00-004162BID Bridgeway Center, Inc., And Foster America, D/B/A Managed Family Services vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, February 2, 2001.

Summary: Regarding an invitation to negotiate, Protestor failed to prove by a preponderance of the evidence that Agency improperly disqualified Protestor`s response or improperly failed to disqualify Intervenor`s response.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIDGEWAY CENTER, INC., and )

FOSTER AMERICA, INC., d/b/a )

MANAGED FAMILY SERVICES, )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, ) Case No. 00-4162BID

)

Respondent, )

)

and )

)

LAKEVIEW CENTER, INC., )

)

Intervenor. )

_____________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Pensacola, Florida, on December 19 and 20, 2000, and January

29, 2001.

APPEARANCES

For Petitioner: Wilbur E. Brewton

Kenneth J. Plant

Gray, Harris & Robinson, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

For Respondent: Katie George

Chief Legal Counsel

Lori Lee Fehr

Legal Counsel

Department of Children and Family

Services

District 1

160 Government Center, Room 601

Pensacola, Florida 32501

For Intervenor: Martha Harrell Chumbler

Kelly A. Cruz-Brown

Carlton Fields

Post Office Drawer 190

Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issues are whether Respondent’s decision to

disqualify Petitioner’s response to an invitation to negotiate

was clearly erroneous, contrary to competition, arbitrary, or

capricious and whether Respondent’s decision not to disqualify

Intervenor’s response to the same invitation to negotiate was

clearly erroneous, contrary to competition, arbitrary, or

capricious.

PRELIMINARY STATEMENT

By Petition for Formal Administrative Hearing filed

September 15, 2000, Petitioner alleged that, on August 21,

2000, it submitted a response to Respondent’s Invitation to

Negotiate ITN-00-AJ01. The petition alleges that Respondent

informed Petitioner by letter dated September 6, 2000, that

Respondent was rejecting Petitioner’s response for several

grounds.

The September 6 letter disqualifies Petitioner’s response

because it omitted several items identified in three criteria

contained in Appendix II, Domain A. The September 6 letter

cites seven “mandatory elements from Section 6 that were

referenced in Criteria [sic] 8,” but Respondent later cited

only three omissions under Criterion 8:

· 6.6, B.2: only the 1998-1999 fiscal year

audited financial statement was included.

· 6.6, B.5: Family Safety Program contract

corrective action plans were not included.

· 6.6, B.7: a three year staff retention

study was not included.

Relying on Criteria 18 and 21, respectiv ely, the

September 6 letter cites the following grounds for

disqualification of Petitioner’s response:

Only two years of financial statements were

included, but three were required.

Incomplete documentation was provided. No

evidence of compliance with the Family

Services Program was found in the proposal.

The petition requests a final order that Petitioner’s

response responded to all mandatory items; Respondent’s

decision to reject Petitioner’s response was clearly

erroneous, contrary to competition, arbitrary, and capricious;

and Respondent must evaluate Petitioner’s response “along with

all other responsive bids.” The petition also seeks

attorneys’ fees and costs, pursuant to Section 120.595,

Florida Statutes.

Two weeks prior to the hearing, Petition er moved to amend

its petition to challenge Respondent’s decision not to

disqualify Intervenor’s response. The Administrative Law

Judge reserved ruling on the motion at the hearing and grants

the motion at this time.

At the hearing, Petitioner called sev en witnesses and

offered into evidence ten exhibits: Petitioner Exhibits 1-10.

Respondent called three witnesses and offered into evidence

three exhibits: Respondent Exhibits 1-3. Intervenor called

two witnesses and offered into evidence no exhibits. The

parties jointly offered into evidence 19 exhibits: Joint

Exhibits 1-17 and 19-20. All exhibits were admitted except

Respondent Exhibit 2.

The court reporter filed the Transcript on February 1,

2001.

FINDINGS OF FACT

1. On May 26, 2000, Respondent’ s Office of the District

Administrator, District 1, issued Invitation to Negotiate

ITN -00-AJ01 (ITN). The ITN is for a contract under which the

successful applicant would become the “community-based lead

agency for foster care and related services in Escambia

County.”

