer considers mandatory or engineering changes which the manufacturer or the Contractor considers necessary for safety reasons must be installed as soon as possible. Contractor shall notify the State in writing of all mandatory and safety related engineering changes. Engineering changes which the manufacturer recommends but which are neither mandatory nor for safety reasons must be installed within a reasonable period of time after the Contractor has notified the State of such changes and the State has authorized the installation of such changes . . . It is the Contractor's responsibility to determine what engineering changes are available, whether they are mandatory changes, safety changes, or other changes. Furthermore, it is the Contractor's responsibility to initiate the installation of all such changes. (emphasis added) Page 9 of NCR's bid provided that: Engineering Changes should a reliability modification released from an OEM be deemed necessary by NCR, the modification will be performed during the prime shift of maintenance at no additional charge to the State of Florida. The original equipment manufacturers with whom NCR has agreements are responsible for providing notification to NCR on any engineering changes. NCR will make HRS aware of engineering changes when the necessary. information becomes available to NCR. (emphasis added) The committee assumed that if a manufacturer considered an engineering change to be mandatory, NCR would deem it to be necessary and would make this change. Therefore, the committee determined that the NCR language was responsive and would result in the State receiving the service it expected. Malfunction Incident Reports Page 10 of the ITB required that the winning bidder furnish HRS with a written--malfunction incident report upon completion of each maintenance call. The ITB went on to describe ten items which had to be included in the reports. Page 12 of the NCR bid provided the following: Reports NCR has the ability to provide monthly service reports to HRS which summarize the maintenance activity of the account. Such records may include a listing of all equipment covered in the maintenance agreement accompanied by the dates of service calls, number of service calls received per equipment type, description of problem and solution, and the time spent for repair. NCR maintains a comprehensive equipment history file to meet your reporting needs. Reporting procedures will be jointly defined by NCR and HRS. (emphasis added) One member of the evaluation committee did not consider the reports to be an important item. Another member of the committee assumed that HRS would get the information it needed from the reporting procedures to be jointly defined by NCR and HRS once the contract was awarded. Additional Equipment Page 11 of the ITB required that the contractor would be responsible for maintaining all the equipment owned by the State which is of the type set forth in the ITB, regardless of whether the specific piece of equipment is listed in the ITB or subsequently purchased. Equipment of a type not described in the ITB is not part of the agreement. NCR's bid is consistent with this requirement. Also, NCR's bid gives HRS the option of adding equipment of a type not described in the ITB, after NCR evaluates the equipment and agrees to accept it. Principal Period of Maintenance Page 9 of the ITB provided that the "Principal period of maintenance shall be at least from 8:00 a.m. to 5:00 p.m., local time at each site, Monday to Friday, exclusive of holidays observed by the Department." Also, page 17 of the ITB provided that, "Principal Period of Maintenance (PPM)" shall be defined as at least nine consecutive hours per day (usually between the hours of 8:00 a.m. and 5:00 p.m.; local time at the site) as selected by the State, Monday through Friday, excluding holidays observed at the site." Finally, page 19 of the ITB contained language similar to the language in page 9 of the ITB. In the industry, "principal period of maintenance is that period of time during which a customer is buying services, including parts and labor, at a flat rate under a contract with the service provider. Page 8 of NCR's bid provided that "NCR's Principal Period of Maintenance (PPM) is Monday through Friday, 8:00 a.m. to 5:00 p.m., including a one hour meal period." NCR's bid did not change the language contained in page 19 of the ITB, noted above, which became part of its bid. Finally, in its Attachment to the contract provided in the ITB, NCR's bid stated that "the 'Principal Period of Maintenance' shall be defined as Monday through Friday, 8:00 a.m. to 5:00 p.m., exclusive of a one hour meal period, excluding holidays." The evaluation committee discussed the differences in the language between the NCR bid and the ITB dealing with principal period of maintenance and decided that the NCR bid was responsive. Response Time, Loaner Equipment and Penalties Page 9 of the ITB required the following: 5. Contractor must provide on site response within four (4) hours in metro areas and six (6) hours in all other areas at a 95 percent response level. Metro and non-metro locations are listed in Attachment B. If the response level falls below ninety-five percent (95 percent) overall for the State on a monthly basis, the Contractor will forfeit ten percent (10 percent) of the monthly maintenance cost per unit for each incident in the month of the occurrence. 7. The Contractor will have the equipment repaired and accepted by HRS Data Center staff or the Contractor will install an equivalent substitute device within six (6) hours after the maintenance begins. Maintenance begins when the Contractor arrives at the site and takes control of the equipment. If the equipment is not repaired or the Contractor does not install equivalent working equipment, the Contractor shall forfeit ten percent (10 percent) of the monthly maintenance cost per unit for each incident in the month of the occurrence. The NCR bid, on pages 8-9, provided the following: Response Time A firm commitment to response time and a stringent set of escalation procedures will be an integral part of NCR's service program for HRS. NCR has a commitment to arriving on-site within four (4) business hours of receipt of call during NCR's Principal Period of Maintenance, for equipment located within metropolitan areas. For non- metropolitan equipment sites, the average response commitment is six (6) hours. NCR understands the State of Florida's objectives to make system availability as high as possible, and we have an internal commitment to help the State meet the goal. Should NCR fail to meet its response and escalation standards as outlined herein, NCR will entertain future negotiations relative to credits and penalties. Because of NCR's response time, repair and escalation procedures, NCR generally does not provide loaner equipment. (emphasis added) The NCR bid then continues, on pages 10-12, under the heading "Escalation/Problem Resolution," to explain the procedures NCR personnel will follow when a machine cannot be restored to good operating condition within set periods of time. The evaluation committee interpreted NCR's bid to mean that NCR would respond within six (6) hours in the non-metro areas, even though the NCR bid stated that "the average response commitment is six (6) hours." The evaluation committee believed that the ten percent (10 percent) penalties set forth in the ITB were irrelevant and not necessary, since the penalties were too low. Therefore, the committee felt that NCR's proposal to negotiate a system of penalties and credits made sense. The committee also believed that, under NCR's escalation procedures, coupled with the statement on page 8 of the NCR bid that "Periodically, a whole unit swap philosophy may be utilized to maximize system uptime," the machines would be fixed within six (6) hours or an equivalent working device (loaner) would be installed. Probationary Period Evaluation Page 145 of the ITB set forth the evaluation criteria which HRS would use to evaluate the contractor's performance during the initial 6-month term of the contract. NCR's bid added language to five of the criteria, as follows: Is the response level of ninety-five (95 percent) maintained consistently each month in all major areas of the State? On the average. Are adequate spare parts available for equipment repair within six (6) hours? Spare carts are generally available within six (6) hours; maximum of twenty- four (24) hours. Is an equivalent substitute device installed if parts are not available or if repair is expected to require more than six (6) hours? Compliance in the following manner: NCR's repair and escalation procedures may result in utilizing a substitute device to maximize system uptime. Are the changes in priorities easily accomplished? As stated, not a quantifiable standard; would prefer substitute language. Are malfunction incident reports received on a timely basis? Compliance defined in Reporting section of Bidder's Proposal. (Underlined words were added by NCR) The committee noted that the NCR bid contained changes to the evaluation language. Implementation of Contract The NCR bid, in Appendix C, contained an implementation schedule calling for service to certain equipment to begin five weeks after the contract was awarded and to the remainder of the equipment nine weeks after the contract was awarded. The ITB, while not explicitly stating when the new contractor was to begin services, appears to contemplate that full service would begin immediately, since it provides for HRS to begin paying maintenance charges on the effective date of the contract. Under the terms of the ITB, the effective date of the contract would be no later than ten days after the award was posted. One member of the evaluation committee, Mr. Hall, believed the new contractor would begin service immediately, which to him meant within a month after the award was made. Execution of Contract The ITB contemplated that the successful bidder execute the contract provided in the ITB within ten days of notification of the award. The NCR bid provided that "Upon mutual agreement of the terms and conditions between our organizations, NCR agrees to execute a contract within ten (10) days." Also, the implementation schedule set forth in Appendix C of the NCR bid provided for the contract to be negotiated and executed between the second and fifth week after notification of the award. Assignment of Contract Page 22 of the ITB provided that "This Agreement is not assignable without the prior written consent of the Customer. Any attempt to assign any of the rights, duties or obligation of this Agreement without such consent is void. In its bid, NCR struck through the word "Customer" and inserted the word "parties." Site Rules and Regulations Page 23 of the ITB stated that: The Contractor shall use its best efforts to assure that its employees and agents, while on the State's premises, shall comply with the State's site rules and regulations. The NCR bid in its attachment to the contract, under the heading "The Rules and Regulations," provided that "Execution of a contract by NCR is contingent upon NCR's review of the State's site rule and regulations." REVIEW OF THE UNISYS BID As stated earlier, the Unisys bid was found to be responsive by the evaluation committee. Unisys agreed to all the performance mandatories of the ITB. The Unisys bid did not contain any deviations from the ITB and was consistent with all the terms and conditions of the ITB. Bid?
