Findings Of Fact The underlying case for which attorneys fees in the undisputed amount of $2,775.00 are sought involved a 1992 application by Union Trucking, Inc. for recertification by the Florida Department of Transportation (FDOT) as a disadvantaged business enterprise (DBE). Union Trucking, Inc. had originally been certified by FDOT in 1988, and upon successive applications for certification, had been recertified by FDOT in 1989, 1990 and 1991. Recertification was applied for on July 20, 1992 and denied on December 14, 1992. A request for formal hearing followed on January 15, 1993 and the case proceeded before the Division of Administrative Hearings (DOAH) until FDOT recertified Union Trucking, Inc. on October 15, 1993. On November 17, 1993, DOAH hearing officer P. Michael Ruff entered an order relinquishing jurisdiction, which resulted in FDOT's December 17, 1993 final order. FDOT's final order was entered on the grounds that certification had been granted, did not alter the recertification terms, and dismissed the request for formal hearing. On February 14, 1994, less than sixty days after entry of the FDOT final order, Petitioner filed its original "Application for Award of Attorneys Fees Pursuant to F.S. 57.111," hereafter "petition." On March 2, 1994, FDOT filed a response, which, although no motion to dismiss was filed, addressed assorted insufficiencies of the petition. FDOT's response did not raise any timeliness bar. An order of dismissal with leave to amend within fifteen days was entered by the undersigned hearing officer on April 21, 1994. The amended petition was filed May 11, 1994, and FDOT filed its response on May 26, 1994, still not asserting any timeliness bar. At formal hearing, the parties stipulated that the only issue for consideration was whether or not FDOT had been substantially justified in denying the 1992 recertification. Otherwise, it was undisputed that Petitioner is a small business party; that FDOT was not merely a nominal party; that the employment, amount of fee, and hours worked by Petitioner's counsel were as stated in the pleadings, and that there were no "unusual circumstances" as contemplated within the applicable statute and rule. The undersigned hearing officer suggested that the parties include in their post-hearing proposals arguments directed to timeliness, vel non, of the attorney's fee and costs petition, and thus, whether or not DOAH has jurisdiction of this case. With regard to the "substantial justification" issue, it is necessary to review the DBE process since 1991. Union Trucking, Inc.'s 1991 application for recertification was received by FDOT on April 30, 1991. Documents submitted to FDOT by Union Trucking, Inc. in conjunction with the 1991 application revealed that Petitioner corporation had undergone an ownership change on April 1, 1991, approximately 29 days prior to submittal of the 1991 application, which ownership change had transferred 49 percent of Union Trucking, Inc.'s corporate stock from Denise Willis to Robin P. Wilson; that the new owner, Robin P. Wilson, did not list any employment on her resume other than at Pritchett Trucking, Inc.; that Union Trucking, Inc. had a business relationship with Pritchett Trucking, Inc.; and that the new 49 percent owner of Union Trucking, Inc., Robin P. Wilson, is the daughter of Marvin Pritchett, owner of Pritchett Trucking, Inc. Marvin Pritchett is a white American male. Robin Pritchett Wilson is a white American female. Denise Willis, who previously owned the 49 percent of Union Trucking, Inc. stock which was transferred to Robin Wilson is also a white American female, and the stepdaughter of Marvin Pritchett. From Union Trucking, Inc.'s inception and at all times material, 51 percent of Union Trucking, Inc.'s stock has been owned by Warren Lee, a black American male. At all times material, Union Trucking, Inc. has been 100 percent owned by disadvantaged classes (female and black). At all times material, FDOT did not break down its disadvantaged certifications as to "black" versus "female" for purposes of categorizing DBE status, but only looked to whether or not at least 51 percent of the stock was owned by a member(s) of a disadvantaged class. FDOT has no rule specifically requiring that all owners work in the business, only that day to day control be in the hands of the disadvantaged class. FDOT conducted an on-site visit to Union Trucking, Inc. on July 22, 1991, at which time FDOT requested additional information as to Robin Wilson's employment with Union Trucking, Inc. and was notified that Robin Wilson spent approximately one to two hours per day working for Union Trucking, Inc. FDOT also inquired about Union Trucking Inc.'s business relationship with Pritchett Trucking, Inc. and received the explanation that the relationship was "like any lease owner with the company they lease with." DBE personnel at FDOT did not understand what this response meant, but they did not inquire further in 1991. Instead, the FDOT DBE certification committee voted to recertify Union Trucking, Inc. with a special monitor, because there were undefined "concerns" and unidentified "feelings" about the eligibility of Union Trucking, Inc. At formal hearing, FDOT personnel were very clear that recertification in 1991 with a "special monitor" meant that when Union Trucking, Inc. came up for recertification in 1992, an on-site review must be conducted. Prior to receiving Union Trucking, Inc.'s July 20, 1992 application for recertification, FDOT was notified by the Department of General Services (DGS) that DGS also had "concerns" about Union Trucking, Inc. On September 10, 1992, DGS notified FDOT that DGS had denied Union Trucking, Inc.'s application to DGS for Minority Business Enterprise (MBE) certification, that the DGS denial had been upheld at a DOAH hearing, and that FDOT would be provided a copy of the DOAH hearing officer's recommended order. FDOT subsequently received a copy of that recommended order which had been entered September 9, 1992. FDOT's Minority Programs Office Manager testified that, in his opinion, the recommended order in the DGS case (Exhibit DOT 9) "verified" the FDOT "concerns" expressed during the 1991 FDOT recertification process, but he defined those concerns as independent financing. The FDOT DBE certification committee chairperson testified that the recommended order addressed concerns expressed during the 1991 FDOT recertification process, but he defined the concerns differently, as lack of independency from familial relationships, i.e. control, and financial relationships of family corporations. Both men considered FDOT's and DGS' rules to be substantially similar. In fact, the September 9, 1992 recommended order to DGS involved a different agency (DGS) than FDOT, a different statute (Section 287.0943 F.S.) than the one authorizing FDOT's DBE program and different rules (Rules 13A- 2.005(4)(a) and (b) and 13A-4 F.A.C.) than the ones administered by FDOT. FDOT is required to operate under Section 337.135 F.S. and administer Rules 14-78.002 and 14-78.005 F.A.C. Also, the recommended order focused on a legal conclusion that Union Trucking, Inc. was financially dependent, or at least at the time of its corporate "start-up" in 1986 was financially dependent, upon Pritchett Trucking, Inc. The recommended order stated, in pertinent part, as follows: . . . co-owner of the applicant is Pritchett's daughter and a natural subject of his goodwill and generosity, such a relationship is prohibited by the statute, [referring to Section 287.0943 F.S.] Similarly, her service as a director of Pritchett corporation, carrying on Union's business from her desk at Pritchett Trucking is natural, but estab- lishes a prohibited relationship. [Bracketed material added her for clarification]. Upon receipt of the DGS recommended order, FDOT did not seek further explanatory information from the applicant, as was FDOT's standard procedure under its normal operation. Further, FDOT did not follow its own specially prescribed procedure for certified DBEs with "special monitor" status, in that FDOT did not conduct a new 1992 on-site review. Instead, two months later, FDOT sent its December 14, 1992 denial letter. The FDOT employee who prepared the letter testified that the letter denial was based on her review of all the information already in FDOT's DBE file on Union Trucking, Inc., upon the audio tape of the old 1991 on-site review interview, and upon corporate records of the Secretary of State. The FDOT letter, however, closely tracked the DGS recommended order but denied recertification by FDOT on the basis of FDOT Rules 14-78.005(7)(c)1. and 2.c. and 14-78.005(7)(a) F.A.C. It also stated that Union Trucking, Inc. was not an independent business entity or a small business concern and that there was an "affiliate" relationship under FDOT rules due to "Susan [sic] Wilson." It renamed Robin Wilson and also extrapolated a great deal of financial information that appears to come directly from the DGS recommended order. As a result of FDOT's denial of its 1992 recertification application, Union Trucking, Inc. requested a formal hearing. During the progress of that case before DOAH, FDOT received a copy of an affidavit by Robin Wilson in which she stated that Union Trucking, Inc. only purchased parts and fuel from Pritchett Trucking because Pritchett's Lake Butler terminal was the least expensive and most convenient source. Ms. Wilson also stated that Union Trucking, Inc. had not received any loans from her father's companies in four to five years, and that there were no current outstanding loans. In an effort to negotiate the issues and resolve matters without formal hearing before DOAH, FDOT finally conducted an on-site review in July 1993. Documentation was provided by Union Trucking, Inc. to show that all recent transactions with any of Marvin Pritchett's companies were properly invoiced "arm's length" transactions and that Union Trucking, Inc. dealt with many other companies as well; that Union Trucking, Inc.'s old debts to Marvin Pritchett's companies had been retired with zero balances prior to Union Trucking, Inc.'s 1992 recertification application to FDOT; and that Union Trucking, Inc. had three trucks and trailers normally being used full-time in its business. Random samplings by FDOT's consultant during this on-site review confirmed the information in the possession of FDOT prior to the 1992 application for recertification, most of which had been provided and was already in FDOT's possession as early as April 30, 1991. If FDOT had inquired concerning any loans at the time it received the recommended order in September 1992, it would have determined that all loans to Union Trucking, Inc. from any of Marvin Pritchett's various enterprises had been paid off prior to Union Trucking, Inc.'s 1992 recertification application to FDOT. FDOT's consultant's report after the 1993 on-site review determined that there currently were no "affiliated" firms under FDOT rules. It also appears from the report that FDOT then accepted that Robin Wilson split her time between office management for Union Trucking, Inc., running her own company named "Robin Pritchett Trucking Inc.," and working for her father's "[Marvin] Pritchett Trucking Inc." Having clarified these matters, FDOT no longer had problems or concerns with such an arrangement. Union Trucking, Inc.'s records on file for contract work with FDOT through other contractors also reflected use of owned trucks and drivers employed by Union Trucking, Inc. FDOT then recertified Petitioner effective October 15, 1993. At the attorney's fee and costs hearing herein, FDOT presented evidence that it did not have the correct location address for Union Trucking, Inc. when its personnel went to the July 1993 on-site review. This evidence does not justify FDOT's 1992 denial. Union Trucking, Inc.'s corporate office had moved a few weeks previous to the 1993 on-site review. Since Union Trucking, Inc. and its lawyer had been in constant communication with FDOT during the litigation phase of the recertification denial case, consistently urging an on-site inspection, any failure by Union Trucking, Inc. to clarify the geographical relocation of its office in 1993 was either an oversight or an innocent miscommunication. This change of address was not noted in Union Trucking, Inc.'s 1992 reapplication because the move had not yet occurred when that reapplication was submitted in July of 1992. Obviously, FDOT did not use the 1993 failure to notify the agency of a change of address as a reason to deny recertification in 1992, and FDOT also did not consider it a sufficiently serious flaw to withhold recertification after the July 1993 on-site review. FDOT also presented evidence that Robin Wilson did not tell the agency that she owned 100 percent of another corporate entity, "Robin Pritchett (her maiden name) Trucking, Inc." until the July 1993 on-site review. FDOT's two on- site reviewers concurred that "Robin Pritchett Trucking," consisting of one truck, which was sporadically used to haul wood chips, was never any cause for FDOT's concern. Apparently, FDOT considers hauling wood products to be an entirely different industry than the hauling of highway aggregates, which is the type of work done on FDOT contracts and the type of work done by Union Trucking, Inc. While Robin Pritchett Wilson's "affiliation" with her own independent corporation, "Robin Pritchett Trucking, Inc.," possibly was the type of "affiliation" which she should have disclosed, pursuant to FDOT's DBE rule, on Union Trucking Inc.'s 1992 application for recertification by FDOT as a DBE, it is clear that FDOT did not know of this nondisclosure when the agency denied recertification in December 1992. FDOT did not deny recertification at that time for that reason. FDOT also did not consider such nondisclosure to be a sufficiently serious flaw so as to withhold recertification after the disclosure at the July 1993 on-site review. Also, FDOT never asserted that its personnel had been confused in 1992 between "Robin Pritchett Trucking, Inc." and "[Marvin] Pritchett Trucking, Inc." Therefore, this late disclosure does not justify FDOT's 1992 denial of certification. In its July 1993 on-site review, FDOT investigated but found no barrier to recertifying Union Trucking, Inc. under the statutes and rules FDOT administers. There were no barriers related to familial relationships, related to Robin Wilson's being an owner of her own corporation, related to her being a director of any corporation, related to her owning a nominal number of stock shares in Marvin Pritchett's several businesses, related to her use of Pritchett's desk or office equipment, related to Pritchett loans to Union Trucking, Inc., related to Mr. Lee's use of a special account, or related to any other factual reason cited in either FDOT's December 14, 1992 denial letter or the September 9, 1992 recommended order affecting DGS. Nonetheless, FDOT's consultant's closing comments in the 1993 on-site report sum up FDOT's continuing overall approach to Union Trucking, Inc., both before the 1993 on-site review and thereafter. This approach is to "continue to question" successful DBEs whose principals have successful families and successful corporate investments. He wrote: Because of the close family relationships and multiple companies owned or operated, this firm will continue to be questioned as to eligibility for the DBE program. Any concerns I have remaining can only be resolved through the actual job perform- ance and compliance on future projects. I strongly recommend a continued compliance report be addressed with detailed concerns to support the next certif- ication provided the firm is recertified.
The Issue The primary issue for determination is whether the bid of Intervenor, in response to Respondent's invitation to bid, is non-responsive. Secondary issues to be resolved include Petitioner's legal standing to protest all recommended awards to Intervenor in all the bid's categories where intervenor was deemed the successful bidder; whether Intervenor is an operational division of a corporation authorized to conduct business within the State of Florida; whether Intervenor satisfied bid requirements for submission of a valid manufacturer's certificate; and whether intervenor satisfied bid requirements involving identification of a service coordinator and provision of a list of service representatives in the State of Florida for the computer equipment which is the subject of the bid.