2. Section 1 of the ITN is the Introduction. Section

1.1 of the ITN states that Section 409.1671, Florida Statutes,

“directs [Respondent] to identify and contract with highly

qualified community based organizations that are interested in

serving as the lead agency for an integrated system of foster

care and appropriate related services.” In response to this

legislative mandate, District 1 “is planning a system redesign

in which community-based organizations will assume the service

provision role currently held by the state.”

3. Section 1.2 of the ITN states that the purpose of the

ITN is to solicit the community-based agency that will serve as

the lead agency in Escambia County for the integrated provision

of foster care and related services. Foster care and related

services include “protective services, family preservation,

independent living, emergency shelter, residential group care,

foster care, therapeutic foster care, intensive residential

treatment, foster care supervision, case management, post-

placement supervision, and family reunification.” Section 1.2

notes that state-employed protective investigators will

continue to receive and investigate complaints of child abuse.

4. Section 1.2.A of the ITN describes this project as

one of “major scope” and cautions that “[ i]t will take a

significant period of time for the selected lead agency to

fully develop and implement a community-based system of care

for this population.” Within the framework of existing laws,

the selected agency “will be encouraged to develop innovative

child focused intervention protocols and program components.”

5. Section 1.2.A identifies the “minimal design

elements” that must be included in any contract, regardless how

the selected lead agency structures the project. These

elements include:

· The selected lead agency will be

responsible for all aspects of the delivery

of foster care and related services.

· Within the scope of their expertise and

resources, the lead agency can directly

supply needed services to children and

their families. A network of sub-providers

will be developed by the lead agency to

assure access to services not available

through the lead agency. Capacity and

financial risk issues will be managed by

the lead agency.

· An automated system will be put in place

by the district in collaboration with the

selected lead agency that will allow for

real-time communication as well as data

transfer between [Respondent], the lead

agency and the judicial system. This

mechanism will allow judges to be quickly

apprised of the progress of children and

families under the supervision of the

court.

· A comprehensive quality improvement system

must be established by the lead agency.

The lead agency and provider network will

be accredited in accordance with department

policy. In addition, the lead agency will

identify and meet the training and job

skill development needs of all employees of

the system. . . .

6. Section 1.2.C of the ITN describes the relationship

between District 1 of Respondent and the lead agency. This ITN

starts the process by which Respondent will be relieved of

responsibility for foster care and related services in Escambia

County. Section 1.2.C notes: “The district will shift from

performing to technical assistance and quality assurance.”

7. Section 1.2.E of the ITN describes the start-up

process. Section 1.2.E states that the most important part of

this process of the privatization of foster care and related

services is “[m] oving forward in a planned and deliberate

manner.” Section 1.2.E warns: “Transitioning from a broad

concept to a carefully implemented system of community-based

care requires a period of concurrent planning between the

district, the alliance [a community group initially comprising

the District 1 Health and Human Services Board and the Circuit

Court Chief Judge’s Children’s Council] and the selected lead

agency.”

8. Section 1.2.E anticipates a “start-up contract” for a

term of six to nine months, during which time Section 1.2.E

identifies several deliverables that Respondent will require

from the lead agency. Among these deliverables is: “The lead

agency will develop a plan for the maximization of Medicaid

dollars and all other federal funding streams associated with

child protective services.”

9. Secti on 1.2.E states that, during the start-up

period, Respondent will continue to assure the safety of

children, while the lead agency submits the deliverables. The

end of the start -up contract occurs when the lead agency

“demonstrates readiness to assume the management of the sub-

provider network and the actual delivery of foster care and

related services.” Section 1.2.E states that, at this point,

Respondent and the lead agency will negotiate a “service

contract,” which will “systematically stage the transfer of

foster care, protective supervision, adoptions and all related

functions from the department to the lead agency.” Section

1.2.E contemplates that the parties will sign the service

contract by July 6, 2001.

