The Issue The issues for determination in this case are: 1) whether the Respondent’s decision to award a contract to operate a juvenile work release halfway house program to the Henry and Rilla White Foundation was clearly erroneous, contrary to competition, arbitrary, or capricious; and 2) whether the award of the contract is void as a matter of law because of procedural violations by the selection committee and the Respondent.
Findings Of Fact Petitioner, JUVENILE SERVICES PROGRAM, INC. (JSP), is a Florida-based private not-for-profit corporation which was founded to serve troubled youths and their families. Respondent, FLORIDA DEPARTMENT OF JUVENILE JUSTICE (DJJ), is the agency of the State of Florida with the statutory authorization for planning, coordinating, and managing programs for the delivery of services within the juvenile justice consortium. Section 20.316, Florida Statutes. RFP #16P05 On September 27, 1996, Respondent DJJ advertised and released a Request For Proposal (RFP) #16P05 to provide a Work Release Halfway House for Delinquent Males in District IX, serving Palm Beach County, Florida. In response to the RFP, four bids were submitted to DJJ by the following parties: the Henry and Rilla White Foundation, Total Recovery, Inc., Psychotherapeutic Services Inc., and Petitioner JSP. The DJJ bid selection committee of evaluators for the RFP were Jack Ahern, Steve Brown, Jaque Layne, Patricia Thomas, and from the Office of Budget Finance, Fred Michael Mauterer. The contract manager for the RFP was Diane Rosenfelder. On October 28, 1996, each DJJ evaluator was sent a package consisting of a copy of the RFP, which included the evaluation sheet, a copy of each proposal submitted to DJJ, a conflict of interest questionnaire, a certificate of compliance, a description of the proposal selection process, and instructions. Each package sent to the evaluators had a different colored cover sheet which identified the specific evaluator. After completing the evaluations, each evaluator returned the signed conflict of interest forms, and certificates of compliance to Diane Rosenfelder. The evaluations were identified by the color of the cover sheets, as well as the signed conflict of interest forms and certificates of compliance. DJJ initially intended to provide each evaluator with an Award Preference Form which were to be used in the event the final evaluation scores were very close. The Award Preference Forms, however, were inadvertently omitted from the packages sent to the evaluators. The evaluation process resulted in the Henry and Rilla White Foundation receiving the highest average score of 391.50 points. Petitioner JSP received the second highest average score of 360.50 points. The award of points was determined by each evaluator which is indicated by the evaluator checking the box on Section 5 of the evaluation sheet, or by filling in the appropriate point score. The contract manager, Diane Rosenfelder, corrected addition errors on the scoring sheets. The budget part of the evaluation was completed by Fred Michael Mauterer, Senior Management Analyst Supervisor. In accordance with the evaluation scores, DJJ determined that the best response was submitted by the Henry and Rilla White Foundation which was awarded the contract. On November 8, 1996, Petitioner JSP filed a timely Notice of Protest of the award, which was supplemented on December 9, 1996 with the required posting of a $5000 bond. Alleged Errors and Discrepancies in the Evaluation Process Petitioner JSP alleges that several errors in the evaluation process require that the contract award to the Henry and Rilla White Foundation be set aside and that the RFP be reissued and rebid. Petitioner first alleges that the bid selection committee failed to follow the certain instructions during the evaluation process. The instructions were prepared by the contract manager Diane Rosenfelder. The instructions were not required by rule or policy of DJJ. The contract manager considered the instructions advisory in nature. The instructions stated that the members of the bid selection committee should not contact each other with respect to the proposals under evaluation. The evaluators, however, were permitted to contact the contract manager who would record all questions and answers. There were instances in which the contract manager did not record questions from the evaluators to the contract manager. There is no evidence that the evaluators contacted each other regarding the proposals during the evaluation process. The instructions asked the evaluators to explain high or low scores given to the proposals under consideration. None of the evaluators made specific explanations of high or low scores. The contract manager who prepared the instructions considered this instruction discretionary, and there is no evidence that any score given by an individual evaluator was without basis. The evaluators were instructed to provide page numbers from the proposals used to score each item. None of the evaluators complied with this instruction. As indicated above, however, there is no evidence that the actual scores give by the evaluators were without basis. As set forth above, none of the evaluators received the Award Preference Form. This form was to be used in the case of very close scoring of the proposals. The actual scores from the bid selection committee reflected a clear preference for the proposal submitted by the Henry and Rilla White Foundation. Accordingly, there was no demonstrated need for DJJ to rely upon the Award Preference Forms in making its decision to award the contract. The letter of introduction sent to the bid selection committee members from the contract manager stated that the proposal score sheets and the evaluators award preference and the best interest of the district would be considered in determining the award. The contract manager considered this statement advisory in nature. DJJ has not promulgated specific standards relating to the best interest of District IX; however, the proposal evaluation forms sent to the bid selection committee inherently include criteria setting out standards for the determination of the best proposal for the district. The evidence reflects that one of the evaluators, Patricia Thomas, erroneously checked the box on each proposal which gave each of the proposals fifty points as certified minority enterprises, and erroneously wrote “50” as a point count on one evaluation score sheet. None of the proposals included a copy of the certification for minority enterprise as required by Section 287.0945, Florida Statutes, and the contract manager recognized that the evaluator had made a mistake in this regard. In response to this error, the contract manager consulted her supervisors. Because each proposal was awarded the same points, DJJ did not consider the evaluator’s error as prejudicial to any proposal or to the bid selection process, and did reject the evaluator’s scoring of the proposals. There is no showing that Petitioner JPS was prejudiced by DJJ’s decision in this regard. The contract manager added signature lines to the last page of the evaluation sheets. Some of the sheets were returned unsigned from the evaluators. There is no DJJ requirement that the evaluation sheets specifically contain the signatures of the evaluators. The contract manager did not consider the signature page mandatory, and the evaluation proposal score sheets were clearly identified by both color coding and the certificates of conflict signed by the evaluators. There is no evidence that the procedural discrepancies affected the substance of the evaluator’s scoring of the proposals, nor did the procedural discrepancies prejudice the evaluators’ consideration of Petitioner’s proposal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent enter a final order upholding the proposed agency action to award the contract to the Henry and Rilla White Foundation, and dismissing the Petition filed in this case. DONE and ORDERED this 23rd day of April, 1997, in Tallahassee, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1997. COPIES FURNISHED: Dominic E. Amadio, Esquire Republic Bank Building, Suite 305 100 34th Street North St. Petersburg, Florida 33713 Scott C. Wright, Assistant General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue is whether Petitioner is entitled to receive an allocation of affordable housing funds from the Florida Housing Finance Corporation as a result of the alleged improper scoring of another applicant's application during the 2001 funding cycle.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Parties Petitioner is a Florida limited partnership that is engaged in the business of developing affordable housing projects. FHFC is a statutorily-created public corporation. It is the State's designated "housing credit agency," and it is responsible for the allocation of tax credits and the distribution of other funds for the development of affordable housing projects. FHFC is administratively housed in the Department of Community Affairs (DCA), and it is governed by a nine-member board. Eight members of the board are appointed by the Governor; the ninth member of the board is the Secretary of DCA, who serves in an ex officio capacity. FHFC Programs The programs administered by FHFC include the State Apartment Incentive Loan (SAIL) Program and the Low-Income Housing Tax Credits Program (Housing Credits Program). The funds from the SAIL Program are used to provide low-interest loans to developers. The funds come from various sources of state revenue, and the loans are typically secured by a second mortgage on the property on which the affordable housing project is developed. The Housing Credits Program is governed by federal law, namely Section 42 of the Internal Revenue Code. The program provides dollar-for-dollar federal tax credits to developers that can be used over a 10-year period so long as the related affordable housing project satisfies the requirements of the Internal Revenue Code throughout that period. The tax credits can be, and often are sold or "syndicated" by the developer in order to generate the funds necessary to construct the project. Each state receives an annual allotment of tax credits from the federal government to be used in its Housing Credits Program. For 2001, Florida's allocation of tax credits was approximately $23.9 million, of which approximately $20.7 million was available for allocation. FHFC received requests totaling approximately $81.3 million in the 2001 funding cycle for the available $20.7 million in tax credits Some of the available tax credits are apportioned by FHFC into a "set-aside" for projects in small counties. Only projects located in small counties compete for the tax credits in the small county set-aside. For 2001, the small county set-aside was $1,739,586.90, and FHFC received requests for those funds totaling approximately $5.5 million. FHFC Evaluation Process Because the funds requested from the SAIL Program and the Housing Credits Program typically exceed the available funds (as was the case in 2001), FHFC has established a competitive application process through which the applications are evaluated, scored, and ranked. The applications are first reviewed for all of the "threshold" items identified in the application forms and FHFC’s rules. If an application does not have all of the threshold items, it is rejected. By contrast, the failure to include non- threshold items or the failure to provide complete, consistent, and accurate information in the format and location prescribed in the application forms results in the application not receiving the full amount of points available or the imposition of a penalty that reduces the overall score given to the application. Next, FHFC staff reviews all of the applications that were not rejected for omitting a threshold item. That review results in a “preliminary score” for each application, which is provided to all of the applicants. Then, there is a 10-day period in which applicants may challenge FHFC's preliminary scoring of their application or the preliminary scoring of any other applicant's application. Such a challenge is called a Notice of Possible Scoring Error (NOPSE). FHFC provides each applicant the NOPSEs relating to its application as well as a statement of FHFC's position on the NOPSE. The applicants are then given a period of time -- referred to as the "cure period" -- to submit additional documentation, revised forms or other information they deem appropriate to address the issues raised in the NOPSEs, FHFC's comments on the NOPSEs, and/or FHFC's preliminary scoring of the application. The additional submittals are referred to as "cures." After the cures are submitted, the applicants again have an opportunity to bring deficiencies in competing applications to FHFC's attention. The mechanism for doing so is a Notice of Alleged Deficiency (NOAD). After reviewing the cures and any NOADs, FHFC staff prepares a revised score for each application. This score is referred to as the “pre-appeal score.” Along with the pre-appeal scores, each applicant is given notice of its right to challenge its score through a formal administrative proceeding at the Division or through an informal proceeding before a hearing officer appointed by FHFC. Most applicants opt for an informal hearing because, as a result of the time constraints imposed by the funding cycle, those who opt for a formal hearing will not be funded until a subsequent cycle if they prevail at the hearing. After all of the informal hearings are completed and any scoring adjustments are made based upon the results of those hearings, the applications are ranked based upon their “post- appeal scores.” The post-appeal scores and rankings are approved by the FHFC board and are used to award the available funds. The standards and procedures for ranking applications for tax credits are set forth in the Qualified Allocation Plan (QAP). The QAP is required by the Internal Revenue Code and it is adopted and incorporated by reference in FHFC's rules. Among other things, the QAP establishes the priority of applications which receive the same scores. That priority is established through two "tie-breakers." The first tie-breaker is whether the application is in Group A or Group B, and the second tie-breaker is a random lottery number assigned to the application prior to the final rankings. The group into which the application falls is determined based upon the Corporation Funding per Set-aside Unit (CFSU) amount identified on Form 10 of the application. Group A includes the 65 percent of the applications that have the lowest CFSU amounts. Applications in Group A receive priority over applications in Group B in the event that the applications receive the same final score. For applications in the same group with the same score, priority is given to the application with the lower lottery number. 2001 Combined Cycle Generally The 2001 funding cycle was referred to as a "combined cycle" because it combined the SAIL Program, the Housing Credits Program, and another program not implicated in this case called the Home Investment Partnership Program (HOME Program), into a single application and review process. The application package for the 2001 Combined Cycle included 23 numbered forms, not all of which were applicable to every applicant. The applications submitted in the 2001 Combined Cycle, including those submitted by Petitioner and TWC, were reviewed and scored in accordance with the procedures described above. Relevant Forms Form 1 of the application is entitled "Applicant and Development Data." Page 10 of Form 1 includes the following statements: The Applicant and all Financial Beneficiaries understand and agree that full points will be awarded only in the event that all information required by each form is provided in accordance with the Application requirements. Failure to provide complete, consistent and accurate information in the format and location prescribed by the Application will result in a REDUCTION OF POINTS OR REJECTION OF THE APPLICATION as indicated on each form. Only information contained within the Application will be considered for purposes of points awarded or appealed. . . . . Form 5 of the application is entitled "Local Government Contributions." Page 1 of Form 5 states that: Each applicable verification form must have an Original signature by one of the designated signatories indicated on the appropriate verification form. Zero points will be awarded if Applicant uses the incorrect form or if the form is not signed by one of the designated signatories. Separate verification forms are included in Form 5 for the different types of local government contributions. There are separate verification forms for grants (Form 5, page 6), fee waivers (Form 5, page 7), loans (Form 5, page 8), tax exempt bond financing (Form 5, page 9), “other contributions” (Form 5, page 10), and exemptions from ad valorem taxation (Form 5, page 11). The verification form for fee waivers states that “[n]o credit will be given for fee waivers unless the computations by which the total amount of each waiver is determined accompanies this verification form in the Application.” That same language is not included on the verification form for "other contributions”; however, that verification form includes a sentence stating that “[t]he amount of this contribution was calculated as shown behind the tab labeled ‘Form 5, Exhibit .’” The verification form for “other contributions” also includes the following statement: THIS FORM MUST BE SIGNED BY THE MAYOR, CITY MANAGER, COUNTY MANAGER/ADMINISTRATOR, CHAIRPERSON OF THE CITY COUNCIL/COMMISSION OR CHAIRPERSON OF THE BOARD OF COUNTY COMMISSIONERS. . . . . OTHER SIGNATORIES ARE NOT ACCEPTABLE. THE APPLICANT WILL NOT RECEIVE CREDIT FOR THIS CONTRIBUTION IF THE VERIFICATION FORM IS IMPROPERLY SIGNED AND/OR DOES NOT HAVE AN ORIGINAL SIGNATURE IN THE ORIGINAL APPLICATION. Form 6 of the