Findings Of Fact Respondent issued an Invitation To Bid (ITB) for microcomputers, Bid No. 129-250-040-B, on February 19, 1990. The ITB was revised by a March 22, 1990 addendum which established April 9, 1990, as the date for opening bid responses with bid tabulations to be posted on May 7, 1990. The purpose of the ITB was to establish a twenty-four (24) month contract for the purchase of microcomputers and equipment by all State of Florida agencies and other eligible users. Political subdivisions of the State of Florida, as well as state universities, could exercise the option of purchasing from the contract, if they so desired. The ITB invited bids in several categories of microcomputer equipment. Petitioner's timely filed written protestaddresses 17 of those categories where Intervenor was determined by Respondent to be the successful bidder. Those categories are numbered 255, 256, 257, 258, 259, 260, 266, 267, 268, 269, 271, 272, 273, 275, 276, 277, and 278. However, the bid tabulation posted by Respondent on May 7, 1990, establishes that Petitioner was the next lowest bidder in only four of the 17 categories. Those four categories are 266, 267, 268, and 269. In accordance with Paragraph 13 of the ITB general conditions, all corporations responding to the ITB were required to be registered with the Florida Department of State and authorized to transact business in the state in accordance with requirements of Chapter 607, Florida Statutes. Further, such bidders were required to insert their corporate charter number, resulting from that registration, in the appropriate space in the bidder acknowledgement form provided by Respondent for inclusion in responses to the ITB. Intervenor provided the Department of State Corporate Charter No. 822327 in the bidder acknowledgement form submitted with its response to the ITB. That charter number is assigned by the Department of State to VGC Corporation d/b/a VGC Corporation of Delaware, a corporation organized under laws of Delaware and authorized to transact business in the State of Florida since 1969. Intervenor mistakenly listed, in its bid, the federal employment identification (FEID) number of another subsidiary corporation of VGC Corporation (VGC). The FEID number submitted by intervenor was that of Graphic Arts Supply, Inc., (GAS), acquired by VGC in December of 1986. GAS became a wholly owned subsidiary of VGC at that time and remains such at the present time. At the time of its acquisition, there existed within GAS a particular segment of that business which dealt primarily with computer products. This computer segment of GAS was set up by VGC as a separate division of the parent corporation in November, 1988. The formation of the new division within VGC was announced at that time by the VGC president in an interoffice memorandum which stated in pertinent part: The Computer Products Group of Graphic Arts Supply has grown significantly in the last several years, accounting for approximately 10% of the total corporation's sales. The growth opportunities in this area are enormous and our long term goal is to become one of the major material distributors of computer products in the United States. Accordingly, I am pleased to announce that we will make this operation a separate division, reporting to Tom Mclaughlin. At the time of the issuance of the November 1988 interoffice memorandum, Tom Mclaughlin was a vice-president and subsidiary manager of VGC corporation. Another individual, Pat Mclaughlin, was a VGC vice-president and general manager of the new division, the intervenor in this cause. Another memorandum issued by the VGC president on September 14, 1989, further emphasized that VGC's Business Systems Division, which is also intervenor, was an operating division of VGC. That memorandum stated that the company comprising the Business Systems Division was known as "GA Computer Systems" and further provided in pertinent part that: The Business System Division is an operating unit and not a subsidiary. The Business Systems Division relies on VGC-Rochester for financial and administrative support, and VGC-Florida for all other support and reporting. On the date of Intervenor's response to the ITB, GAS and Intervenor continued to maintain a business relationship. Pursuant to that relationship, GAS provides certain administrative services to Intervenor in the form of certain record keeping and payment of various taxes in the state of New York. Intervenor pays a fee to GAS for these services. Other administrative functions, such as federal and state tax return preparation, are performed by VGC-Rochester and VGC-Florida, other components of VGC. Intervenor's response to the ITB was submitted and signed by John J. Piseck, an employee of VGC who serves as the eastern regional sales manager for Intervenor's computer products. Another of the ITB's general conditions requires that bids from non manufacturers to provide microcomputers must be accompanied by a certification from the manufacturer that the bidder is an authorized representative of the manufacturer. The certification submitted by Intervenor with its bid response was executed by a representative of Hewlett-Packard Corporation, the computer manufacturer, certifying that GA Computer Products is an authorized dealer/representative. On the date of Intervenor's response to the ITB, adealer/representative contract existed between Intervenor and Hewelett-Packard. The agreement was signed on Intervenor's behalf by Patrick Mclaughlin, VGC vice- president and general manager of Intervenor. Page 12 of the ITB special conditions provides in pertinent part that: The bidder shall name a service coordinator and provide a complete list of in-state representatives, and manufacturer's authorized service repair centers on page 19 as part of the bid response. In the course of fulfilling its responsibility to evaluate each vendor's response to the ITB, Respondent accepted either a list of the bidders' own in-state representatives or a list of the manufacturer's in-state representatives as meeting this service requirement of the ITB. Respondent does not, and is not required to, verify information supplied by vendors relating to service locations. Intervenor has fully complied with the ITB requirement relating to naming a service coordinator and providing a list of service representatives and repair centers. Specifically, Intervenor named one of its employees as the service coordinator, provided a toll-free telephone number for communication with the coordinator, and listed five Hewlett-Packard service locations within the State of Florida. These service locations honor the warranties of the manufacturer, Hewlett-Packard, without regard to which Hewlett-Packard dealer sold the product. Intervenor was responsive in all material respects to Respondent's ITB No. 129-250-040-B.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that upon Intervenor's submission of a corrected FEID number, a Final Order be entered denying Petitioner's claims and confirming the award of the contested 17 categories of Respondent's ITB No. 129-250-040-B to GA Computer Products, a division of VGC Corporation. DONE AND ENTERED this 23rd day of July, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1990. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. Petitioner's proposed findings consisted of 32 pages encompassing unnumbered paragraphs dealing with an intertwined mixture of legal conclusions, argument and proposed factual findings. Therefore, Petitioner's submission cannot be treated by the Hearing Officer in this appendix on an individualized basis for each proposed finding. However, Petitioner's submission has been reviewed and addressed, where possible, by the findings of fact set forth in this recommended order. Otherwise, all disputed issues of material fact have been addressed by the evidence adduced at the hearing held in this cause. Intervenor's Proposed Findings. 1.-32. Adopted in substance. Respondent's Proposed Findings. 1.-2. Adopted in substance. 3.-4. Rejected, unnecessary. 5.-24. Adopted in substance. 25.-27. Rejected, unnecessary. 28. Adopted in substance. COPIES FURNISHED: Thomas F. Morante, Esq. One Biscayne Tower Suite 3750 Two S. Biscayne Boulevard Miami, FL 33131 Susan Kirkland, Esq. Jim Bennett, Esq. Office of General Counsel Department of General Services Suite 309 Knight Building 2737 Centerview Drive Koger Executive Center Tallahassee, FL 32399-0950 Lowell L. Garrett, Esq. 5300 Southeast Financial Center 200 S. Biscayne Boulevard Miami, FL 33131 Ronald W. Thomas Executive Director Knight Building Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950
The Issue Whether Petitioner waived its right to protest the Supplemental Notice of Intent to Award issued by the Department on December 1, 2020.
Findings Of Fact On March 17, 2020, the Department issued Request for Proposals Number 06-80101500-J (the RFP) seeking vendors to provide services through state term contracts in two categories (Service Categories): (1) management consulting services (MCS) and (2) financial and performance audit services (FPA). The awarding of state term contracts resulting from the RFP does not guarantee the awarded vendors business; instead, being selected for award under a state term contract merely allows the awarded vendors to further compete for business from state agencies and certain defined eligible users who require the services offered under the contract. After vendors are selected for a state term contract, a state agency or eligible user who requires the services issues a request for quotes from the state term contract vendors. The vendors decide whether they want to compete for the specific services solicited by submitting a quote, and the procuring agency or user then selects from the contracted vendors the vendor that can best fit its unique needs based on the quotes. Accordingly, the purpose of the RFP is simply to pre-qualify the vendors for the future possibility of obtaining work from state agencies and eligible users. Consequently, the Department’s award to multiple vendors for each Service increases competition and gives the users significant choice in selecting a vendor, with each additional award having the effect of increasing the competition and choice available to state agencies and other eligible users who utilize the state term contract. The Department separately evaluated proposals submitted in the two Service Categories and made separate awards for each Service Category. Integrity Group submitted proposals for both Service Categories. Petitioner’s Protest concerns only the actions of the Department in conducting the procurement for the MCS Service Category and does not implicate the FPA Service Category. As part of the evaluation for the MCS Service Category, each vendor submitted a summary of its experience and a separate proposal for each individual Service (Services a through l) within the MCS Service Category. Integrity Group submitted a response summarizing its experience and an individual proposal for each of the MCS Services (Services a through l). Five evaluators appointed by the Department were tasked with scoring each vendor’s response with respect to experience, as well as separately evaluating and scoring each Service proposal submitted for Services a through l. The vendor with the highest score for each Service was awarded a state term contract for such Service, and the RFP reserved to the Department the right to make additional awards to vendors that scored within 25% of the highest score for each Service. The Department initially posted its Notice of Intent to Award and a list of the vendors that were awarded contracts in each Service on September 29, 2020. While the Department awarded Integrity Group state term contracts for the FPA Service Category, it did not make any awards to Integrity Group for the MCS Service Category. The Notice of Intent to Award for the MCS category posted by the Department on September 29, 2020, stated: State of Florida Notice of Intent to Award Management Consulting Services RFP No: 06-801 01500-J Date: September 29, 2020 As to the Management Consulting Services (MCS) category of the above-mentioned Request for Proposals, pursuant to sections 287.057(1)(b) and 120.57(3), Florida Statutes, the Department of Management Services hereby posts its Notice of Intent to Award a contract to the vendors listed in the MCS Award List attachment. Vendors who submitted proposals but were not awarded a Contract are listed in the MCS No Award attachment. Vendors who have submitted proposals deemed non-responsive are listed in the MCS Non-responsive attachment. Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under chapter 120, Florida Statutes. Any protest concerning this agency decision or intended decision must be timely filed with the Agency Clerk. Protests may be filed by courier, hand delivery, or U.S. mail at Department of Management Services, Office of the General Counsel, Attention: Agency Clerk, 4050 Esplanade Way, Suite 160, Tallahassee, FL 32399-0950. Protests may also be filed by fax at 850-922-6312 or by email at agencyclerk@dms.fl.gov. It is the filing party’s responsibility to meet all filing deadlines. From October 9 to 12, 2020, the Department received formal protests from four vendors not initially selected for award: Intervenor, MGT; TEK Systems Global Services, LLC; Slalom, LLC; and Tidal Basin Government Consulting, LLC. Integrity Group did not file a notice of protest within 72 hours of the Department’s posting of its September 29, 2020, Notice of Intent to Award, and did not file a formal written protest within ten calendar days from the filing of a notice of protest. On December 1, 2020, and after having engaged in resolution conferences with each of the protesting vendors, the Department issued a Supplemental Notice of Intent to Award, which awarded contracts to the four protesting vendors. Thereafter, on December 4, 2020, Integrity Group filed a notice of intent to protest related to the Department’s Supplemental Notice of Intent to Award, and on December 14, 2020, filed Petitioner’s Protest. Petitioner’s Protest alleges that “the Integrity Group is substantially and adversely affected by the Department’s improper and fundamentally flawed procurement process and erroneous decision to exclude the Integrity Group from receiving any awards.” However, as explained in the Conclusions of Law below, Petitioner’s Protest is untimely, has been waived, and should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner lacks standing and dismissing Petitioner’s Protest with prejudice. DONE AND ENTERED this 22nd day of January, 2021, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2021. COPIES FURNISHED: Rebekah Davis, Esquire Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399 Marion Drew Parker, Esquire Radey Law Firm Suite 200 301 South Bronough Street Tallahassee, Florida 32301 Mia L. McKown, Esquire Holland & Knight LLP Suite 600 315 South Calhoun Street Tallahassee, Florida 32301 Benjamin J. Grossman, Esquire Foley & Lardner LLP Suite 900 106 East College Avenue Tallahassee, Florida 32301 Christopher Brian Lunny, Esquire Radey Law Firm Suite 200 301 South Bronough Street Tallahassee, Florida 32301 Karen D. Walker, Esquire Holland & Knight, LLP Suite 600 315 South Calhoun Street Tallahassee, Florida 32301 Mallory Neumann, Esquire Foley & Lardner LLP Suite 900 106 East College Avenue Tallahassee, Florida 32301 William D. Hall, Esquire Dean Mead & Hall Suite 1200 106 East College Avenue Tallahassee, Florida 32301 James A. McKee, Esquire Foley & Lardner LLP Suite 900 106 East College Avenue Tallahassee, Florida 32301 William Chorba, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Jonathan Satter, Secretary Department of Management Services 4050 Esplanade Way, Suite 285 Tallahassee, Florida 32399-0950 Daniel R. Russell, Esquire Dean Mead & Hall Suite 1200 106 East College Avenue, Tallahassee, Florida 32301
The Issue The issues in this case are twofold: (1) Did the Respondent properly adopt its bid methodology for processing VOCA grants and, if not, (2) did the Respondent demonstrate a suitable factual base for its non-rule policy.
Findings Of Fact The Federal Victim of Crimes Act ("VOCA"), 42 U.S.C., Sections 10601- 10605, authorizes the granting of federal funds to the individual states for the purpose of awarding grants to eligible subgrantees who provide direct assistance to victims of crime. The U.S. Department of Justice, Office of Victims of Crime, has published guidelines for the implementation of the program. Listed among the factors that a state should take into account when distributing VOCA awards are (1) the range of victim services needed throughout the state, (2) the track record of continuation programs, and (3) the extent to which other sources of funding are available for proposed programs. See, 54 Fed. Reg. 21499, 21503 (May 18, 1989)(Respondent's Exhibit The federal guidelines provide, inter alia, that the states which receive these monies have sole discretion as to which programs within the state shall be awarded subgrants, as long as the subgrantees meet the eligibility criteria of VOCA and the guidelines. The Department of Labor and Employment Security, Division of Workers' Compensation, Bureau of Crimes Compensation and Victim Witness Services (the "Bureau") is the agency of the State of Florida responsible for administering the VOCA subgrant program. The Petitioner, Metro-Dade Department of Justice Assistance ("MDJA"), is a nonprofit organization based in Dade County, Florida, which is devoted to providing specialized psychological counseling and related services to victims of child sexual abuse and domestic violence in previously underserved populations; both priority areas under VOCA. Petitioner has been a VOCA grant recipient for the last four years. Petitioner's subject VOCA grant application for FY 1990-91 is the fifth consecutive year in which it has sought VOCA funds through Respondent. Petitioner is currently the only program in Dade County providing free specialized counseling to victims of child sexual abuse and domestic violence. The VOCA award Petitioner is seeking for FY 1990-91 would fund specialized counseling, outreach programs, intervention services, and other related services for between 450-550 victims of child sexual abuse and domestic violence in Dade County. Since the inception of the VOCA program, the Bureau has solicited applications from the State's victim services organizations by means of a request for bid process. The Bureau annually prepares and distributes a VOCA grant manual and application and awards subgrants on the basis of a scoring system set forth in the VOCA grant manual. On March 6, 1990, Respondent sent all prospective applicants, who had indicated by telephone or letter of intent to apply for FY 1990-1991 VOCA funding, a grant manual and application packet, including necessary forms, instructions and filing deadlines, with which to apply for FY 1990-1991 VOCA continuation funding and new and expanded funding. Included with these materials was a grant application timetable notifying respective applicants of deadlines for filing both a Notice of Intent to submit an application and the grant application itself. In addition, this timetable advised prospective applicants that an applicants' conference would be held in Tallahassee, Florida, on March 22, 1990, at 1:00 p.m., "to provide all applicants the opportunity to ask specific questions about the manual or the application process." Although MDJA did not attend the applicants' conference, at the applicants' conference, no one commented or questioned the requirement for filing a Notice of Intent or objected to the deadline for filing the same. The applicants' conference provided a question and answer session through which the Bureau was able to clarify most of the questions posed by the 50 or so potential applicants who attended the conference. No substantive changes to the VOCA grant manual or forms were recommended by the attendees and the Bureau did not make any substantive revisions to the VOCA grant application requirements; specifically, no comment or revisions were made on the Notice of Intent provisions. The manual required for the first time a Notice of Intent. The provisions relating to the Notice of Intent are found in three (3) separate parts of the VOCA grant manual and the application: Page 1 of the VOCA Grant Manual reads: Deadlines for the submission of Notices Intent to Submit a Proposal and Grant Application deadlines must be followed. Any Notices of Intent to Submit a Proposal and Grant Application deadlines must be followed. Any Notices of Intent to Submit a Proposal and Applications received after the deadline will not be considered for funding and will be returned to the applicant. Section II.A.2. of the VOCA Grant Manual provides: 2. Notice of Intent to Submit a Proposal. A Notice of Intent to Submit a Proposal must be submitted by all programs intending to file a proposal or they will not be permitted to submit an application. Applicants must complete the entire form provided in the, Application. The purpose of the Notice of Intent is to estimate the number of proposals and the total amount of money being requested. A Notice of Intent to Submit a Proposal does not constitute an application for VOCA funds. The Notice of Intent to: Submit a Proposal must be signed by the appropriate agency representative designated to sign on behalf of the agency. The original Notice and one copy must be submitted for it to be accepted by the department. The deadline for accepting a Notice of Intent to Submit a Proposal is March 29, 1990, at 2:00 p.m. Eastern Standard Time. Notices arriving after this time will not be considered for funding and will be returned. (FAXED COPIES ARE NOT ORIGINALS AND THEREFORE WILL NOT BE ACCEPTED.) Notice of Intent to Submit a Proposal for the 1990- 91 Victims of Crime Act Funding ("VOCA"), also provides: Notices are due no later than March 29, `1990 at 2:00 p.m. Eastern Standard Time. Any Notices received after this time and date will be returned to the applicant and will not be considered for funding. In late February or early March of 1991 Respondent received a telephone call from an employee of Petitioner notifying the Respondent that MDJA would be filing a grant application for FY 1990-91 VOCA funds and specifically requesting Respondent to send to MDJA a VOCA grant manual and related application forms. It is uncontroverted that MDJA, made this telephone call, that it was received by Respondent, and that pursuant thereto, Respondent sent the aforementioned VOCA packet and related forms to MDJA. The Executive Director of MDJA completed and signed the Notice of Intent form provided by Respondent on Friday, March 23, 1990. This form was sent certified mail to Respondent on Monday morning, March 26, 1990, via courier. Although dispatched from MDJA's office on March 26, 1990, for some inexplicable reason, the Notice of Intent was not postmarked and dispatched from the mail room until Wednesday afternoon, March 28, 1990, and was not received by the office of Respondent until 10:05 a.m. on Friday, March 30, 1990, approximately four business hours after the March 29, 1990, 2:00 p.m. deadline. It was postmarked March 28, 1990. On March 30, 1990, fearing that MDJA's Notice of Intent may have been delayed in the mail, the Bureau telephoned MDJA at approximately 9:00 a.m. to inquire if it had mailed the Notice of Intent form. MDJA then informed Respondent that its Notice of Intent had been sent on Monday, March 26 1990, and that such Notice should have been received by the Thursday deadline. Shortly thereafter, at 10:05 a.m., on March 30, 1990, MDJA's Notice of Intent did arrive at Respondent's office, via certified mail. MDJA filed its actual application for VOCA funding for FY 1990-91 prior to the April 12, 1990 for applications. It is not disputed that Respondent received oral notification from MDJA, prior to March 29, 1990, that MDJA would be filing an application for VOCA funding far FY 1990-91. It is not disputed that MDJA was a four-year continuation program. All of the information sought in the Notice of Intent form, including MDJA's name, contact person, address, telephone number, whether the applicant was a continuation program, and the 1990-91 amount sought (which is limited by what the MDJA received the previous year, plus 5%), was already in Respondent's possession prior to the March 29, 1990 filing deadline. It is uncontroverted that MDJA's Notice of Intent being received approximately four business hours after the deadline in no way inconvenienced Respondent or in any way impaired their ability to carry out their duties aid responsibilities. The Respondent, by letter dated April 3, 1990, advised MDJA that it was ineligible for funds in the 1990-91 grant year due to its failure to comply with the March 29, 1990 deadline. Notices of Intent to Submit a Proposal were submitted by 91 applicants. Two (2) of those Notices were received after the deadline (including MDJA's), and the Bureau advised both of them that they were ineligible for funding. One such ineligible applicant, I-Care, also filed a protest. A hearing was held on March 1, 1990, before a Hearing Officer of the Division of Administrative Hearings. Said Hearing Officer issued a Recommended Order on May 11, 1990 recommending that the Department enter a Final Order denying I-Care's petition.