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that HRS issue a final order finding NCR's bid to be nonresponsive and awarding the contract under the Bid No. VH-2 to Unisys. DONE and ENTERED 26th day of July, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-22525Bid The parties submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO " UNISYS' Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph 1.-14. Accepted. 15.-18. Accepted as set forth in RO34. Accepted. Rejected as a conclusion. But see Conclusions of Law section of this Order. 21.-45. Accepted. 46. Rejected as irrelevant. 47.-52. Accepted. 53. Accepted. See Conclusions of Law section of this Order. 54.-58. Accepted. 59. Accepted except for last two phrases which are rejected. The evidence is inconclusive on whether NCR would have an advantage over other bidders and whether the price of the contract was affected by this provision. 60.-63. Accepted. 64.-65. Rejected. The evidence is inconclusive as to the effect the NOR bid's language would have. See Conclusions of Law section of this Order. 66.-69. Accepted. Rejected. Since, there is no way of knowing the result of the negotiations, one cannot determine if this would result in an unfair advantage or would have an economic impact. Rejected. Delay can occur in any contract. Under the ITB, undue delay would be penalized. 72.-75. Accepted. Rejected as irrelevant. Rejected as irrelevant. The statement may be true, but that is not the situation here. 78.-79. Accepted. 80. First phrase, rejected. NCR did not agree to anything. Second phrase, accepted. 81.-83. Accepted. 84. Rejected as a conclusion and an assumption, since no one knows what the jointly defined procedures would be. 85.-86. Accepted. Accepted as what the committee felt. However, the provisions of the NCR bid dealing with additional equipment are consistent with the ITB. Rejected as contrary to facts found. 89.-90. Accepted. Accepted. See Conclusions of Law section of this Order. Accepted. Accepted. See Conclusions of Law section of this Order. 94.-97. Accepted. 98. First two sentences accepted. Third sentence rejected; the evidence does not show what is included in the payment plans with the Comptroller. 99-102. Accepted. Rejected. The evidence is inconclusive on whether this item affected the price of the bid. Rejected as irrelevant. Rejected as irrelevant. Accepted. Rejected as not supported by the evidence. The NCR bid states that NCR would prefer substitute language. 108.-112. Accepted to the extent they restate the ITB and the NCR bid. However, the implicit conclusion that this is at variance with the ITB is rejected as not supported by competent evidence. 113.-119. Accepted. 120. The introductory paragraph is rejected as a conclusion of law. Subparagraphs A. through are accepted. HRS's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph 1.-7 Accepted Accepted. Accepted. True but unnecessary. Accepted generally. Accepted. Accepted generally. Accepted generally. Rejected as not supported by the weight of the evidence. First sentence accepted. Second sentence is true as to what the evaluation committee believed. However, the overall service to the State is affected by the NCR bid. True that this is what the evaluation committee determined, believed and concluded. However, the findings of fact made in this RO differ from what the evaluation committee believed. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected. While the cost of the services may be the same, less services are provided for in the NCR bid than are called for in the ITB. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected. HRS may wish to accept the NCR bid; if it does so, however, it will agree to a different agreement than called for in the ITB. There can be no meeting of the minds when items are left to be negotiated and where the evaluation committee members did cot understand all the provisions of the NCR bid. Rejected. See RO41. Rejected as irrelevant. See also Conclusions of Law. Rejected as irrelevant. Supported by competent evidence, but unnecessary to the decision reached. Also, the fact that this was the first ITB that Ms. Parker ever prepared does not mean that HRS can now disregard its mandatory provisions. Rejected as irrelevant. NCR's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph 1-6. Accepted Subparagraphs a) through s) are accurate representations of what the ITB contained. However, the first phrase to the effect that the ITB recognized and incorporated concepts of variability is rejected. The ITB was rigid and precise. Accepted. Accepted. Accepted. First sentence, true but irrelevant. Second sentence accepted. RO2. Third sentence, true but irrelevant. Fourth sentence rejected; the ITB is neither ambivalent nor flexible. Fifth sentence rejected as irrelevant and not supported by competent evidence. Accepted. Accepted. Supported by competent evidence but unnecessary to the decision reached. Supported by competent evidence but unnecessary to the decision reached. First two sentences rejected as contrary to the weight of the evidence. Third and fourth sentences rejected as argument and conclusions. First three sentences are accepted as what they are: the evaluation committee's views, beliefs and understandings. Fourth sentence is rejected. The ITB reserved the right "to reject any and all bids or waive any minor irregularity or technicality in bids received." It did not reserve the right to waive any proposed additions or changes which are unacceptable, regardless of how material they may be. Also, the ITB did not provide for further negotiations prior to contract finalization. Fourth sentence rejected; the evidence is inconclusive on what the NCR language means. Rest of paragraph accepted. First, second and fourth sentences accepted. Third sentence rejected as contrary to the weight of the evidence and the words of the ITB. Fifth sentence rejected as irrelevant; while the NCR proposal may be more beneficial to the State it is inconsistent with the ITB. First, second, fourth and seventh sentences accepted. Third sentence rejected as irrelevant. Fourth sentence accepted. Fifth sentence rejected as irrelevant; while NCR's view may be useful, the ITB did not contemplate it. Sixth sentence accepted, but this only refers to controlling and installing the engineering change and not to deciding whether the change should be made. First, and seventh sentences accepted. Second sentence rejected as irrelevant. Third through sixth sentences reflect what NCR proposed, but this is contrary to the requirements of the ITB. Seventh sentence rejected as argument. First three sentences accepted. Fourth sentence rejected as argument. First and second sentences accepted, noting that the four week training period ended eight weeks after the notice of award. Third sentence accepted, but ITB appeared to contemplate immediate service under the contract since it provided for payments to begin upon execution of the contract. Fourth sentence accepted, but the ITB language speaks to ongoing training of the contract and not training specific to this contract. Fifth sentence accepted. Sixth sentence accepted; however, it is unclear whether the ITB contemplated a nine week delay for full implementation of the contract. First, third and sixth sentences accepted. Second, fourth and fifth sentences rejected as contrary to the weight of the evidence. Last sentence rejected as not supported by the evidence. The evaluation team considered the malfunction incident reports unimportant and did not know what the existing payment plans with the Comptroller's office were; therefore, the committee could not know if these plans met HRS's needs. Rest of paragraph accepted, except to note that there is no evidence to show that the payment plans with the Comptroller's office would meet HRS needs, and that, while HRS may now decide that parts costs are not needed, this was a mandatory requirement of the ITB. Rejected as irrelevant. If NCR or any other bidder had a problem with the ITB they could have asked for clarification or could have challenged the ITB for restricting competition. Rejected as irrelevant. 21.c. First and second sentences accepted. Third, fourth and fifth sentences irrelevant; NCR could have asked for clarification or challenged the ITB. Fourth sentence irrelevant. Sixth sentence rejected as irrelevant. Seventh sentence irrelevant and not supported by competent evidence; it is impossible to now determine what NCR would have bid. Accepted. Accepted. The first sentence being the one following the quoted material, which is accepted. First sentence rejected as being contrary to the weight of the evidence. Second sentence accepted. Third sentence rejected as irrelevant; this is the number of calls made in the past. Fourth and fifth sentences rejected as assumptions. Fifth sentence accepted. First, second and third sentences accepted. Fourth and fifth sentences rejected as irrelevant; while these statements may be true, the NCR bid's provisions conflict with the ITB. First sentence accepted. Rest of paragraph rejected as argument and conclusion. First and second sentences accepted. Third sentence rejected as irrelevant. Fourth sentence rejected; while the addendums issued to the ITB maintained February 8th as the last day for submissions and inquiries, the ITB's general conditions stated that inquiries could be sent in 10 days prior to bid opening. The limitation of remedies form was sent to bidders on March 1, 1988; bids were not due until March 29, 1988. Fifth through ninth sentences accepted. Tenth sentence rejected; the language in the NCR bid is clear and does limit NCR's liability. Eleventh and twelfth sentences rejected as irrelevant. Thirteenth sentence rejected; the NCR language does not refer to the value of the remaining contract but to the value at the time of termination, which is zero at all times. Rejected as not supported by competent evidence. The evidence is insufficient to determine whether the person was licensed at the time the bid bond was countersigned. Rejected as irrelevant. Rejected as a recitation of testimony. The evidence shows that Unisys agreed to the ITB provisions requiring a Jacksonville office. Rejected as irrelevant. Unisys agreed to the provisions of the ITB and will be penalized for failure to comply with them. Rejected as irrelevant. First sentence accepted. Second sentence rejected; this is clearly a proper option under the terms of the ITB. Rejected. See ruling on proposed finding of fact 21e. Rejected as irrelevant. COPIES FURNISHED: Edgar Lee Elzie, Jr., Esquire MacFarlane, Ferguson, Allison & Kelly 804 First Florida Bank Building Tallahassee, Florida 32301 Charles R. Holman, Jr., Esquire Unisys Corporation 4151 Ashford, Dunwoody Road, N.E. Atlanta, Georgia 30319 Elaine New, Esquire Assistant General Counsel, HRS 1323 Winewood Boulevard Building I, Room 407 Tallahassee, Florida 32399-0700 Gary P. Sams, Esquire Cheryl G. Stuart, Esquire Hopping Boyd Green & Sams Post Office Box 6526 Tallahassee, Florida 32314 Robert J. Beggs, Esquire NCR Corporation 1700 South Patterson Blvd. Dayton, Ohio 45479 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department") should sustain Petitioner's challenge to the Department's decision to deem Petitioner's bid non-responsive and to award the contract advertised in ITB Number 11-95-001 to Intervenor, as the "lowest responsive bidder?"