application is entitled "Local Government Planning Efforts." Pages 2 and 3 of Form 6 are the verification forms for any affordable housing incentives being offered for the project by the applicable local government. Both pages include the following statement: This form must be signed by the MAYOR, CITY MANAGER, COUNTY MANAGER/ADMINISTRATOR, OR CHAIRPERSON of the CITY COUNCIL/COMMISSION OR CHAIRPERSON of the BOARD OF COUNTY COMMISSIONERS. OTHER SIGNATORIES ARE UNACCEPTABLE. ZERO POINTS WILL BE AWARDED. . . . . The application and all of these forms are adopted and incorporated by reference in FHFC's rules. Applications Submitted by Petitioner and TWC Petitioner submitted an application for an allocation of $561,000 in tax credits and for an award of funding under the SAIL Program for its proposed Ochlocknee Pointe development in Gadsden County. Petitioner's application was designated by FHFC as No. 01-131CS. A competing application for $890,000 in tax credits was filed by TWC for its proposed Windsong II development in Columbia County. TWC's application did not seek funding under the SAIL Program. TWC’s application was designated by FHFC as No. 01-125C. Neither Petitioner nor TWC applied for funds under the HOME Program. Because of their locations, the applications submitted by Petitioner and TWC were competing for the tax credits available in the small county set-aside. There were also seven other applicants competing for the tax credits in the small county set-aside. Alleged Deficiencies in TWC's Application and Initial Scoring by FHFC Staff Form 5 of TWC's original application indicated that the project had not received any local government contributions. As a result, the original application did not include any executed local government contribution verification forms. Form 6 of TWC's original application did not identify any affordable housing incentives being offered by the local governments. As a result, the original application did not include any executed verifications forms for such incentives. As part of its cure submittals, TWC submitted a revised Form 5 and a revised Form 6. The revisions were made because TWC had received verification of local government contributions and affordable housing incentives. The revisions included executed verification forms for Form 5 (page 10)1 and for Form 6 (pages 2 and 3). The verification forms at issue in this proceeding were executed by Dale Williams; the title listed for Mr. Williams was County Coordinator. A letter signed by Mr. Williams was included along with the “other contributions” verification form (Form 5, page 10). The letter was on the letterhead of the Board of County Commissioners of Columbia County and includes the words "County Coordinator" under Mr. Williams name and signature. The letter was designated as and included in the cure submittal behind a tab marked "Form 5, Exhibit A." The letter states that "Columbia County will provide the installation of roadway turn lanes at Branford Highway to service Windsong II Apartments for a contribution equivalent to a total value of $102,000." The letter does not include any calculations showing how the “total value of $102,000” was computed, and no such calculation was included elsewhere in TWC's cure submittals. There is nothing in TWC’s cure submittals that explained the nature of the County Coordinator position or stated that Columbia County does not have a County Manager/Administrator designated as such. TWC was not awarded four points on Form 6 because County Coordinator was not specifically listed along with “City Manager, County Manager/Administrator, or Chairperson of the City Council/Commission or Chairperson of the Board of County Commissioners” as an authorized signatory for that form. For that same reason, TWC also was not awarded any points on Form 5 for the $102,000 local government contribution referred to in Mr. Williams' letter. That contribution was worth 7.64 points. TWC was also penalized 1.5 points on Form 5 because no documentation was provided showing how the "total value of $102,000" was calculated for the local government contribution described in Mr. Williams' letter. These scoring determinations were made by Debra King, the FHFC staff person who reviewed TWC’s application and cure submittals, and they were concurred in by Ms. King’s “scoring partner.” Scoring Appeals by Petitioner and TWC FHFC completed the scoring process for the 2001 Combined Cycle on August 1, 2001, when it advised the applicants of their pre-appeal scores. TWC's pre-appeal score was 608.86, which included the penalty and point reductions described above. Petitioner's pre-appeal score was 620.5, which included a 1.5 point penalty for Petitioner’s failure to specify a unit of measurement on Form 7. TWC and Petitioner both requested informal hearings to challenge their pre-appeal scores. Those hearings, which are commonly referred to as “scoring appeals,” were conducted by hearing officers appointed by FHFC. At the informal hearing on TWC’s scoring appeal, FHFC conceded that Mr. Williams was an authorized signatory for Forms 5 and 6 because, as the "County Coordinator," Mr. Williams was the de facto County Manager/Administrator for Columbia County. FHFC also conceded that documentation relating to the computation of the $102,000 in roadway improvement being contributed by Columbia County was not necessary because it was a lump-sum contribution. FHFC agreed to re-score TWC's application in light of those concessions. The concession that Mr. Williams was an authorized signatory was based upon FHFC staff's review of the job description for the County Coordinator position and the organizational chart for Columbia County attached to TWC's Petition for Informal Administrative Hearing as well as phone calls that FHFC staff made to Columbia County after receiving that information to confirm that the county did not have a County Manager/Administrator designated as such. The concession that a document showing how the local government contribution was calculated was based upon FHFC staff’s review of excerpts from prior applications that were attached to TWC’s Petition for Informal Administrative Hearing. Those applications apparently received full points for their “other contributions” even though they did not include detailed calculations for the contributions; however, almost all of the excerpts showed at least a general breakdown of the items which made up the total shown on the verification form. As a result of FHFC's concessions, the hearing officer concluded that the TWC’s scoring appeal was "moot" and she issued a Recommended Order which contained no findings of fact or conclusions of law. The hearing officer's Recommended Order, which FHFC adopted in toto as its Final Order, recommended that TWC's application "be rescored to reflect the removal of the 1.5-point penalty to Form 5; to add 7.64 points to Form 5; and to add 4 points to Form 6." The net effect of that rescoring was that TWC's application received a post-appeal score of 622. Petitioner did not fare as well in its scoring appeal. The hearing officer made the following findings of fact with respect to the 1.5-point penalty assessed based upon Petitioner's failure to specify the unit of measure on Form 7: Form 7, Page 11, is entitled "Local Government Verification that Development is Consistent with Zoning and Land Use Regulation." On Page 11 of Form 7, there is a requirement to state the "Size of Parcel (acreage, number of lots, or square footage)." In its Revised Page 11 of Form 7 [Petitioner], in response to that requirement entered the numbers "9.99" without any accompanying unit of measure. It is clear from a review of other pertinent parts of the application that the appropriate unit of measure to accompany the number "9.99" is "acres." Further, its [sic] reasonable to conclude on the face of [Petitioner's] Revised Page 11 of Form 7, when read in conjunction with the entire application . . . , that the number "9.99" refers to acres. (Citations omitted). Despite those findings, the hearing officer recommended that the 1.5-point penalty be affirmed. That recommendation was based primarily on the following conclusion of law: The instructions on Page 11 of Form 7 require a unit of measure be appended to the number of units placed in the answer blank. While it may be true that such a result is particularly frustrating to the applicant in light of the reality that its omission has created no confusion or inconsistency nor diminished the accuracy of the application, [FHFC] has nevertheless adopted rules requiring strict compliance with regard to providing complete information in the format and location prescribed by the instructions on the forms. That rule cannot be ignored. Thus, the failure of [Petitioner] to include a unit of measure on its Revised Page 11 of Form 7 is an error that does result in a single 1.5-point penalty. FHFC adopted the hearing officer's findings of fact, conclusions of law, and recommendation in toto as its Final Order, and Petitioner did not seek judicial review of the Final Order. As a result, Petitioner's pre-appeal score of 620.5 became its post-appeal score. Petitioner's application was in Group B, and its lottery number was 68. TWC's application was in Group A, and its lottery number was 27. Thus, in the event that Petitioner and TWC received the same final score, priority for funding would be given to TWC. If Petitioner's application had received a higher score than TWC's application, then Petitioner's application would have been in the "funding range" and Petitioner would have received an allocation of tax credits for its project. If Petitioner had received the tax credits, it would have also received SAIL funding. The record does not reflect the total amount of tax credits and SAIL funding that Petitioner would have received; however, if TWC's application was moved below Petitioner's application on the final funding list (Exhibit R2), then $339,164.90 in tax credits would have been available to Petitioner after the higher-ranked applicants were fully funded.2 Additional Facts Established at the De Novo Final Hearing in this Case The $102,000 “total value” for the roadway improvements referred to in Mr. Williams' letter is reasonable. Indeed, the itemized cost-estimate prepared by professional engineer Greg Bailey in the design phase for the improvements was $106,064. The $102,000 in roadway improvements cannot be characterized as a lump-sum contribution. As Mr. Bailey’s cost- estimate shows, the improvements include 16 components such as paving, grading, and drainage; and a cost-per-unit and an estimated quantity is listed for each component. At the time Mr. Bailey prepared the cost-estimate, he was working for C&W Land Trust. Accordingly to one of the documents in TWC’s application (Form 7, Exhibit A), C&W Land Trust was the landowner from whom TWC acquired the property where its Windsong II project will be located. Mr. Bailey provided the cost-estimate to the county engineer for Columbia County for his use in evaluating bids submitted for the construction of the roadway improvements. The county engineer forwarded a memo to Mr. Williams on June 14, 2001, stating that the construction cost for the improvements “is estimated to be $102,000.00.” Requiring documentation to support the calculation of a local government contribution is important because it helps prevent an applicant from “gaming” the system in order gain an advantage in the scoring of its application. For example, where the contribution is based upon a per-unit amount, the calculations help to ensure that the number of units committed by the applicant as a basis for the local government contribution is the same number of units committed by the applicant in the application to FHFC. Documentation showing the calculation of the $102,000 local government contribution referenced in Mr. Williams letter is equally important because without such documentation there was no way for FHFC to determine during its review whether that figure is a reasonable estimate of the cost of the roadway improvements which are being contributed by Columbia County. It is necessary for FHFC to be able to make such a determination because the points awarded to the applicant for the contribution are based in large part on the amount of the contribution. At the time that TWC submitted the verification forms and letter signed by Mr. Williams, Columbia County did not have a position called County Manager or County Administrator. The County Coordinator position was the de facto County Manager/Administrator. The County Coordinator was appointed by the Board of County Commissioners to "administer all programs and to ensure that County government operates efficiently and effectively." The County Coordinator reported directly to the Board of County Commissioners and, among other duties, the position supervised all department heads (except the head of Public Works Department) and provided "direction, leadership and supervision to all County Department heads." Presently, Columbia County has a County Manager and Mr. Williams serves in that position. The job duties for the County Manager position are virtually identical to those of the County Coordinator position. Indeed, even though text of the position description no longer excepts the Public Works Department from Mr. William’s supervision, the county’s organizational chart still shows the Public Works Department outside of Mr. Williams chain of command.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Housing Finance Corporation issue a final order which determines that Petitioner is entitled to an allocation/award of tax credits and SAIL funds in the next available cycle. DONE AND ENTERED this 30th day of March, 2004, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2004.
The Issue Whether the selection was arbitrary because evaluators were not state employees and were not technically trained? Whether the selection was arbitrary to the extent non-price criteria were used in comparing proposals? Whether Urban Media's proposal was non-responsive because no organizational chart was supplied, because it contained no financial statement or any "statement of work" or a statement incorporating all specifications? Whether Blue Chip's $2500 estimate of administrative costs was responsive? Whether Blue Chip's proposal was non-responsive for failure to quote an unconditional price or to state specific objectives? Whether Blue Chip's financial statements were acceptable, being based on estimates pertaining to a construction company or to a "systems-management" company? Whether Blue Chip had adequate organizational capability to gather the staff to perform the contract? Whether its proposal was sufficiently definite or based on impermissible estimates?
Findings Of Fact By request for proposals No. 88-277, HRS solicited offers to create a statewide media campaign publicizing its "One Church, One Child Program," an effort to enlist churches with African American congregations in placing African American children for adoption with African American families. Proposals Responsive Three days after the June 24, 1988 deadline, Pamela Ann Eby opened every proposal that had been filed on time. She and two other HRS employees reviewed the proposals for responsiveness. Before referring them to an evaluation committee, comprised principally of members of the One Church, One Child Program Board of Directors, they determined that all four were "technically adequate." This included Urban Media's proposal, Joint Exhibit No. 1, which contained a "statement of work," HRS Exhibit No. 9, financial statements, HRS' Exhibit No. 10, a statement of objectives, HRS' Exhibit No. 12, and a timetable both for production and for media exposure. HRS' Exhibit No. 13. Blue Chip's own witness acknowledged that signing the proposal, including ancillary forms, as Urban Media's representatives did, incorporated all specifications called for in the request for proposals, by reference. Nothing was improper or deficient about the "administrative expense" Urban Media budgeted. Although Blue Chip produced a witness who took issue with the level of detail in some items of Urban Media's proposal, the witness testified that he could not say any deviations he perceived were material. Urban Media's proposal was responsive to the request for proposals. Clear Choice Before deliberating as a group, each committee member evaluated each proposal individually, using the form "proposal rating sheet" that had been furnished to the proposers as part of the request for proposals. The Rev. Messrs. R. B. Holmes, W. O. Granger, Elroy Barber, Willie C. Bell, Jr., the Rev. Ms. Cynthia Parker, who has had experience with media and public relations, and Dr. Juanita Clay, the HRS employee who is state coordinator of the Program, served as the committee that assessed the proposals' comparative merits. The proposal rating sheets asked raters to assign points for various criteria. Of 104 possible points, Blue Chip received scores ranging from 21 to The lowest score any committee member gave Urban Media exceeded Blue Chip's highest score by 27 points. At least one committee member gave Urban Media a perfect 104 score. When they met to make their decision, the committee unanimously chose Urban Media. The committee wanted a "top quality" media campaign. Blue Chip is a construction company that has also installed computers. They questioned Blue Chip's ability to deliver at all, and remarked the lack of any previous work of this kind. One committee member reportedly said, "If we're adding on to a building, maybe Blue Chip is who we want to use." The committee recommended that new proposals be solicited, if necessary, rather than making an award to Blue Chip, even though they ranked Blue Chip's Second. By letter dated July 6, 1988, Ms. Eby notified Urban Media that its proposal had been selected. Award of the contract has not been accomplished pending the present proceedings.