The Issue Whether the Respondent, Miami-Dade Community College, has adopted a statement of agency policy in violation of Florida law.
Findings Of Fact Prior to August 2, 2002, the Respondent employed the Petitioner, Lonny Ohlfest. At the time of his termination, the Petitioner filed a request for a due process hearing with the Respondent to challenge his termination from employment. The Petitioner challenged the basis for his termination as he wanted to clear his name regarding some unflattering allegations but, equally important, he wanted to keep his job with MDC. The Respondent denied the Petitioner's request for an administrative hearing and found that the Petitioner was not entitled to a hearing. More specifically, the Respondent concluded that since the Petitioner did not have a contract of employment he was not entitled to an administrative hearing. The Petitioner disputed the Respondent's claim and argued that he did have a contract, that he had a reasonable expectation that his employment would continue, and that the Respondent unlawfully refused to afford him regress through the administrative process. When the Petitioner's appeal of his request for an administrative hearing failed, he filed the instant case to challenge the Respondent's policy of not referring administrative cases for formal hearing. The delays in the appeal process explain and support the Petitioner's delay in filing the instant challenge to the agency's alleged rule. To understand the historical perspective of this case, the following findings are made pertinent to the Petitioner's employment with the Respondent: The Petitioner began employment with the MDC on or about April 4, 2001. He was hired as a part-time, hourly worker within the school of allied health technologies. The position he assumed was funded and operated within the "Health Careers Opportunities Program" or HCOP. The HCOP was funded by a federal grant. The monies coming from the grant were renewable each year and ran concurrent with the school's fiscal year (July 1-June 30). All employees paid through the HCOP grant were considered "temporary" as the grant monies were necessary to assure continued employment. In January 2002 the Petitioner was given a full-time position within the HCOP. He was designated "Program Leader/Student Services" for the upcoming summer bridge program. At all times material to this case, all parties knew that absent federal funding the HCOP would not continue to operate. Moreover, the Petitioner knew, or should have known, that his employment with the Respondent would run only until June 30, 2002. Thereafter, it was expected that if and when the federal funding came through, the HCOP employees (including the Petitioner) would continue to work within the scope of the program. At the end of the summer program in 2001, the HCOP employees took leave until the school year started and the funding of the program was assured. Accordingly, after the summer bridge program was completed, the Petitioner expected to be on leave during the summer of 2002 until called back to work. Instead, the Respondent terminated the Petitioner from employment. The 2002 summer bridge program had not finished well for the Petitioner. Amid allegations of sexual harassment (unsubstantiated and not at issue in this proceeding) the Petitioner's working relationship within the HCOP floundered. The Petitioner was aghast that unsubstantiated claims had been reported, he wanted the accusations resolved, he wanted his name cleared, and he was disappointed by the process that failed to timely and fully resolve the issues. When the Petitioner left the campus for what he believed would be the break (similar to the one they had taken the prior year), he was uncertain as to his employment status. In fact, when he left the campus he cleaned out his desk and returned his keys. Nevertheless, on July 26, 2002, Dr. Miller directed the Petitioner to present for work on July 29, 2002. He did not do so. On July 29, 2002, the Petitioner's immediate supervisor directed him to appear for work on July 30, 2002. He did not do so. In fact, the Petitioner did not return to the office until July 31, 2002. The Petitioner did not understand that his attendance was mandatory for the two days that he did not appear for work. When the Petitioner did check in with the HCOP office on the 31st he came to understand the gravity of the situation. As a result of the absences, the Respondent cited the Petitioner with insubordination and terminated his employment with MDC. The Petitioner timely challenged the termination but the Respondent ruled he was not entitled to an administrative review of the decision. The Petitioner filed for, and received, unemployment compensation. The termination was not justified by the standards applicable to that forum. The rules governing unemployment compensation do not, however, govern the administrative process regarding whether or not one's employment constitutes a property interest that is protected by law. Upon receipt of the Petitioner's petition seeking an administrative review, the Respondent declined to afford the Petitioner with a hearing. The Respondent does not forward petitions filed by non- contract employees when such individuals seek to challenge their termination of employment. The Respondent maintains that, as a matter of law, they are not required to forward such petitions for formal review. The Respondent does not have a written rule or policy stating that non-contract employees are not entitled to administrative review when their employment is terminated. Conversely, the Respondent does not have a written rule or policy stating that non-contract employees are entitled to an administrative review when their employment is terminated. The Petitioner was not a full-time, contract employee of the Respondent. The Respondent's policy affords full-time contractual personnel a right to an administrative hearing pursuant to Chapter 120, Florida Statutes.
Findings Of Fact The Parties Petitioner is a Florida corporation that provides software development and consulting services to various commercial entities and state agencies. It has its principal place of business in Jacksonville, Florida. Respondent is an agency of the State of Florida charged with the responsibility to regulate various professions and businesses licensed by the State of Florida. In carrying out its responsibilities it engages the services of outside vendors through competitive bidding. Respondent's principal business office is at 1940 North Monroe Street, Tallahassee, Florida. Intervenor is a California corporation that designs, manufactures and services equipment and systems for measurement, computation and communications, together with its consolidated subsidiaries. The RFP In 1993, Respondent was created by legislative action merging the Department of Professional Regulation and Department of Business Regulation. Respondent perceives that the merger was intended to improve the efficiency of the regulatory process and to facilitate accurate and efficient processing of consumer complaints. To further those purposes, on April 12, 1996 Respondent issued RFP 96-006. In the executive summary to the RFP prospective vendors who considered responding to the RFP were informed: This RFP has been developed in support of the merger for the purpose of acquiring contractor consulting service and software development to support the conversion of existing computer application systems for the Division of Florida Land Sales, Condominiums and Mobile Homes, the Division of Hotels and Restaurants, the Division of Pari-Mutual Wagering, and the conversion of regulatory, inspection, investigation and complaint processing for all the Business Regulation divisions, including the Division of Alcoholic Beverages and Tobacco. Through this Outcome Based RFP, the Department intends to contract with a vendor to not only provide analysis, system design, development, conversion, and selective consulting services, but serve as an integrator and primary contractor on this project. Contractor responding to this RFP will be expected to recommend services based on deliverable specified in this RFP. Since this is an Outcome Based RFP (see definition on Page 2), the Department will not be specifying unique contractor products and/or services or how the contractor is to design the system. In the RFP "Outcome Based RFP" was described as: A Request For Proposal in which the contractor's client will specify concepts, technology directions, size/number of things, and required results (primarily standards and system deliverables). The contractor will respond by recommending the design and proposed solutions -- how to get desired results, by what means (hardware, software, process, and contractor services), and for what cost. The purpose of the RFP was further described as: The purpose of this Outcome Based Request for Proposal (RFP) is to contract with a contractor (serving as integrator as well as contractor) to recommend (RFP bid response) and provide consultant services in conjunction with selected Department staff to: conduct an information management analysis study to identify the business functions performed as well as the data and information flows required to support these functions for the Divisions of Hotels and Restaurants, Land Sales and Condominiums, Pari-Mutual Wagering and regulatory, inspection, investigation and complaint management for all the Business Regulation Divisions, including Alcoholic Beverages and Tobacco, develop an integrated, data-driven information systems design that addresses the needs of the Business Regulation divisions and their information requirements, convert the business functions and data into the appropriate agency application system, develop detailed design and program specifications, modify existing applications and develop new applications necessary to support the system design, develop an implementation plan which provides a phased approach for migrating from the current environment to the planned environment, including system testing and training of agency personnel, provide post-implementation support for the resolution of problems. The contractor will be expected to contribute (under contract) a predetermined number of calendar months, not to exceed 26, towards systems analysis and design, specification and application development, conversion, testing, training, implementation and post- implementation support. The contractor will be responsible for designing, in detail, the methodology by which data files are to be converted from the multiple applications and various platforms and loaded into predefined relational data bases. The contractor will be responsible, under contract, for all services meeting the requirements of this RFP. All components proposed by the contractor must be at a turn-key level with 100 percent compatibility as far as integrating with installed hardware and software currently utilized by BPR. The scope of the work contemplated by the RFP through services performed by the contractor was to this effect: The Florida Department of Business and Professional Regulation (BPR) is requesting contractors to propose consulting services for system analysis, design, specification development, application, development, conversion, training, implementation and post- implementation support. The contractor will propose recommendations for products and services required and serve as an integrator/contractor. At minimum, this Business Regulation/Complaint Regulatory Management Conversion solution shall be capable of providing those services outlined within this RFP. The section addresses ten subject areas that must be addressed in contractor's proposal. Section III-A (Contractor Proposal Format) presents the required "Tab" format and refers backs to details in this section for the contractor to use. In the RFP an "Integrator" is defined as: The contractor who has total accountability, under contract, for all products and services being provided to a customer even those supplied by or acquired from other vendors and/or sub-contractors. In the RFP the term "Turn-Key" is defined as: Contractor is solely responsible for delivering a completed system with sign- ificant client involvement. Vendor awarded contract, will be responsible, under bond, for specified deliverables to the department, as well as being the integrator and contractor for the complete system as proposed which will include the roles of the contractor and appropriate involvement of BPR personnel. The RFP provided the vendors with instructions concerning the format for proposals, especially as it related to Tabs 1 through 24 and the need to complete those tabs consistent with the instructions. The vendors were reminded: [A]s required by Tab, the proposal will present specific consulting services that are recommended, and how these services will technically meet requirements as stated, and/or requirements developed and/or uncovered by the vendor that have been determined to be necessary for the project to be successful. Respondent provided a questionnaire to the vendors concerning the prospective vendors' commitment to the project. Those questions were to be answered "yes" or "no" with the opportunity for clarifying sentences to accompany the answers. The RFP instructed the vendors concerning the submission of cost information. It reminded the vendors that they should "submit firm costs to provide the state with the required deliverables, found in Section II of the RFP." The RFP described the manner in which the proposals would be evaluated through two separate committees, a "technical subcommittee" and a "vendor evaluation committee." The vendors were also reminded that the proposals would first be reviewed by the purchasing arm of the Respondent to assure that the vendors provided all mandatory documentation required by the RFP. In the instance where required documentation was missing the response would be determined "non-responsive." The evaluation process contemplated the "technical subcommittee" evaluating technology sections in responses to the RFP and providing those results to the "vendor evaluation committee." The latter committee would then evaluate other subject areas in the proposals and consolidate/finalize results from both evaluation processes into an overall rating. The RFP explained the subject areas that were to be considered by the two committees with particularity. The RFP described in detail the assignment of points and set forth the format for carrying out the evaluation process. The successful vendor would be selected upon the basis of the highest points awarded. The maximum points that could be received were 1950. The maximum points that could be received for the vendors' proposed costs were 250. The RFP sets terms and conditions and identifies mandatory requirements as: The state has established certain require- ments with respect to proposals to be submitted by proposers. The use of "are", "shall", "must" or "will" (except to indicate simple futurity) in the RFP indicates a requirement or condition. A deviation is material if the deficient response is not in substantial accord with this [sic] RFP requirements. Moreover, the RFP reminded the vendors that: Any proposal which fails to meet the mandatory requirements stated in this Request For Proposal shall be rejected. The RFP gives further instructions involving the rejections of proposals where it is stated: The department reserves the right to either make awards or to reject proposals by individual category, groups of categories, all or none, or a combination thereof. Any proposal which fails to meet the mandatory requirements stated in this Request For Proposal shall be rejected. Any proposal that contains material deviations or is conditional or incomplete shall be rejected. The department may waive an immaterial defect, but such waiver shall in no way modify the RFP requirements or excuse the proposer from full compliance with the RFP specifications and other contract requirements if the proposer is awarded the contract. The RFP refers to subcontracts where it states: The contractor is fully responsible for all work performed under the contract resulting from this RFP. The contractor may, with the consent of the department, enter into written subcontract(s) for performance of certain of its functions under the contract. The sub- contractors and the amount of the subcontract shall be identified in the contractor's response to this RFP. Subcontracts shall be approved in writing by the department's Executive sponsor, or designee, prior to the effective date of any subcontract. The Sub- contractor shall provide the Executive sponsor documentation in writing, on company letterhead, indicating known responsibilities and deliverables, with timeframes. No sub- contract which the contractor enters into with respect to performance under the contract resulting from this RFP shall in any way relieve the contractor of any respons- ibility for performance of its duties. All payments to sub-contractors shall be made by the contractor. Tabs 16, 17, 19, 20 and 21 require specific information about sub- contractors the vendor might employ in meeting the requirements in the RFP addressed under those tabs. In addition to the specific requirements in the RFP, paragraph 4 to the general conditions reminds the vendor to submit "firm prices." Paragraph 6 to the general conditions states that contract awards are made: As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any minor irregularity or technicality in proposals received. Proposers are cautioned to make no assumptions unless their proposal has been evaluated as being responsive All awards made as a result of this proposal shall conform to applicable Florida Statutes. The RFP explained the manner in which addenda to the RFP would be provided, in which case the addenda would be in writing with the content and number of pages described and sent to each vendor that received the original RFP. The RFP also contemplated the possibility that Respondent might require the vendors to supplement their responses to the RFP with oral presentations to either of the evaluation committees. The RFP explained that there would be a bidders' conference to discuss the contents of the RFP, in view of any written inquiries from the vendors and recommended changes. On April 30, 1996 the bidders' conference was conducted. In this conference information was presented to the vendors and questions from the vendors were presented to Respondent, both oral and written. On May 10, 1996, addendum number 1 resulting from the bid conference was provided to the vendors. Through addendum number 1, Respondent more specifically informed the vendors concerning its expectations in the vendors' responses to the RFP. Additionally the addendum rescheduled certain events in the bid process. It changed the proposal due date and public opening of the technology portion of the proposal to June 7, 1996. The date for opening of proposals in the cost portion was changed to July 12, 1996. The date for posting of the intended award was changed to July 17, 1996. Two vendors responded to the RFP. Those vendors were Petitioner and Intervenor. In addition to the information provided through responses to the RFP, Respondent propounded written