10. Section 1.3 of the ITN restates that Respondent will

enter into a “start-up contract” with the applicant that

Respondent chooses as the lead agency. Conflicting somewhat

with Section 1.2.E as to the term of the start-up contract,

Section 1.3 states that the term may be six to twelve months.

More importantly, Section 1.3 restates the purpose of the

start-up contract: “At the conclusion of this contract,

[Respondent] will make a determination of the readiness of the

provider for a service contract. This determination will be

made on the basis of a review of the deliverables required

under the start-up contract . . ..” The resulting service

contract will be for a three-year term.

11. Section 1.4.A of the ITN defines “[a] pplicant” as:

“A not for profit community-based agency that successfully

submits an application for consideration under this [ITN].”

Section 1.4.R defines “[s]elected applicant” as: “The

applicant selected for negotiation under the terms and

conditions of this [ITN].” Section 1.4.M defines “[l] ead

agency” as: “The not for profit community-based provider

responsible for coordinating, integrating and managing a local

system of supports and services for children who have been

abused, abandoned or neglected and their families. The lead

agency is also referred in any contract awarded from this [ITN]

as the ‘Provider.’”

12. Section 2 of the ITN is the Invitation to Negotiate

Information. Section 2.2 of the ITN warns:

Failure to have performed any contractual

obligations with [Respondent] in a manner

satisfactory to [Respondent] will be a

sufficient cause for termination. To be

disqualified as an applicant under this

provision, the applicant must have: 1)

previously failed to satisfactorily perform

in a contract with [Respondent], been

notified by [Respondent] of the

unsatisfactory performance, and failed to

correct the unsatisfactory performance to

the satisfaction of [Respondent] or, 2) had

a contract terminated by [Respondent] for

cause.

13. Section 2.6 of the ITN states: “Attendance at the

applicant’s conference is a prerequisite for acceptance of

applications from individuals or firms.”

14. Section 2.9 of the ITN sets a deadline for

submitting all applications by 5:00 p.m. local time on August

24, 2000. This section adds: “[Respondent] reserves the right

to reject any and all applications or to waive minor

irregularities when to do so would be in the best interest of

the State of Florida. Minor irregularities are defined as

variations from this [ITN] terms and terms and conditions which

does [sic] not effect [sic] the price of the application, or

give the prospective applicant an advantage or benefit not

enjoyed by other prospective applicants, or does not adversely

impact the interest of [Respondent].”

15. Section 2.13 of the ITN provides that any person who

is adversely affected by Respondent’s decision concerning a

procurement solicitation or contract award may file a protest,

pursuant to Section 120.57(3), Florida Statutes.

16. Section 2.14 of the ITN sets forth the evaluation

procedures. Section 2.14.A states: “Before the district

initiates a negotiation with any potential provider, all

applications received will be ranked according to the

evaluation criteria and score sheet contained in Appendix II of

this [ITN]. . . .” Section 2.14.B states: [The evaluation]

team will utilize the methods described in Section 7 and the

criteria listed in Appendix II of this [ITN] to rank each

application received by the district. . . ..” Section 2.14.C

adds: “At the conclusion of the evaluation process, the

District Administrator will designate a Lead Negotiator and

four additional persons to enter into negotiations with the

highest ranked applicant for selection of a lead agency. This

negotiation for a start-up contract will begin with the highest

ranked applicant and continue through the rankings until an

award is made. . . ..”

17. Section 3 of the ITN identifies the Minimum Program

Requirements. Section 3.1 of the ITN describes Respondent’s

expectations of the services to be delivered by the “selected

applicant.” Section 3.2 of the ITN adds that the “selected

applicant” shall be knowledgeable of all relevant state and

federal laws and shall ask Respondent for assistance when

necessary. Section 3.2 notes that, at a minimum, the “selected

applicant” will be conversant with nine groups of federal and

state laws. Among these requirements is Section 3.2.D, which

states: “The selected applicant shall ensure compliance with

Title IV-B of the Social Security Act, Title IV -E of the Social

Security Act, Social Services Block Grant (SSBG), Title XIX

(Medicaid), and Temporary Assistance for Needy Families (TANF)

requirements.”