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Invitation to Bid Through Invitation to Bid Number 11-95-001, entitled "Armed Security Guard Service, Food Stamp Offices," (hereinafter referred to as the "ITB"), the Department solicited the submission of bids from prospective providers interested in providing the Department with armed security guard services at the Department's Dade County (District 11) food stamp offices. The ITB was prepared by the Department's District 11 Purchasing Director, Selma Speakman. Speakman was also involved in the advertising and distribution of the ITB, which began on or about February 10, 1995. The ITB was a 12-page document. The first page of the ITB contained a "Bidder Acknowledgment" form to be completed by the bidder and signed by the bidder's authorized representative. The form advised prospective providers that bids would be opened at 1:00 p.m. on March 14, 1995, and that "bid tabulations with recommended awards" would be posted on or about March 21, 1995. General Conditions The remaining portion of the first page and the second page of the ITB set forth the "general conditions" that would govern all bids submitted in response to the ITB. General Condition 3 addressed the subject of "bid opening." It provided as follows: BID OPENING: Shall be public, on the date location and the time specified on the bid form. It is the bidder's responsibility to assure that his bid is delivered at the proper time and place of the bid opening. Bids which for any reason are not so delivered, will not be considered. Offers by telegram or telephone are not acceptable. A bid may not be altered after opening of bids. Note: Bid tabulations will be furnished upon written request with an enclosed, self addressed, stamped envelope and payment of a predetermined fee. Bid files may be examined during normal working hours by appointment. Bid tabulations will not be provided by telephone. General Condition 5 addressed the subject of "interpretations/disputes." It provided as follows: INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any person who is adversely affected by the agency's decision or intended decision concerning a procurement solicitation or contract award and who wants to protest shall file a protest in compliance with Rule 13A-1.006(3), Florida Administrative Code. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. General Condition 7 addressed the subject of "awards." It provided as follows: AWARDS: As the best interest of the State may require, the right is reserved to make award(s) by individual service, group of services, all or none, or a combination thereof; to reject any and all bids or waive any minor irregularity or technicality in bids received. Bidders are cautioned to make no assumptions unless their bid has been evaluated as being responsive. General Condition 10 addressed the subject of "legal requirements." It provided as follows: LEGAL REQUIREMENTS: Applicable provision of all Federal, State, county and local laws, and all ordinances, rules and regulations shall govern development, submittal and evaluation of all bids received in response hereto and shall govern any and all claims and disputes which may arise between person(s) submitting a bid response hereto and the State of Florida, by and through its officers, employees and authorized representatives, or other person, natural or otherwise; and lack of knowledge by any bidder shall not constitute a cognizable defense against the legal effect thereof. Purpose and Scope of Work On page three of the ITB, the purpose of the ITB and the "scope of work" to be performed pursuant to the advertised contract were described as follows: The purpose of this bid is to obtain competitive prices for a contract for armed security guard service for the State of Florida, Department of Health and Rehabilitative Services, District 11. Armed security guard service will be provided for various Food Stamp Offices located in Dade County, according to the attached Bid Data Sheet. The effective date for this bid is July 1, 1995 through June 30, 1996. SCOPE OF WORK: The contractor will provide armed, uniformed security guards as per schedule on Bid Data Sheet. The number of guards, locations and times required may vary from time to time and the contractor must be flexible. Should a situation arise which requires an increase or decrease in the number of guards needed, not to exceed ten guards, the contractor shall have a reasonable time to adjust said number of guards provided. Additional coverage required will be furnished at the bid rate, not overtime rates. Bid Data Sheet The aforementioned "Bid Data Sheet" was found on page 11 of the ITB. It identified 16 locations where armed security guard services would have to be provided under the contract awarded pursuant to the ITB. It further indicated that a total of 22 security guards (working a total of 58,280 hours per year) would be needed to provide such services. Specifications "Specifications" were set forth on pages three through seven of the ITB. Specification I described the "minimum requirements for security personnel," including the requirement that a guard "wear[] the uniform of the company." Specification II listed the following as "guard duties:" Maintain crowd control. Organize and supervise lines. Control disruptive individuals. Prevent unauthorized individuals from entering restricted areas. Keep issuance area under constant surveillance while food stamps are issued. Contact the police department if he/she is no longer in control of a situation or in the event of a robbery. Ensure that individuals present a food stamp identification card prior to being admitted to cashier area. Directs traffic as necessary; vehicles as well as pedestrians. Specification III described "guard qualifications," including the requirement that a guard "have at least three to five (3-5) years experience as an Armed Security Officer." Specifications IV and V addressed "minimum training requirements" and "background requirements," respectively. The final specification dealt with "communications" and provided as follows: Hand-held Radios: Two-way hand-held radios, with Emergency Protection button, licensed for use by the Federal Communications Commission, are to be provided by the Contractor to all on-duty contract security officers. Contractor Central Dispatch: The Contractor will provide a centralized dispatching service through use of a stationary base station manned by experienced personnel. Contractor's personnel must be available at the Central Dispatch Station, and have the ability and authority to take immediate action, as required. System Quality: Radio communications among system users is expected to be strong and clear at all times ("five by five"), both transmitting and receiving. The Contractor shall be totally responsible for providing and maintaining required system quality. Special Conditions Pages seven though ten of the ITB contained 15 "special conditions." Special Condition I addressed the subject of "contractor's insurance." It provided, in part, as follows: The contractor shall secure and maintain, at his sole expense and for the duration of the contract term, the following insurance coverage written on companies and on policy forms acceptable to the department. Worker's Compensation . . . . Comprehensive general liability insurance covering all operations and services under the contract . . . . Comprehensive automobile liability insurance, including ow[n]ed, non-ow[n]ed and hired vehicle coverage of not less than $100,000 combined single limit issued on a per occurrence basis, if operations and service under the contract involve the use or operation of automotive vehicles on the department's premises. No insurance will be acceptable unless written by a company licensed by the State of Florida Insurance Department to do business in Florida where the work is to be performed at the time the policy is issued. Special Condition II addressed the subject of "licenses." It provided as follows: All contractors, including prime, general and subcontractors, where applicable, must have all licenses and/or permits in accordance with city and county ordinances, rules and regulations and all licenses . . . must be obtained at the contractor's expense. Special Condition III addressed the subject of "federal and state laws and regulations." It provided as follows: To comply with Title VI and VII, Civil Rights Act of 1964, respective federal regulations and Executive Order 11246 as amended. To comply with all the provisions of Section 504 of the Rehabilitation Act of 1973, Non- Discrimination as to Handicapped Individuals. It is expressly understood that upon receipt of substantial evidence of any such discrimination, the department shall have the right to terminate the contract for breach. Special Condition IV addressed the subject of contract renewal. It provided as follows: Option to Renew This contract shall end on June 30, 1996 with a two (2) year Option to Renew. Renewal to be based on mutual consent of both parties. Renewal must be exercised within sixty (60) days and not later than thirty (30) days prior to termination of contract. Renewal of this contract will be based upon satisfactory performance evaluations by the department. Subject to the availability of funds, the maximum percentage increase that may be paid is based on the current award amount plus 3 percent for first renewal and 3 percent for second renewal. Special Condition V provided that "[a]ny person submitting a bid in response to this invitation must execute the enclosed form PUR. 7068, SWORN STATEMENT UNDER SECTION 287.133(a), FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES, including proper check(s), in the space(s) provided, and enclose it with the bid." Special Condition VI addressed the subject of "protest." It provided as follows: Any actual or prospective bidder who desires to file a formal protest of this ITB, as outlined in Item 5 of the General Conditions sections on the PUR 7031 form, must accompany that protest with a bond payable to the department in the amount of $5,000 or 1 percent of the department's estimate of the total volume of the proposed contract, whichever is less. A bidder may submit, in lieu of a bond, a cashier's check or money order in the amount of the bond. Special Condition VII provided that the "[b]id will be awarded to the lowest responsive bidder." Special Condition VIII provided that "[p]ayment shall be made in accordance with Section 215.422, F.S., which states the contractor's rights and the state agency's responsibilities concerning interest penalties and time limits for payment of invoices." Special Condition IX provided that "[t]he State of Florida encourages minority business enterprise participation in any bid solicitation." Special Condition X addressed the subject of contract termination and described three ways ("termination at will," "termination because of lack of funds," and "termination of breach") in which the contract to be awarded pursuant to the ITB could be terminated. Special Condition XI provided that "[t]he contractor shall secure and maintain a Blanket Fidelity Bond on all of the company's employees providing services under the provisions of this contract in an amount not to exceed an aggregate policy limit of $10,000.00 per occurrence." Special Condition XII was entitled, "References." It provided as follows: The ability of bidders to meet the requirements of this bid is of prime concern to the department. In this regard, it is required that each bidder furnish the department with justification supportive of his ability to meet this obligation. This information should briefly identify the company's personnel and equipment resources and include a minimum or three (3) representative customers as references. This documentation must accompany bid, along with financial reports and management experience. Special Condition XIII provided that "[t]here will be a wage determination of $9.50 per hour." Special Condition XIV addressed the subject of "invoices and payment." It provided as follows: The contractor will submit invoices on a monthly basis following delivery of services. Invoice(s) should be based on the quoted price per hour and reflect the address for which services were performed, month for which payment of services rendered is requested and Contract Number. Backup time sheets, approved by the Department, will be required. Special Condition XV provided that "[t]he Contractor shall provide documented evidence that they are capable of providing a contingency force of similarly qualified personnel equal to one-third of the force needed in case of emergency situations that would affect the health and welfare of clients and the daily operations of HRS offices." Bid and Signature Sheet The twelfth and final page of the ITB consisted of a "Bid and Signature Sheet" to be completed by the bidder and signed by the bidder's authorized representative. On the sheet, the bidder had to indicate, among other things, its "[p]rice per [g]uard per [h]our." Petitioner's and Intervenor's Bid Submissions Petitioner and Intervenor were among those prospective providers that timely submitted bids in response to the ITB. Both Petitioner and Intervenor included in their bid submissions completed and signed "Bidder Acknowledgment" forms, PUR 7068 forms and "Bid and Signature Sheets." Petitioner's "Bidder Acknowledgment" form, PUR 7068 form and "Bid and Signature Sheet" were all signed by Petitioner's President, Dele Oladunni. Oladunni has been licensed as a security guard for approximately the past five years. He manages all of Petitioner's projects with the help of an assistant. 