questions to the vendors as attachments A and B. Attachment A constituted common inquiry to the vendors. Attachment B was designed to solicit additional information unique to the respective vendors. Both vendors responded to the questionnaires on July 9, 1996. Both vendors' proposals were found responsive. The two committees performed their respective evaluations. Through this process Petitioner was awarded 1206.46 points. Intervenor was awarded 1321.39 points. As a consequence, on July 16, 1996 Respondent posted notice that it intended to award a contract to Intervenor. Respondent also sent a letter on that date notifying the Petitioner that it intended to contract with Intervenor. As described in the preliminary statement, and incorporated here, Petitioner gave notice and formally challenged the decision to award. In its opposition to the decision to award to the Intervenor, Petitioner does not allege that Respondent failed to implement the procedures for evaluation in scoring the competitor's. Rather, Petitioner challenges the results obtained in that implementation. Where Respondent found Intervenor responsive to certain alleged material requirements in the RFP, Petitioner asserts that Intervenor was not responsive to those material requirements. In performing their duties the committee members who evaluated the proposals had a week to prepare themselves to render their input. During that time they were allowed to review the responses to the RFP. Following that opportunity the evaluators were allowed to seek clarification on any items where there might be uncertainty, to include legal advice from the Respondent agency. In carrying out their assignment the evaluators compared the requirements in the RFP to the responses by the vendors. Through this process no evaluator indicated that either proposal was unresponsive. In their review function the evaluators also considered the answers to the questions that had been provided by the vendors on July 9, 1996. The evaluators had been instructed to review the requirements contemplated by Tabs in the RFP, to read the RFP and the addendum to the RFP. Petitioner specifically challenges Respondent's determination that Intervenor was responsive in meeting the following alleged requirements in the RFP: Did the Intervenor Fail to Submit an Outcome Based Proposal in Response to the RFP? The RFP contemplates the necessity that a vendor will submit a proposal that is Outcome Based as defined in the RFP and explained in other provisions within the RFP. The requirement to submit an Outcome Based Proposal is a material requirement. If a vendor does not meet that requirement, the failure to comply is a material deviation from the requirements in the RFP. If a vendor does not meet the requirement for providing an Outcome Based Proposal and the evaluators ignored that irregularity, their actions would be arbitrary. Tab 3 discusses: Business Regulation/Complaint Management Conversion Project Life Cycle Presentation: This section will present the overall scope of the project and the methodology. This section will need to specifically deal with how the vendor addressed the technical design requirements as spelled out in Project Scope. As described, this Tab was designed to have the vendor identify the overall scope of the proposal and the methodology to be employed in reaching the outcome required by the RFP. As Section 3-1 to its response Intervenor replied: Hewlett-Packard's (HP) approach is to provide BPR with both fixed price and 'time-boxing'. Time-boxing is defined as an allocation of consulting hours (3360) which will be delivered by HP technical consultants or sub- contractors. HP is proposing to fix price the Information Management Analysis Study, Integrated System Design, and Project Management. The remaining sections (Detail Design and Program Specification, Data Conversion Phase, Development, System Testing, Implementation, Training, Post-Implementation Support) will be time-boxed with a total of 3360 hours. HP has made suggestions as to the number of hours to be used for these sections. However the final allocation will be mutually agreed upon by HP's project manager and BPR's project manager. HP Professional Services Methodology Moving from a legacy computing model, to a distributed, open client/server computing environment, requires the organization to rethink the process, people, and technology requirements of the enterprise. Organiza- tional integration and effective evaluation of IT solutions tend to get lost in the rush to develop specific applications. If not lost, there is rarely a structured logical process that is followed in defining, designing, developing, implementing, and operating the solution. The remaining provisions within Section 3 to the Intervenor's response to the RFP detail the overall scope of the project and the methodology to be employed. In other respects the Intervenor's response to the RFP explains the manner in which it would reach the outcome contemplated by the RFP in all phases related to its proposed consulting services in this project. Facts were not presented that proved that the evaluators acted arbitrarily in determining that the Intervenor's proposal was based upon the required outcome in the project. Did the Intervenor Submit a Firm Price Proposal? The RFP creates a material requirement that a vendor complete Attachment "E" to the RFP. Attachment "E" provides cost information from the vendor. In every respect Intervenor has complied with that requirement. The evaluators were not arbitrary in determining that the requirement was met. Notwithstanding the use of "time-boxing" for certain phases in the project, the cost information submitted in Attachment "E" assigns a money amount for those phases. By that assignment the consulting hours that are "time-boxed" have an equivalent dollar figure which constitutes firm costs for those deliverables/phases in the project. The evaluators did not act arbitrarily in assigning 234 points to the Intervenor for its cost proposal. Did the Intervenor fail to Submit a List of Sub-contractors Whose Services will be used by the Intervenor? Tab 16, Corporate (vendor) qualifications and commitment; makes it incumbent upon the vendor to indicate the sources committed to the project in terms of personnel and other resources, to include sub-contractors involved with the project. Tab 17, Corporate (vendor) financials; requires the vendor to produce financial information about it and any sub-contractors involved with the project. Tab 19, Individuals proposed to work on contract; requires resumes of individuals who work for the vendor or a sub-contractor and information about key personnel of the vendor and sub-contractors. Tab 20, Contract and support services including post-implementation plan, requires; the vendor to indicate where its services will be provided by the vendor or sub-contractors. Tab 21, Contractor questionnaire; solicits information from the vendor about sub-contractors. As seen, in many provisions the RFP requires a vendor to identify information about sub-contractor whose services would be used by the vendor. These are material requirements. If the evaluators ignored the requirements, their actions would be arbitrary. In addressing intervenor's proposal, the evaluators acted arbitrarily. The problem is that Intervenor in many places in its response has left open the possibility that it would use sub-contractors without naming those sub- contractors and their contribution to the project. Ultimately, the lack of disclosure could provide the Intervenor with an advantage that Petitioner does not enjoy and potentially adversely impact the interests of the Respondent. The following are examples in response to the RFP where Intervenor has maintained its option to use sub-contractors without disclosing information about the sub-contractors: Section 1-3: "The Regulatory Management Conversion solution being proposed is comprised of world-class services from HP and our partners." The reference to partners is seen to include the possibility that sub-contractors might be used. Section 3-1, that has been commented on, referring to time-boxing, describes allocation of the 3360 consulting hours through delivery by the intervenor's technical consultants or sub-contractors. Section 10-2, refers to the implementation of the management plan which follows-up "sub- contractor's work." Section 12-2, refers to Intervenor and its training partners offering "standard and custom instructor led training, computer based training and net work based training." Training partners is taken to mean some persons who reasonably could be considered sub-contractors. Section 13-1, makes reference to third party services involved with the Intervenor's custom solution to the project needs. The reference to third party is equivalent to a sub-contractor. Section 16-9, referring to the flexibility in managing the engagement (project) describes partnering and involvement in sub-contracting. Section 21-2, in responses to the question- naire to Tab 21, Intervenor refers to its time- boxing approach for providing services, in which, according to Section 3-1, Intervenor leaves open the possibility that it would use sub-contractors to deliver the services. It is realized that on occasions in which Intervenor was required to provide contemporaneous and detailed information concerning its intentions to use sub-contractors, answers that it gave in association with Tabs 16, 17, 19 and 20 did not refer to sub-contractors. Consequently, one might assume that Intervenor did not intend to employ sub-contractors in this project notwithstanding references to unnamed sub-contractors found in other places in the response to the RFP. This raises the issue whether the lack of reference and response to the more specific questions about the use of sub-contractors overcomes the implications of the possibility that sub-contractors will be used that is made in response to other requirements in the RFP. That internal inconsistency should not favor an interpretation that creates advantage for Intervenor and potential difficulty for Respondent, which it does. For the evaluators to allow the conflict to remain is an arbitrary act. To seek to resolve the conflict would also constitute an arbitrary act as it would require an amendment to the Intervenor's response. The fact that Respondent must approve subcontracts before their effective dates does not satisfactorily mitigate the need to disclose subcontractor information with the response. Did Intervenor's Proposal Fail to Meet the Requirements in the RFP in the Technical Categories for Tabs 4 through 7, 10, 12, 14, 15 and 21? Petitioner made allegations concerning those issues associated with Intervenor's technical responses in those tabs. However, in the proposed recommended order Petitioner limited its discussion to Tabs 5, 6, 7 and 11. It is assumed that Petitioner abandoned its contentions concerning the remaining tabs described in the interrogatory. Tab 5, Integrated system design, states: In this section the vendor will present the methodology to be used in support of the RFP requirements. The evaluators found that Intervenor had met this requirement. It has not been shown that the evaluators acted arbitrarily in determining that the Intervenor had complied with requirements at Tab 5. Tab 6, Detail design and program specifications, states: In this section the vendor will present the methodology in support of the RFP requirements. Petitioner has failed to prove that the evaluators acted arbitrarily in concluding that the Intervenor met the requirements for Tab 6. Tab 7, Data conversion states: In this section vendor [sic] will provide a description of their approach to the data conversion phase. Petitioner has failed to prove that the evaluators acted arbitrarily in determining that the Intervenor met the requirements for Tab 7. Tab 11, Post-implementation support, states: In this section the vendor [sic] will provide a description of their approach to post-implementation support. Petitioner has failed to show that the evaluators acted arbitrarily in concluding that the Intervenor had met the requirements for Tab 11. Nor has it been shown in any respect that the evaluators acted illegally, fraudulently, or dishonestly. Was the Intervenor a responsible proposer? Petitioner alleged in its petition that the Intervenor was not a responsible proposer. Petitioner did not offer proof to sustain that allegation.
Recommendation Upon consideration of the facts found in the conclusions of law reached it is, RECOMMENDED: That a final order be entered which declares Intervenor to be unresponsive to the RFP and takes such other action as Respondent deems appropriate in pursuing this project. DONE and ENTERED this 10th day of October, 1996, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1996. COPIES FURNISHED: Timothy G. Schoenwalder, Esquire Blank, Rigsby and Meenan, P.A. 204 South Monroe Street Tallahassee, Florida 32301 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Mary C. Piccard, Esquire Cummings, Lawrence and Vezina, P.A. Post Office Box 589 Tallahassee, Florida 32302-0589 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard T. Farrell, Secretary Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Forida 32399-0792
The Issue The issue to be determined is whether Petitioners are entitled to an award of reasonable prevailing party attorney’s fees and costs stemming from a prior consolidated action before ALJ F. Scott Boyd, DOAH Case Nos. 16-3298 and 16-3302, pursuant to section 185.05, Florida Statutes. Before the final hearing, the parties stipulated to an amount of reasonable prevailing party attorney’s fees and costs if the undersigned determines that Petitioners are entitled to an award of reasonable prevailing party attorney’s fees and costs stemming from that prior action before ALJ Boyd.
Findings Of Fact The City of Coral Springs is a municipality in Broward County, Florida. It exercises broad power pursuant to article VIII, section 2 of the Florida Constitution, and the Municipal Home Rule Powers Act, chapter 166, Florida Statutes. The City Commission of the City of Coral Springs (“Commission”) may create other offices, boards, or commissions to administer the affairs of the city and may grant them powers and duties. The Commission has adopted the Coral Springs Police Officers’ Pension Plan (“the Plan”), which is amended from time to time by ordinance and is set forth in sections 13-5 through 13-17 of the Code of Ordinances of the City of Coral Springs. The Plan is administered by the City of Coral Springs Police Officers’ Pension Fund Board of Trustees (“Board”), the powers of which are set forth in sections 13-13 through 13-15 of the Code of Ordinances of the City of Coral Springs. The Plan is a local-law defined pension plan created pursuant to chapter 185. In February 2016, the Board adopted a policy to allow for the suspension of pension benefits of members who were charged with crimes specified at section 112.3173, Florida Statutes, and whose benefit payments had equaled or exceeded their contributions to the Plan. The Williamses are retired police officers whose pension benefits had fully vested at the time of the enactment of the aforementioned suspension policy. In February 2016, the Board sought to suspend Petitioners’ benefits under the newly-adopted policy because Petitioners had been charged with crimes specified in section 112.3173 and the benefit payments made to them had exceeded their contributions to the plan. Petitioners requested a formal hearing to challenge the authority of the Board to adopt the suspension policy. Petitioners’ benefits were never suspended at any time during the pendency of this suspension matter. The Board contracted with DOAH to conduct the formal hearing under the authority of section 120.65(6), Florida Statutes. DOAH assigned ALJ Boyd to the prior consolidated action, who issued pre-hearing instructions requiring a statement of all issues. The issue of attorney’s fees was not included by the parties. ALJ Boyd conducted the formal hearing on September 30, 2016, and October 10, 2016. On November 18, 2016, ALJ Boyd issued a Recommended Order finding that the Board did not have the authority to adopt the policy nor apply it to Petitioners. The Recommended Order made no mention of awarding attorney’s fees or costs. Nether Petitioners nor the Board filed exceptions to the Recommended Order. Petitioners raised the issue of fees in a letter to the Board dated December 2, 2016. Counsel for Petitioners appeared at a hearing held before the Board in December 2016 and sought fees as set forth in the December 2, 2016, letter. The Board adopted ALJ Boyd’s Recommended Order in toto on January 3, 2017. The Board also denied Petitioners’ request for a hearing regarding an award of attorney’s fees. On January 13, 2017, Petitioners sought an award of attorney’s fees by filing with DOAH a Verified Motion for Prevailing Party Attorney’s Fees and Costs. On March 1, 2017, ALJ Boyd entered an Order dismissing Petitioners’ motion for fees, stating he lacked jurisdiction to hear the issue of fees. That Order was not appealed. Prior to the final hearing in this matter, Petitioners successfully petitioned the Seventeenth Judicial Circuit Court to compel the Board to grant them a hearing on entitlement to the fees and to quash the Order denying fees for violation of due process. Petitioners then successfully defended an appeal of that Order by the Board to the Fourth District Court of Appeal and a motion for rehearing thereon. Petitioners are not seeking fees for these extraordinary writ actions as these efforts do not fall under chapters 185 or 120. The parties stipulated that “the Williamses prevailed in challenging the Board’s authority to create a policy suspending the benefits.” The Board never applied its proposed suspension policy to Petitioners. Petitioners continue to receive their benefits to this day. Criminal charges against Petitioners remained pending at the time of the hearing in this matter. Petitioners are only seeking entitlement here to an attorney’s fee and costs award for their successful challenge of the suspension policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order denying Petitioners’ request for prevailing party attorney’s fees and costs. DONE AND ENTERED this 19th day of February, 2021, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2021. Brandon J. Hechtman, Esquire Wicker, Smith, O’Hara, McCoy & Ford, P.A. 2800 Ponce de Leon Boulevard, Suite 800 Coral Gables, Florida 33134 Pedro Herrera, Esquire Sugarman & Susskind, P.A. 100 Miracle Mile, Suite 300 Coral Gables, Florida 33134 Bonni Spatara Jensen, Esquire Klausner, Kaufman, Jensen & Levinson 7080 Northwest 4th Street Plantation, Florida 33317 Kenneth R. Harrison, Esquire Sugarman & Susskind, P.A. 100 Miracle Mile, Suite 300 Coral Gables, Florida 33134 Gina Orlando, Administrator City of Coral Springs Police Officers’ Pension Fund 9551 West Sample Road Coral Springs, Florida 33065
The Issue The issue presented is whether the Department acted fraudulently, arbitrarily, illegally, or dishonestly in determining that the Intervenor, rather than Petitioner, should be awarded the contract for child support enforcement legal services for Martin and Okeechobee Counties.