The Issue Whether Petitioner is entitled to service credit in the Florida Retirement System (FRS) from June 1, 1995, through August 2001.
Findings Of Fact At all times material, Petitioner has been a school psychologist, certified by the Florida Department of Education. From June 1995 through August 2001, Petitioner performed duties as a psychologist under "purchase of services agreements" with SBAC to perform special needs assessments for gifted children. These formal contracts were executed between Petitioner and SBAC in and for each successive school year during that period. Although there was the expectation that a new contract would be negotiated/signed each year, there was no guarantee to that effect. The annual contracts for June 1995 through August 2001, between SBAC and Petitioner provided that Petitioner was to assume all risks, and that he was a "consultant." They further provided that he was to be paid at a rate of $150.00 for each assessment he completed. Either party to the contract could terminate it on 30 days' notice. In pertinent part, the annual contracts described Petitioner as an independent consultant and not an employee in the following terms: * * * The CONSULTANT is an Independent Consultant and will perform all services at the Consultant's risk, assuming full responsibility for completion of the services stipulated below: Psychoeducational evaluations of students referred for determination of eligibility to the Gifted Program as shall be requested by the Board through its Director of Exceptional Student Education or Lead School Psychologist. All psychoeducational evaluations shall be completed within 30 days of having been received by the CONSULTANT. All reports and billing for services rendered by the CONSULTANT shall be submitted in a timely manner. All reports are to be submitted in triplicate. * * * CONSULTANT also acknowledges that in rendering the services provided herein, the CONSULTANT will be acting as an Independent Consultant, and not as an employee of the School Board of Alachua County. (Emphasis added.) The contracts contained no specific provision for reimbursement of Petitioner's expenses. However, a calculated amount for travel expenses was built into the fee of $150.00 per child. SBAC did not consider Petitioner an "employee" during the period of his annual contracts, because he was not filling a regularly established position. Accordingly, SBAC did not report to FRS any retirement information/contributions on the amounts it paid Petitioner during this period. Likewise, during the specified period, Petitioner received no paid leave or other employee benefits from SBAC. Also, SBAC did not provide unemployment compensation coverage or workers' compensation coverage for Petitioner during the specified period. While under contract as an independent consultant, Petitioner did not report his time to SBAC via a timesheet or otherwise. Rather, he was paid for each completed assessment under the terms of his respective contracts. He was only required to file his test results within five business days of the date he assessed a student. Between 1995 and 2001, SBAC reported Petitioner's pay for federal income tax purposes by Form 1099, rather than by Form W-2. A 1099 form is traditionally used for occasional employees and for independent contractors. W-2 forms are used for regular employees. Petitioner reported his income from SBAC as "other income," i.e. self-employment income. In a similar vein, SBAC withheld no taxes, Social Security, or Medicare deductions for Petitioner during this period. SBAC made no matching contributions for Social Security or Medicare. During the specified period, Petitioner was hired solely for special needs assessments. The time frame for testing by SBAC was established by law. Other than special needs assessments, Petitioner had no duties for SBAC, but he was assigned cases by SBAC as necessary to meet its caseload and time frame. Petitioner was only called upon when SBAC's school psychologists, who filled regularly established positions, were not available or could not timely meet the demand for assessments in a school year of 10 months' duration. Petitioner was required to hold a professional license as a psychologist to perform his SBAC contracts, and he was expected to perform his services for SBAC within the standards of his profession. His contracts provided for him to render personal services, and he could not hire an assistant or subcontract out his duties to another psychologist. SBAC could not instruct Petitioner how to do his job as a professional psychologist or what decision or recommendation to reach on any child. However, SBAC told him which text to use, and he was initially trained by another school psychologist on the testing instrument required by SBAC. Petitioner also received initial training from SBAC on how to report his assessments, and SBAC provided him with test kits and word processing assistance for each child assessment. SBAC set the format for his reports and provided him with a template therefor. Petitioner was not regularly provided office space by SBAC. However, he was allotted a room on each school's premises for each test, as he traveled from school to school within the county, and he had to do his testing on a day the specified child was in school and that school was open. Each test had to be completed within 30 days of its assignment, per his contracts. Petitioner was free to schedule one or more of his assessments on the dates most efficient for him, provided he met his deadlines. Petitioner's efforts for SBAC during this period might be described as "frequently recurring, but not regular." Petitioner never worked for SBAC more than four consecutive months during the entire time period at issue. During that period, he was on his own for defending his test results. Petitioner was required to carry his own professional liability insurance during the time in question, whereas then and now, SBAC "covered" their employees' liability insurance. Between 1995 and 2001, Petitioner was free to offer his professional services to other clients besides SBAC, but he chose not to do so. There was no profit or loss involved for SBAC or Petitioner in Petitioner's 1995-2001 service. Petitioner had to invest none of his personal funds to do his assessments. In September 2001, Petitioner was hired by SBAC in a half-time, regularly established position with all benefits, including sick leave, personal leave, and FRS membership. Upon that event, his duties were altered to include rendering any psychological assistance required by any SBAC school in which he was working. He is now reimbursed for travel by submitting request forms. He has continued to meet that job description and has filled that regularly established position to date. SBAC requested, and in 2002, received a letter-opinion from the Internal Revenue Service (IRS) interpreting various federal statutes and regulations. That IRS letter-opinion concluded that during the period in question, the Petitioner was an "employee" of SBAC; that various federal forms might require filing or amending by SBAC; and that SBAC and Petitioner might need to pay yet-to-be determined amounts. That IRS opinion is based on facts submitted by SBAC and not necessarily in evidence; is based on federal laws which are not determinative of the Florida retirement issue before this forum, and was not necessarily final. Accordingly, it is not binding in the instant case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request for membership and service credit in the FRS from June 1, 1995, through August 2001. DONE AND ENTERED this 10th day of February, 2005, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2005. COPIES FURNISHED: Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Leonard D. Jackson 2731-B Northwest 104th Court Gainesville, Florida 32606-7174 Alberto Dominguez, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue The issues presented are whether Respondent provided prohibited assistance to examinees in a Florida Comprehensive Assessment Test in violation of Subsections 1008.24(1)(c) and 1012.795(1)(c), (f), and (i), Florida Statutes (2002), and Florida Administrative Code Rules 6A-10.042(1)(c), (d), and 6B- 1.006(3)(a), (4)(b), and (5)(a), and, if so, what penalty should be imposed against the teaching certificate of Respondent.
Findings Of Fact Respondent holds Florida Educator's Certificate Number 685117 that is effective through June 30, 2007 (teaching certificate). Respondent is certified to teach elementary education, including math, science, and social studies. The Brevard County School District (District) has employed Respondent as a teacher for 14 years. In March 2003, the District employed Respondent as a fifth-grade teacher at Gemini Elementary School (Gemini). At Gemini, Respondent proctored the math and science portions of the Florida Comprehensive Assessment Test (FCAT) for some fifth graders. A student identified in the record as L.H. was upset after the first day of the FCAT exam. She told her mother that night that she felt like she had cheated because of assistance she received from Respondent during the FCAT. The next day, the mother of L.H. reported the allegation to administrators at Gemini. The administrators immediately replaced Respondent as a proctor, conducted an investigation, invalidated the test scores of 26 students, and subsequently transferred Respondent to Endeavor Elementary School (Endeavor). While the results of the investigation were pending, District employees conducted a public meeting to allow parents to voice their concerns over the invalidation of FCAT results. District employees did not address the specific facts surrounding the invalidation of the test results due to the pending investigation. However, the matter gained public attention as a result of the actions of District employees. District employees rely, in part, on FCAT scores to determine whether fifth-grade students progress to the sixth grade. In March 2003, Gemini fifth graders generally needed a passing score on the FCAT to progress to the next level. The District also needed to test at least 95 percent of its fifth- grade students or face applicable sanctions. The invalidation of the FCAT scores did not prevent any of the 26 students from progressing to the sixth grade. Nor did the invalidation of the FCAT scores prevent the District from testing 95 percent of the students in the District. On May 17, 2005, Petitioner issued an Amended Administrative Complaint (Complaint). The Complaint alleges, inter alia, that Respondent violated Subsection 1008.24(1)(c), Florida Statutes (2002). The statute makes it a violation for Respondent to knowingly or willfully coach an examinee during the FCAT or alter or interfere with the response of an examinee. Respondent signed an FCAT Test Administration Security Agreement (security agreement) indicating that she had read and understood the statutes and rules related to the administration of the FCAT. A test manual and training that proctors received before the FCAT directed Respondent to read test directions to examinees and provide no additional help. No finding is made that Respondent failed to follow test manual and training directions. The Complaint does not allege that Respondent failed to "follow test administration directions specified in . . . test . . . manuals. . . " within the meaning of Subsection 100824(1)(f), Florida Statutes (2002). Evidence of what transpired in Respondent's examination room in March 2003 consists of the testimony of five students and the written statement of another student, all of whom Respondent proctored. Incriminatory evidence consists primarily of the testimony of four students. Two students testified at the formal hearing, and two testified by deposition. The rest of the incriminatory evidence enters the record as a written statement from a fifth student completed in April 2003.1 Exculpatory evidence consists of the testimony of a sixth student who testified during the formal hearing. The six students are identified in the record, respectively, as T.M., L.M., S.O., J.C., L.H., and W.D. They were approximately 11 years old in March 2003. The five students who testified were approximately 13 years old at the time of the formal hearing, and approximately two years had passed since they took the FCAT. None of the students were enrolled in Gemini at the time of the hearing. For reasons discussed in the Conclusions of Law, it is legally insufficient for incriminatory evidence to merely show that Respondent provided assistance "by any means" or "in any way." The testimony and written statement must be clear and convincing that Respondent committed a specific act that is statutorily prohibited because it coaches an examinee or alters or interferes with the examinee's response (prohibited assistance).2 Incriminatory evidence must satisfy two standards to be clear and convincing. The two standards have been judicially differentiated as a qualitative standard and a quantitative standard.3 The qualitative standard requires incriminatory evidence to satisfy several requirements. The five students who testified and provided a written statement for Petitioner must be credible. The memory of each student must be clear and lack confusion. The content of the testimony and written statement must describe what was said and done during the FCAT examination precisely and explicitly and must distinctly recall material facts. The testimony and written statement must be direct, unequivocal, and consistent.4 Incriminatory evidence opining that Respondent assisted an examinee is conclusory if it is not substantiated by precise and explicit details that are distinctly remembered by the student and are sufficient for the trier of fact to independently determine whether the conduct of Respondent provided prohibited assistance to an examinee. Conclusory testimony fails the qualitative standard, is not clear and convincing, and invades the province of the trier of fact by denying the trier of fact an evidential basis to independently determine whether the specific acts committed during the FCAT amounted to prohibited assistance.5 Incriminatory evidence must also satisfy a quantitative standard. The sum total of incriminatory evidence must be of sufficient weight that it produces in the mind of the trier of fact a firm conviction, without hesitation, as to the truth of the factual allegations in the Complaint.6 The trier of fact bases the remaining findings on a determination of whether it is clear and convincing from the testimony and written statement of the six students that Respondent provided prohibited assistance to an examinee. The trier of fact first weighs the incriminatory evidence to identify evidence that satisfies the qualitative standard (qualitative evidence) and then determines whether the qualitative evidence satisfies the quantitative standard. The testimony of S.O. was credible, but the trier of fact was unable to assess the credibility of T.M. and L.M. by observing their demeanor and candor. The content of the testimony and written statement is conclusory. The incriminatory evidence lacks the precise and explicit detail needed for the trier of fact to independently substantiate the conclusions of the students. S.O., T.M., and L.M., each stated in conclusory fashion that Respondent provided assistance to the respective examinee on one question in the science portion of the FCAT. However, none of the students distinctly remembered their respective question; the answer each provided; or the details of the conduct or statements of Respondent.7 It is less than clear and convincing that the answer each student provided was any different from the answer the student would have provided without the alleged assistance from Respondent. The conclusory statements by S.O., T.M., and L.M. are tantamount to opinions on an ultimate issue of fact without precise and explicit details required for the trier of fact to independently find that the statements and conduct of Respondent concerning a specific question and answer provided prohibited assistance. Such conclusory evidence effectively invades the province of the trier of fact. The testimony of J.C. is sufficiently specific to satisfy the qualitative standard for clear and convincing evidence. J.C. testified that he asked Respondent what a waxing crescent moon is, and Respondent stated it is a one-fifth moon to the left. However, J.C. testified by deposition, and the trier of fact is unable to determine the credibility of J.C. by assessing the demeanor and candor of the witness. Moreover, it is less than clear and convincing that Respondent provided J.C. with the answer to the question, coached J.C., or altered or interfered with the response of J.C.8 There is no evidence that the response J.C. provided to the question was any different from the response he would have provided in the absence of the alleged assistance from Respondent. The testimony of L.H. is credible and sufficiently detailed to satisfy the qualitative standard for clear and convincing evidence. L.H. testified that Respondent answered an inquiry from L.H. by stating that the test question has nothing to do with the sun and the moon and to take away all the answers about the sun and the moon. L.H. testified that only one answer remained. The testimony of L.H. also provided sufficient detail to enable the trier of fact to make an independent finding as to whether the effect of the alleged assistance was to coach L.H. or to alter or interfere with the response given by L.H. The testimony of L.H. is the only evidence from Petitioner that satisfies the qualitative standard for clear and convincing evidence. However, the testimony of L.H. is not quantitatively sufficient to be clear and convincing evidence. For reasons stated in the Conclusions of Law, the testimony of one fact witness that is not corroborated by other clear and convincing evidence is not legally sufficient to be clear and convincing. Even if uncorroborated testimony were legally sufficient, the testimony of L.H. does not satisfy the quantitative standard for clear and convincing evidence because it is in apparent conflict with exculpatory testimony from W.D. W.D. testified