4/ At the time of the submission of Petitioner's bid, Oladunni's assistant, like Oladunni, had approximately five years experience in the armed security business. On its "Bid and Signature Sheet," Petitioner indicated that its "[p]rice per [g]uard per [h]our" was $12.11. On its "Bid and Signature Sheet," Intervenor indicated that its "[p]rice per [g]uard per [h]our" was $12.23. Other Materials Submitted by Petitioner Petitioner's bid submission also included the following documentation: a list of customer references; a document entitled, "Delad Security Inc. Income Statement and Retained Earnings November 30th 1993;" certificates of insurance; a copy of its security agency license issued by the Department of State, Division of Licensing, on December 19, 1994; 5/ and a "Business Management/Technical Plan," which, including attachments, consisted of approximately 50 pages. Petitioner provided 14 customer references on the list it submitted to the Department. Among these customer references was the Federal Aviation Administration, to whom, according to the representation made on the list, Petitioner had "provide[d] armed security service." 6/ Another customer reference listed by Petitioner was the Department itself. (At the time of the submission of its bid, Petitioner was providing the Department, at its CYF North Service Center in Miami, with armed security guard services pursuant to a contract into which it had entered with the Department. Speakman had received no complaints concerning Petitioner's performance of its obligations under this contract.) In Section 1.1 of the "Business Management/Technical Plan" (hereinafter referred to as the "Plan") that Petitioner submitted to the Department as part of its bid, Petitioner stated the following: BUSINESS MANAGEMENT APPROACH Delad Security, Inc., a minority owned African American Business, proposes to provide security support services to the Department of Health and Rehabilitative Services as required by adopting and implementing the professional business philosophy established in our current relationship for the provision of services: 7/ Task Analysis Planning Implementation Reporting Quality Control Delad Security, Inc., has the resources, the flexibility and the experience to fulfill the security needs of the Department of Health and Rehabilitative Services[. T]his includes personnel management involvement, outstanding supervision, a well trained, qualified security force which places emphasis on both the public relations and security aspects of its functions. 8/ Petitioner asserted in Section 1.1.1 of the Plan that "Delad Security, Inc., has enjoyed an excellent business reputation" and that it "conduct[s] business in accordance with all local laws and regulations." Section 1.1.2 of the Plan advised that "Delad Security, Inc.['s], proven management concept is to permit the local site management teams, particularly the project Manager/Client Service Supervisor (CSS) and their support staff, to exercise full administrative and technical control of the project." In Section 1.1.3 of the Plan, Petitioner represented that, if awarded the contract pursuant to the ITB, such a management team, comprised of a Client Service Supervisor, with a "[m]inimum of three (3) year's previous experience in the management and operation of security or police services," and a Local Site Supervisor, with a "[m]inimum of one year of experience in the management and operation of security or police services," would be assigned to assist in the management of the project. Petitioner claimed in Section 1.2 of the Plan that, "[i]n accordance with Delad Security['s] long standing experience and management policies," it would "provide the full necessary Corporate assistance and support to ensure the success of the project," including (as enumerated in Section 1.2.2 of the Plan): "[p]rocurement and provisioning of equipment, materials and supplies;" "[g]uidance and instructions in management of security personnel matters based on our proven experience in such projects;" and "[a]vailability of backup emergency management, security cleared, personnel." In Section 1.3.3.2 of the Plan, Petitioner stated, among other things, the following: If awarded the contract, the Delad District office will have immediately available all the uniforms and accessories require[d]. Procurement of uniforms will be handled both locally and at the Corporate level. Issuance of uniforms will be coordinated with the local District Project Team. Each employee issued uniforms would have to sign the Uniforms and Accessories Record. All guards will be issued the uniform items as required by the HRS. Petitioner made the following representations regarding "personnel administration" in Section 1.4 of the Plan: Delad Security, Inc. recognizes that a high percentage of this contract's cost is related to direct labor or personnel. The efficient administration and management of personnel, therefore, depends on reliable information and controls. Delad will administer this contract based on a personnel administration program that takes into account a full understanding of the local labor laws and the policies to recruit and retain a highly qualified professional guard force. Our experience over the past years as a contractor to Federal, State and Municipal entities, has enabled Delad to be fully prepared to meet all challenges in this area. In Section 1.4.1 of the Plan, Petitioner indicated that one of its "personnel administration objectives" would be to "[r]ecruit and maintain an abundance of qualified and experienced personnel to support the operational security requirements of the HRS." To this end, according to Section 1.4.4 of the Plan, "[a]ll employees assigned to work under this contract shall receive competitive wages, so as to attract qualified personnel interested in long term job security." Petitioner stated the following regarding "incumbent personnel" in Section 1.4.9 of the Plan: If awarded the contract, Delad will accept incumbent personnel who meet our stringent screening standards. In order to qualify for employment, the incumbent personnel must meet the employment standards and receive favorable recommendations from HRS contract personnel. Section 1.4.10 of the Plan detailed Petitioner's personnel recruitment process, including its policy that personnel hired to perform contract work "meet all requirements of the Scope of Service section of the BID." In Section 1.4.11 of the Plan, Petitioner stated the following: The officers selected for this project will be highly trained and experienced. Delad will augment their ability with refresher, site specific and sustainment training." Petitioner asserted the following in Section 1.5.2 of the Plan: At the Corporate level, Mr. Dele Oladunni has been assigned as the Quality Control Coordinator for previous joint projects. Mr. Oladunni has the requisite knowledge and experience to ensure compliance with all requirements of the BID. In Section 1.6 of the Plan, Petitioner made the following assertion: Delad Security, Inc. ha[s] the experience in effecting large scale transition operations of this nature. Our proposed transition and implementation plan is included. Petitioner's proposed transition and implementation plan (which, as Petitioner represented in Section 1.8 of its "Business Management/Technical Plan," was a part of its bid submission) consisted of a series of 11 "tasks." Task 4 of these 11 "tasks" involved "labor pool analysis" and was described as follows in the proposed transition and implementation plan: Delad Personnel units will immediately begin reviewing our backlog of current applicants and make an initial determination of the number of available and suitable candidates for assignment to the Department of Health and Rehabilitative Services. Since a larger pool of licensed officers is required, Delad will begin the recruiting and training process. We have identified candidates for key positions and they will be available for personal interviews by the HRS Security Coordinator prior to final selection. Task 5 involved "personnel selection and screening of current security staff" and was described as follows in the proposed transition and implementation plan: Delad recognize[s] the possibility that some of the current security officers may meet the upgraded personnel requirements and HRS general criteria for hire. Due to their familiarity with security work, these officers could be valuable employees for assignment at the Depart- ment of Health and Rehabilitative Services Sites or elsewhere with Delad. The personnel units will undertake the screening and interviewing of these officers. If they meet HRS standards, they will be given priority consideration for employment. Task 6 involved "screening of new personnel" and was described as follows in the proposed transition and implementation plan: As soon as current applicants have been con- tacted and we begin to receive response[s] to recr[u]itment efforts, the screening process will begin in earnest. All applicants, whether current Security Officers at the Department of Health and Rehabilitative Services or new applicants, will be subject to the Delad screening and recruitment procedures. To assure a smooth selection process, Delad proposes to conduct interviews and local reference checks focusing on human relations skills to achieve a preliminary qualification status. If acceptable, the selectee would th[e]n undergo the required background investigation and standard interview process. Task 7 involved "on-site training of all personnel" and was described as follows in the proposed transition and implementation plan: After the screening process and after all personnel selected for the Department of Health and Rehabilitative Services Security Force complete the required training and orientation, site training will begin at HRS sites. The on-site training covers all the topics in the specifications as well as those identified during the transition period as necessary for the effective functioning of officers assigned to the HRS sites. The training is scheduled to augment and not interfere with the present day-to-day operations. The training is scheduled on a per shift basis and allows for the initial cross training process to begin. Upon completion of the on-site training all security officers will be issued certificates. Task 8 involved "logistical activity" and was described as follows in the proposed transition and implementation plan: Delad is fully aware of any equipment and material requirement specified and inherent in the contract. The coordination of the logistics is the responsi- bility of the Client Service Supervisor under the overall direction of the Project Coordinator. The proposed schedule is as follows: Equipment, radios, weapons, armed security officers uniform accessories will be ordered upon award of the contract. Uniforms fitted for all personnel within the first two weeks. Uniforms at District Office and issued- third week. Each logistical requirement will be addressed in advance by the appropriate Transition Team member to minimize duplication of efforts and unnecessary costs. Task 9 involved "operational dynamics during changeover" and was described as follows in the proposed transition and implementation plan: We believe that a smooth transfer of responsi- bilities can be effected at the termination of the existing proprietary force through the full involvement of the transition Team. Additional and retained personnel will be issued their uniforms and any equipment required prior to Transition week. Project supervisory personnel will be made available during the pre-transition period to assure a smooth transition. This consistency of supervision will continue throughout the contract period assuring all security officers are cognizant and knowledgeable of their duties and responsibilities. Task 10 involved "transfer of responsibility and liability" and was described as follows in the proposed transition and implementation plan: Additional and sufficient manpower from Delad Security will be on-site at the facility to supervise and assist the critical transfer of services. These additional transition personnel will be fully knowledgeable of the sensitivity of their positions and objective- a smooth transfer of security operations. In the section of Petitioner's "Business Management/Technical Plan" dealing with "corporate management involvement/support," Petitioner stated the following: Delad has earned and achieved a reputation of professionalism and excellenc[e] in the performance of its projects. A major contributor to such a reputation is the high level of personal interest, support and commitment that Delad top Corporate Management afford to its field operations - - particularly the protective support services for facilities of critical importance to the State of Florida and its economy. Delad Security Inc.