Findings Of Fact On July 1, 1994, the Department of Revenue (hereinafter "Department") assumed responsibility for the State of Florida's Child Support Enforcement (hereinafter "CSE") Program, taking over those responsibilities from the Department of Health and Rehabilitative Services (hereinafter "HRS"). As part of that program, HRS had in place for most counties in Florida contracts with private attorneys to establish and/or enforce child support obligations. Petitioner Douglas Reymore was, by contract, the legal services provider for Martin, Okeechobee, Indian River, and St. Lucie Counties. The Department renewed that contract for an additional year. The Department determined to rebid the legal service provider contracts for some of the counties in Florida for the 1995-1996 fiscal year. The contract for Martin and Okeechobee Counties was one of those contracts. The Department prepared a Solicitation Package and distributed it to the Department's regional offices. The Department also distributed to its regional offices a document entitled Instructions to CSE Regions for Handling the Solicitation for Legal Services Providers (hereinafter "Instructions") to govern the solicitation, evaluation, and award of the CSE contracts. The stated purpose of the Solicitation Package was to "obtain the highest possible level of legal representation at the lowest possible cost while ensuring free and open competition among prospective proposers." The solicitation was advertised in Martin and Okeechobee Counties in a timely manner from April 1 through April 5, 1995, as required in the Instructions. Upon their requests, copies of the Solicitation Package were sent by the Department to both Petitioner Douglas Reymore and to Intervenor Thomas & Associates. The Department did not provide a copy of the Instructions to any proposers prior to the opening of the proposals. Proposals were required to be received by the Department by 3:00 p.m. on Friday, May 12, 1995. Both Reymore and Thomas & Associates timely submitted proposals. The proposals were opened in the Program Administrator's Office in West Palm Beach at 4:00 p.m. that same day. The proposals timely submitted were forwarded, after opening, to the Evaluation Committee established by the Department. The Evaluation Committee was required to conduct its review and evaluation consistent with the Evaluation Committee procedures set forth in the Instructions, including attachments. Members of the Evaluation Committee for the Martin/Okeechobee Counties contract were Elaine Rosnow (Chair), Terrie Almond, Janice Blount, Donna Hilley, and Henry Smith. The names of the members of the Evaluation Committee were not disclosed to proposers prior to the opening of the timely submitted proposals. None of the members of the Evaluation Committee is an attorney, and none is considered an expert in computer technology. The Child Support Enforcement Solicitation of Proposals Evaluation Sheet, included with the Instructions, identified nine Mandatory Requirements. Those same Mandatory Requirements were also identified in the Solicitation Package sent to Reymore and to Thomas & Associates. If any of the Mandatory Requirements identified in the Evaluation Sheet and the Solicitation Package were not met by a proposal, the proposal was not to be considered further by the Evaluation Committee. The Evaluation Committee reviewed and evaluated the proposals. The proposal of Thomas & Associates was rated highest, and the Reymore proposal was rated second highest. The Evaluation Committee forwarded its scores on the proposals to the Program Administrator, who was required to award the contract to the highest ranking proposer. The Department issued its notice of award for the CSE contract for Martin and Okeechobee Counties to Thomas & Associates on May 22, 1995. The term of the contract was to be for an annual period to begin on July 1, 1995, and end on June 30, 1996. Thomas & Associates was also named as the Department's intended recipient for two other CSE contracts, those for Palm Beach County (intrastate) and Palm Beach County (interstate). A CSE legal practice under state contract, such as that for which proposals were solicited in the instant case, is high volume in nature. Currently, approximately 200 cases in Martin County and approximately 65-70 cases in Okeechobee County go to court each month. These court cases are handled by using three docket days in Martin County and one docket day in Okeechobee County each month. The Solicitation Package for the Martin/Okeechobee Counties contract projected 156 referrals to the legal services provider each month. Upon the receipt of a referral from the Department's Child Support Office, the legal services provider under contract with the Department must take the appropriate legal action to collect child support from the non-custodial parent. These legal actions include establishing paternity, obtaining support orders, and enforcing support orders. The greatest, and a substantial, difference between a private family law practice and a CSE legal practice under state contract is the caseload. Another difference is the limited funds available for expenses, such as for taking depositions and for service of process. There are also legal issues, concepts, and terms encountered in a CSE practice which are not encountered in a private family law practice. Petitioner Reymore has practiced CSE law under a state contract for three years in Martin, Okeechobee, St. Lucie, and Indian River Counties. No attorney employed by Thomas & Associates has ever practiced CSE law under a state contract. The Solicitation Package, on page four, provided as follows: Each proposal will be reviewed for responsiveness to the mandatory requirements set forth in Attachment V. Proposals that fail to satisfy all of the mandatory requirements will not be considered further. No points will be awarded for the mandatory requirements. Above the listing of Mandatory Requirements on Attachment V, similar language appears, specifically: "If any of these requirements are not met, your proposal will not be considered further." The Mandatory Requirements set forth in Attachment V include the following: The attorney/attorneys assigned to per- form contract services shall be members of The Florida Bar. A certificate of good standing from The Florida Bar shall be attached for each designated attorney. A resume for each attorney designated to do child support work shall be included with proposal. Page one of the Solicitation Package also recites that any proposal submitted must include: 1) Resumes on all attorneys who will be assigned to this contract. 4) Certificates of good standing from The Florida Bar on all attorneys who will be assigned to this contract. The Thomas & Associates proposal included resumes and certificates of good standing from The Florida Bar for the following attorneys: Jeffrey F. Thomas, Mary Bobko Thomas, L. Denise Coffman, and Charles Willoughby. In the section of its proposal entitled Time and Personnel, Thomas & Associates specifically represented that two lawyers would be assigned to the contract: Charles Willoughby and Denise Coffman. It further represented that Jeffrey Thomas would directly supervise the lawyers and that he would also personally attend all hearings where the other party was represented by counsel. The proposal then represented that Thomas & Associates was also bidding on the Palm Beach interstate contract and the Palm Beach intrastate contract. As to the Palm Beach interstate contract, the proposal represented that Jeffrey Thomas would directly supervise the lawyers and would also personally attend all hearings where the other party is represented by counsel. The proposal then represented that the following attorneys would be assigned to Jeffrey Thomas to work on the Palm Beach interstate contract: Charles Willoughby and Denise Coffman; John C. Thomas and Kim Nutter would serve as "back ups." As to the Palm Beach intrastate contract, the Thomas & Associates proposal represented that four attorneys would staff that contract full time, and Jeffrey Thomas would directly supervise all attorneys and personally appear at all hearings where the other party is represented by an attorney. The proposal then stated that the following attorneys would be assigned to Jeffrey Thomas for that contract: Charles Willoughby, Denise Coffman, John C. Thomas, and Kim Nutter. The Thomas & Associates proposal then represented that if Thomas & Associates were awarded more than one contract, two additional lawyers would be hired. The proposal failed to identify or include any information about the two additional attorneys Thomas & Associates would hire in the event it was awarded more than one contract. The Department awarded all three contracts to Thomas & Associates. The date of the award of the other contracts is not part of the record in this cause. However, since Charles Willoughby and Denise Coffman are to be assigned full time to the Palm Beach intrastate contract and are also to be assigned to the Palm Beach interstate contract, and since Thomas & Associates represented to the Department that it would hire more lawyers if awarded more than one contract, Charles Willoughby and Denise Coffman are either not available to be assigned to the Martin/Okeechobee Counties contract, or are not the only attorneys who will perform contract services. The Solicitation Package precludes a proposer from assigning attorneys to perform services under the contract without identifying those attorneys in the proposal and submitting their resumes and certificates of good standing as part of the proposal made to the Department. The representations of Thomas & Associates committing to hire additional attorneys if it received more than one contract, as well as Thomas & Associates' commitment to assign attorneys to work on the contracts as represented in the Thomas & Associates proposal, would become conditions of any contract entered into with the Department as would all other representations in the proposal. The Thomas & Associates proposal failed to meet all of the mandatory requirements set forth in the Solicitation Package due both to the failure of Thomas & Associates to identify all attorneys to be assigned to work on the contract and Thomas & Associates' failure to include resumes and certificates of good standing for those attorneys as part of its proposal. Accordingly, the Evaluation Committee should have rejected any further consideration of the proposal submitted by Thomas & Associates and should not have gone forward with scoring the proposal submitted. The Evaluation Committee members were aware that Thomas & Associates had submitted proposals for all three contracts, that the proposal pledged the same attorneys to work on one contract full time while pledging them to work on two additional contracts, and that the proposal represented that additional lawyers would be hired if Thomas & Associates received more than one contract. Yet, the Evaluation Committee members did not consider the multiple mutually- exclusive assignments of the same attorneys in the Thomas & Associates proposal and did not consider the representation that additional unidentified attorneys would be hired. The Evaluation Committee members specifically marked their Evaluation Sheets to reflect that Thomas & Associates had met all mandatory requirements for having its proposal evaluated and scored when Thomas & Associates had not done so. Page seven of the Solicitation Package provides as follows: The proposer must provide three references for whom the proposer has rendered services similar to those being proposed. Proposals must include the name, address, telephone number, and the Name and Title of the primary and alternate contacts for each reference. The Thomas & Associates proposal failed to comply with this requirement. No references were provided in the proposal for the firm of Thomas & Associates, the proposed legal services provider. The only references provided were for Jeffrey Thomas, one of three identified attorneys designated by the Thomas & Associates proposal to perform work under the contract. No references were provided for Willoughby and Coffman, the other two attorneys identified to be assigned to the contract, and no references were provided for the two unidentified attorneys to be assigned to the contract should Thomas & Associates receive more than one contract. The Thomas & Associates proposal contained four references for Jeffrey Thomas. However, only two of those references were clients. No references were provided in the Thomas & Associates proposal from clients for whom high-volume child support or family law legal services had been provided. Accordingly, the Thomas & Associates proposal failed to include three references for whom the proposer has rendered services similar to those being proposed, as required by the Solicitation Package. The Thomas & Associates proposal also failed to include alternate contacts for each reference, as required by the Solicitation Package. Alternate contacts should have been provided for individual references in case the Evaluation Committee was unable to make contact. For Jeffrey Thomas' individual references, only office telephone numbers were provided. Alternate contacts for Jeffrey Thomas' individual references could have been provided in the form of home telephone numbers. For Jeffrey Thomas' individual references, alternate references could have been provided in lieu of alternate contacts, but were not. Due to Thomas & Associates' failure to provide alternate contacts for Jeffrey Thomas' references, or even the required number of references, the Evaluation Committee was able to reach only one of Jeffrey Thomas' references for the purpose of conducting an interview. The requirement of three references for whom the proposer has rendered services similar to those being proposed is a material requirement for the personal services contract under consideration in this cause. Thomas & Associates' failure to meet this requirement also made its proposal non- responsive to the Department's solicitation. Rather than declaring the proposal non-responsive, the Evaluation Committee members awarded points to the Thomas & Associates proposal for providing sufficient and appropriate references. No points should have been awarded to Thomas & Associates for its references. Page four of the Solicitation Package advises that any proposal must contain a detailed written Plan clearly demonstrating the proposer's ability to process referrals or case establishment activities, and identifying existing resources and proposed resources. Pages 17-20 set forth the criteria for the provision of legal services. The Plan contained in the Thomas & Associates proposal is, for the most part, simply a verbatim recitation of the language on those pages of the Solicitation Package. The few portions of the Thomas & Associates Plan which were not copied verbatim from the Solicitation Package cannot be implemented or, if implemented, would delay the processing of the Department's high-volume caseload. The Thomas & Associates Plan commits to obtaining a court date for all enforcement hearings which is no later than 45 days after receipt of a referral. The Plan further commits to using interrogatories and requests to produce in each enforcement case. Due to the time necessary for the sheriff to serve pleadings on a CSE respondent and the applicable discovery response times, it is not possible to utilize interrogatories and requests to produce in each enforcement action within the time frames asserted by Thomas & Associates in its Plan. Further, interrogatories are not necessary in many cases, and the information that can be obtained through them can also be obtained from the non- custodial parent at the final hearing. Thomas & Associates' Plan also commits to scheduling a support hearing within 45 days of receipt of a case referral from the Department when paternity is in dispute and a Human Leukocyte Antigen Test or other DNA test is requested. This schedule cannot be achieved since DNA test results are not received until four to eight months after the court orders such a test to be performed. The Thomas & Associates Plan also commits to ensuring that the judge signs appropriate income deduction orders at the time of hearing. This is not possible in Martin and Okeechobee Counties because hearings are conducted by hearing officers who then submit their written recommendations to the judge before the judge will enter an income deduction order. It is usually not possible to have a hearing, get the hearing officer's written recommendation, and have the judge review that recommendation and issue an income deduction order all in a single day. The Thomas & Associates proposal asserts that Jeffrey Thomas would appear at all hearings where the non-custodial parent is represented by an attorney under the Palm Beach County intrastate contract, the Palm Beach County interstate contract, and the Martin/Okeechobee contract. That commitment would be a special condition of any contract between the Department and Thomas & Associates, as would all provisions of the Thomas & Associates proposal. Charles Willoughby graduated from law school in 1994 and became licensed to practice in the State of Florida some time thereafter. His resume reflects no experience in any facets of marital and family law. The Thomas & Associates proposal commits that Jeffrey Thomas will "personally train" and "supervise" Willoughby in the performance of his duties. The Thomas & Associates proposal also represents that Jeffrey Thomas will personally attend all meetings with Department child support staff. It is common for the non-custodial parent to come to a hearing in a CSE case represented by an attorney without that attorney having made a prior appearance in the case or having notified anyone that the attorney will be making an appearance in the case. In Martin and Okeechobee Counties, when the non-custodial parent is represented by an attorney, the attorney first appears on the day the hearing is set in approximately 40 percent of the cases. It is impossible for a single attorney to attend every hearing under the Martin/Okeechobee Counties, Palm Beach County intrastate, and Palm Beach County interstate CSE contracts where the opposition is represented by counsel because often hearings occur simultaneously before multiple domestic relations commissioners, hearing officers, and judges at multiple courthouses. It would be inappropriate for a CSE attorney under state contract to request a continuance of a hearing to allow a more experienced attorney to appear on behalf of the Department. Further, there is no basis for believing that such a motion would be granted. Accordingly, given the Thomas & Associates commitment that Jeffrey Thomas will personally train and supervise attorney Willoughby and personally attend all meetings with Department staff, and given the numerous courthouse locations where hearings will be conducted under the three contracts awarded Thomas & Associates, it would not be physically possible for Jeffrey Thomas to personally attend all hearings where the opponent is represented by counsel. Consequently, it is not possible for Thomas & Associates to perform under the CSE contracts awarded to it in accordance with the representations made in the proposal. Members of the Evaluation Committee knew that Jeffrey Thomas could not attend all hearings where the other parties are represented by counsel at the time they were scoring the Thomas & Associates proposal. Yet, they believed that the Instructions given to them for scoring proposals did not permit them to consider the impossibility of performance. Points were awarded to the Thomas & Associates proposal for the staffing ratio of attorneys and paraprofessionals proposed. The proposal represented that each attorney will have one paralegal and one legal secretary assigned to work on the contract. The proposal, like the letterhead used by Thomas & Associates for the purpose of submitting proposals to the Department, represented that Jacquelynne O. Benefield, a certified legal assistant, would supervise the paralegal department. Her resume was also included in the proposal. Benefield is not a certified legal assistant. The Thomas & Associates' misrepresentation regarding her credentials was not known to the Evaluation Committee members when they scored the proposal. The Department's evaluation mechanism provided for extra points for minority ownership of a proposer. Page one of the Solicitation Package specified that a copy of the certificate of minority business enterprise, if applicable, must be included with the proposal. However, page six provided different information by specifying that a copy of the certification must be attached to the proposal if a business has been certified as a minority business enterprise. However, if the business has not been certified, but has at least 51 percent minority ownership, such minority ownership must be documented. The Thomas & Associates proposal asserted that Mary Thomas, Jeffrey Thomas' wife, is an American woman and owns 60 percent of Thomas & Associates. The proposal asserted that Thomas & Associates is not certified as a minority business enterprise and had only applied for such certification. The Solicitation Package, therefore, required that Thomas & Associates document Mary's minority ownership. The only documentation submitted was a copy of an application for certification without any proof that the application had even been filed. The application was dated May 4, 1995, and represented that Mary Thomas had acquired her 60 percent ownership in Thomas & Associates, a business which earned $220,000 in 1994, on April 30, 1995. The application also reflected that Jeffrey Thomas, the 40 percent owner of the firm, is the president of Thomas & Associates, while Mary Thomas, the 60 percent owner of the firm, is only the vice president. Thomas & Associates submitted no documentation of Mary Thomas' minority ownership. Had Thomas & Associates submitted even the documents required to be submitted as part of the application for certification as a minority business, the Evaluation Committee would have seen that Mary Thomas bought her 15 shares of stock by writing a check in the amount of $15 from the joint checking account of her and her husband Jeffrey. The stock certificate issued to her was dated May 30, 1995, subsequent to the Department awarding to Thomas & Associates the contract which is the subject of this proceeding. The stock certificate issued to Mary bears certificate number 1 while the stock certificate for ten shares issued to Jeffrey on September 21, 1989, bears certificate number 2. The stock transfer ledger also reflects that Mary was issued stock certificate number 1 and Jeffrey was issued stock certificate number 2 five and a half years earlier. The Thomas & Associates proposal did not document the alleged minority ownership, and Thomas & Associates was entitled to receive no points for that category. The Evaluation Committee was concerned about the alleged minority ownership being documented only by an application dated one week before the deadline for submitting proposals to the Department. The Committee contacted the Department's Tallahassee office for guidance as to how to score the alleged minority ownership. The Evaluation Committee was advised to score that category in any manner the individual members saw fit. No guidance was given to the Evaluation Committee members and no criteria were suggested for grading that category which allowed a range of points from zero to five. The scores given by the Evaluation Committee to the Thomas & Associates proposal for minority ownership covered the range from zero to five. It is illogical to give partial credit for a category such as minority ownership. Thomas & Associates either is a minority business, thereby being entitled to full credit, or it is not, thereby being entitled to no credit. Since Thomas & Associates failed to comply with the Solicitation Package requirements by documenting the alleged minority ownership, it was entitled to no points in that category. The Solicitation Package advised prospective proposers that the "evaluation of all proposals will be made by an Evaluation Committee of qualified persons who are familiar with child support services". In making the representation that the membership of the Evaluation Committee would consist of "qualified" persons, the Department intended those persons to be familiar with the requirements to carry out the terms of the CSE legal services contract, including the various means for doing that work. The Department made no effort to insure that members of the Evaluation Committee were familiar with the necessities of a high-volume CSE law practice, that members were familiar with the operations of law firms necessary to carry out that kind of practice, or that members understood the experience and needs in their region. The members of the Department's CSE staff on the Evaluation Committee do not have knowledge of how to operate a CSE law office under state contract. In the past, when proposals for CSE legal services have been solicited, attorneys have been included on the evaluation committees. The Department gave no guidance to the Evaluation Committee on how to evaluate the proposals for "attorney experience" or for their "Plan." The Evaluation Committee members gave Thomas & Associates high scores for its Plan even though some of the representations in it are not feasible in a high-volume CSE practice of law. The lack of guidance resulted in the Evaluation Committee giving high scores for Thomas & Associates' Plan, notwithstanding Thomas & Associates' obvious lack of understanding of CSE legal practice under state contract. For example, Thomas & Associates' Plan indicated that depositions would be taken in every paternity and support action. Because a very limited amount of money is available under the contract for expenses, it would not be possible to take depositions in all of those cases. Thomas & Associates' Plan also inaccurately describes the use of temporary relief hearings when no such hearings are utilized by the judicial hearing officers in Martin and Okeechobee Counties. That Plan also inaccurately suggested that a temporary relief hearing would be used when a respondent acknowledges paternity, since no temporary relief hearing is necessary in such a circumstance. Instead, the case would be scheduled on the next available docket for final hearing. The Plan also inaccurately indicates there is a need for a temporary relief hearing when the issue of support has already been resolved through a stipulation for support. Thomas & Associates' Plan also inaccurately suggests all support cases can be brought to hearing within 45 days of referral from the Department. Given the time necessary for a case to be processed by the court clerk's office and for the sheriff to serve the summons, together with the 20 days the respondent is given to respond after service, it would not be possible to meet this schedule in every case. Moreover, the sheriff is unable to obtain service on the non-custodial parent in approximately 35 percent of support cases. Such cases are not set for hearing because the court has no jurisdiction over the non-custodial parent. Instead, these cases are sent back to the Department so a correct address for the non-custodial parent can be found, if possible. Anyone familiar with a high-volume CSE practice of law under state contract would know that the above-described components of Thomas & Associates' Plan are impossible, impractical, or simply make no sense. Similarly, an experienced attorney would know that the time frames suggested for service of process and obtaining discovery were unrealistic and that it is inappropriate to seek a temporary relief hearing when a case is ready to be set for final hearing. All family law does not constitute child support enforcement law. The Evaluation Committee members' lack of qualifications is evidenced by their inability to distinguish among family law, child support, enforcement and collection, and trial and appellate areas of practice even though the Evaluation Sheet required a separate score for each of these practice areas for evaluating attorney experience. The Evaluation Committee members did not have specialized computer knowledge. Their lack of experience in computers is evidenced by the high scores awarded the Thomas & Associates proposal based on the computerized handling of the contract, notwithstanding the proposal's failure to mention any hard drive, failure to describe the random access memory (RAM) its computers contain, and failure to indicate whether its software can handle the number of files necessary to perform under the Department's contract. Without knowing the computers' hard drive capacity and the RAM of the computer, the Evaluation Committee could not judge the capability of the computers to handle the volume of files under the contract. The Evaluation Sheet utilized by the Evaluation Committee is not the same as the Evaluation Sheet which was included in the Solicitation Package. In the evaluation scheme specified in the Solicitation Package, the area that provided the largest single award of points was "attorney experience." In this area, the Solicitation Package indicated that points would be awarded for attorney experience on a "per attorney" basis. The Solicitation Package does not contain any indication that for multi-attorney firms the attorneys' years of experience will be totalled and then averaged before points are assigned. Unlike the Solicitation Package which was provided to potential proposers, the Instructions given the Evaluation Committee contained contradictory provisions, some providing for attorney experience points to be awarded on a per attorney basis and others providing for points to be awarded based on the average years of experience of all attorneys designated to work on the contract. For multiple-practitioner law firms such as Thomas & Associates, the attorney experience points differ significantly if they are computed on a "per attorney" basis and then averaged, rather than on the basis of "average years" of experience of all attorneys designated to work on the contract. When attorney experience scores are calculated on a per attorney basis, each attorney assigned to the contract must have a minimum of five years experience in an area of law for the firm to receive the maximum points for that area. When attorney experience scores are calculated on the basis of "average years" of experience of all attorneys designated to work on the contract, a multiple-practitioner firm such as Thomas & Associates can receive the maximum number of points even if some of the attorneys have no experience. Thomas & Associates received the maximum number of attorney experience points even though one of the attorneys assigned to work on the contract, Charles Willoughby, graduated from law school in 1994 and became licensed to practice law some time thereafter. The proposal admits that Willoughby has "little experience in family law matters." Conversely, the proposal does not assert that he has any experience in family law matters, any experience in child support, any experience in enforcement and collections, or any experience in trial and/or appellate work. Further, his resume does not indicate that he has any experience in the practice of law. Interestingly, not all members of the Evaluation Committee evaluated the same attorneys when computing the points to be awarded to Thomas & Associates for attorney experience. One Evaluation Committee member's Evaluation Sheet reflects that Mary Thomas was evaluated along with Jeffrey Thomas and Charles Willoughby in some areas of practice but that Mary Thomas along with Jeffrey Thomas and Denise Coffman were evaluated as to other areas of practice. In calculating Thomas & Associates' attorney experience score, the Evaluation Committee members did not consider the two additional attorneys who are unidentified but would be hired if Thomas & Associates receives more than one contract. The only way to take into account those additional attorneys would be to award each of them zero points for experience. Basing attorney experience points on the "average years" of experience of all attorneys designated to work on the contract, or on the years of experience of a single attorney in a multiple-practitioner firm, as was done by some members of the Evaluation Committee, is inconsistent with the Department's stated goal of obtaining the highest possible level of legal representation through this solicitation process. Similarly, utilizing a formula which gives the same credit for experience to an attorney practicing in the general area of family law as to an attorney practicing high-volume CSE legal services, a concept the Evaluation Committee members found to be unfair, is also inconsistent with the Department's stated goal of obtaining the highest possible level of legal representation. The maximum score Thomas & Associates could have received for attorney experience based on the per attorney scoring procedure specified in the Solicitation Package is substantially less than the number of points awarded by the Evaluation Committee. Further, if the Evaluation Committee had properly scored Thomas & Associates' attorney experience, that proposal would have received an overall average score lower than the Reymore proposal received. The Evaluation Committee awarded an average of 4.9 of the available 5 points for references to Thomas & Associates based solely on the one reference for Jeffrey Thomas it was able to contact. However, the Evaluation Committee interviewed two of the Reymore references. The Department's Tallahassee office specifically instructed the Evaluation Committee not to interview the third person listed in the Reymore proposal as a reference since she was also a member of the Evaluation Committee, something Reymore could not have known when he prepared his proposal since the names of the persons on the Evaluation Committee were not disclosed in the Department's Solicitation Package. To insure that the evaluation of the proposals was fair and equal, the Evaluation Committee had been instructed to interview an equal number of references for each proposer. By basing Thomas & Associates' score on a single interview, the Evaluation Committee members did not follow the appropriate procedure in awarding points for references. One member of the Evaluation Committee did not participate in the interviews of references. Instead, that member used another member's notes from the references' interviews to award points for references. By awarding points for references based solely on the notes of another Evaluation Committee member, that Committee member did not follow the appropriate procedure in awarding points. Despite the absence of any effort by the Department to assure that its members were qualified to evaluate a high-volume CSE practice, the Evaluation Committee was given wide discretion to evaluate the proposals using whatever criteria its individual members chose. The evaluation scheme developed for this solicitation differed from those used previously in order to give the Department's regions more flexibility. The only substantive instructions given the members of the Evaluation Committee on how to evaluate the proposals for CSE legal services were those in the Solicitation Package and the Instructions. Members of the Evaluation Committee found the Instructions inadequate, and the ranges of points with no criteria confusing. In prior solicitations for CSE legal services, evaluation committees were given a scoring matrix which set guidelines on how to score each section of a proposal. The Department's departure from the past practice of providing a scoring matrix to assist the evaluation committee in evaluating the proposals in order to give the regions more flexibility is illogical since there is no basis for the premise that the practice of law varies from region to region in the state or that different regions require different legal services. The difference in the average scores given Thomas & Associates' proposal over the Reymore proposal was 11.8 points. Had the Thomas & Associates' proposal been properly scored, the Reymore proposal would have been the highest-scoring proposal. Moreover, Reymore would have submitted the highest-scoring responsive proposal if the Thomas & Associates' proposal had been disqualified due to the failure of Thomas & Associates to include all of the Mandatory Requirements in its proposal. Thomas & Associates has not challenged the responsiveness of Reymore's proposal or the accuracy of the Evaluation Committee's scoring of the Reymore proposal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered determining the Thomas & Associates proposal to be nonresponsive and awarding to Petitioner Reymore the contract to provide child support enforcement legal services for Martin and Okeechobee Counties. DONE and ENTERED this 11th day of September, 1995, at Tallahassee, Florida. LINDA M. RIGOT, 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 11th day of September, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-20, 22-45, 48-82, 85- 95, 99-101, 106, 107, 114, 116-147, 149, 150, and 152-173 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 21 has been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Petitioner's proposed findings of fact numbered 46, 47, and 96 have been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed findings of fact numbered 98, 102-105, 108-113, and 115 have been rejected as being unnecessary to the issues involved herein. Petitioner's proposed findings of fact numbered 83, 84, 148 and 151 have been rejected as being subordinate to the issues herein. Intervenor's proposed findings of fact numbered 1-12, 15, 16, 18, 37, 76, 77, 83, 84, 87, 101, 109-111, 115, 118, 120, 123, 165, and 178 have been adopted either verbatim or in substance in this Recommended Order. Intervenor's proposed findings of fact numbered 13, 14, 21-23, 25, 26, 31-34, 38, 40, 46, 57, 61-65, 71, 90, 91, 96, 99, 117, 130-132, 158, 160, 162, 163, and 168-173 have been rejected as being irrelevant to the issues under consideration in this cause. Intervenor's proposed findings of fact numbered 17, 19, 20, 24, 42, 45, 48, 51, 58-60, 66, 72-75, 79, 85, 86, 88, 89, 92, 97, 98, 112, 113, 116, 121, 127, 133, 166, 167, 176, 177, 179, 181, and 182 have rejected as not being supported by the weight of the credible evidence in this cause. Intervenor's proposed findings of fact numbered 27, 30, 35, 39, 41, 43, 44, 47, 50, 52-56, 67-70, 80-82, 100, 102-107, 114, 124-126, 128, 129, 137, 142- 146, 148-153, 174, and 180 have rejected as being subordinate to the issues herein. Intervenor's proposed findings of fact numbered 28, 29, 36, 49, 78, 108, 119, 122, 138-141, 147, 154, 155, 157, 159, 161, 164, 175, and 183 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Intervenor's proposed findings of fact numbered 93-95, 134-136, and 156 have been rejected as being unintelligible. Respondent's proposed findings of fact numbered 1-3, 5, and 11 have adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4, 7, 10, and 20 have been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's proposed findings of fact numbered 6, 8, 9, 14, 16, and 18 have been rejected as being subordinate to the issues herein. Respondent's proposed finding of fact numbered 13 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 15, 17, 19, and 21 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: Douglas Reymore, Esquire Suite 420 10 Central Parkway Stuart, Florida 34994 Gary P. Sams, Esquire Carolyn S. Raepple, Esquire Hopping Green Sams & Smith P.A. 123 South Calhoun Street Tallahassee, Florida 32314 Thomas Barnhart, Esquire Patrick Loebig, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Jeffrey F. Thomas, Esquire Thomas & Associates Treasure Coast Bank Building Suite 209 789 South Federal Highway Stuart, Florida 34991 Noel A. Bobko, Esquire McCarthy, Summers, Bobko, et al. Suite 2-A 2081 East Ocean Boulevard Stuart, Florida 34996 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact The Parties The Department of Health and Rehabilitative Services (HRS) is an agency of the State of Florida with the responsibility to provide services to certain clients and the authority to contract for the provision of those services. Multi-Resources, Inc., (MRI) is a Florida corporation with an office in Sebring, Florida. The corporation provides behavioral treatment to persons with developmental disabilities referred to its programs by HRS. The corporation currently operates in HRS Districts VI, VII, and IX, including a facility in Orlando, in District VII, which serves residential clients in two homes under contract with HRS. The clients in that facility are the same clients who are to be served under the proposed contract which is the subject of this proceeding. ARA Devcon, Inc., (Devcon) has been incorporated in Florida since 1981. It currently serves 276 developmentally disabled individuals in residential cluster facilities. Eighty-four of these individuals are "dually diagnosed"; that is, they are retarded and also have mental disabilities which require intensive intervention. Devcon provides services to HRS clients through contracts with the agency. Pejus, Inc., (Pejus) is an Indiana corporation organized to provide human services to persons with special needs. It operates programs in northern Indiana and, through a separate Florida corporation, Community Opportunities, Inc., it operates residential group homes under contract with HRS in District IV. These group homes serve persons with dual diagnoses of mental retardation and mental illness with severe behavioral disorders. Wohlfarth Group of Homes, Inc., (Wohlfarth) is in the process of incorporating in the State of Florida, with an office in Deltona, Florida. It currently does business in New Jersey as Developmental Disabilities Association of New Jersey, Inc.. In New Jersey it provides services to developmentally disabled persons, which services include group homes and adult training programs. The Request for Proposals On January 3, 1991, HRS District VII Administrator, Paul Snead, approved the Request for Proposals (RFP) and appointment of a 5-person