that Respondent refused to assist him during the FCAT and did not assist anyone else.9 The testimony of W.D. conflicts with that of L.H. if they took the FCAT together. Respondent was the proctor for L.H. and W.D. on the first day of the FCAT. Petitioner did not place W.D. in a different room from L.H. by clear and convincing evidence.10 Evidence that supports a reasonable inference that L.H. and W.D. were in the same room, although not a preponderance of the evidence, is sufficient to create hesitancy in the mind of the trier of fact and preclude a firm conviction that Respondent committed specific acts prohibited by Subsection 1008.24(1)(c), Florida Statutes (2002), and Florida Administrative Code Rule 6A-10.042(1)(c) and (d). If it were determined that Respondent violated the preceding statute and rule, it is less than clear and convincing that the violation was an act of "moral turpitude" or "gross immorality" within the meaning of Subsection 1012.795(1)(c), Florida Statutes (2002). No applicable rule defines the quoted terms. However, rules applicable to teacher dismissal proceedings provide definitions that are instructive. The evidence is less than clear and convincing that the alleged prohibited assistance was a base, vile, or depraved act within the meaning of moral turpitude in Florida Administrative Code Rule 6B-4.009(6). Nor did the alleged prohibited assistance satisfy the definition of immorality in Florida Administrative Code Rule 6B-4.009(2). In relevant part, the alleged violation did not impair Respondent's service in the community. It is clear and convincing that Respondent continues to be an effective employee of the District within the meaning of Subsection 1012.795(1)(f), Florida Statutes (2002). After District employees investigated the incident and invalidated the test scores of 26 students, the District did not terminate the employment of Respondent. Rather, the District transferred Respondent to Endeavor. It is clear and convincing from the testimony of District personnel, administrators at Gemini, fellow teachers, parents, and students, and from previous job evaluations, that Respondent has been and continues to be an excellent teacher. Respondent brings out the best in students. Respondent has a wonderful rapport with students, instills in students the desire to learn, and inspires the imagination of students. Respondent emanates genuine enthusiasm in the classroom as well as a fun loving attitude. Respondent goes out of her way to make sure that children with learning problems achieve their goals and gain satisfaction. Respondent is very good at explaining difficult subjects to students. Respondent tutors students after school. Respondent is able to identify and focus on unique qualities in each student. Respondent does not display bias or prejudice toward any student. Respondent uses a reward system for classroom discipline that is effective and ensures an attentive class. Respondent is very calm in the classroom. Respondent never loses her temper or yells at students. Respondent is professional, consistent, structured, fair, compassionate, nurturing, and punctual. Respondent is intelligent, reliable, and dedicated. Respondent spends a great deal of time preparing her lessons and for her work with students. Respondent teaches math, science, and social studies and is a valuable asset to the District. Any notoriety surrounding the events in March 2003 arose from the action of District employees. For reasons stated in the Conclusions of Law, Petitioner cannot penalize the teaching certificate of Respondent on the ground that the alleged prohibited assistance became notorious through the actions of District employees. The alleged prohibited assistance did not violate relevant standards of professional conduct within the meaning of Subsection 1012.795(1)(i), Florida Statutes (2002). The evidence is less than clear and convincing that Respondent possessed the culpable intent required in Florida Administrative Code Rule 6B-1.006(3)(e), (4)(b), or (5)(a). L.H. was very upset over the events in March 2003 and over the criticism she received from other students for complaining about Respondent to school officials. However, the evidence is less than clear and convincing that the alleged prohibited assistance failed to protect L.H. from conditions harmful to the learning or mental or physical health or safety of L.H. within the meaning of Florida Administrative Code Rule 6B-1.006(3)(a). There is no evidence that public scorn threatened the safety of L.H. or interfered with what L.H. learned at Gemini. L.H. achieved her educational goals and progressed to the sixth grade. Nor is there any evidence that L.H. suffered any identifiable mental or physical impairment as a result of the alleged assistance from Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the violations charged in the Complaint and imposing no penalty against the teaching certificate of Respondent. DONE AND ENTERED this 11th day of August, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2005.
Findings Of Fact The findings below are based on the undisputed facts set forth in Petitioner's Protest and supplements thereto, Respondent's Motion to Dismiss, Petitioner's Response in Opposition to Motion to Dismiss, and representations by the parties during the motion hearing. On October 7, 2009, Respondent electronically posted its final ranking of firms which had submitted proposals to provide mechanical engineering services for six HVAC projects for Respondent in 2010. Respondent's electronic posting of the final ranking of firms included the following language: "Failure to file a protest within the time prescribed in Section 120.57(3), shall constitute a waiver of proceeding under Chapter 120, Florida Statutes." On October 12, 2009, Petitioner filed a Notice of Intent to Protest the final rankings. On October 22, 2009, Petitioner filed its Protest. Although Petitioner's Protest was timely filed, Petitioner initially did not file a bond or other security. The Protest alleges that Petitioner was not required to file a bond, because Respondent did not include in its final ranking notice that a failure to post a bond would constitute a waiver of proceedings under Subsection 120.57(3)(a), Florida Statutes. Additionally, the Protest alleges that Respondent: (1) failed to provide Petitioner with notice of the estimated contract amounts within 72 hours, exclusive of Saturdays and Sundays and state holidays, of the filing of a notice of protest as required by Subsection 287.042(2)(c), Florida Statutes; and (2) because Respondent had not provided that notice, Petitioner was unable to calculate the amount of the bond required and was, therefore, relieved of the obligation to file a bond. On October 30, 2009, Respondent, through counsel, wrote to Petitioner. In this correspondence, Respondent informed Petitioner that Section 287.042, Florida Statutes, did not apply to Respondent because it was not an "agency" for purposes of that law. Respondent further informed Petitioner that Section 255.0516, Florida Statutes, allowed Respondent to require a bond in the amount of two percent of the lowest accepted bid or $25,000. Respondent also notified Petitioner that because it was protesting all six project awards, all awards must be included in the calculation of the bond amount required. Finally, Petitioner was allowed ten days within which to post a bond. On November 3, 2009, Petitioner submitted to Respondent a cashier's check in the amount of $3,143.70 and noted that the check was intended to serve as security for the Protest "as required by F.S. 287.042(2)(c)." In the letter which accompanied the check, Petitioner also noted that: (1) the amount of the check was determined by calculating one percent of the largest proposed contract award amount of $314,370.00; and (2) Petitioner was providing that amount "under duress," because Respondent had "just published the contract award amounts." The relief requested by Petitioner in the Protest is that: (1) it be awarded one of the six HVAC projects comprising the final ranking; and/or (2) alternatively, all six awards be rescinded and "start the entire process over." The final ranking which Petitioner protests included six separate projects, each of which had a separate construction budget. Those projects and their respective construction budgets are as follows: Northwest--$1,144,000; Tampa Palms--$2,649,081; Yates--$2,770,828; Ferrell--$2,550,758; Stewart--$2,805,437; and Erwin--$4,191,603. The proposed fees for each project were as follows: $97,240 (Northwest); $211,926 (Tampa Palms); $221,666 (Yates); $204,061 (Ferrell); $224,435 (Stewart); and $314,370 (Erwin).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Hillsborough County School Board, issue a final order dismissing the Protest filed by Petitioner, RHC and Associates, Inc. DONE AND ENTERED this 20th day of January, 2010, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2010.
The Issue Petitioner, Blue Cross and Blue Shield of Florida, Inc. (BCBS), has challenged the Agency for Health Care Administration's (AHCA) proposed award of contract pursuant to Request for Proposals No. SHP 95-002 to Unisys Corporation (Unisys). The ultimate issue in this proceeding is whether that proposed award is fraudulent, dishonest, arbitrary or illegal. In their pleadings and presentations the parties have framed these subsidiary issues: Whether the Unisys bid was responsive to and met the mandatory requirements of the RFP; Whether the allocation of scoring weights was arbitrary and capricious and likely to result in the state's expenditure of excessive funds for health care in favor of much smaller savings in administrative costs; Whether the scores assigned by the proposals' evaluators were unreliable and biased; Whether the evaluation of proposals illegally failed to apply "present- value methodology" required by section 287.0572, Florida Statutes; and Whether the award is illegal because AHCA is unconstitutionally structured in violation of Article IV, Section 6, Florida Constitution. Although all parties concede that determination of the constitutional issue is beyond the jurisdiction of the hearing officer, BCBS claims that the issue is "preserved" for judicial determination and AHCA and Unisys argue the issue has been waived.
Findings Of Fact The Parties The Agency for Health Care Administration (AHCA or agency), as provided in section 110.123(3)(b), Florida Statutes, is responsible for all aspects of the purchase of health care for state employees under the state group health insurance plan and the health maintenance organization plans. The responsibilities include the development of requests for proposals for state employee health services, the determination of benefits to be provided and negotiation of contracts for health care and health care administrative services. Blue Cross and Blue Shield of Florida, Inc. (BCBS) is a large managed care company providing a wide range of health care services including a full array of insured products, traditional indemnity products and preferred provider organization (PPO) products to large and small groups. It has provided health services to state employees since the 1940's. In 1978, when the state switched from offering a fully insured product to a self-insured product, BCBS became the administrator of the self-insured program and has remained the administrator since that time. Unisys Corporation (Unisys) is a publicly held corporation, incorporated in the State of Delaware. It has been actively engaged in the health information services and technology market since 1976, and its health information management group, headquartered in Reston, Virginia, has experience in all facets of health care claims processing. The Request for Proposals (RFP) The state group health insurance plan (plan) is self-insured, which means that payment for services rendered by health care providers to covered recipients is paid by the state from a trust fund established for this purpose. The plan currently covers approximately 235,000 persons, including employees and their dependents and retired persons. BCBS' contract to administer the plan expires on December 31, 1995. In July, 1994 AHCA began to develop an RFP for the new contract to run for four years, commencing January 1, 1996, with four one-year extensions, at the state's option. Previous RFP's for state employees' health services had been prepared by the Department of Management Services (DMS) or its predecessor agency, and this is the first time AHCA has had the responsibility. The principal authors of the RFP were Rick Lutz, AHCA's Director of the Division of State Health Purchasing, and Kate Morgan, Chief of the Bureau of State Employee Health Insurance. Ms. Morgan reports directly to Mr. Lutz. Both individuals had prior experience in the state's Medicaid program and both had supervised or directly developed RFP's for health services-related procurements. The RFP requested interested offerors to submit proposals to provide services in one or more of three categories of services: 1) third party administrative services (TPA); 2) use of a preferred provider organization network (PPO); and 3) utilization review and case management services (UR). A single offeror could submit a proposal in one, two or all three categories. A single offeror could also submit a proposal to provide services in all three categories, but utilizing subcontractors. The RFP was divided into sections as follows: Section 10 - introductory information. Section 20 - description of the RFP process. Section 30 - contract terms and conditions. Section 40 - State's obligations. Section 50 - specifications for third party administration (TPA) services, including claims examination and payment, participant relations, and coordination of benefits. Section 60 - questions and requests for information on the offeror's ability to perform TPA services. Section 70 - specifications for preferred provider organization (PPO) services, including recruiting and maintaining a network of qualified providers to perform health care services under pre-negotiated fee schedules. Section 80 - questions eliciting information on the offeror's ability to perform the PPO services. Section 90 - specifications for utilization review and care management (UR) services to determine the medical efficacy and necessity of requested services as a cost-saving and quality enhancing measure. Section 100 - questions eliciting information on the offeror's ability to perform the UR services. Section 110 - the cost proposal, or the amount the offeror would charge to provide the TPA, PPO and UR services. Section 120 - evaluation procedure. RFP Sections 50, 70 and 90 contained the specifications; Sections 60, 80 and 100 contained the scoring elements describing the offeror's capability and prospects for performance. The RFP sought administrative services only. It did not solicit offerors to provide direct medical services to participants, and the amounts to be paid to health care providers for medical services to participants were not determined or covered by the contract. The RFP directed offerors to submit their proposals in two parts. In the technical part, the offeror certified that it would comply with the specifications and responded to the questions to be scored. The cost part contained the offeror's price to perform the TPA, PPO and UR services for the contract term, calculated at present value according to a provided formula. Before proposals were submitted, potential offerors were informed that the cost proposal was assigned 4000 points, and the technical proposal was assigned 6000 points, consisting of 2400 points for TPA services, 2400 points for PPO network services, and 1200 points for UR services. Potential offerors also knew the individual scoring questions relating to TPA, PPO and UR services, but did not know the preassigned internal weights of these individual questions. These weights were ascribed in advance by the RFP administrators, Mr. Lutz and Ms. Morgan, but were sealed and locked away in order to assure that both offerors and scorers would deal diligently with every question and would not concentrate on heavily weighted questions. The RFP was issued on March 3, 1995. The RFP specifically provided that potential offerors could protest the contents of the RFP itself. On March 16, 1995, BCBS filed a protest challenging numerous provisions of the RFP. This protest was resolved by a settlement agreement on March 31, 1995, in which the agency modified some provisions and BCBS abandoned all other issues that were raised or might have been raised in the protest. The RFP provided potential offerors an extended opportunity to pose questions to clarify the specifications and evaluation criteria. BCBS posed numerous questions, including questions concerning how the agency would weight and score criteria concerning PPO networks. AHCA responded in a general manner without disclosing the weights that would be assigned to various questions. Other potential offerors also posed questions. All responses by AHCA were incorporated as addenda to the RFP. Four integrated proposals and two component proposals (less than all three categories) were submitted. Only integrated proposals were evaluated because the component proposals , considered together, failed to comprise a complete package of all three services. The Proposals and Their Scoring The four proposals were by Health Plan Services (later disqualified after the cost proposals were opened), by Humana, by Unisys and by BCBS. The technical proposals were opened on May 18, 1995. The BCBS proposal offered to provide all three components, TPA, PPO and UR. The Unisys proposal described Unisys as the prime contractor and TPA, with Beech Street, a separate company, providing the PPO component and Cost Care, another company, providing the UR component. Rick Lutz selected 24 staff personnel to score the technical merits of the responses to Sections 60, 80, and 100. They were selected based on their experience in areas involving finance and accounting, management information, claims processing, customer relations, reporting, network development, and utilization review. Half of the scorers were from offices supervised by