18. Section 3.3 of the ITN states: “The purpose and

intent of any contract awarded from this [ITN] is to meet the

following departmental goals and the principles outlined in

Section 1.1 of this [ITN] . . ..” What follows are 13 specific

goals to assure the safety and welfare of the children served

by the lead agency.

19. Section 3.8 of the ITN states: “District 1 intends

to enter into the start-up contract referenced above. The

objective of this start-up contract is to prepare the selected

lead agency to perform the tasks listed in this section.

Written evidence of an organization’s capacity, prior

experience and potential to ultimately perform tasks of this

scope will be given considerable emphasis and weight when

[Respondent] determines with which applicant to enter into

negotiations.” Section 3.8.A then details numerous

requirements to be imposed by the “selected applicant,”

including the submittal, for prior approval, of any new

procedures or policies that may affect the State Plan regarding

Title IV-E claims or other sources of federal funds.

20. Section 3.9 of the ITN states:

Applicants shall include in their

application the proposed staffing for

technical, administrative, and clerical

support. The successful applicant shall

maintain an adequate administrative

organizational structure and support staff

sufficient to discharge its contractual

responsibilities. The selected applicant

and any subcontractors shall meet, at a

minimum, the staff ratios found in Chapter

65C-14, F.A.C., for residential group care.

21. Section 3.10 of the ITN requires the “selected

applicant” to ensure that its staff and the staff of its

subcontractors meet the qualification requirements of Chapters

65C-14 and 65C -15, F.A.C.; the background screening

requirements of Section 435.04, Florida Statutes; and the

training and certification requirements of CFOP 175-78,

Certification Procedure for Professional Child Protection

Employees.

22. Section 3.20 of the ITN identifies the performance

measures to be applied to the evaluation of the services

provided by the lead agency. Section 3.20.A lists outcomes

such as 95 percent of the children served will not be the

victims of verified reports of abuse or neglect while receiving

services, 85 percent of the children in foster care for less

than one year will have had less than two placements, and 100

percent of all judicial reviews will be completed within the

statutory deadlines. Section 3.20.B identifies other outcomes

whose percentage of achievement will be established in the

future; samples of these are the percentage of children who

have been in shelter for more than three days who have a

family-safety plan upon their release from the shelter and the

percentage of children who are placed in out-of-home care and

who are later reunited with their families.

23. Section 3.21.C of the ITN warns: “Upon execution of

the contract resulting from this [ITN], the successful

applicant must meet the standards set forth in

Section 3.20 . . ..”

24. Section 3.23 of the ITN provides that the “selected

applicant will agree” to coordinate with various other agencies

in providing foster care and related services.

25. Section 4 of the ITN covers Financial

Specifications. Section 4.2 of the ITN requires the “selected

applicant” to submit a “cost allocation plan” that it has been

developed in accordance with the Office of Management and

Budget (OMB) Circular A-122. The cost allocation plan “must

describe the allocation methodologies used by the selected

applicant to claim expenditures for reimbursement under any

service contract awarded from this [ITN].” Section 4.4 of the

ITN requires the “selected applicant” to submit a “financial

and service plan” that assures that, among other things,

“[s] tate funds in the contract must be spent on child

protection activities in ways that allows the state to maximize

federal funding.”

26. Section 5 of the ITN addresses Standard Contract

Provisions. Section 5.1 of the ITN incorporates the appendix

containing model contract provisions to be incorporated into

any contract resulting from the ITN.

27. Section 6 of the ITN contains Instructions to

Prospective Applicants to the ITN. The flush language under

this section states that Respondent “will not . . .

consider. . .” applications submitted after the deadline and

that applicants must submit one original and nine copies of

their applications. Also, an officer of the “selected

applicant agency” must sign at least one copy of the

application. Another provision covers the typographical

presentation of application material. The last sentence of the

flush language states: “Each application must follow the

document structure listed in Sections 6.1 through 6.9 of this

[ITN].”