selection team for RFP #DS-91-01, for specialized group homes for 24 District VII clients who are dually diagnosed or have severe behavior problems. (Joint Exhibit #3, MRI Exhibit F) The deadlines in the RFP provide for release of the RFP on January 18, 1991, a bidders' conference on January 28, 1991, and responses to the RFP to be received by the department by 3:00 p.m. on February 15, 1991. (Joint Exhibit #3) The RFP describes briefly the services to be provided with programmatic and other special requirements. Under "General Information", the RFP provides that the contract will be a fixed-price contract, with a line-item budget to be presented for the contract period of October 1, 1991-September 30, 1992, October 1, 1992-September 30, 1993, and October 1, 1993-September 30, 1994. "All costs will be reviewed to ensure that the costs are allowable and 'reasonable and necessary'". (Joint Exhibit #3, p.5) The instructions in the RFP include the following: How to Submit a Proposal Each copy of the proposal must include a Title Page which contains the following information: RFP number Title of proposal; Bidder's name; Organization to which proposal is submitted; Name, title, phone number and address of person who can respond to inquiries regarding the proposal; and, Name of project director (if known). All proposals should include: (Attachment XI) The project objectives as seen by the bidder; A detailed explanation of how the services will be provided; and, An operational plan which lists the activities to be conducted to accomplish each objective, and completion dates. The proposal should include: (Attachment XI) A table of organization, indicating how the project staff fit into the total agency, and how each member of the project staff relates to the other; A synopsis of corporate qualifications, indicating ability to manage and complete the proposed project; Evaluations of projects similar to the one proposed in the RFP (previous experience is desired but not required); A copy of the most recent financial statement or audit; An explanation outlining the staff who will provide the service, their qualifications and their number; and, Complete the Administrative Assessment of Potential Providers Checklist (Attachment X) and return it with the response to the RFP. The bidder must deliver the proposal packets either by hand or certified mail in a sealed envelope marked "Bid RFP #DS-91-01". In order for the bidder to receive proof of delivery they must request a receipt showing the time and date of delivery or mailing. j. Number of Copies Required The bidder will be required to submit an original and 2 copies of the proposal. At least one copy of the proposal submitted to the department must contain an original signature of an official of the provider agency who is authorized to bind the provider to the proposal. (Joint Exhibit #3, pp. 7, 8) The RFP describes "other required information" to include a Department of General Services acknowledgment form, a "statement of no involvement" form (certifying that the bidder was not involved in developing the RFP and other related matters), and a sworn statement under Section 287.133(3)(a), F.S. on public entity crimes. (Joint Exhibit #3, p. 9). Paragraph B.3.a. of the RFP requires that the proposal include "...a signed statement in response to the RFP indicating acceptance of the terms and conditions of provisions of service as specified in the RFP and contained in the core model contract". (Joint Exhibit #3, p. 10) Paragraph C. of the RFP provides: C. Proposal Evaluation Criteria and Proposal Rating Sheet The criteria by which the response to RFP #DS-91-01 will be selected is found in Attachment IX. The proposal rating sheet is a list of the evaluation criteria and specific indicators used to assess the degree to which the bidder's response meets those criteria. Prior to February 20, 1991, each proposal will be reviewed by the Proposal Selection Team and points awarded for each section based on the responses given. The selection team will evaluate the quality and completeness of the bidder's response. The values awarded for each response will be tabulated and a minimum score established below which proposals will not be considered. (Joint Exhibit #3, pgs. 10, 11) Attachment IX of the RFP, (Joint Exhibit #3) is the proposal rating sheet for RFP #DS-91-01. It has spaces to be filled in for the title of the proposal, the bidder and the reviewer. Total possible points is 646, and a minimum of 323 points is required. Part A of the Proposed Rating Sheet provides: Part A: MINIMUM PROPOSAL REQUIREMENT - FATAL ITEMS (A. "no" in any of the following requirements will automatically remove the proposal from the further consideration.) Circle Appropriate Responses The proposal contains an original YES NO signature by an authorized agency official agreeing to the terms and conditions of the contract and the statement of no involvement. The proposal for a cost-reimbursement YES NO project includes a line-item budget with justification. The proposal for a fixed rate project includes justification for the fixed rate. Is the population to be served YES NO the target population specified in the RFP? Was the District 7 application Packet YES NO used to respond to the RFP? The proposal includes a completed and YES NO signed Public Entity Crime Form, PUR 7068. (Joint Exhibit #3) A total of 6 possible points is allowed for submittal of a bound proposal with required number of copies, all mandatory attachments, and sequentially numbered pages. Two questions on the proposal rating sheet yield a total of 20 possible points for the bidder's understanding of why the project is necessary and what the project is intended to accomplish. (Part C) Six questions yield a total of 300 possible points on the bidder's response to RFP specifications. (Part D) Six questions yield a total of 120 possible points on the bidder's organizational capability. (Part E) Four questions yield a total of 200 possible points for the bidder's budget and financial information. (Part F) (Joint Exhibit #3, Attachment IX) The Review Process Raymond Granston has been employed by the Department of Health and Rehabilitative Services since 1986, as a case manager, and most recently as a human services program specialist in the HRS Developmental Services Program Office. He drafted RFP #DS-91-01, handled the advertisement and solicitation process, and led the 5-person selection team in the evaluation of responses. In addition to Granston, the team included Sandy Pruette, the Residential Services Director; Helen Tasher, a member of Granston's staff; Sandra Browdy, Licensure Specialist; and Paula Bowser, Grants Specialist. Four timely responses to the RFP were received: Pejus, MRI, Devcon and Wohlfarth. After the proposals were opened, Granston gave one copy of each to Paula Bowser. The original and remaining copy of each were retained in Granston's office for his and the other review team members' access. Each member took advantage of that access, and approximately February 26, 1991, the review committee met as a group, with Granston as chairperson. The group spent two or three hours together discussing the proposals and ascribing numbers from the rating sheet. Neither the Pejus, nor Wohlfarth proposals were rated, however, as "fatal" items were found. For the two remaining proposals, Raymond Granston kept notes of scores on a legal pad. The actual rating sheets for MRI and Devcon were not completed until sometime after the notice of intended award was sent, but the scores on Granston's notes were the basis for the notice. Those scores were a total of 534 for MRI (although the rating sheet reflects a computation error and total of 551); and a total of 618 points for Devcon. (Joint Exhibit #11 and 12) As described by the team members, the scoring process was a group effort, rather than the result of averaging individual members' scores for the proposals. Individual score sheets were not used. The Wohlfarth proposal was not scored by the review committee as the committee determined that paragraph A.1., the first "fatal" item, disqualified it from further review. That is, the committee felt that the proposal did not include "...an original signature by an authorized agency official agreeing to the terms and conditions of the contract and the statement of no involvement." (Joint Exhibit #3, Attachment IX) The review committee determined that the Pejus proposal had two "fatal" items: paragraph A.1., described above, and paragraph A.2. requiring justification in the budget. Determination on this latter item was based on lack of narrative pages in the budget. The Pejus proposal also had a couple of typographical errors where the service area was described as District IV, rather than District VII, but those errors were not considered by the committee to be "fatal" to its proposal. The agency maintained deliberative notes for the proposals submitted by MRI, Devcon and Wohlfarth, although these were not produced at hearing or offered into evidence. HRS, as stipulated by counsel, has no records which confirm any evaluation or rejection of the Pejus proposal. (Pejus Exhibit #1) The Bid Protest In a letter dated March 8, 1991, Ross Wingo, Jr., President of MRI, informed Ray Granston of his formal protest of intended contract award in RFP #DS-91-01, and outlined the bases for the protest. Most of MRI's protest involves argument that scores awarded for specific items are improper. For example, Devcon did not include a separate narrative statement for each budget item. Instead, a brief explanation of the cost was included on the face of the budget form. Devcon received a score of 9 out of 10 points; MRI received a full 10 points and included a separate narrative statement. The RFP paragraph E.5. requires a "statement certifying financial capability". Devcon did not include a separate signed statement, but rather provided the following at page 84: ARA Devcon has the financial capability to sustain this project for a minimum of 60 days or until the first reimbursement for services rendered is received from HRS. Further evidence of our financial capability is documented in the attached audit. (Joint Exhibit #2) Devcon received 9 out of 10 possible points for this. MRI received the full 10 points. A separate signed statement is clearly required in the RFP for the "statement of no involvement", but the RFP does not clearly require a separate signed statement of financial capability. Devcon's signature on the proposal itself constitutes acceptance of the entire proposal, including the statement described above. Each of the four proposals is voluminous, with narrative statements and lengthy attachments describing various financial, personnel or direct services aspects of the respective proposed program. Devcon's proposal is approximately 215 pages; MRI's is neatly bound, well- organized and comprises 395 pages. The narrative statements provided by Devcon are much briefer, but still include the essentials required by the RFP. It is obvious that the scores ascribed by HRS' review committee were not based simply on quantity of verbiage. Several of MRI's points on protest relate to the perceived quality of its detail as opposed to the sometimes bare-bones statements by Devcon. Scoring for many items was plainly subjective, but not plainly erroneous. Nor was it error, as contended by MRI for the review team to lack a certified behavior analyst or other expert in the direct delivery of services to developmentally disabled clients. Nothing in the RFP nor the procedural manuals of HRS require such expertise in review team members. HRS Manual 75-2 requires a selection team of at least three employees who have experience and knowledge in the program area and service requirements. (Joint Exhibit #9, p. 5-23) At least three members of the team had that experience and knowledge. One member, Paula Bowser, is a grants specialist for HRS developmental services and concentrated on the financial aspects and budget presentations in the proposals. Another member, Sandra Browdy, has 19 years employment experience with HRS, and as a human services program analyst/licensing representative is familiar with the agency's standards for service delivery and the evaluation and survey of service providers. It is impossible to determine that the review by the Committee was so cursory that the scores ascribed to Multi-Resources and to ARA Devcon's proposals are invalid. It is obvious, however, that the Committee missed certain documents in the Pejus and Wohlfarth proposals or erroneously stated the reason for failure to score those proposals. Joint Exhibit #5 is the exhibit examined by the parties at the hearing and was stipulated in evidence as the Wohlfarth proposal. (transcript p. 380) According to Raymond Granston, the Wohlfarth proposal was rejected for lack of an original signature by an authorized agency official agreeing to the terms and conditions of the contract and the statement of noninvolvement. In response to a specific question from the Hearing Officer, Granston stated the problem was not that there was no original signature, but rather that the statement is not there. (transcript, p. 504) The RFP, as cited in paragraphs #10 and #11, above, actually references two separate statements, although the two are addressed together on the RFP rating sheet. James Casale is identified throughout the Wohlfarth proposal as the Project Director. Marion Wohlfarth, President of Wohlfarth, is identified on the application for funding form as the official authorized to sign the contract. James Casale's name and signature appear on the Department of General Services Request for Proposal Acknowledgment form. That form includes this language "I agree to abide by all conditions of this proposal and certify that I am authorized to sign this proposal for the proposer and that the proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements." (Joint Exhibit #5 - unnumbered pages) James Casale's name and signature as authorized representative appear on the "Statement of No Involvement" form in the Wohlfarth proposal. Attachment V of the RFP is the HRS standard contract. Wohlfarth's proposal includes this contract form, signed by James Casale, Project Director for Wohlfarth Group of Homes, Inc. The required documents are found in the Wohlfarth proposal, but none of the signatures are originals. (Joint Exhibit #5) As admitted by Ray Granston, there is no specific form in the RFP that the proposer was to execute to state it would agree to the terms and conditions of the contract. (transcript, p. 503) By signing the contract itself, Wohlfarth apparently intended to agree to its terms and conditions, but the signature is not that of Marion Wohlfarth, the person authorized to sign the agreement. The Pejus proposal was stipulated into evidence by the parties as Joint Exhibit #4. (transcript, p. 380) This exhibit includes a cover letter signed by Ernest Beal, Jr., President of Pejus, Inc.. It also includes a bound volume, which is the body of the proposal, and a supplement to the proposal that was faxed to Raymond Granston on February 15, 1991. The supplement includes Ernest Beal's signature on the Department of General Services Request for Proposal Acknowledgment Form and a separate "Statement of No Involvement" Form signed by Ernest M. Beal, Jr. (Joint Exhibit #4) None of these are original signatures. There is no evidence of whether the fax was received by the 3:00 p.m. deadline. A follow up mailed version was stamped "received" by the agency on February 18, 1991. (Joint Exhibit #4) The Pejus Proposal was also not evaluated because it lacked budget justification. See paragraph #21, above. The proposal rating sheet does not require a narrative, but rather for a fixed-rate project such as this it requires "justification for the fixed rate". (Joint Exhibits #11 and #12) Pejus' proposal includes a detailed line-item budget on the forms provided in the RFP packet. Explanations, where necessary, are found in the line-item budget. (For example, see Attachment D1, pp. 4.3, 4.13, 4.19, 4.25 and 4.32., Joint Exhibit #4) HRSM 75-2 is the agency manual which provides procedures for HRS' procurement and contract management. It requires that prospective members of the selection team complete a conflict of interest questionnaire (Appendix J) to ensure that no team member has any conflict of interest that would interfere in selection of a contractor. (Joint Exhibit #9, p. 5-23) It does not provide when the form must be completed unless the team member participates in RFP development, in which case the form must be completed prior to that participation. Ray Granston complied with that requirement. Four of the five review committee members completed the questionnaire. (MRI Exhibits A-E) Appendix J, the questionnaire form, was amended effective November 1, 1990, and no longer requires a sworn statement. (Joint Exhibit #9) The manual requires that the selection team evaluate RFP proposals using the weighted evaluation sheet contained in the published RFP. It does not require, as suggested by Multi-Resources, that the evaluation sheets be completed by each reviewer or that the sheets be maintained. Summary of Findings The review process itself was informal and poorly documented, although it substantially complied with the requirements of the RFP and with the agency's procedures manual. From the evidence presented, the ultimate results of the review are appropriate, even though the witnesses were thoroughly confused as to the specifics regarding rejection of the Pejus and Wohlfarth proposals. The unclear requirements of the RFP as to forms and certifications thought missing from the Pejus and Wohlfarth proposals contributed to that confusion. The RFP requirements were not protested, however, and among the four providers who submitted proposals only MRI attended the advertised bidders conference. (Joint Exhibit #8)
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered dismissing Multi-Resources, Inc., petition and awarding the contract in RFP #DS-91-01 to ARA Devcon, Inc. DONE AND RECOMMENDED this 16th day of August, 1991, in Tallahassee, Leon County, Florida. MARY 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 16th day of August, 1991. APPENDIX TO RECOMMENDED ORDER The following constitute specific treatment of the findings of fact proposed by MRI and Wohlfarth. Although it was substantially late, Wohlfarth's submittal was considered. Its consideration does not alter the outcome of this proceeding. Proposed Findings of Fact Submitted by MRI Adopted in paragraph 2. Adopted in paragraph 1. Adopted in paragraph 7. Adopted in paragraph 18. Adopted in paragraph 6., except that the manual does not require a 5- person team. Rejected as contrary to the weight of evidence. 7.-9. Adopted in paragraph 19. Rejected as contrary to the evidence. Adopted in paragraph 32. Rejected as immaterial. 13.-16. Adopted in summary in paragraph 32. 17.-20. Rejected as immaterial, and, as to the requirements of HRSM 75-2, contrary to the evidence. 21.-23. Addressed in the preliminary statement. 24.-25. Adopted in paragraph 19. Adopted in paragraph 17. Rejected as immaterial. Rejected as contrary to the evidence. Rejected as immaterial. Rejected as contrary to the evidence. Rejected as unnecessary. Rejected as contrary to the evidence. 33.-35. Rejected as immaterial. Adopted in paragraph 19. Rejected as unclear. Adopted in paragraph 19. 39.-42. Rejected as contrary to the evidence. 43. Rejected as unnecessary. 44.-45. Rejected as contrary to the evidence. 46.-47. Rejected as immaterial. 48. Adopted in paragraph 19. 49.-50. Rejected as unnecessary. 51. Adopted in the conclusions of law, in substance. 52.-54. Rejected as contrary to the evidence. 55. Rejected as unnecessary. 56.-59. Rejected as argument or conclusion, rather than findings of fact. Proposed Findings of Fact Submitted by Wohlfarth Adopted in paragraph 7. Adopted in paragraph 18. Adopted in paragraph 17. Rejected as contrary to the evidence. 5.-8. Rejected as immaterial. Rejected as contrary to the evidence. Adopted in paragraph 20. Rejected as contrary to the evidence. Rejected as unsubstantiated by competent evidence. 13.-16. Rejected as argument or conclusions, rather than findings of fact. COPIES FURNISHED: James Sawyer, Jr., Esquire HRS-District 7 Legal Office South Tower, Suite S-827 400 W. Robinson Street Orlando, FL 32801 Ross Wingo, Jr., Esquire Multi-Resources, Inc. 2555 US 27 South Sebring, FL 33870 ARA Devcon, Inc. Attn: Linda Mabile 2121 Killearney Way, Ste. F Tallahassee, FL 32308 Wohlfarth Group of Homes, Inc. Attn: Fred Wohlfarth 2301 Whitehorse Street Deltona, FL 32738 Ernest M. Beal, Jr., Esquire Pejus, Inc. 9025 Coldwater Rd., Ste. 300 Fort Wayne, IN 46825 John Liguori, Esquire P.O. Box 1051 Bartow, FL 33830 John Slye, General Counsel HRS 1323 Winewood Blvd. Tallahassee, FL 32399-0700 R. S. Power, Agency Clerk HRS 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue Whether Respondent Florida Department of Health and Rehabilitative Services (HRS), acted illegally, dishonestly, fraudulently, arbitrarily or/and capriciously in determining to award the contract for RFP 95-142CM-FAP to Unisys Corporation (Unisys).