Mr. Lutz, and half were from other offices within AHCA. In his twenty-five years of experience Mr. Lutz was familiar with the backgrounds and abilities of the individuals. He attempted to recruit other scorers from the Department of Management Services (DMS) but was informed that DMS' workload precluded such participation. The scorers were assigned questions to score in the same area as their functional backgrounds. They were also given a one-half day training session and a workbook containing specific guidance on factors to consider in scoring each assigned question. The scorers were directed to consider all relevant information contained in the proposal in scoring each question. They were allowed to ask written questions concerning the scoring, and written answers were provided. The RFP schedule provided one month scoring the proposals. The scorers were to score each assigned question on a 0-10 scale and to record (in the workbooks) their reasons for each score given. Three scorers were assigned to score each question; however, each scorer was instructed to form an independent judgement as to the appropriate score and to not discuss the score given with anyone else. The instructions provided for a debriefing session in which scorers whose scores were more than three points apart on a particular question could confer to ensure that each scorer had considered all information relevant to that question. Scorers were allowed to change their scores on the basis of information that they had previously overlooked or they were allowed to leave them unchanged. The three raw scores for each question were averaged, and the averaged score was multiplied by the predetermined weight to produce a raw score for each question. Scores were then added and adjusted to the 6000 point scale. Unisys received the best raw scores for the TPA and the UR components. BCBS received the best raw scores for the PPO component. However, BCBS' advantage in the PPO component was sufficient to place it ahead in the aggregate raw score for the technical proposal, so it was awarded the maximum raw score of 6000 points. On June 22, 1995, the agency opened and scored the cost proposals. Humana had the lowest cost proposal and was awarded the maximum cost score of 4000 points. The Unisys cost proposal was $86,618,919 present value, and received a prorated score of 3,458.65 points. The BCBS cost proposal was the highest, $102,200,263.22 present value, and received 2,931.35 points, the lowest prorated cost score. Scoring the cost proposals was a mechanical, non- subjective function. Unisys had the highest combined score for the technical and cost proposals under the framework described in the RFP, as summarized in the following chart: ============================================================== ELEMENT UNISYS RAW BCBS RAW SCORE SCORE UNISYS ADJUSTED SCORE BCBS ADJUSTED SCORE TPA 1624.97 1602.33 PPO 1274.63 1515.83 5744.97 6000.00 UR Cost 751.28 694.78 3458.65 2931.35 Total 9203.62 8931.35 ============================================================== The agency made a minor math error in its original calculation of the BCBS score for the technical proposal. When the BCBS score is corrected by adding 16 points, the effect narrows the gap, but does not materially affect the result. Based on the results of the overall scoring, Mr. Lutz prepared a brief report summarizing the evaluation process and sent it to a steering committee comprised of four senior managerial level employees: Ms. Morgan, Tom Wallace, the agency's second-in-command; Dr. James Howell, and Mildred Seay of DMS. The committee met with Mr. Lutz on June 26 for approximately two to three hours. There was general discussion regarding medical costs under a plan offered by BCBS, as opposed to Unisys' plan. The pricing analysis found in RFP section 80.10 was explained and discussed; and the committee discussed whether Unisys, through its subcontractor, Beech Street, could expand the provider network (PPO) to achieve utilization and prices comparable to those reported by BCBS. The committee unanimously approved the scorers' ranking and recommended the contract award to Unisys. The recommendation was forwarded to Douglas Cook, Executive Director of AHCA and William Lindner, Secretary of DMS, in a brief memorandum. Notice of intent to award the contract to Unisys was posted by the agency on June 27, 1995. Responsiveness of Unisys Proposal In creating a mandatory requirement checklist in Section 120.2 of the RFP, Mr. Lutz sought a simplified process that would assure that proposals were evaluated on their merits. The agency desired an open competition process that would score the proposals on the adequacy of the responses, rather than a process that would eliminate proposals from the evaluation. Mr. Lutz chose two AHCA employees who were not members of the evaluation team to check the proposals against the checklist and to verify whether the proposals contained a tabbed section corresponding to that item on the list. Mr. Lutz anticipated that if the response were wholly deficient, the evaluators would ascribe a zero score. None of the four proposals was rejected in this stage of the process. Subcontractors' Certificates of Compliance and Public Entity Crime Forms Were Not Required RFP Section 30.4 requires a Certificate of Compliance "from each offeror regardless of whether the offeror submits an integrated proposal or a component proposal." Section 30.42 requires a Public Entity Crime form to be submitted by "a[n] offeror submitting a proposal." Section 120.2 contains a checklist of requirements including the following: d. Did the offeror submit a signed certificate of compliance? * * * f. Is a completed Public Entity Crimes Statement included? (Joint Exhibit Number 1) These requirements are expressly directed to the "offeror," and do not refer to subcontractors. Unisys submitted an "integrated" proposal in which it was the sole offeror and prime contractor responsible for providing all services called for under the RFP. A Unisys representative signed the Certificate of Compliance and Public Entity Crime Form, which BCBS concedes was sufficient as to Unisys. The Unisys proposal specified that it would engage two subcontractors, Beech Street for the PPO component and Cost Care for the UR component. AHCA did not intend or expect subcontractors to submit the Certificate of Compliance and Public Entity Crime form. RFP Section 30.19 reserved the agency's right to approve subcontractors, while confirming that the prime contractor is responsible for all contract performance. The purpose of the Certificate of Compliance is to provide assurance similar to that in PUR 7033 that the offeror is bound to the specifications of the RFP. PUR 7033 is a form at the front of the RFP, a contractual services acknowledgment form required only from the "offeror" or prime contractor. The Certificate of Compliance expressly contemplates that subcontractors are included in the prime contractor's commitment. The Public Entity Crime form sought assurance that the offeror or "its officers, directors, executives, partners, shareholders, employees, members or agents who are active in the management of the entity" (emphasis added) were not disqualified to contract as a result of a conviction of certain procurement crimes. The form also sought assurances that "affiliates" of the offeror entity, meaning its predecessor or successor, or an entity controlled by a natural person who is not active in the management of the offeror entity, were not disqualified. BCBS admits that Unisys was qualified and its form was sufficient as to Unisys itself. (Transcript, p. 769-70) The form does not solicit any information with regard to subcontractors. None of the subcontractors identified in the Unisys proposal is active in the management of Unisys or is an affiliate of Unisys. Neither Unisys nor any of its subcontractors was on the published convicted vendors list established by section 287.133, Florida Statutes. There is no evidence to suggest that they are disqualified to contract. At the time the RFP was issued, the controlling statute required contractors to sign this form only at the time the contract is executed. Section 287.133(3)(a), Florida Statutes (Supp. 1994). Submitting the form with the proposal was not essential to protect the state's interests, but was a convenience. While the proposals were under review, this statutory provision was repealed to eliminate use of this form entirely. Chapter 95-196, Section 33, Laws of Florida, effective June 8, 1995. This issue arose, in part, out of confusion related to RFP Section 20.14, which described a situation in which two or more offerors combined as a partnership, and directed that such a partnership designate one partner to act as the "prime contractor"; in effect, treating that situation like the Unisys proposal, which involved a prime contractor and subcontractors. In responding to offerors' questions, AHCA initially directed that each partner in a partnered proposal would be required to submit the forms as multiple contractors. However, in Addendum 4 of the RFP, the agency later clarified that only one prime contractor in each proposal was responsible for contractual issues: This is to notify all potential offerors of a correction to an answer that was provided in Addendum Number 2. Specifically, the answer to Cost Care's first question is deleted... When an integrated proposal is submitted in response to this RFP, one of the partners in the bid shall be designated in the proposal as the prime contractor. The other partners in the integrated proposal shall be subcontractors and any contract that may result with the state shall be between the state and the prime contractor. The state shall hold the prime contractor responsible for all contractual issues... (Joint Exhibit Number 1) AHCA intended Addendum 4 to mean that only the prime contractor was required to submit the forms in question and did not consider the absence of separate forms for subcontractors to be a defect. Beech Street's Financial Statements Each technical scoring component of the RFP requested the offeror to furnish two years' audited financial statements. AHCA did not intend this request to create a precondition for evaluating the proposal, and did not include these statements as part of the mandatory specifications in Sections 50, 70 and 90. Rather, the agency designed the RFP to treat the presentation of audited financial statements as a technical scoring issue. In response to the request for financial statements in Question 80.2.g, Unisys presented a narrative statement explaining that Beech Street was a privately held corporation that kept its financial statements confidential; but that Beech Street's auditors, Arthur Anderson & Co., had issued unqualified "clean options" for the two preceding fiscal years, and that the operations had been profitable in each year, resulting in year end cash reserves exceeding $4.2 million and $5.2 million, respectively. The statement further advised that current year operations indicated even greater revenue and profit growth. The proposal also showed Beech Street's longevity and client base and retention rate, consistent with a financially stable operation. Unisys provided full information available on its subcontractors, Beech Street and Cost Care. It was not requested to provide any information concerning Beech Street's subcontractors (who were sub-subcontractors of Unisys). Judy Hefren, one of the three scorers who graded Question 80.2.g, is a CPA with several years' accounting experience. Although she reviewed enough financial information to satisfy herself concerning Beech Street's ability to perform as a subcontractor, Ms. Hefren strictly interpreted Question 80.2.g and gave Unisys a zero for that question. Audited financial statement were not mandatory because other information could show capacity to perform. AHCA looks to the prime contractor to cover any deficiency in its subcontractors, and required the prime contractor to post a substantial performance and payment bond. The prime contractor's and surety's financial stability assures continuing performance of all obligations. The PPO subcontractor is never in possession of any state funds, but simply is paid an access or rental fee for the term in which its network is used. BCBS presented no evidence that significant adverse consequences to the state would ensue from a hypothetical subcontractor bankruptcy, and Mr. Lutz's and Ms. Hefren's characterization of such a hypothetical event as an "inconvenience" is accepted. Maternity Counseling Material Not Required RFP Section 90.5.a stated that "The contractor shall provide educational materials to all pregnant plan participants to include information about the program, basic prenatal care and reference to specialty physicians and facilities." The agency considered this specification to be part of the UR services that the offeror certified it will perform. RFP Question 100.7.b solicits information on how the offeror plans to meet this specification, including samples of educational materials to be furnished. Unisys responded that "Cost Care emphasizes direct communication with both mother and physician, in addition to the educational materials we provide." The response described direct contacts with the mother and physician. It offered to produce additional materials for plan participants generally for additional cost. The RFP treated this as a scoring issue. Although the scorers gave Unisys relatively low scores for this response (4, 4 and 3), AHCA was satisfied that there was nothing wrong with this response and that specification 90.5.a would be met. Whether the Agency's Allocation of Weights Among the Questions in the RFP Was Arbitrary and Illegal RFP Question 80.10 required offerors to perform two historical "pricing analyses" based on data from the period July 1, 1993 to June 30, 1994, or 1.5 to 2.5 years before the new contract was to commence. Part (a) of Question 80.10 required offerors to price physician costs for designated medical procedures in each of 19 counties. Offerors were permitted to report the price available from any physician with whom they had a negotiated fee schedule in that county; if the offeror had no negotiated fee with a physician serving that county, then it had to report a state average charge for that procedure. BCBS reported the lowest aggregate price for physician services, and was awarded the maximum score of 10 points for Question 80.10(a). Unisys was awarded 9.92 points, reflecting less than one percent difference in the aggregate reported prices for physician services. Part (b) of Question 80.10 required offerors to price 1,174 claims in 55 specified hospitals, as of specified dates in 1993-94. The hospitals selected were those that had provided the most services to state employees in fiscal year 1993-94. If an offeror had a contract with a specified hospital on the specified transaction date, then that offeror could report its negotiated fee with that hospital. If the offeror had no contract with that hospital on that date, then it had to report that hospital's full reported charge for services, even if a contract was subsequently negotiated. The question did not allow equivalent hospitals to be substituted. The question favored the incumbent. BCBS was able to report low prices for the hospitals chosen because almost all of these hospitals were already in its network in 1993-94. BCBS received the maximum score of 10 points on Question 80.10(b); Unisys received 3.01 points. Question 80.10 served a limited purpose to help illustrate previous network development. It was never intended to become a basis for measuring or comparing future medical costs per employee or medical cost savings to be realized from selection of a particular offeror, nor would it be accurate for this purpose. Provider networks are "dynamic," changing over time in response to evolving client needs. A PPO administrator cannot effectively recruit providers or achieve favorable prices until it establishes a market share in the provider's market area. It was intended that during the six-month transition period the successful offeror would use the increased market share resulting from the contract award to expand and tailor its network to serve state employees. Mr. Lutz commented on the agency's reasons for assigning limited weight to Question 80.10 as follows: We certainly did assume that other proposers would be able to come in, develop a network, and in the process achieve discounts that would have been greater than the discounts that they might have had a year ago. If we didn't believe that -- there is no sense in going through a competitive procurement to start with. If we wanted to start with the premise that the only entity that could establish a network and achieve discounts was the one that we had, then why bother? It seems to me that the conclusion is we don't want a competitive procurement, we simply want to issue a new contract. (Transcript, p. 133) All parties agreed that it is "very hard" or "impossible" to predict future network growth and its effect on health care prices. There is no specific formula available to compute the amount of future medical costs. RFP Question 80.9 asked offerors to predict percentage changes in health care prices over the eight year potential contract term, and to provide assurances that the prediction would be accurate. Unisys predicted a percentage change for the first four years; BCBS referenced various indices for the first four years. Neither Unisys nor BCBS predicted anything beyond four years or guaranteed its prediction by sharing substantial risk if health care prices were to exceed their predicted levels. These responses help confirm that future health care prices are volatile and unpredictable. Because the network development and other factors affecting the future cost of medical care are not easily quantified or predicted, the great majority of RFP questions concerned evaluations of the offeror's experience and expertise in developing and managing networks, its specific plans to implement the network contemplated by the RFP, and its provider credentialling, quality assurance and payment methodology, as well as performance of TPA and UR