28. Section 6.1 of the ITN requires the execution of a

standard acknowledgement form. Section 6.2 requires that the

second page of the application consist of a title page with

such information as the ITN number and name of the applicant.

Section 6.3 requires a one-page executive summary of the

application. Section 6.4 requires a table of contents

following the executive summary and, after the table of

contents, a cross-reference table covering all of the responses

required by Section 6 of the ITN. Section 6.5 requires a

demonstration of the applicant’s “comprehensive understanding

of the scope of the issues associated with the delivery of

child protection services in Escambia County” and a

presentation of the applicant’s “perspective regarding

community[-]based . . . care with foster care and related

services. . . .”

29. Section 6.6 of the ITN is entitled, “Description of

Organizational Capacity.” The flush language in Section 6.6

states: “In this section the applicant will, at a minimum[,]

address the following factors . . ..”

30. Section 6.6.A is headed, “Description and

Qualifications of the Organization.” Section 6.6.A requires 13

items, including articles of incorporation, services currently

provided, and formal and informal connections to Escambia

County.

31. Section 6.6.B is headed, “Administrative/Fiscal:

The applicant must supply the following information . . ..”

Section 6.6.B requires the following nine items:

1. The organization’s annual budget.

2. A three-year history of audited

financial statements.

3. An estimate of advance payments (if

needed) to support this project.

4. The most recent audit reports complete

with the management response.

5. Evidence of compliance with previous

correction action plans proposed by

[Respondent] through any contract.

6. A documented history of maximizing

Medicaid revenues.

7. Provide a discussion of the

organization’s system of staff recruitment,

screening, pre-service training, in-service

training, staff development and employee

evaluation. Include a three-year staff

retention study.

8. A copy of the organization’s disaster

readiness plan(s).

9. [Deleted from ITN]

10. A copy of minority business enterprise

certificate issued by the Department of

Management Services, if applicable.

32. Section 6.6.C is headed, “Scope of the Organization:

The applicant must address the following capacity issues

. . ..” Section 6.6.C requires eight items, including Section

6.6.C.2, which states: “Evidence of an infrastructure that

includes automated communication and record keeping systems

that can be linked to the judicial system and the department.”

33. Section 6.6.D is headed, “Clinical Capacity: The

application must address each of the following items . . ..”

Section 6.6.D lists six items.

34. Section 6.6.E is headed, “Quality Improvement: The

application must address each of the following items . . ..”

Section 6.6.E lists seven items, including Section 6.6.E.3,

which states: “The ability of the organization and the

structure through which the standards found in Section 3.20 of

this document will be met.”

35. Section 6.7 of the ITN is entitled, “Proposed

Statement of Work.” The flush language explains that the

statement of work is “to be general and increase in

specification during the period of time covered by a start-up

contract.” Section 6.7.G states: “Explain how the applicant

will provide for integrated generic and specialized case

management.”

36. Section 6.8 of the ITN is entitled, “Proposed

Implementation Plan.” This section requires the “applicant’s

proposed time-lines for sequencing of all the activities that

will lead to full implementation of the items in Section 3.”

37. Section 6.9 of the ITN is entitled, “Mandatory

Certifications, Assurances and Statements.” This section lists

several executed documents that the application must include.

38. Section 7 of the ITN is entitled, “Application

Evaluation Criteria and Rating Sheet.” Section 7.A states that

the score sheets “for evaluating the [ITN responses]” are in

Appendix II. Section 7.A warns: “The score sheet is the

instrument used to assess the degree to which the applicant’s

response meets the criteria of this [ITN].”

39. Appendix II of the ITN is entitled, “Evaluation

Criteria and Scoring Sheet.” The first section of Appendix II

is the “Evaluation Methodology,” which states in its entirety:

The evaluation team will score the

application using the criteria and scoring

procedures found in each domain of this

appendix. The score for each criteria will

be established by consensus of the

evaluation team. The scores assigned to

each criteria [sic] will be added to

determine the final score for each domain.