Findings Of Fact On November 14, 1994, HRS's Office of Information Systems distributed the RFP, entitled "FLORIDA System --Applications Programming Services." The RFP was designed to procure the programming services required by HRS to complete the software programming of, among other things, the state's federally mandated Child Support Enforcement System, and to maintain and enhance the system upon its completion. Upon selection of the winning proposal, HRS intended to enter into the contract for thirty-six months, renewable upon agreement of the parties for an additional 12 months. The cost proposal rates for the initial three-year term would be binding for any subsequent work on the project. HRS also reserved the right to acquire additional consulting services from the contractor for related activities for up to one year after the termination of the Contract. HRS began developing this RFP in the late spring or early summer of 1994 in anticipation of the expiration of the current contract with Deloitte for provision of applications programming services. Before release to prospective proposers, the RFP was approved by HRS' Office of Contract Services and the Information Technology Resources Procurement Advisory Commission (ITRPAC), a body consisting of various state officials including the head of the Division of Purchasing, which ensures that the RFP complies with state rules. In addition, various federal agencies approved the RFP before its release to prospective proposers. The RFP provided that 60 percent of the proposal scoring would be based on the technical proposals contained in the responses to the RFP, and that the remaining 40 percent of the score would be assigned to the costs as submitted in the proposals. After scoring and weighting of the scores, the weighted scores were to be combined to determine the winning proposal. The breakdown of scoring between technical and cost components is based upon HRS' standard practice and its experience with the format required by other state and federal agencies with whom HRS works. The division of the scores was also intended to ensure that an unqualified vendor did not secure the bid solely on the basis of low cost. The selection of the evaluation criteria and weighting of evaluation points for this RFP were subject to the discretion of the Department at the time the RFP was prepared. On December 12, 1994, HRS held a bidders' conference at which representatives of Deloitte and Unisys were in attendance. EVALUATION OF RESPONSES On January 6, 1995, Deloitte and Unisys submitted the only two proposals in response to the RFP. Both proposals were deemed responsive to the requirements of the RFP. HRS appointed a five member Evaluation Committee to review and evaluate the proposals. HRS provided training to the Evaluation Committee members specifically directed to the proper method for reviewing and scoring proposals submitted in response to the RFP. Each member of the Evaluation Committee was qualified by training, education and experience to review and evaluate the technical merits of each proposal. The RFP defined the criteria by which the proposals would be reviewed, scored and ranked by the Evaluation Committee, and the contract awarded. Included in the RFP were blank cost proposal forms which the proposers were to complete. Those forms did not include any blank spaces to be filled in referencing costs associated with any "renewal" periods or otherwise provide for including information about proposed costs for any renewal periods. The Evaluation Committee members each independently reviewed the technical proposals submitted in response to the RFP over a period of approximately two weeks. Committee members submitted the raw scores from their technical evaluations to Karin Morris, the HRS System Program Administrator. The cost proposals were opened and scored on January 20, 1995 by Ms. Morris. The RFP provided, in Section 6.0, that a comprehensive, fair, and impartial evaluation would be conducted of all proposals received. The RFP also provided for the grouping of evaluation criteria into six categories with points assigned as follows: - Mandatory Requirements 0 points - Management Summary 0 points - Corporate Capabilities 200 points - Project Staff 200 points - Technical Approach 100 points - Project Workplan 100 points - Cost 400 points Section 6.0 of the RFP also contained the following language: Selection of the successful proposer will be based on the proposal that is determined to be in the best interest of the department, taking into consideration cost and other criteria set forth in the RFP. Further, the RFP provided, in Section 6.1, that: An Evaluation Committee will be established to assist the department in selection of the winning contractor(s). All proposals not meeting the mandatory requirements will be rejected. The committee will evaluate the technical approach, corporate capabilities and project staff of all responsive proposals. The committee will rank proposers by the resulting scores and make a recommended award. The committee will summarize their findings and prepare an evaluation report to the Deputy Secretary for Administration. The report will then be presented to the Secretary of HRS. The Secretary will review the final report, pertinent supporting materials and make the determination of the final award, taking into consideration cost and other evaluation criteria set forth in the RFP. The Secretary reserves the right to take any additional administrative steps deemed necessary in determining the final award. (Emphasis added). Most importantly, Section 6.3(D) of the RFP dealing with the evaluation of the cost proposals stated: The points awarded for the three cost evaluation categories will be totaled and added to the points awarded for technical evaluation cate- gories 3 through 6 to determine the winning proposer. (Emphasis added). After reviewing and comparing the weighted scores of both proposals, the Evaluation Committee issued a "Final Report," with recommendations, on January 30, 1995. The weighted technical scores reflected in the Evaluation Committee's Final Report are as follows: DELOITTE UNISYS Corporate Capabilities 200 186.36 Project Staff 200 159.07 Technical Approach 100 76.62 Project Workplan 100 76.73 TOTAL 600 499 The weighted cost scores were: DELOITTE UNISYS Fixed Price Tasks 10.0 2.27 Monthly Price 357.90 380.0 Hourly Price 7.77 10.0 TOTAL 375.67 392.2 Totaling all categories as required by paragraph 6.3(D) of the RFP, the Department's Evaluation Committee arrived at the following final ranking: DELOITTE UNISYS Technical Proposal 600 499 Business Proposal 376 392 TOTAL 976 891 Based upon the Evaluation Committee's scores, Deloitte's demonstrated technical capability is 20 percent higher than that of Unisys. Under the terms of the RFP, there was no discretion involved in scoring the cost portion of the proposals, including the weight to be accorded costs in the final overall scoring to determine the winning bidder. Based upon HRS' inclusion of the specific criteria in the RFP, the cost portion scoring was merely a mechanical calculation. Both of the proposers' cost proposals fall within the agency's budgetary limits for the current year for accomplishing the work requested by the RFP. Four of the five members of the HRS Evaluation Committee recommended award of the contract to Deloitte, in the following language: Deloitte & Touche scored higher in all areas including recommendations. Deloitte and Touche is the incumbent contractor and therefore there are no risks associated with the transition. Deloitte understood the requirements of the RFP and addressed them more completely in their proposal. Therefore, it is our recommendation that the contract should be awarded to Deloitte & Touche. (Emphasis added). One member of the Evaluation Committee recommended the decision be left to the Secretary of HRS. None of the members of the HRS Evaluation Committee recommended award of the contract to Unisys. HRS SECRETARY'S DECISION TO AWARD TO UNISYS On January 27, 1995, prior to preparation of the recommendations contained in, or the issuance of, the Evaluation Committee's Final Report, HRS Secretary James Towey convened a meeting with Deputy Secretary Lowell Clary, John Holland, Bill Belleville and the department's legal counsel to discuss the contract award process, a draft of the Evaluation Committee's Final Report and other matters the Secretary felt relevant to HRS' ultimate decision on the RFP. At the meeting, Towey was informed by Bill Belleville that Deloitte's proposal was the "best." Towey was also informed by John Holland and Bill Belleville that both companies could perform under the contract. However, neither Holland's nor Belleville's assessments were based on responses to the RFP, but rather upon their own experience with the two vendors outside of this RFP process. Belleville conceded that he believed that a proposer was qualified to perform the contract by merely meeting the "mandatory" requirements of the RFP, a category that was accorded zero points in the scoring criteria. Informed that both companies could perform under the contract, Towey "zeroed in" on costs as the major consideration for the award of the contract. At the meeting, he considered a present-value calculation of the payments that the State would make over the course of a contract, if the contract had been for a 48 month term. The calculation had been prepared by Dean Modling, an HRS senior management analyst supervisor, although the RFP had been approved by the Department of Management Services without provision for such an analysis. The RFP not inform proposers that a present-value analysis would be performed and provision for the present-value of a contract was not included in the scoring criteria for the proposals. Present value calculation became an issue when it was raised and discussed at the January 27, 1995 meeting, and subsequently used in the Secretary's decision to award the contract to Unisys. Towey also considered, in deciding to award the contract to Unisys, a calculation of "raw costs," provided after the January 27, 1995 meeting. These "raw costs" were presented on two charts. Both added up the amounts submitted by each proposer for fixed price tasks and monthly costs, over 36 months. Although the RFP did not request, and neither proposer submitted costs for a 48 month contract, the two charts included a calculation for a hypothetical 48 month contract using the same monthly payments submitted for the 36 month contract. In addition, one of the two charts included a 5.8 percent factor for overtime, which was also not addressed by the RFP or by the proposals submitted in response to the RFP. There was no evaluation criteria contained in the RFP which dealt with the issue of "raw costs" over the term of the contract. Prior to the decision to award to Unisys, HRS never performed and Towey never considered a present value analysis for the 36 month contract period provided for in the RFP. Finally, as a result of concern expressed at the January 27, 1995 meeting regarding whether Unisys could handle the immediate tasks required by the contract, including requirements of the Child Support Enforcement and federal certification programs, Towey considered whether there would be any risk of transition if Unisys were unable to hire some of Deloitte's employees and subcontractors should he decide to award the contract to Unisys. Towey specifically requested Deputy Secretary Clary to research this issue. In order to obtain information, Clary had HRS personnel directly contact Deloitte's subcontractors. Clary responded to Towey three days later on January 30, 1995, the day before the decision by Towey to award the contract to Unisys, that Deloitte's subcontractors would not be prohibited from working for Unisys. Consideration of overtime and risk of transition were not criteria contained in the RFP, nor were these elements evaluated and scored by the HRS Evaluation Committee. By way of a January 31, 1995 memorandum to Clary announcing the award of the contract to Unisys, Towey stated: I have now had an opportunity to review the report of the evaluators of this RFP, the recommendations contained therein, the raw data submitted with the proposals, and the RFP. I understand the nature of the project and its importance to the agency. Based upon my review of the information presented to me and my understanding of similar projects in the past, my decision is to award the contract to Unisys as the proposal most advantageous to the state of Florida, taking into consideration the price and other criteria set forth in the RFP. Although I have considered the risk of transition to a new contractor, I find that I am unable to ignore the dollar savings which will result in awarding the contract to Unisys. Since you and your staff have assured me that both companies are technically competent to perform the work, I believe the monetary savings outweigh any risk that might exist in the transition of contractors. Therefore, I have determined that it is in the state's best interest to award the contract to Unisys. Please take whatever steps are necessary to implement this decision. (Emphasis added). By his actions, Towey exercised more than the prerogative conferred by the RFP to "take any additional administrative steps deemed necessary in determining the final award" and actually evaluated criteria other than that contained in the RFP in reaching his decision to award the contract to Unisys. Further, in awarding the contract to Unisys, Towey effectively altered the relative weight of the criteria as specified in the RFP. Towey relied upon the advice of Clary. Illustrative of Clary's perspective is his testimony at the final hearing that he believed the 60/40 weighting contained in the RFP to be inapplicable to decision making by the Secretary of HRS. Neither Bill Belleville nor John Holland reviewed, in detail, the proposals submitted in response to the RFP. Neither performed their own independent analysis of the responses. Further, Clary never reviewed the RFP nor the proposals submitted in response to the RFP. In the course of his decision making process with regard to award of the contract to Unisys, Towey relied on the advice of Clary, Belleville and Holland, referred to by Towey as his "top managers", despite their undisputed lack of familiarity with the Deloitte and Unisys proposals. While his memorandum dated January 31, 1995, states he reviewed the RFP, Towey admitted in his testimony at the final hearing that he had not personally reviewed the document. Further, he never reviewed or performed his own analysis of the two proposals submitted in response to the RFP. The members of the Evaluation Committee members were the only persons to fully and carefully evaluate the two proposals and score them under the criteria contained in the RFP. Since that time, no one else from HRS has attempted to reevaluate or re-score the proposals. Neither Towey nor anyone else involved in the January 27, 1995 meeting disagrees with the analysis and scoring of the proposals by the Evaluation Committee. PRESENT-VALUE ANALYSIS Section 1.2 of the RFP, states, in part: This RFP will result in a thirty-six month contract. Further, Section 4.12(C) of the RFP states, in part: Upon selection of the winning proposal, the department shall enter into a contract for thirty-six (36) months. Although the possibility of renewal of the contract for a maximum of a single, one year term is contained in the RFP, there is no provision in the RFP which requires that HRS renew the contract after 36 months or that the contractor accept a renewal after 36 months for any specific term. By the terms of the RFP, any renewal of the contract for a period beyond the 36 month term is subject to negotiation between the contractor and the department. While proposals submitted by Unisys and Deloitte commit to maintaining the same costs in the event of renewal, negotiation as to the length, price and staffing for any renewal period less than a year, is not excluded by the terms of the RFP. Neither HRS nor the contractor is bound, under the terms of the RFP, to any extension of the contract. HRS' own manual, HRSP 75-3, entitled "Developing a Request for Proposal," states, in the section on contract renewals: If Contract Renewals have been provided for in this RFP, include the following recommended language in the Special Provisions subsection of the RFP: This contract may be renewed on a yearly basis not to exceed two (2) years beyond the initial contract or for a period no longer than the term of the original contract whichever period is longer. Such renewals shall be contingent upon satisfactory performance evaluations as determined by the department and shall be subject to the availability of funds. As specified in the provider's response to the RFP/ITB, the total cost for the contract under the' first year renewal will not exceed $ and the second year renewal will not exceed $ . Each renewal shall be confirmed in writing and shall be subject to the same terms and conditions set forth in the initial contract. (Emphasis added). Another in-house document at HRS is HRS manual, HRSM 75-2 (May 1, 1994 update), entitled "Contract Management System for Contractual Services". Chapter 5 of that document, entitled "Contractual Procurement Requirements," states, in pertinent part: The dollar amount and the manner in which the costs for the . . . renewals will be calculated must be specified in the response to the RFP and in the resulting contract document. By contrast, the RFP contains none of the language specified in either HRS manual regarding renewal. Section 4.12(c) of the RFP merely states: This contract term shall be renewable for a max- imum of a one year term upon the mutual agreement in writing of the contractor and the department. (Emphasis added). Terms of the RFP did not invite proposers to submit a specific cost or any other information for a renewal period or explain how costs for a renewal period would be calculated. Neither did the RFP contain any language that renewals would be conditioned on satisfactory performance by the contractor. Proposers, on blank cost forms, were requested in the RFP to provide HRS with their proposed prices for fixed price items, monthly costs and hourly costs. The forms, contrary to the requirements of HRS manuals applicable in situations where information for a renewal term is requested, did not provide a place for proposers to indicate costs for any renewal term or to demonstrate how those costs were calculated. Both contractors understood that any renewal would be subject to negotiation. The "Standard Contract" contained in the RFP provides only for a term of 36 months and a cost for that specific contract term. Consistent with the terms of the RFP that the contract was for a 36 month term, HRS submitted, on more than one occasion, materials to ITRPAC. In those materials, HRS represented that the proposed budget amounts of $25 million and $28 million for the project were for a three year term contract. The Notice of Award which HRS issued stated that a three year contract was to be awarded. Although the RFP addressed staffing at a maximum of 107 persons, HRS was aware that 100 percent staffing might not always occur. Section 2.l(B)(5) of the RFP permits 90 percent of the maximum staffing level at a given time without the vendor incurring a penalty. At one point in the RFP preparation, a draft of the RFP required 95 percent staffing. Even that level was considered by HRS to be too restrictive and anti-competitive and was amended to 90 percent out of fear that a 95 percent staffing level would discourage submission of competitive proposals. The 90 percent figure was also used in the RFP to account, in part, for projected attrition of contractor employees that HRS had historically experienced on this project. From the standpoint of budgetary allowances by HRS for the project, it is realistic to believe that the job will be staffed at somewhere between 90 percent and 95 percent rather than at the maximum staffing level of 107 employees. Although Section 4.15(D)(5) of the RFP states that the State is not responsible for paying contractor's employees for leave or vacation time, the testimony of Petitioner's financial expert, Dr. Elton Scott, establishes that a reasonable assumption is to assume that each employee is entitled to, and would take, at least two weeks vacation. Such an assumption should also be included when performing a present value analysis, particularly when assuming 100 percent staffing. Depending on budget allocations for this project, it is possible that HRS would only require that the contractor provide as few as 46 employees. The present value calculation performed by HRS indicated that, over 48 months, at 100 percent staffing (107 employees), the monetary cost of awarding the contract to Unisys would be approximately $500,000 less than the cost of awarding the contract to Deloitte, a savings of approximately 1.5 percent over the term of the contract. As demonstrated by HRS' subsequent present value calculation performed at final hearing in this cause, for the 36 month actual contract period, at maximum staffing, HRS would realize a savings of no more than $39,802 by awarding the contract to Unisys, a savings of less than 2/10ths of 1 percent. None of HRS' present value calculations accounted for leave/vacation time or for any staffing levels under 100 percent for any other reasons. Based upon the terms of the RFP, the language of HRS' procurement manuals, and the expert testimony of Dr. Scott, any valid present-value analysis should have included a 36 month term contract. Any such analysis should also have taken into account varying levels of staffing, leave/vacation time, and overtime if staffed at the minimum required. A properly performed present-value analysis indicates that Deloitte's proposal is less expensive than the Unisys proposal in the following amounts over a 36 month contract term, at the staffing levels indicated: Employees Leave/Vacation Time Overtime Deloitte Savings 107 2 weeks none $12,791 96 none none $109,062 96 none 5.8 percent $ 18,327 46 none none $844,473 (Pet. Exh. 15) The only scenario in which the Unisys proposal is less costly than the Deloitte proposal, using the proper present value analysis, would be at 107 employees, with no accounting for leave time. This unlikely future scenario would result in a savings of no more than $47,378, or less than 2/10ths of l percent of the contract amount over 36 months. Because it requires an up-front payment of more than $1,600,000 (as compared to $78,000 for Deloitte), the Unisys proposal places the State of Florida at substantially more financial risk than the Deloitte proposal in the event of nonperformance by Unisys. On February 1, 1995, HRS posted its notice of intent to award the Contract to Unisys. Deloitte filed its timely notice of intent to protest on February 3, 1995, and filed its timely formal protest and request for hearing on February 13, 1995.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which declines the award to Unisys and takes into account the foregoing findings of fact and conclusions of law when deciding the future course of contracting for the services sought by the RFP. DONE and ENTERED this 12th day of May, 1995. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made with regard to purposed findings of fact submitted by the parties. Intervenor's Proposed Findings: Adopted. Adopted as to 1st sentence. Remainder not relevant with exception of last sentence which is adopted. Rejected, subordinate to HO findings. Accepted. Rejected, subordinate to HO findings. 6.-7. Rejected, cumulative. 8. Accepted. 9.-10. Rejected, subordinate to HO findings. Accepted. Rejected, subordinate to HO findings. Accepted. Rejected, cumulative. 15.-17. Rejected, subordinate. 18.-20. Rejected, relevance. 21.-22. Accepted. 23. Rejected, subordinate to HO findings. 24.-25. Accepted. 26.-29. Rejected, subordinate to HO findings. 30. Accepted. 31.-36. Rejected, subordinate. Rejected, weight of the evidence. Rejected, opinion, weight of the evidence. 39.-41. Rejected, subordinate. Respondent's Proposed Findings: 1.-3. Adopted, not verbatim. 1.-6. Adopted by reference. 7. Rejected, relevance. 8.-9. Rejected, cumulative, unnecessary. 10.-12. Accepted. 13. Rejected, cumulative. 14.-16. Accepted. Rejected, weight of the evidence. Rejected, relevance. Rejected, weight of the evidence. 20.-21. Rejected, argument. 22.-23. Rejected, subordinate to HO findings. 24. Rejected, argument. 25.-27. Rejected, subordinate, weight of the evidence. 28.-29. Rejected, relevance. 30.-31. Rejected, subordinate. Rejected, weight of the evidence. Rejected, subordinate, weight of the evidence. Rejected, relevance. 35.-36. Rejected, cumulative. Rejected, weight of the evidence. Accepted. Rejected, argument, weight of the evidence. Rejected, relevance, argument. 41.-42. Rejected, argument. Rejected, subordinate. Rejected, 20 percent difference, improper characterization. Rejected, relevance, argument. Rejected, argument, subordinate. Rejected, redundant, subordinate. Rejected, legal conclusion. Rejected, relevance, argument, lack of credible evidence. Rejected, weight of the evidence. Rejected, subordinate. Rejected, weight of the evidence. Rejected, relevance. Rejected, argumentative, legal conclusion. Rejected, legal conclusion, argument. Rejected, legal conclusion. Petitioner's Proposed Findings Of Fact: 1.-43. Accepted, though not verbatim in some instances. 44. Subordinate to HO findings. 45.-48. Accepted. Subordinate. Accepted. Subordinate. 52.-70. Accepted. COPIES FURNISHED: William E. Williams, Esq. Red D. Ware, Esq. Huey, Guilday & Tucker, P.A. 106 E. College Ave., Ste. 900 Tallahassee, FL 32301 William A. Frieder, Esq. Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 W. Robert Vezina, III Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Dr. Tallahassee, FL 32302 Steven A. Blaske Unisys Corporation 4151 Ashford Dunwoody Rd. Atlanta, GA 30319 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Kim Tucker, Esq. Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