['s] Corporate Management is bound by this same commitment and certifies that it will devote whatever resources are needed to make this Project a total success. Petitioner asserted in Section 1.8 of the Plan that it "takes no exceptions to, nor intends to deviate from, the Scope of Service requirements in the solicitation." In an attachment to the Plan, Petitioner made the following additional statements relating to its experience in the "security management field:" Delad Security Inc. pride[s itself] on being [a] leader[] within the security management field regarding proactive planning and prepar- ation for un-announced contingencies. It is only through such enlightened management and supervision that problem areas can be identified in sufficient time to insure prevention of unsatisfactory performance. Delad Security has advanced several uniquely designed programs focused upon identifying potential liabilities before they become major shortcomings and generating a specific response to bring about early resolution. . . . Delad Security Inc. [h]as implemented a company- wide program of soliciting from our clients a quarterly evaluation of the quality of services received. The Business Unit sends the question- naires/evaluation to the client and data generated from these questionnaires helps to insure that high standards of service delivery are sustained. Through the Plan and its attachments, as well as the list of references Petitioner submitted as part of its bid, Petitioner provided the Department (albeit in a manner that could have been more clear and concise and less general) with information concerning the personnel and equipment resources, as well as the management experience, that Petitioner would have available to draw upon to meet the requirements of the contract advertised in the ITB. Other Materials Submitted by Intervenor Intervenor included in its bid submission, in addition to the completed and signed "Bidder Acknowledgment" form, PUR 7068 form and "Bid and Signature Sheet," the following documentation: a list containing five customer references; a list of "equipment references;" a statement of assets and liabilities, as of September 30, 1994, of Florida National Industries (which Intervenor identified in its bid submission as Intervenor's "parent company") and of Florida National Industries' subsidiaries; the "declarations" of an "executive protection policy" issued Intervenor by the Federal Insurance Company; 9/ short, written statements containing biographical information about Intervenor's President, Ted Kretzschmar, its Vice President of Operations, William Murphy, and its Secretary and Personnel Manager, Lianne Kretzschmar; and a one-page written statement (on Intervenor's letterhead), which read as follows: With regards to Section XI of the Invitation to Bid entitled "FIDELITY BOND," 50 State provides the attached copy of our current Fidelity Bond; With regards to Section XII of the Invitation to Bid entitled "REFERENCES," 50 State Security Service, Inc. submits the following supportive justification for those items: PERSONNEL 50 State Security currently employes approximately 350 Security Officers and is one of the largest security providers in South Florida. Of these 350 officers, over 150 are licensed as armed security officers by the State of Florida with a "G" license. 10/ EQUIPMENT 50 State Security has a twenty-four hour per day, seven days per week dispatching station at our North Miami headquarters. This Central Control station is manned by fully trained personnel at all times. 50 State currently operates with over 100 handheld and 15 mobile radios under a UHF voting system that allows radio coverage through- out Dade County. CUSTOMER REFERENCES See attached list of Contract Experience. FINANCIAL REPORTS See attached Statement for Florida National Industries (parent company). MANAGEMENT EXPERIENCE See attached biographies for Ted Kretzschmar, William Murphy, and Lianne Kretzschmar. With regards to Section XV of the invitation to Bid entitled "CONTINGENCY," 50 State Security Service, Inc. submits the following: 50 State is readily able to supply qualified officers in amounts far in excess of the contract requirements to cover any contingency. HRS Manual No. 75-2 The Department has a manual, HRS Manual No. 75-2, that "establishes policy and furnishes the procedures to ensure that the department, through its contracting process, protects the funds it disburses, derives the maximum return of services from those funds and is in compliance with applicable state and federal law, rules, and regulations governing contracts for services," such as the one advertised in the ITB. Section 5-12 of the manual provides that the following procedures must be followed in the "evaluation of responses" to invitations to bid and requests for proposals: A selection team of at least three employees who have experience and knowledge in the program areas and service requirements for which contractual services are sought, will be appointed by the appropriate authority to aid in the selection of providers for contracts exceeding the threshold amount for Category Four. 11/ It is recommended that a selection team of at least three employees be used for all contracts, regardless of dollar amount. It is required that each prospective member of the selection team complete the Conflict of Interest Questionnaire (Appendix J) to ensure that no team member has any conflict of interest which would interfere in selection of a provider. If a proposed team member answers "yes" to any question, his/her participation on the selection team must be reviewed by the contract manager in conjunction with legal counsel. If the selection team is organized to assist in the development of the RFP/ITB and its evaluation criteria, the Conflict of Interest Questionnaire must be completed prior to such involvement. Each member must approach the development of evaluation criteria in a manner which promotes fair and open competition. The selection team must evaluate ITB bids based on the lowest price and must evaluate RFP proposals using the weighted evaluation sheet contained in the published RFP. The selection team, upon completion of their review, may be required to submit their recommendation (a ranked list of the top three or five bidders) to the contract signer for review. The contract signer will then decide which person or firm is to be awarded the contract based upon the recommendation made by the selection team and taking into consi- deration which bidder's offer is most advantageous to the state. If the highest ranked bidder, as reported by the selection team, is not selected, the reason for the selection of another bidder must be set forth in writing and included in the contract manager's bid file. Section 5-15 of the manual provides that, "[i]n the case of an ITB, the contract shall be awarded to the responsive and responsible bidder with the lowest price." The Initial Evaluation of Petitioner's, Intervenor's and the Other Bids The bids that the Department received in response to the ITB were reviewed and evaluated by a two-member evaluation team. The members of the team were Speakman and another Department employee, Jorge Gonzalez. Speakman and Gonzalez reasonably determined that both Petitioner's and Intervenor's bid submissions were responsive to the ITB, including the provisions of Special Condition XII which required each bidder to "furnish the department with justification supportive of [its] ability to meet th[e contractual] obligation[s]" prescribed in the ITB by "briefly identify[ing] the company's personnel and equipment resources" and providing information concerning its "management experience." Speakman, however, was concerned that Petitioner's bid price was so low that Petitioner would not be able to make a profit and that therefore any arrangement with Petitioner would "not . . . work out." She telephoned Oladunni to express her concerns and to ask him if Petitioner intended to "stand by" its bid price. In response to Speakman's telephone call, Oladunni, on April 24, 1995, sent Speakman (by facsimile transmission) the following letter: Thank you for the opportunity to present our cost breakdown for the HRS Security Service to Food Stamp Offices. The Breakdown is as follows: Contract HRS: 58,280 LABOR HOURLY COST Security Officers wage: $ 9.50 Payroll Tax and Insurance P.T.I. (.151 percent) 1.43 Direct Labor: 10.93 10.93/HRS EQUIPMENT Radios: 22 at 400= $8,800.00 Tax at 6 1/2 percent= 572.00 TOTAL $9,372.00 3 years depreciation 3,124.00 yearly which equates to .06/hour Weapons: 30 @ 2400= $7,200.00 tax @ 6 1/2 percent= 468.00 TOTAL $7,668.00 5 years depreciation 1,533.60 yearly which equates to .03/hour Uniforms and Accessories: 30 people @ 250= $7500.00 tax 6 1/2= 487.50 TOTAL $7,987.50 uniform per hrs .14 BENEFIT: .19 CURRENT OFFICE OVERHEAD .50 PROFIT at 2 percent .26 TOTAL BILL RATES: 12.11 Speakman and Gonzalez determined that Petitioner was the "lowest responsive bidder," within the meaning of Special Condition VII of the ITB," and that Petitioner therefore should be awarded the contract pursuant to the ITB. Thereafter, the Department gave notice of its decision to award the contract to Petitioner. Intervenor's Protest After learning of the Department's decision, Intervenor (by letter dated May 1, 1995, from its counsel, Joseph Frechette, Jr.) advised Speakman that it was protesting the Department's determination to award the contract to Petitioner. On May 10, 1995, Intervenor filed a formal protest (in the form of a letter dated May 9, 1995, from Frechette). The letter read as follows: By and through [its] undersigned attorney, 50 State Security Service, Inc., (hereinafter "50 State"), files this formal protest of the awarding of ITB Number 11-95-001 to Delad Security, Inc. (hereinafter "Delad Security"). 50 State Security is located [at] 820 N.E. 126th Street, North Miami FL 33161. 50 State Security was entitled to the award of the aforementioned contract. 50 States' interest will be severely affected by a loss of revenue and exposure if the award of this contract to Delad Security is not overturned as required by law. 50 State was notified on April 27, 1995, by telephone, that Delad Security was awarded the aforementioned contract. On May 1, 1995, 50 State filed their written notice of protest, and files this formal protest in accordance with Florida Statute 120.53. Florida Statute 287.032 and 287.001 both indicate the legislature's intent on public procurement and the purpose of the Division of Purchasing. Both of these Statutes discuss the requirement that there be "uniform contractual service procurement policies, rules and procedures." The legislature set up these bid guidelines precisely and purposely. The failure of Delad to follow these guidelines established by the State was in violation of Florida Statutes, and thus their bid must be declared nonresponsive. Special Condition Section XII of the bid specifications, entitled references, specifically discusses the fact that "the ability of bidders to meet the requirements of this bid is of prime concern to the department." This section also "required that each bidder furnish the department with justification supportive of his ability to meet this obligation." Delad Security was in breach of Section XII. First, [it] failed to "identify the company's personnel and equipment resources." Second Delad failed to furnish management experience documentation as required by this section of the Invitation to Bid. Delad did not fulfill this section requirement; and the general conditions (Section 10) of the bid requirements dictate [it] should not be awarded this contract. Florida Statute 287.012 specifically addresses Delad's failure to meet statutory requirements. Section 17 of the Statute states that the respon- sive bid must conform "in all material respects to the invitation to bid or request for proposals." Section 18 of the Statute states that "Responsive bidder or responsive offeror means a person who has submitted a bid or proposal which conforms in all material respects to the invitation to bid or request for proposals." Delad has not met these requirements. They failed to provide the documentation and information on both manage- ment experience and personnel and equipment resources requirements of section XII of the bid. [Its] failure to provide this information violates the aforementioned Statute by not conforming to the bid specifications. There is no dispute of material fact other than 50 States' position that, as a result of Delad's failure to fulfill all of the bid requirements, Delad should not have been awarded the above listed contract. Delad Security failed to fulfill the requirements set forth under Special Conditions Section XII of the Invitation to Bid. Delad Security did not submit documentation of [its] company's management experience. They also failed to identify the company's personnel and equipment resources. The Florida Legislature placed specific requirements on the bid process. Delad Security's failure to fulfill these requirements is in violation of the Florida Statutes, therefore Delad should not have been awarded this contract. Delad did not conform with the General and Specific Conditions of the Invitation to Bid. This protest has demonstrated that Delad violated Florida Statutes 287.012, 287.032 and 287.001. 