functions. All of these questions concern the offeror's capability to provide a satisfactory network and reflect its ability to control future medical costs. AHCA intended that the questions in Section 80 would collectively demonstrate the offeror's capability and prospects for developing a cost-effective PPO network. BCBS, through its State Business Director and expert witness, Sheffield Kenyon, asserted that the agency should have increased the weight assigned to Question 80.10 from 240 points (10 percent of the PPO component weight) to 1000 points. Mr. Kenyon viewed the historical price analysis as the "single best proxy" for a future health care price prediction, and was surprised that the agency had not given it greater weight. His opinion was not based on any mathematical formula; nor did he identify any industry standard concerning the weight to be given such historical analysis. His opinion, competent though it was, was based on exactly what Mr. Lutz and Ms. Morgan brought to the process of ascribing weights: a rich, full, varied background and years of experience. BCBS State Employee Market Director, Robert Nay, prepared medical cost projections which purported to show that the Unisys proposal could result in significantly larger expenditures by the state and its covered persons for medical care than would be the case with BCBS. He acknowledged that preparing projections was not a part of his normal work. His analysis was limited to two factors, network utilization rate and reported discount rate. Mr. Nay compared a projected savings for BCBS with three projected scenarios for Unisys/Beech Street. The first scenario assumes the network available to Unisys and Beech Street will remain static from 1993-94. However, the testimony was unrefuted that network development is driven by the client base. It is unrealistic to assume that there has been, and would be, no development prior to contract implementation in January 1996. Even Mr. Nay agreed this was not likely to occur. (Transcript, p. 417). Scenario 2 also assumes that Unisys would be unable to achieve a network utilization rate in Florida comparable to BCBS', and is likewise speculative and unsupported by the weight of the evidence. Scenarios 1 and 2 used Beech Street's 1994 national average discount rate as stated in Question 80.2 of the Unisys proposal, and scenario 3 assumed a slightly improved discount rate. However, there was no evidence to show that the 1994 national average discount rate would be applicable to the proposed Florida contract. The Unisys proposal in Section 80.2 reported that Beech Street's national savings averages may be understated, as most of its network hospitals are nonprofit hospitals which generally charge less than for-profit facilities. In Section 80.9, Unisys and BCBS provided information showing rate changes the state should expect to experience. Unisys reported an actual 9 percent decrease in inpatient hospital rates, and a 13 percent decrease in outpatient rates for 1995. The Unisys proposal also projected that the state should experience a 4 percent decline in inpatient and outpatient hospital rates for 1996 and 2 percent or greater decline in those rates for 1997, 1998 and 1999. BCBS projected increases in these rates for the years 1996-99. These projections were not included in Mr. Nay's analysis. Beech Street representatives, Doreen Corwin and Carol Lockwood, described successful efforts in adding provider groups to the Beech Street network. Beech Street has been received favorably in negotiations with providers. The final award of the contract should enable Beech Street to finalize its relationships with Unisys and with sub-subcontractors and providers. The current Beech Street Florida network includes approximately 1.1 million covered lives. The addition of the state plan's approximately 240,000 covered lives will significantly add to Beech Street's bargaining power to negotiate prices in markets where participants live. Although there is conflicting evidence of whether providers are more or less anxious now than in the past to negotiate discounted agreements with a PPO, it is reasonable to expect that most providers who currently have contracts with BCBS would be very likely to enter into similar arrangements with Beech Street to avoid losing patients. The plan encourages covered employees to utilize the less expensive network providers, so loss of network status would be detrimental to a provider who relies on that employee patient base. Utilization review services can substantially affect cost of health care. Cost Care representative, Sandra O'Toole, described its independent utilization review services for state governments in Mississippi, Alabama, and Georgia, as well as for other clients around the country, based on a clinical model using board-certified physicians to review cases. The Cost Care average number of inpatient admissions per thousand plan participants is approximately BCBS, which performs both PPO network and UR functions in-house, reports approximately 90 inpatient admissions per thousand in Florida, with a decrease from highs of approximately 109 in 1990 and 1991. (Joint Exhibit Number 5, exhibit to question Number 60.6.2.a, p. 15). Cost savings or impact on costs to the trust fund and individual employees are thus reflected throughout the RFP, and not simply in Section 80.10, giving additional credence to the weights ascribed by the RFP framers. BCBS speculates that the state and its plan participants will inevitably incur substantial extra health care expenses if AHCA's evaluation turns out to be wrong. However, even if the Unisys-Beech Street network fails to fully achieve comparable prices, there are safety net features in the contract. Participants can elect to use HMO's or private insurance in lieu of the plan, and the Legislature is considering additional options. The agency has reserved the right to carve out particular health care services for separate direct contracts with providers or to provide services through Community Health Purchasing Alliances (CHPA's) in lieu of the plan. The agency also has reserved the right to terminate the contract entirely for convenience, without obligation except to pay for services rendered. Finally, the agency will evaluate Unisys- Beech Street's implementation plan for expanding the PPO network to meet the plan's needs within 30 days after the contract award and can seek remedies for any deviation from that plan. The agency's weighting of the technical questions must be considered in light of all circumstances, including the known administrative costs reflected in the competing proposals. BCBS's evidence does not prove that the agency's weighting of the limited purpose historical price analysis in Question 80.10 produced an irrational evaluation of competing proposals, nor that any potential risk so clearly outweighs known administrative cost savings as to make the contract award to Unisys irrational. BCBS argued that additional weight should have been given to other questions of the RFP. However, BCBS presented no evidence that would indicate the subjective determinations of weighting calculated by BCBS are any better or worse than the determinations of weighting made by the agency. Reasonable persons can, and do (as in this case) differ. The evidence, as developed through the testimony of Mr. Lutz and Ms. Morgan, has shown that the agency's weighting scheme was a carefully designed, strict implementation of AHCA's goals and intent. Statistical Analysis of the Scores BCBS presented statistical analyses of the overall scoring through its expert, Dr. James T. McClave, along with charts and graphs prepared by Dr. McClave. The analyses prepared and presented by Dr. McClave included an analysis of inter-rater agreement, as well as several tests that Dr. McClave said showed a statistical bias in one of eight groups of evaluators. In order to test inter-rater agreement, Dr. McClave applied a statistical model called the Kappa method. With this method, Dr. McClave compared the scores given by three evaluators for each of approximately 235 scored questions on the score sheets generated for BCBS, Unisys and Humana. Dr. McClave compared the scores on the 0-10 category scale, as well as a series of "collapsed" scales (i.e. a five-category scale based on 0, 1-3, 4-6, 7-9, 10), with one of the scales using as few as two categories (i.e., 0-5, 6-10). In order to find an "agreement" between evaluators using the Kappa method for the 0-10 point scale, Dr. McClave defined agreement as "pure agreement," in other words, the scores had to be the same. To expect high agreement or exact agreement for the 0-10 scale was a tough standard from a statistical point of view and therefore he began to look at "collapsed" scales which, according to Dr. McClave, would be relatively easier to meet. For the other "collapsed" scales, the scores still needed to fall into the same category to be considered perfect agreement. All of the Kappa tests presented by Dr. McClave had percentages of perfect agreement of less than 40 percent, which, according to the scale picked from the statistics text used by Dr. McClave, represented "poor" agreement. Based upon the Kappa method that he employed and the scale set forth in the text, Dr. McClave concluded that the level of inter-rater reliability was poor, and that the evaluation cannot be trusted. He conceded that there was no precise way to identify the reasons why the reliability was so low, but conjectured that a lack of training or amount of time allowed for the scoring could have been a cause. Dr. McClave also described a statistical method which he referred to as the weighted Kappa. The weighted Kappa gives more weight to the level of agreement, for example, a four versus a three is higher than a one versus a four. The unweighted Kappa method employed by Dr. McClave assigned the same "zero" agreement value for a score of four versus three as it did to a score of one versus four. Dr. McClave did not use the weighted Kappa because in his "review of the literature the statistical theory behind the weighted Kappa has not been sufficiently developed to the point where one can use it in the case we have." (Transcript, p. 635) Weighted Kappa, in his view, compares two evaluators, one against the other. Dr. McClave admitted that unweighted Kappa was designed for nominal data, the most basic category of data. The scores in the evaluation were done in ordinal fashion and according to widely recognized authorities in the field, weighted Kappa is the appropriate statistical method for analyzing ordinal data. Dr. McClave has no expertise in any of the substantive areas of the technical proposal (TPA, PPO or UR), or in the development, weighting or scoring of RFP's in these substantive areas. He admitted that he had no reason to believe that any of the scorers was not conscientious and diligent, or that they used any improper scoring method or standard. BCBS did not offer a single incident to show scoring was improper, nor any basis to claim that scorers were not motivated to be conscientious and fair. Unisys presented Erwin Bodo, Ph.D., as its statistical expert witness. Dr. Bodo reviewed the circumstances in which the scoring was performed, i.e., use of 24 evaluators with diverse backgrounds and perspectives; use of questions involving the application of judgement and subjective standards; and use of the 0-10 scoring scale without any exact or true score for any questions. Under these circumstances, substantial disagreement is ordinarily expected. The difference between the highest and lowest scores was two points or less for 50 percent of the questions, and three points or less for 80 percent of the questions. This constitutes reasonably good agreement among scorers, according to Dr. Bodo. The question of whether or not scorers on a particular question were consistent is irrelevant to whether the evaluation was valid. As long as each particular scorer was internally consistent, the overall scoring would be fair. The Kappa analysis proves nothing relative to the fairness or validity of the scoring, but simply reflects that the scorers saw the merits differently. Dr. McClave's second statistical analysis separated the 24 scorers based on the offices in which they worked. He found that the aggregate mean scores of five scorers from the Bureau of State Employees Insurance (BSI) were more favorable to Unisys or less favorable to BCBS in a statistically significant degree from the aggregate mean scores from each of the other seven offices. Dr. McClave used the term "statistical bias" to describe the differences between the five BSI scorers' aggregate scores and the other 19 scorers' aggregate scores, grouped by their respective offices. However, this analysis does not prove actual prejudice or unfairness because the statistical tests will not demonstrate such matters. Dr. McClave acknowledged that the disagreement could be related to differences in scorers' backgrounds and perspectives. He had no knowledge of the scorers' backgrounds beyond what offices they worked in. He acknowledged that the questions were subjective, that the scorers applied the scale in different ways, and that there was no perfect answer because human judgement was involved. Dr. McClave did not know which scores were right and which were wrong, and could not say that disagreement among scorers made either score wrong. He did not analyze individual questions to determine whether they were properly scored. He had no basis to assume that any BSI scorers were unfair. He nevertheless proposed disqualifying all BSI scorers and eliminating their scores, giving BCBS enough additional technical points to win the contract. Dr. McClave's proposed disqualification would effectively eliminate ten questions that were scored by BSI scorers only. He admitted this was a problem. It would also reduce the scoring of other questions to one or two scorers, violating the RFP requirement that at least three persons score each question. There were numerous questions in which BSI scorers gave BCBS a higher score than non-BSI scorers, or in which BSI scorers gave Unisys a lower score than non-BSI scorers. This evidence supports a finding that there was no systematic prejudice exhibited by the BSI scorers. Give the subjective nature of the technical proposal, the use of scorers with diverse backgrounds and perspectives enhanced the fairness of the process. RFP Sections 120.3, 120.3.1 and 120.6 described how the scoring process would be conducted, resulting in the ranking of proposals by the total of scores awarded. There was no requirement for any supermajority or any particular statistical level of agreement among the scorers beyond that which results in a majority of the points, and BCBS did not challenge the absence of such a requirement when it challenged the RPP. SUMMARY OF FINDINGS The disputed issues in this case arise from the differing opinions of competent and articulate experts rather than from the underlying facts, which facts are generally uncontroverted. Drawing on the experience of its staff and borrowing some guidance from its predecessor agency, AHCA developed its first RFP for state employee health services. The process was designed to enhance competition and the prospective offerors had ample opportunity for input. The questions they asked and answers provided by the agency were incorporated into the RFP document. The agency's preparation of the RFP, its interpretation of the document and its scoring of the parties' responses were careful, well-intended and fair. Competent experts differ on the agency's interpretation of the RFP as applied to items not included in the Unisys responses; they differ on the weights assigned to segments of the RFP. But the agency's interpretation and weighting were not proven arbitrary or illegal. Competent experts disagreed on whether the scores were statistically reliable or biased. Their evidence was informative, and even entertaining, but in the end had little practical application. None suggested that the scorers colluded, conspired or falsified their scores. Any explanation for near-random results (assuming that Dr. McClave's methodology was appropriate) is based on conjecture and not on any real evidence. The scorers were experienced, were trained and were afforded the time to accomplish their assignments. Statistical bias by one group is irrelevant in the absence of actual prejudice. The statistical bias, like the suggested inter-rater unreliability, can be made to appear or to vanish with simple manipulation of methodology or realignment of the groups under scrutiny. Such evidence is too tenuous to establish the agency's misprision. The agency's intended award is appropriate and fair, and not arbitrary or illegal.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Agency for Health Care Administration issue its final order awarding the contract to Unisys, as intended. DONE and ORDERED this 27th day of September, 1995, in Tallahassee, Florida. MARY W. CLARK, 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 27th day of September, 1995. APPENDIX The following constitute specific rulings on the findings of fact proposed by the Petitioner. The findings proposed by the agency and Intervenor have been substantially adopted. Petitioner's Proposed Findings 1. Adopted in paragraph 1. 2 & 3. Adopted in paragraph 4. 4 & 5. Adopted in substance in paragraph 2. Rejected as unnecessary. Adopted in paragraphs 4 and 12. Adopted in paragraph 5. Adopted in paragraph 6. 10 and 11. Adopted in substance in paragraph 7. Rejected as unnecessary. Adopted in paragraph 5. Adopted in paragraph 10. Adopted in part in paragraph 16. The characterization of the Unisys proposal as a "Unisys/Beech Street/Cost Care proposal" is rejected as misleading. Adopted in paragraph 15. Adopted in paragraph 29. Adopted in substance in paragraph 30. 19 & 20. Rejected as unnecessary. 21. Adopted in substance in paragraph 30. 22. Rejected as a conclusion contrary to the evidence. One proposal was disqualified in the second phase. 23. Adopted in substance in paragraph 17. 24. Adopted in substance in paragraph 8. 25. Adopted in part in paragraph 18. The lack of "formal training" or interviews is rejected as immaterial and misleading. The staff were trained and were amply instructed. 