The scores from each domain will be summed

to determine the final score for the

application and annotated on the attached

score sheet.

Domain A (Disqualifying Criterion) contains

fatal items that must be present if the

application is to be scored. With no

disqualification resulting from the review

of Domain A , Domains B though E will be

scored based on the procedures and

standards listed.

40. Appendix II, Domain A is entitled, “Disqualifying

Criteria.” The first section under Domain A is “Scoring

Procedure,” which states: “ Score each criteria [sic] as

present or absent. If any of these criteria are scored as

absent , the applicant is disqualified. ”

41. The second section under Domain B is “Criteria,”

which lists 23 items. The 23 items are:

1. Application was received at the time

and date specified in Section 2.9 of this

[ITN].

2. One original and 9 copies of the

application were received by the department

in the manner and location specified in

Section 2.9 of this [ITN].

3. The application included a signed and

original State of Florida Invitation to

Negotiation Contractual Services

Acknowledgement Form, PUR 7105. (See

Appendix IX)

4. The application included an original

signed Certification Regarding Debarment,

Suspension, Ineligibility and Voluntary

Exclusion Contracts/Subcontracts . (See

Appendix X)

5. The application included an original

signed Acceptance of Contract Terms and

Conditions indicating that the applicant

agrees to all department requirements,

terms and conditions in the [ITN] and in

the department’s Standard Contract. (See

Appendix XI)

6. The application included an original

signed Statement of No Involvement form.

(See Appendix XII)

7. The application included an original

signed District 1 Statement of Assurances

(See Appendix XIII)

8. The application followed the document

structure listed in Section 6.1-6.9 of this

[ITN].

9. All forms submitted included an

original signature from an individual

authorized to bind the applicant to the

terms and conditions of this [ITN].

10. The application contains the title

page, the abstract, the table of contents

and cross reference table as required in

Sections 6.2-6.4 of this [ITN].

11. Articles of Incorporation .

12. [deleted from ITN]

13. Certificate of Good Standing from the

Secretary of State.

14. Documentation from the U.S. Internal

Revenue Service of the organization’s

Section 501(c)(3) status .

15. Evidence that the applicant provides

for and supports a Drug-free Workplace .

16. Evidence that the applicant is willing

to comply with the Environmental Tobacco

Smoke Restrictions .

17. Evidence the applicant does not

employee unauthorized aliens .

18. Three history of financial statements .

19. A disclosure of any financial

difficulties and extraordinary obligations.

20. An estimate of advanced payments if

needed to support this project.

21. Documentation of compliance with past

departmental or Florida state contracts.

22. Most recent financial audit reports

complete with management response including

evidence of sound credit rating .

23. A copy of the Application Guarantee .

24. Attendance at all applicant

conferences is a pre-requisite for

acceptance of applications from individuals

or firms.

25. [deleted from the ITN]

42. Appendix II, Domains B through E are score sheets.

Domain B covers Section 6.5, Domain C covers Section 6.6,

Domain D covers Section 6.7, and Domain E covers Section 6.8.

43. Domain C, Factor B, Item 2 covers Section 6.6.B.2.

This item states:

2. Analysis of the three year audited

financial statements. (See Section 6.6B.2)

Points Standard

0 Poor

1 Average

2 Above Average

3 Excellent

NOTE : The analysis of the financial

statements by the department will at a

minimum include:

Calculation of selected financial

ratios

Review of accounting policies

A review of credit history will be

included in this analysis

44. No items in Domains B through E cover Section

6.6.B.3 through 6.6.B.5.