50 State therefore demands that the Delad Security bid be deemed nonresponsive, and requests that the lowest responsive bidder, 50 State Security, be awarded ITB 11-95-001. Intervenor's formal protest was referred to the Department's District 11 Deputy District Administrator, Lloyd Henry Hill. Along with Intervenor's formal protest, Hill was furnished copies of the ITB and Petitioner's and Intervenor's bid submissions. Hill did not fill out a Conflict of Interest Questionnaire (Appendix J to HRS Manual No. 75-2). If he had, however, it would not have reflected that he had any conflict of interest that might have interfered with his fairly and impartially resolving Intervenor's formal protest. After reviewing the materials with which he had been furnished, 12/ Hill determined that Intervenor's bid submission was responsive to the ITB, but that Petitioner's bid submission was clearly non-responsive because, in his opinion, it did not identify Petitioner's existing personnel and equipment resources, nor did it describe Petitioner's management experience, 13/ as required by Special Condition XII of the ITB (as interpreted by Hill 14/ ). Therefore, in Hill's opinion, as between Petitioner and Intervenor, Intervenor was the lowest responsive bidder. Accordingly, on June 13, 1995, Hill sent the following letter to Oladunni: This is to notify you that after further review of your company's bid for the referenced contract, the Department of Health and Rehabilitative Services has determined your bid to be non-responsive. HRS will award the bid to 50 State Security, the lowest responsive bidder. Failure to file a protest within the time prescribed in section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Fla. Stat. Any person who is affected adversely by this decision or intended decision and chooses to protest the decision shall file a notice of protest in writing with the Director of Purchasing within 72 hours after the posting of the bid tabulation or within 72 hours after receipt of the notice of the agency decision or intended decision, and shall fil[e] a formal written protest within ten days after the date of the filing of the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under Chapter 120, Fla. Stat. The formal written protest shall state with particularity the facts and law upon which the protest is based. Thank you for your interest. In resolving Intervenor's formal protest in Intervenor's favor, Hill acted without the Petitioner's input or agreement and without there having been a Section 120.57(1) or (2) proceeding conducted on the matter. After receiving Hill's June 13, 1995, letter, Petitioner filed the protest that is the subject of the instant Section 120.57 proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order sustaining Petitioner's protest of the decision to award the contract advertised in ITB Number 11-95-001 to Intervenor. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of March, 1996. STUART M. LERNER, 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 March, 1996.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $9,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 1 Filed December 26, 2012 3:52 PM Division of Administrative Hearings 3. The six-month survey cycle is imposed and conditional licensure status is imposed beginning on 9/19/2011 and ending on 10/06/2011. ORDERED at Tallahassee, Florida, on this al day of Decente — , 2012.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 CERTIFY that a true and correct copy of this Final Order was served on the below-named persons by the method designated on this sh ay of , 2012. Richard Shoop, Agency k Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit | (Electronic Mail) (Electronic Mail) Tria Lawton-Russell Jonathan S. Grout, Esq. Office of the General Counsel Attorney for Respondent Agency for Health Care Administration Post Office Box 2011 (Electronic Mail) Winter Park, FL 32790 (U.S. Mail) Cathy M. Sellers Administrative Law Judge Division of Administrative Hearings | Electronic Mail)
Findings Of Fact On March 16, 1989, Respondent sent invitations to bid to actuaries who had been listed by the State of Florida, Department of General Services and with whom Respondent had some familiarity. These invitations pertained to two projects. The first project was one in which Respondent sought the services of qualified actuaries for the rendering of expert services in the area of rating requirements and procedures and the review of rate filings for health maintenance organizations and long term care insurance, Bid 119. The second invitation to bid was associated with the attempt to gain services from qualified actuaries pertaining to the review of health insurance filings, Bid 120. Respondent also gave public notice of the invitations to bid in the two projects that have been described. This notice was given in the Florida Administrative Weekly in its publication of March 17, 1989. On March 17, 1989, Petitioner obtained a copy of the bid materials in Bid 119. On March 20, 1989, he obtained a copy of the bid materials associated with Bid 120. In both Bid 119 and Bid 120 there are set out general conditions which are the same for both invitations. Within the general conditions is found paragraph 5 which states: INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any actual or prospective bidder who disputes the reasonableness, necessity or competitiveness of the terms and conditions of the Invitation to Bid, bid selection or contract award recommendation shall file such protest in form of a petition in compliance with Rule 13A-1.006, Florida Administrative Code. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. In furtherance of the opportunity to ask questions concerning the conditions and specifications set forth in the two bid instruments Petitioner, by correspondence received by Respondent on March 20, 1989, submitted a separate list of questions for the two projects, Bid 119 and Bid 120. On March 21, 1989, Respondent offered its answers to the Petitioner. Copies of these questions and answers may be found as Petitioner's composite Exhibit No. 5, pertaining to Bid 120 and Petitioner's composite Exhibit No. 6, pertaining to Bid 119, admitted into evidence. No one took advantage of the opportunity set out in paragraph 5 to the general conditions in each invitation to bid, to dispute the reasonableness, necessity or competitiveness of the terms and conditions of the invitations to bid within the prescribed time frame which is set out in Section 120.53(5), Florida Statutes. That time requirement is to make known objections within 72 hours of becoming apprised of the terms and conditions in the invitation to bid. It was only at the point in time at which Petitioner had been found unresponsive in the two bid circumstances and offered his formal written protest on April 11, 1989, that he attempted to advance claims associated with the reasonableness, necessity or competitiveness of the terms and conditions of the invitation to bid. He made further attempts to criticize those terms within the invitation to bid through presentation at hearing and in the course of the proposed recommended orders. All these efforts were untimely. The significance of Petitioner's failure to timely challenge the terms within the invitations to bid, that is the conditions and specifications, means that the facts in dispute are considered on the basis of whether the Petitioner and others who offered their responses to the invitations to bid have complied with those conditions and specifications as written, not as Petitioner would have them be. Bid 119 was responded to by the Petitioner and Touche Ross & Company. Petitioner's response was timely. By committee review of the responses to the invitation to bid performed by the Respondent and approved by the Assistant Director of Administration, Department of Insurance and Treasurer, one Bruce Brown, a decision was reached to reject all bids. Petitioner and Touche Ross were made aware of this rejection. Petitioner made a timely challenge to the rejection of his bid in accordance with Section 120.53(5), Florida Statutes, leading to the present hearing. Touche Ross did not challenge that decision and did not seek to participate in this hearing, although it was noticed of the pendency of these proceedings. Petitioner and Wakely timely responded to the invitation in Bid 120. The review committee with the concurrence of Mr. Brown found Wakely to be responsive and Petitioner to be unresponsive to the terms of the invitation. Petitioner made a timely request to be heard on this decision by the agency leading to the present hearing. Wakely was noticed of the pendency of this hearing as well as the agency's choice to change from a position of accepting the Wakely bid to one of rejecting all bids and has not participated in the process. The reason why the Respondent has chosen to reject the Wakely bid is based upon its belief that to do so would expedite the process of gaining the actuarial services which it seeks under Bid 120 and based upon some concern that if it sought to contract with Wakely, whom it believes to be the only responsive bidder in Bid 120, it would be met with disapproval by the State of Florida, Department of General Services. This resistance by the sister agency is premised upon the opinion that to contract with Wakely would constitute the use of a sole source contract in a setting in which there are numerous choices of actuaries who might be able to perform the work, and General Services who controls sole source purchases would not allow this. Within Bid 119 are various special conditions. Among those is the stated purpose found in paragraph 1.0 and it says: The Division of Insurance Rating (hereinafter "Division") within the State of Florida's Department of Insurance (hereinafter "Department") is seeking one qualified actuary for the rendering of expert services in the area of rating requirements and procedures and review of the rate filings for Health Maintenance Organizations (hereinafter "HMO") and Long Term Care Insurance (hereinafter "LTC"). It is anticipated that the contract will be effective from April 1, 1989 to September 30, 1989, although the precise dates will be dependent upon the date the contract is signed and the schedules of department personnel. By this Invitation to Bid (hereinafter "ITB"), the Division is requesting interested actuaries (hereinafter "respondent") to review the general and specific criteria outlined in this ITB and to present a bid. Other instructions in Bid 119 at paragraph 3.0 state: Emphasis on each bid must be completeness and clarity of content. In order to expedite the evaluation of proposals, it is essential that bidders follow the instructions contained herein. * * * Bidder shall complete the attached Bid Sheet in its entirety. By affixing manual signature on this bid sheet the bidder states that he/she read all bid specifications and conditions and agree to all terms, conditions, provisions, and specifications. Respondent's Credentials and Capabilities Proposals must include substantial evidence of the ability of the respondent