26. Adopted in summary in paragraph 19. 27. Adopted in paragraphs 11 and 21. 28. Adopted in paragraphs 9 and 23. 29. Adopted in substance in paragraph 23. 30. Adopted in paragraph 24. 31 & 32. Adopted in substance in paragraphs 26 and 27. 33. Adopted in paragraph 28. 34. Addressed in Preliminary Statement. 35. Rejected as contrary to the evidence (the conclusion of "arbitrary and capricious"). 36. Rejected as misleading as the experience of both was found to be appropriate to the task. 37. Adopted in substance in paragraphs 50 - 52. 38. Adopted in part in paragraph 52; otherwise rejected as misleading argument. 39. Rejected as unnecessary. 40 - 42. Rejected as unnecessary and argument that is not supported by the weight of evidence. 43 & 44. Adopted in summary in paragraphs 51 and 53. 45 - 61. Rejected as irrelevant or argument that is not supported by the greater weight of evidence, which evidence did support the agency's contention that section 80.10 is only a piece of the financial outlook picture. 62 - 64. Rejected as unnecessary. The contract is not for direct medical services and the cost of those services over the term is incalculable. 65 - 66. Adopted in summary in paragraph 31. 67 - 77. Rejected as unnecessary or argument that is unsupported by the weight of evidence, which evidence supports the interpretation by the agency that the forms were not required from contractors, and Beech Street and Cost Care were subcontractors rather than "offerors". 78. Adopted in substance in paragraph 42. 79 - 82. Rejected as unnecessary. The evaluators did review the financial statements, but not as a mandatory item, and scored the responses based on the review. Although it is accepted that the audited financial statements are important, so also are other indicia of financial viability and stability. 83. Adopted in paragraph 47. 84. Adopted in paragraph 48. 85. Adopted in paragraph 71. 86. Adopted in paragraph 72. 87 - 91. Adopted in summary in paragraphs 72 through 76. 92 & 93. Adopted in part in paragraph 74, as to the results of Dr. McClave's statistical analysis; rejected as to the conclusions that the agency's evaluation was unreliable or arbitrary and capricious, as the statistical analysis does not support that conclusion. 94. Adopted in paragraph 80. 95 - 98. Adopted in part in paragraphs 80 through 82; otherwise rejected as irrelevant. 99 - 103. Rejected as irrelevant. See Conclusion of Law Number 92. COPIES FURNISHED: Michael J. Glazer, Esquire Stephen C. Emmanuel, Esquire Steven P. Seymoe, Esquire MACFARLANE, AUSLEY, FERGUSON & MCMULLEN Post Office Box 391 227 South Calhoun Street Tallahassee, Florida 32302 Paul Martin, Assistant Attorney General Office of the Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 James H. Peterson, III Steven Grigas Agency for Health Care Administration 2727 Mahan Drive, Suite 3400 Tallahassee, Florida 32308 Stephen Turner, P.A. David K. Miller, P.A. BROAD & CASSEL 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 Mr. Sam Power, Agency Clerk Agency for Health Care Administration Building 3, Room 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue is whether Respondent committed the acts alleged in the Amended Administrative Complaint, and if so, what discipline should be imposed.
Findings Of Fact Respondent holds, and at all relevant times, held a valid Florida Educator’s Certificate. Respondent is and, at all relevant times, was a fifth- grade teacher at Avon Park Elementary School in Highlands County. Respondent has been an elementary school teacher for 19 years. She taught fourth and fifth grade at Zolfo Springs Elementary School in Hardee County from 1986 through the end of the 2000-01 school year. She started teaching at Avon Park Elementary School at the beginning of the 2001-02 school year. Respondent is currently on a year-to-year contract. Her contract was renewed for the 2003-04 and 2004-05 school years notwithstanding the allegations in this case, which occurred during the 2002-03 school year. Respondent has not had any disciplinary problems over the course of her career, and other than the allegations in this case, she has never been accused of any unethical or unprofessional conduct. Respondent has always received good annual performance evaluations. Respondent’s most recent performance evaluations - - for the 2002-03 and 2003-04 school years –- state that she “meets or exceeds expectations” in all categories, including the category that assesses whether Respondent “act[s] in a professional and ethical manner and adhere[s] to the Code and Principles of Professional Conduct.” Consistent with the information in Respondent’s annual performance evaluations, the principal at Avon Park Elementary School, who is Respondent’s current supervisor, testified that Respondent “does a good job” as a teacher and that she values Respondent quite highly as a teacher; the former principal at Zolfo Springs Elementary School, who was Respondent’s supervisor for approximately five of the years that Respondent taught at that school, testified that Respondent’s reputation for complying with the code of ethics is “excellent” and that Respondent always “monitored and cherished” her professionalism; one of Respondent’s co-workers at Avon Park Elementary School testified that Respondent is “a very effective and professional teacher”; and the students who testified at the hearing characterized Respondent as a good teacher. Respondent has administered the FCAT to her students since the test’s inception in the 1990s, and as a result, she is very familiar with what teachers can and cannot do when administering the test. Respondent and other teachers at Avon Park Elementary School received training on the administration of the 2003 FCAT, and as part of the training, Respondent received a copy of the Test Administration Manual for the 2003 FCAT. The Test Administration Manual is published by the state Department of Education (Department) and is distributed to teachers by the testing coordinators at each school. The school-level testing coordinators report to a testing coordinator at the school district level, who is ultimately responsible for the administration of the FCAT to the district’s students. The Test Administration Manual summarizes the “dos and don’ts” of test administration for the FCAT. It also includes a copy of the statute and rule governing test security, which for the 2003 FCAT were Section 228.301, Florida Statutes, and Florida Administrative Code Rule 6A-10.042. On the issue of test security, the Test Administration Manual explains that: it is not appropriate to talk with [students] about any test item or to help them answer any test item. For example, if students finish the test before the allotted time for the session has elapsed, or have not attempted to complete a question, it would be appropriate to encourage them to go back and check their work. It is not acceptable to provide the students with any information that would allow them to infer the correct answer, such as suggesting that they might want to check their work on a specific question. (Emphasis in original). The FCAT is required by state law to be administered annually to public school students in the third through tenth grades to measure the students’ proficiency in reading, writing, science, and math. The FCAT measures the students’ performance against state standards. The Norm Referenced Test (NRT), which is administered in conjunction with the FCAT, measures the students’ performance in math and reading against national standards. The FCAT is an important test, both to students and the schools. The student’s promotion to the next grade and/or class placement is affected to some degree by his or her performance on the FCAT. The school’s grade, which has an impact on the funding that the school district receives from the state, is also affected to some degree by the students’ performance on the FCAT. The math and reading portions of the 2003 FCAT were administered to fifth graders on Monday through Wednesday, March 3-5, 2003. The science portion of the FCAT and the NRT were administered the following week, on Monday through Wednesday, March 10-12, 2003. Throughout the 2002-03 school year, Respondent “taught the FCAT” and gave her class practice FCAT questions. She used the questions as teaching tools and to help prepare her students for the actual FCAT. Respondent would sometimes explain the wording of the practice questions to her students and, as needed, she would provide the students other assistance, both individually and as a class, while they were working on the practice questions. On Friday, February 28, 2003, Respondent administered two practice tests to her students in which she tried to simulate the environment in which the students would be taking the actual FCAT the following week. For example, the tests were timed and Respondent walked around the room as she proctored the tests. Respondent helped the students during the practice tests as she had done with the practice questions administered throughout the year. At one point, she stopped the test and reviewed a math problem on the board with the class because she observed a number of students having problems with a particular question. Respondent administered the math and reading portions of the actual FCAT to 18 students in her homeroom class on March 3-5, 2003. None of those students were exceptional education students who were entitled to special accommodations. Respondent did a 15 to 20 minute “mini-review” each morning that the students were taking the actual FCAT during which she went over terminology and concepts that the students might see on the test that day. Respondent started the administration of the actual FCAT by reading the directions verbatim from the “scripts” in the Test Administration Manual. Once the students began taking the test, she monitored them from her desk and she also walked around the room on a periodic basis. Respondent also went to students’ desks when they raised their hands. The Test Administration Manual contemplates that students might raise their hands and ask questions during the test; indeed, the “scripts” that the teacher is required to read verbatim state more than once, “Please raise your hand if you have any questions.” Respondent denied giving the students any assistance in answering the test questions on the actual FCAT. According to Respondent, when a student asked her about a particular test question, she told the student that “I can’t help you,” “go back and re-read the directions,” “do the best you can,” or other words to that effect. The Department’s testing coordinator, Victoria Ash, testified that responses such as those are acceptable. Respondent also made a general statement to the class during the test reminding the students to go back and check their work if they finished the test before the allotted time expired. Ms. Ash testified that a general reminder such as that is “absolutely acceptable.” Respondent’s testimony was corroborated by student J.M., who credibly testified that he recalled more than once hearing Respondent tell other students that she could not help them during the actual FCAT. Several students testified that Respondent helped them during the actual FCAT by explaining words that they did not understand, explaining how to solve math problems, and/or by suggesting that they check their work on particular problems. That testimony was not persuasive because it lacked specificity and precision, and other than A.P., B.B. (boy), and K.J., the students testified that they were not certain that the help they remembered receiving was on the actual FCAT rather than on the practice tests that they were given by Respondent. With respect to B.B. (boy), the undersigned did not find his testimony persuasive because he also testified that Respondent helped the entire class with a math problem during the actual test, which contradicted the statements given by the other students and which suggests that he was recalling events from the practice test during which Respondent gave such help to the entire class. With respect to A.P. and K.J., the undersigned did not find them to be particularly credible witnesses based upon their demeanors while testifying. There were other inconsistencies in the students’ accounts of Respondent’s administration of the FCAT that make their testimony generally unpersuasive. For example, B.B. (girl) testified that Respondent played classical music during the actual test, which was not corroborated by any other student in the class and was contradicted by Respondent’s credible testimony that she played music during the practice tests to relax the students but that she and the other fifth-grade teachers at Avon Park Elementary School made a conscious decision not to play music during the actual FCAT. As a result of the students’ apparent confusion regarding events occurring during practice tests rather than the actual FCAT, the inconsistencies in the students’ accounts of the events during the administration of the test, the general lack of specificity and precision in the students’ accounts of the events, and Respondent’s credible denial of any wrongdoing, the evidence does not clearly and convincingly establish the truth of the allegations against Respondent. In making the foregoing finding, due consideration was given to the investigation undertaken by the district-level testing coordinator, Rebecca Fleck, at the time of the allegations against Respondent, and the materials generated through that investigation. The reason for the investigation was a phone call that Ms. Fleck received on Wednesday, March 5, 2003, from a Department employee who told Ms. Fleck that the Department had received an anonymous complaint about Respondent’s administration of the FCAT. Ms. Fleck went to Avon Park Elementary School on Friday, March 7, 2003, to investigate the complaint. On that date, she met with the school’s assistant principal and interviewed several of the students in Respondent’s class. She also spoke briefly with Respondent to “get her side of the story,” which consistent with her testimony at the hearing, was an unequivocal denial of any wrongdoing. Ms. Fleck decided, based upon the student interviews, that Respondent should not administer the science portion of the FCAT or the NRT the following week. As a result, Respondent was assigned to work at the school district office on March 10-12, 2003, while her students were taking the tests on those dates. Ms. Fleck also decided to interview and get statements from all of the students in Respondent’s class, which she did on the following Monday and Tuesday, March 10 and 11, 2003. On those days, the students were called to the principal’s office in groups of two or three and they were asked to fill out a questionnaire developed by Ms. Fleck. Pam Burnaham, the principal of Avon Park Elementary School, and Ms. Fleck supervised the students while they filled out the questionnaires. The students were not told that Ms. Fleck was investigating alleged wrongdoing by Respondent; they were told that the purpose of the questionnaire was to find out about their “FCAT experience.” Ms. Fleck testified that she was confident that the students understood that the questionnaire related only to the actual FCAT and not any of the practice tests administered by Respondent; however, Ms. Burnaham testified that she did not place any emphasis on the distinction, and as noted above, the students’ testimony at the hearing indicates that they may have been confused on this issue. Ms. Fleck concluded based upon the students’ responses on the questionnaires that Respondent “coached” the students during the administration of the actual FCAT. As a result, she invalidated the tests of all 18 students in Respondent’s class. Ms. Fleck’s decision to invalidate the students’ tests was not unreasonable based upon what she was told by the students, which she believed to be true; however, the invalidation of the tests is not sufficient in and of itself to impose discipline on Respondent because, as discussed above, the truth of the students’ allegations was not clearly and convincingly proven at the hearing. Several of the students gave written statements to a Department investigator in late May 2003 regarding the help that they recalled being given by Respondent on the FCAT. No weight is given to those statements because no credible evidence was presented regarding the circumstances under which the statements were made, the statements were made several months after the events described in the statements, and as was the case with the questionnaires the students filled out for Ms. Fleck, the undersigned is not persuaded that the students understood at the time they were giving the statements that they were describing events that occurred during the actual FCAT rather than the practice tests that they were given by Respondent. There is no persuasive evidence that any of the students in Respondent’s class whose tests were invalidated suffered any adverse educational consequences. Even though the school administrators did not have the benefit of the students’ FCAT scores for purposes of placement and/or developing a remediation plan, they had other information on which they could make those decisions, including the students’ scores on the NRT, which was administered the week after the FCAT and was not invalidated. Other than being reassigned to the school district office during the administration of the NRT, Respondent did not suffer any adverse employment consequences from the school district as a result of the students’ allegations and/or the invalidation of the students’ tests. To the contrary, Respondent continued to get good performance reviews and her contract has been renewed twice since the administration of the 2003 FCAT. Respondent did not administer the 2004 FCAT because this case was still pending. She was given other duties at Avon Park Elementary School while her students were taking the 2004 FCAT.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Amended Administrative Complaint against Respondent. DONE AND ENTERED this 6th day of April, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 2005.