to undertake the work required within the parameters and time frames referenced in this ITB. The respondent must be a member of both the American Academy of Actuaries and the Society of Actuaries. Furthermore, the respondent must convincingly demonstrate his or her expertise in both the HMO and LTC areas. Such demonstration must include at least the following: HMO Significant consulting assignment or other work responsibility involving HMO ratemaking in 1988 or 1989. Particulars must be provided, including the specific work product requested, hours spent on the job, the results of the job, and the respondent's precise role. Convincing evidence of familiarity with the Health Maintenance Organization Amendments of 1988 to the Federal Health Maintenance Organization Act. Such evidence might include a completed or ongoing consulting assignment in which knowledge of the new legislation was critical, an article published on the new legislation, or a speech to a professional organization. Public demonstrations of the respondent's expertise in the HMO area, such as speeches, published articles, positions held in HMO professional organizations, or prior full-time employment by an HMO. Assistance in the preparation of HMO rate filings for review by the Department. Assistance in the preparation of rates for federally qualified HMOs. LTC Significant consulting assignments or other work responsibility involving LTC ratemaking in 1988 or 1989. Particulars must be provided, including the specific work product requested, hours spent on the job, the results of the job, and the respondent's precise role. Public demonstrations of the respondent's expertise, such as speeches, published articles, or positions held in professional organizations relative to LTC (i.e., committee assignments) OTHER The respondent should also include a description of prior work assignments involving consulting or other services to state insurance departments. This prior work need not be restricted to HMO or LTC. Note: Evidence of the respondent's expertise must be verifiable. Referenced consulting assignments must include the name, address, and telephone number of an employee of the client who can verify the nature of the assignment. Copies of published articles must be provided, along with the name and date of the periodical in which it was published. Also, copies of speeches must be provided, along with the name of the organization to which the speech was given, a contract person, and the date of the speech. * * * (f) Respondent's Bid In preparing a bid, the respondent should make sure that he or she has submitted at least the following information: A demonstration that all requirements in the "Respondent's Credentials and Capabilities" section are met; An explicit statement as to the proposed hourly rate; A clear statement that the respondent is able to perform the required tasks in the prescribed time frames, as described in "Specific Work Product Required". Such information must be provided together with the bid sheet provided in Section 11. A suggested format is shown in Section 10. In both bid invitations, at paragraph 4.0 of the special conditions, bidders are reminded that bids which do not meet the mandatory technical requirements set out in 3.0 and its sub-parts will not be considered for selection and that the bids that are deemed responsive will be evaluated on the basis of cost and the award made to the lowest responsive bidder at an hourly rate of charges. Both invitations at Paragraph 4.1 indicate that the state has reserved its opportunities to reject all bids if that is felt to be in its best interest. Paragraph 5.2 of the invitation is a further reminder to bidders that any bidder desiring to file a protest arising out of the invitation to bid shall do so in a setting in which Section 120.53(5), Florida Statutes controls. Another specification found in both invitations at paragraph 10.0 entitled, "Respondent's (referring to the bid respondents) Credentials and Capabilities." Under that category it is stated that it is recommended that the format found on that page in the bid specifications be used in supplying the information needed to respond to paragraph 3.0 of the bid specifications for both invitations. Under that paragraph 10.0 there is a place for the respondent's name, the name of his employer, membership year in the AAA, membership designation in the 50A: FSA and ASA and year the 50A designation was awarded. In Bid 119, beyond paragraph 10.0 are found paragraphs 10.1, 10.2 and 10.3, these paragraphs recapitulate those items and the various sub-parts to paragraph 3.0 and provide space for answers to be given to those inquires concerning the Petitioner's credentials and capabilities. There is a paragraph 11.0 in both invitations entitled "Bid Sheet." It has lines related to the hourly rate, vendor name, name of actuary to render services, mailing address, city, state and zip code, authorized signature both manual and typed, telephone number, and the date of submission. This particular paragraph reminds the bidder that by affixing the signature, this is a verification that all bid specifications and conditions have been read and that the terms and conditions, provisions and specifications are agreed to and that certification is made that the services will be provided at the hourly rates stated. Otherwise the basic format for Bid 120 in terms of special conditions is the same as described for the pertinent paragraphs in Bid 119 that have been set out before with the exception of Paragraphs 1.0, and 3.0 (c). They state the following: 1.0 PURPOSE: The Division of Insurance Rating (hereinafter "Division") within the State of Florida's Department of Insurance (hereinafter "Department") is seeking one qualified actuary for the rendering of expert services pertaining to review of Health Insurance rate filings. It is anticipated that the contract will be effective from April 1, 1989 to September 30, 1989, although the precise dates will be dependent upon the date the contract is signed and the schedules of department personnel. * * * 3.0 (c) RESPONDENTS CREDENTIALS AND CAPABILITIES. Proposals must include substantial evidence of the ability of the respondent to undertake the work required within the parameters and time frames referenced in this ITB. The respondent must be a member of both the American Academy of Actuaries and the Society of Actuaries. Furthermore, the respondent must convincingly demonstrate his or her expertise in rating the filing with the Department the following products: Individual Major Medical Medicare Supplement Long Term care Other types of coverage depending upon the needs of the Department and skills of the respondent. Such demonstration must include at least the following: A high degree of familiarity with Chapter 4-58 of the Regulations of the Florida Department of Insurance. Such familiarity should be demonstrated by the respondent providing evidence that he or she submitted at least twenty- five Health Insurance rate filings to the Department which were approved between January 1, 1988 and February 28, 1989. The consultant should demonstrate familiarity with Individual Major Medical, Medicare Supplement, and Long Term Care policies. Such familiarity should be demonstrated by the consultant providing evidence that he or she submitted at least three filings to the Department in each of those areas which were approved between January 1, 1988 and February 28, 1989. NOTE: Only those filings actually certified by the actuary, as provided in 4-58, may be counted in meeting the above requirements. Bid 120 has paragraph 10.1 that refers back to sub-parts within paragraph 3.0(c) and provides space for answering the request for information concerning credentials and capabilities. In both bids Respondent is critical of the Petitioner for not using the format suggested in the various portions of paragraph 10, in essence filling out the specification sheet in the space provided for the answers which the petitioner would give. Having reviewed these materials associated with each bid invitation, the format idea is not a mandatory requirement, it is a suggested requirement. What is incumbent upon the Petitioner is to comply in substance with the requirements set out in the invitations to bid. In that respect the Petitioner is deficient in a material manner. A copy of the requirements Bid 119 may be found in Respondent's exhibit No. 1 admitted into evidence. Petitioner's response to the invitation to bid in Bid 119 is found within Respondent's No. 4 admitted into evidence. In his statement of credentials and capabilities, Petitioner has not utilized the spaces provided in paragraphs 10.1 through 10.3. Instead he has enclosed a letter that includes a statement of work history and professional experience. Under the category of health maintenance organization, the special conditions of paragraph 3.0(c), there is no statement of a consulting assignment or other work responsibility that would involve HMO rate making in the years 1988 or 1989. Furthermore, there is no convincing evidence of familiarity with the health maintenance organization amendments of 1988 to the Federal Health Maintenance Organization Act. There is no reference to public demonstrations of the Petitioner's expertise in the HMO area to include speeches, published articles, positions held in an HMO professional organization or prior full-time employment by an HMO. While there is an indication of experience in rate review from the regulatory point of view in Florida and Massachusetts, there is no indication as required by the specifications and conditions of the preparation of rate filings to be reviewed by a regulator. Finally, under the category of HMO there is no indication of assistance in the preparation of rates for federally qualified HMOs. In the long term care component of the credentials and capabilities portion of Bid 119, Petitioner has offered no explanation of his background. Under the category "other" Respondent has included a description of prior work assignments involving consulting or other services to state insurance departments. On the other hand he has failed to evidence in more specific terms as the note to paragraph 3.0(c) requires, names, addresses and telephone numbers. A copy of the requirements of Bid 120 may be found in Respondent's Exhibit No. 2 admitted into evidence. A copy of Respondent's reply to the invitation to bid may be found in Respondent's Exhibit No. 5 admitted into evidence. As with the previous Bid 119, in Bid 120 Petitioner did not utilize the space available in writing his answers in paragraph 10.1 which relates back to the requirements for credentials and capabilities as announced in paragraph 3.0(c). Instead Petitioner attached a letter in which he attempts to state his compliance with the requirements of the bid. He sets out comments about his work history and professional experience which do not pertain to rating and filing with the Respondent the products of individual major medical, Medicare Supplement, long term care and other types of coverage depending upon needs of the Respondent and skills of the Petitioner. Within Bid 120 in the requirement for familiarity with Chapter 4-58 Florida Administrative Code Petitioner has indicated some involvement with that regulation. However, he has not shown where he had submitted at least twenty- five health insurance rate filings to the Respondent which were approved between the January 1, 1988 and February 28, 1989. In Bid 120 on the topic of demonstration of familiarity with individual major medical, Medicare Supplement and long-term care policies, Petitioner did not demonstrate that he had submitted at least three filings with the Department in each of those areas which were approved between January 1, 1988, and February 28, 1989. By contrast the Wakely response to the invitation to bid, a copy of which is found in Respondent's Exhibit No. 9 admitted into evidence, has adequately responded to the requirements of the Bid 120 in the areas where the Petitioner has been deficient, as well as other areas. As alluded to before Petitioner has failed to make timely challenge to the conditions and specifications associated with the two invitations to bid. Moreover, while allegations in the formal written protest of April 11, 1989 and further remarks of April 20, 1989 addressed to the Insurance Commissioner, together with the proposed recommended order suggest problems with the conditions and specifications associated with the two invitations to bid, proof at hearing submitted by Petitioner did not confirm these allegations. Except in those areas preferred to in the factual discussion above Petitioner's bid responses are adequate to meet the terms of the invitations to bid.