The Issue Whether Respondent's intended award of the contract arising out of Request for Proposal No. 09L04FP4 to Intervenor is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Stipulated Facts In accordance with a 2001 legislative mandate, the Developmental Disabilities Program, formerly part of the Department of Children and Family Services and now within the Agency, established a requirement for prior service authorization (PSA) reviews for individuals enrolled in the Developmental Disabilities Home and Community Based Services waiver (waiver). Following a competitive procurement process, Maximus, Petitioner herein, was awarded a contract to provide PSA reviews for persons satisfying certain selection criteria, and related services. These PSA reviews ensure that services for which reimbursement is provided under the waiver are based on medical necessity. Currently only those cost plans that meet certain selection criteria are reviewed. A 2004 legislative mandate required the Developmental Disabilities program to expand the PSA program to review all support and cost plans for the waiver, including those that do not meet the selection criteria that trigger a PSA review under the Agency's existing contract with Maximus. On or about October 13, 2004, the Agency issued Request for Proposal No. 09L04FP4- Agency for Persons With Disabilities Prior Service Authorization Reviews (the APSAR contract). The RFP sought a vendor to serve as the contracted provider to conduct the additional reviews required by the 2004 legislative mandate (the ASPAR Contractor). The RFP proposals were to include responses to inquiries concerning the qualifications and capabilities of each proposer, as well as the proposed's vendor's proposal for providing the requested services (the technical proposal) and a separate proposal setting forth the proposed vendor's costs for providing such services (the cost proposal). Pursuant to the provisions of the RFP, the ASPAR Contractor will be responsible for reviewing these additional support plans and cost plans in order to ensure that individuals receiving waiver services receive medically necessary services to meet their identified needs. Pursuant to the provisions of the RFP, the ASPAR Contractor will be responsible for determining whether the Developmental Disabilities program is the appropriate funding source for the service(s) identified and shall recommend alternative funding mechanisms. The RFP set forth evaluation criteria and a scoring process in which a proposal could receive a maximum of 100 points, 25 of which are attributable to the cost proposal. The RFP states that "[t]he agency will attempt to contract with the prospective vendor attaining the highest total price." The deadline for submission of proposals in response to the RFP was November 2, 2004. The Agency received proposals from three prospective vendors: APS, Maximus, and First Health Services. On November 12, 2004, the Agency posted its Notice of Intended Award of the APSAR contract to APS. The Notice of Intended Award reflected the prospective vendors' scores as follows: APS, 86.45; Maximus, 82.06; and First Health, 71.52. Of its total score of 86.75, APS received 25 points for its cost proposal as the prospective vendor with the lowest total price. On November 16, 2004, Maximus timely filed a notice of intent to protest the Agency's intent to award the ASPAR contract to APS. Maximus timely filed its formal written protest, a Petition for Administrative Proceedings, with an accompanying bond which satisfied the applicable statutory and RFP requirements. Findings of Fact Based on the Evidence of the Record APS has standing to intervene in this proceeding. The APSAR contract being procured through the RFP is a fixed price contract. Lorena Fulcher is the Agency's procurement manager for the RFP. When the proposals were received, the Agency screened each of them for compliance with a list of fatal criteria set forth in Section 6.3.1 of the RFP. According to Ms. Fulcher, the purpose of the initial screening was to determine whether the proposals should go to a formal evaluation process. No scoring or points were associated with whether a vendor met the fatal criteria. The Agency determined that all three vendors met the fatal criteria. Therefore, the three proposals were sent to an evaluation committee which was responsible for evaluating the technical aspects of the proposals. Fatal Criteria Petitioner asserts that Intervenor did not satisfy one of the mandatory requirements of the RFP and, therefore, its proposal should not have been forwarded for further review and scoring by the evaluation committee. Section 5.4 of the RFP states that the mandatory requirements are described as "Fatal Criteria" on the RFP rating sheet and that failure to comply with all mandatory requirements will render a proposal non-responsive and ineligible for further evaluation. Section 6.3.1 of the RFP is entitled, "Fatal Criteria." One criterion reads as follows: "Did the proposal document and describe at least one year of experience in the developmental disabilities field and with Home and Community Based Services waivers?" According to Ms. Fulcher, the Agency looked at each proposal in its entirety to determine that there was prior experience with the sort of review that the Agency was trying to procure with the RFP. Ms. Fulcher referenced several pages of Intervenor's proposal relating to this criterion that the Agency reviewed in making its determination to send Intervenor's proposal to the evaluation committee. One such reference is contained on page 9 of Intervenor's proposal. That page references Intervenor's experience with Georgia Medicaid since 1999. On page 84 of Intervenor's proposal, that experience is further described as "Prior authorization and Concurrent Review for all Medicaid services under the Rehabilitation Option to individuals with mental health disorders and/or developmental disabilities. Specialized projects include technical assistance to HCBS Waiver providers." Intervenor was formed in the early 1990's and was acquired by APS Healthcare in 2002. Intervenor's proposal explains: "APS Midwest is a wholly owned subsidiary of APS Healthcare Bethesda, Inc. APS Midwest, formerly known as Innovative Resource Group, was acquired by APS in 2002." Petitioner argues that the Georgia experience should not have been counted because it was experience acquired prior to the 2002 acquisition of Intervenor. Specifically, Petitioner argues that since the Georgia project has been ongoing since 1999 and since Intervenor was not acquired by the APS parent company until 2002, that Intervenor could not have been the provider. APS Healthcare, and its subsidiaries, including Intervenor, are managed as a single entity and many of their services and resources are integrated. The evidence established that the resources of the APS family of companies are available in the performance of the contract. Moreover, the undersigned is not persuaded that Intervenor was prohibited in any way by the language of the RFP or otherwise, from referencing experience obtained by a parent or related corporate entity prior to the 2002 acquisition. Intervenor's proposal contained references to other experience which the Agency considered in determining that Intervenor's proposal met the one-year experience fatal criterion at issue. These included experience obtained in Pennsylvania, Idaho, and other states in the developmental disabilities field and with home and community based services waivers. The Agency's determination that Intervenor met the "one-year" experience fatal criterion is supported by the evidence of record. The Agency's decision to forward Intervenor's proposal to the evaluation committee was appropriate. Any evaluation or scoring of the content of Intervenor's representations was left to the evaluation committee. The Cost Proposals Section 4.4 of the RFP reads in pertinent part as follows: The prospective vendor shall clearly present in the cost proposal the total cost for each deliverable as described in Section 3.6, Task List. A pricing schedule must be presented that indicates a unit cost for each task to be performed, with all task amounts added for a grand total cost for each deliverable. The total cost of all deliverables will be presented as the proposed total contract amount. The cost proposal must be bound separately. The vendor must submit as supporting documentation, a detailed line-item budget that delineates and constitutes all costs contained in the proposed total contract amount. The line-item budget shall delineate the number and type of positions that will be required to complete the work identified for each major task, and discrete associated expenses. Further, Section 4.4 included a grid described as an "Example Format of the Pricing Schedule." The RFP does not state that a proposer must use the grid format provided in this section. The grid includes columns marked "Unit Cost," "Number of Units," "Amount for Year 1," "Amount for Year 2" and "Amount for Year 3." At the bottom of the grid, there is a line for a "Total per year" and there is a line for the "Grand Total." APS used the grid format as shown in Section 4.4 of the RFP. Below the grid, APS included a notation that reads: "Please note that costs are adjusted for years two and three accordingly." Following this notation are four "bullets" one of which reads: "Unit cost for PSA reviews slightly increase to reflect a 1-2% growth rate in years two and three. However, if the number of reviews significantly increase more than this amount, pricing would have to be adjusted accordingly." Petitioner argues that the language of the above referenced "bullet" constitutes a contingent price, as opposed to a fixed price as required by the RFP, and, therefore, Intervenor should have received a score of zero for its cost proposal. Section 6.3.3. of the RFP provides in pertinent part: "Evaluating Cost Proposals--The prospective vendor with the lowest total price shall be awarded 25 points or 25% of the maximum total score." Section 6.3.3 further provides that the other prospective vendors would be awarded points by dividing the lowest price by the prospective vendor's price and then dividing the resulting percentage by four. The Agency scored the cost proposal by the grand total stated in each proposal. That is, the points assigned for the cost proposals were based solely on the total price proposed. According to Ms. Fulcher, the Agency ignored the bullets for purposes of scoring the cost proposals because the RFP was for a fixed price contract. Petitioner Maximus submitted a total cost proposal in the amount of $10,259,131. Intervenor APS submitted a total cost proposal in the amount of $7,460,615. Accordingly, the Agency awarded Intervenor 25 points for submitting the proposal with the lowest grand total cost of the three vendors, and awarded Petitioner 18 points for its grand total cost. There is nothing in the referenced "bullet" in APS' proposal that implies that the grand total might increase. The "bullet" clearly references "unit costs" only. Moreover, Section 4.3 of the RFP states that payment method and pricing will be determined during negotiations. According to Ms. Fulcher, the cost information requested other than the total cost was to be used only for purposes of negotiating and drafting the contract. Petitioner argues that Intervenor's cost proposal contained mathematical errors that, if corrected, would increase the total cost proposed. The difference between the two proposals was $2,798,516. The evidence does not establish that if the mathematical errors were corrected, Intervenor's actual cost would have been higher than Petitioner's proposed total cost. Further, Petitioner offered testimony speculating how Intervenor's actual costs might be higher than those reflected in Intervenor's proposal. Petitioner's speculation in this regard is of no consequence. Moreover, the contract is clearly a fixed fee contract. The proposers, including Intervenor, are bound by the fixed total cost reflected in the respective proposals.2/ The Technical Proposals Petitioner asserts that the Agency erroneously scored its technical proposal, thereby depriving Petitioner of points that would have resulted in an award of the contract to Petitioner. The RFP required the vendors to submit sealed technical proposals separate from the cost proposals. In contrast to the cost proposals, the scoring formula for the technical proposals was not based on a ratio comparison of the best proposal to the other proposals. Rather, the formula for scoring the technical proposals provided that the total score of each technical proposal would be divided by 48 to arrive at a total percentage of 100 that was then converted into points. Thus the formula for scoring technical proposals is not based on a comparison of one vendor's proposal to the others, but is based on how well each vendor did within a possible score of 36. Section 6.3.4 of the RFP sets forth the formula for scoring the technical proposals: The prospective vendor with the highest rating in this section (36 points) shall be awarded 75% (75 points) of the maximum possible score. Other prospective vendors are awarded points using the following formula: The rating is divided by 48 to determine the points awarded (36/48=75%). Section 6.3.4 of the RFP also provided three examples applying the formula for awarding points to technical proposals, with each example showing a vendor's points divided by 48. The numerator of the above formula was derived by taking the average of the total points assigned by each of the four evaluators, which was then divided by 48. The average of the evaluators' scores for Petitioner's technical proposal was 30.75. The average of the evaluators' scores for the APS technical proposal was 29.5. Accordingly, when the formula was applied, Petitioner's technical proposal score was 64.06 (30.75/48=64.06%) and Intervenor's technical proposal score was 61.45 (29.5/48=61.45%). Petitioner argues that because it received the highest technical score of 30.75, it was entitled to 75 points for its technical proposal. Petitioner, nor any other vendor, received a score of 36, the highest possible score for the technical proposal. Because no vendor received the maximum possible technical rating of 36 points, no vendor was awarded the maximum possible score of 75 points for the technical proposals. The agency applied the formula to the three vendors in a consistent manner. While the wording of Section 6.3.4 is awkward, the Agency's interpretation of that section is a reasonable one that was applied equally to all vendors. Petitioner's Proposal Finally, Intervenor asserts that Petitioner's proposal was non-responsive because it is dependant upon Petitioner continuing to provide services under its existing contract with the Agency. Petitioner's proposal was prepared using a methodology that contemplated allocating some costs to its existing contract and some costs to the contract solicited by the RFP because Petitioner already has certain resources that can be employed to provide services in the solicited contract. There is no dispute that Petitioner holds a current related contract. The Agency's determination that Petitioner's proposal was responsive in this regard was reasonable. How the costs are to be allocated was subject to evaluation and scoring by the evaluation committee.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Persons with Disabilities enter a final order dismissing Petitioner's protest. DONE AND ENTERED this 15th day of March, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway The DeSoto Building Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 2005.