Findings Of Fact On June 7, 1988, the School Board of Broward County, Florida, sent an invitation to several insurance companies to submit bids on student accident insurance, Bid No. 89-1105, by 2:00 p.m. on June 20, 1988. The invitation required the bidding vendor to complete a bid form, attach a specimen policy to the bid form, and return this information to the School Board by the specified date. Joseph Herman Hughes, Jr., received a copy of the Invitation to Bid as the Petitioner's agent. Petitioner through its agent Hughes hand-delivered a bid form and a specimen policy to the Department of Purchasing for the School Board on June 20, 1988, in Fort Lauderdale, Florida. When Hughes arrived in Fort Lauderdale on June 20, 1988, he was informed by the Department of Purchasing that the bid opening date had been extended to June 28, 1988. On June 20, 1988, Hughes received a copy of an addendum dated June 14, 1988, which revised page 8 of 14 pages to Bid No. 89- 1105 and page 9 of 14 pages to Bid No. 89-1105. Reliable timely submitted its bid on June 28, 1988. The bids were opened by the Department of Purchasing and Petitioner's bid of $210,820 per year for the 1988-1989 and 1989-1990 school years was the lowest bid that was submitted. The bid specifications stated that a recommendation by the Director of the Department of Risk Management would be posted subsequently. On July 8, 1988, the recommendation of Risk Management was posted. The recommendation letter dated July 6, 1988, stated that the bid for student accident insurance should be awarded to Davis-Gillingham Associates, Inc., which bid $313,514 for the first year and $334,772 for the second year. The recommendation letter also stated that the bid from Reliable had been rejected because Part IV of the Reliable specimen policy included an additional exclusion which altered the specifications of Bid No. 89-110S. Reliable timely filed a protest to the recommendation and, after considering the protest, The School Board rejected it. Hughes was aware of Paragraph 8 of the General Conditions on Page 2 of the Invitation to Bid, which reads as follows: INTERPRETATIONS: Any questions concerning conditions and specifications should be submitted in writing and received by the Department of Purchasing no later than three (3) working days prior to the bid opening. Hughes had questions concerning the interpretation of the conditions and specifications of the bid, but did not follow that provision. Further, he was familiar with Paragraph 14 appearing on Page 4 of 14 entitled "INFORMATION," which reads as follows: Any questions by prospective bidders concerning this Invitation to Bid should be addressed to Mrs. Sharon Swan, Purchasing Agent, Purchasing Department, (305) 765- 6086 who is authorized only to direct the attention of prospective bidders to various portions of the Bid so they may read and interpret such for themselves. Neither Mrs. Swan nor any employee of the School Board of Broward County is authorized to interpret any portion of the Bid or give information as to the requirements of the Bid in addition to that contained in the written Bid Document. Interpretations of the Bid or additional information as to its requirements, where necessary, shall be communicated to bidders only by written addendum. It is clear that Hughes had from approximately the 9th or 10th of June to the 28th of June to make any written inquiries to Mrs. Swan concerning either an interpretation or information, as provided for on Page 2 in Paragraph 8 of the General Conditions and Page 4 of 14 pages of the Special Conditions, but never did so. The provision entitled "Coverages" subsection "Medical and Hospital Expense Benefits" on Page 8 of the Invitation to Bid provides as follows: If the insured, within thirty days following the date of accident, because of injury caused accidently and independently of all other causes, shall require treatment by a licensed physician, the Company will pay, on the basis specified in Paragraphs A through K as follows, the expenses incurred within fifty-two (52) weeks after date of accident for ... Hughes wrote, in the exclusion portion of the specimen policy required to be attached to the bids submitted, Reliable's Paragraph J (1): "Any injury not treated within 30 days by a licensed physician ... after date of accident." The exclusion Hughes wrote specifically means that if a person is not treated within thirty days of the date of the accident there will be no coverage. The wording in the bid specifications does not provide that treatment must be rendered within thirty days; rather, the specification is that the treatment be required within thirty days. The exclusionary provision provided for in Reliable's specimen policy constitutes a significant restriction in coverage from the coverage described in the bid specifications. Therefore, the wording contained in J-1 of the exclusions of the specimen policy submitted by Reliable materially altered the specifications required by the School Board's Invitation to Bid number 89-1105 for student accident insurance. Reliable's bid was properly rejected from consideration in the award of the bid. Paragraph 7 of page 3 of 14 pages, Special Conditions, Bid No. 89- 1105, states as follows: All bids shall be for the benefits as specified in this Bid Document. In the event of any conflict between the terms of these specifications and terms of the Policy issued on a bid submitted under these specifications, it is understood and agreed to by the bidder and the insurance company that the policy is amended to conform with these specifications, unless specifically waived in writing by the School Board of Broward County, Florida. The clear intent of the wording in Paragraph 7 of the Special Conditions provides that if the policy that is issued after the bid is awarded does not conform to the bid, then the effect of Paragraph 7 of the Special Conditions is to automatically reform the policy to be read as though it did comply with the bid. However, all bids must be for the benefits (coverage) specified in the Invitation to Bid. Paragraph 7 of the Special Conditions found on Page 3 of the Invitation to Bid applies, if at all, only after the award of the bid and does not serve to cure defects in bid submissions. Reliable's policy does not conflict with the bid specifications; rather, its bid materially alters the bid specifications. Paragraph 1 of page 3 of 14 pages, Special Conditions, Bid No. 89- 1105, states as follows: The School Board of Broward County, Florida, desires bids on Student Accident Insurance as specified herein. This aid is to, establish a two (2) year term contract from August 29, 1988 through August 30, 1990 or the day preceding the opening day of school for students in the school year 1990-91. Prices quoted shall remain firm for the two year contract period. Requiring policies to be firm or definite for multiple contract periods is common in the industry. To require prices to remain firm for a 2- year contract period means that the premium for year one and the premium for year two must each remain fixed at the amounts bid for those respective years. The fact that there are different premiums for the two different years does not require a separate policy. The submission by Davis-Gillingham Associates, Inc., was in compliance with that bid specification of the Invitation to Bid as the premium for each coverage year is not required to be identical. Rather, the prices quoted for the two coverage years may not be altered during the contract period.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying the bid protest of The Reliable Life Insurance Company and awarding Bid No. 89-1105 to Davis-Gillingham Associates, Inc. DONE and RECOMMENDED this 27th day of October, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3842BID Petitioner's proposed findings of fact numbered 1-6, 11, 13-15, 25, 27, 29 and 30 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 7, 8, 16-19, and 22 have been rejected as being irrelevant to the issue under consideration herein. Petitioner's proposed findings of fact numbered 9, 10 and 20 have been rejected as not being supported by the weight of the credible evidence. Petitioners proposed finding of fact numbered 12 has been rejected as being unnecessary for determination of the issues herein. Petitioner's proposed findings of fact numbered 21, 23, 24, 26, 28 and 31 have been rejected as being contrary to the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1-4, 6, 7, 10, 11, 13, 16, 17, 20 and 21 have been adopted either verbatim or in substance in this Recommended Order. Respondents's proposed findings of fact numbered 5, 8, 9, 12, 14, 15, 18 and 19 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: William J. Leary, Superintendent School Board of Broward County 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 K. Michael Swann, Esquire William M. Rishoi, Esquire 280 West Canton Avenue, Suite 240 Winter Park, Florida 32789 Edward J. Marko, Esquire Post Office Box 4369 Fort Lauderdale, Florida 33338 Arthur Hanby, Director School Board of Broward County Purchasing Department 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $750.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 3. Conditional licensure status is imposed on the Respondent beginning on October 31, 2012, and ending November 26, 2012. 1 Filed July 29, 2013 2:53 PM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this 29 day of de uf , 2013. 4 > Elizabeth Duda Ageficy for , secretary 4lth Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct. of this Final Order was served on the below-named retis ot prs , 2013. eS <—/ a persons by the method designated on this Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Linzie F. Bogan Administrative Law Judge Division of Administrative Hearing (Electronic Mail) Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Thomas J. Walsh II Anna Small, Esq. Office of the General Counsel Allen Dell Agency for Health Care Administration 202 South Rome Avenue (Electronic Mail) Suite 100 Tampa, Florida 33606 (U.S. Mail)
The Issue Whether the Department of Management Services ("DMS") or the ("Department") has an unpromulgated rule which states, in effect, that the Department will select the solicitation procurement method known as an Invitation to Negotiate when it is in the Department's best interests to do so even if rule requirements for the selection have not been met? Whether the statement contained in the Invitation to Negotiate (ITN Number-DSGI 00-001) issued in April 2000 by the Division of State Group Insurance ("DSGI") for the purchase of pharmacy benefits management services to the effect that "a late-submitted offer to negotiate will be returned unopened" is an unpromulgated rule? Whether, although not pled, the Petitioner proved at final hearing the existence of other unpromulgated rules?
Findings Of Fact The findings of fact in the Recommended Order in Case No. 00-3900BID are hereby incorporated into this Final Order. In the ITN there is the statement that "PROPOSALS RECEIVED AFTER THE SPECIFIED TIME AND DATE WILL BE RETURNED UNOPENED." It was not proven that Dr. Phillips on behalf of DSGI made the statement to the effect that "DMS will use the Invitation to Negotiate whenever it is in the agency's best interest to do so." Other statements made by DSGI in the context of selection of the ITN as the solicitation method in this case were statements that demonstrated DSGI was not in compliance with an existing DMS Rule, Rule 60A-1.001(2), Florida Administrative Code.
The Issue At issue in this proceeding is whether respondent committed the offenses charged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Petitioner, Department of Professional Regulation (Department), is the state agency charged with regulating the practice of pharmacy and the operation of pharmacies pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 465, Florida Statutes. At all times material hereto, respondent, South Miami Heights Pharmacy, was a registered community pharmacy in the State of Florida, having been issued license number PH 0000880. Respondent's business is located at 11503 Quail Roost Drive, Miami, Florida 33157-6547. On or about July 9, 1991, an inspection was conducted of respondent's premises by the Department's investigator, Agustin Garcia, and a Department of Health and Rehabilitative Services (HRS) drug agent supervisor, Cesar Arias. Such inspection revealed approximately fifty nine (59) containers of expired medicinal drugs within the pharmacy dispensing area; however, only approximately seventeen (17) containers clearly bore an expiration date that was over four months old at the time of the inspection. [Petitioner's exhibit B]. Additionally, five (5) containers of Salbutan Inhalor, a foreign-made version of a domestic product that has not been approved for use in the United States, was found immediately adjacent to, but not within, the pharmacy dispensing area. In addition to the expired medicinal drugs located in the pharmacy dispensing area, a number of expired pharmaceuticals were located outside the pharmacy dispensing area. Such pharmaceuticals, the quantity of which does not appear of record, were, however, properly secured or "quarantined" for ultimate return to the manufacturer in accordance with the provisions of Rule 10D- 45.0535(6), Florida Administrative Code. Mr. Pablo Hernandez, the owner of petitioner, South Miami Heights Pharmacy, was not present when the aforesaid inspection occurred, nor had he been on the premises for some time prior thereto. Rather, Mr. Hernandez had been absent since April 12, 1991, when he underwent an operation for prostate problems, and did not return until July 30, 1991. In the interim, Mr. Hernandez' wife, Eva, supervised petitioner's business operations, but, since she was not a licensed pharmacist, never entered or supervised the pharmacy operation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered finding respondent guilty of violating Section 499.055(5), Florida Statutes, and Rules 10D-45.0535(5) and 10D-45.0365(15), Florida Administrative Code, which places respondent's license on probation for a term of two (2) years, subject to such terms and conditions as the Board of Pharmacy deems appropriate, and which imposes an administrative fine of $1,000.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of February 1993. WILLIAM J. KENDRICK 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 19th day of February 1993. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 2. 2-4. Addressed in paragraph 3, otherwise rejected as contrary to the credible proof. Respondent submitted a proposed recommended order which did not set forth any proposed findings of fact. To the extent the section denoted "Background" could be so constructed, it is rejected as recitation of testimony and argument, and not findings of fact. COPIES FURNISHED: Wayne H. Mitchell, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0752 George M. Santamarina, Esquire Toledo Center, Suite 204 7175 Southwest 8th Street Miami, Florida 33144 John Taylor, Executive Director Board of Pharmacy Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