45. Domain C, Factor B, Item 3 covers Section 6.6.B.6.

This item states:

3. History of maximization of Medicaid

revenues. (See Section 6.6B.6)

Points Standard

0 No history

1 Some experience

2 Experienced

3 Well documented

history

46. Domai n C, Factor B, Item 4 covers Section 6.6.B.7.

This item states:

4. Organization’s system of staff

recruitment, training, evaluation and

retention. (See Section 6.6B.7)

Points Standard

0 No system

1 Incomplete system

2 System in pla ce

3 Well developed /

comprehensive system

47. Domain C, Factor C, Item 2 covers Section 6.6.C.2.

This item states:

2. Automated communication and record

keeping systems. (See Section 6.6C.2)

Points Standard

0 No automated systems

1 Limi ted automation,

internal only

2 Currently automated,

limited external

applications

3 Comprehensive systems

48. Petitioner and Intervenor attended the applicant’s

conference, which was held on June 23, 2000. Respondent duly

answered all questions of Petitioner and Intervenor.

49. Petitioner timely submitted a response to the ITN on

August 22, 2000, and Intervenor timely submitted a response to

the ITN on August 24, 2000. These were the only responses to

the ITN.

50. Respondent opened the responses on August 25, 2000.

Respondent initially disqualified Petitioner’s response by,

letter dated August 29, 2000, on the erroneous ground that

Petitioner had not attended the applicant’s conference.

51. Withdrawing the August 29 letter, Respon dent

disqualified Petitioner’s response on other grounds, as cited

in a letter dated September 6, 2000. The September 6 letter

disqualifies Petitioner’s response because it omitted several

items identified in three criteria contained in Appendix II,

Domain A. The September 6 letter cites seven “mandatory

elements from Section 6 that were referenced in Criteria [sic]

8,” but Respondent later cited only three omissions under

Criterion 8:

· 6.6, B.2: only the 1998-1999 fiscal year

audited financial statement was included.

· 6.6, B.5: Family Safety Program contract

corrective action plans were not included.

· 6.6, B.7: a three year staff retention

study was not included.

52. Relying on Criteria 18 and 21, respectively, the

September 6 letter cites the following grounds for

disqualification of Petitioner’s response:

Only two years of financial statements were

included, but three were required.

Incomplete documentation was provided. No

evidence of compliance with the Family

Services Program was found in the proposal.

53. Petitioner timely filed a protest and formal written

protest of Respondent’s disqualification of Petitioner’s

response. Petitioner contends that the disqualification of its

response was clearly erroneous, contrary to competition,

arbitrary, and capricious. In particular, Petitioner contends

that Respondent applied more stringent standards in its

examination of Petitioner’s response than it did in its

examination of Intervenor's response.

54. The introduction to Petitioner’s response i dentifies

Bridgeway Center, Inc., as the proposed lead agency, and Foster

America, Inc., as its presumably prime subcontractor, although

Foster America, Inc., will do business in Florida under the

name of Managed Family Services. The title page to

Petitioner’s response identifies Bridgeway Center, Inc., and

Managed Family Services as the “applicant organization.”

Section 2.1.B of Petitioner’s response details the substantial

experience of Foster America, Inc., as “the first company

established in the United States to address the issues

pertaining specifically to the management of foster care.”

Considerable portions of the ensuing sections of Petitioner’s

response describe the capabilities of Foster America, Inc., to

meet the requirements of the ITN.

55. Appendix 16 of Petitioner’s response is entitled

“Three-Years of Financial Statements.” Appendix 16 consists of

the following financial information for Bridgeway Center, Inc.:

statements of financial position for fiscal years ending in

1996 -99 and state ments of activities for fiscal years ending in

1996-99. At the bottom of each of the four pages containing

these statements is the declaration: “The accompanying notes

are an integral part of these financial statements.”

56. No notes accompany the fina ncial statements

contained in Appendix 16. Nothing in Petitioner’s response

indicates that these financial statements were audited. These

financial statements do not include a statement of functional

expenses and statement of cash flows. The attached financial

statements do not contain auditor’s reports describing the

scope of the opinion.

57. Appendix 18 of Petitioner’s response is entitled,

“Most Recent Audit Reports with Management Response Including

Evidence of Sound Credit Rating.” Pertaining to fiscal year

ending 1999, this set of documents starts with an “independent

auditor’s report, stating, among other things, that the

financial statements “present fairly, in all material respects,

the financial position of Bridgeway Center, Inc. as of June 30,

1999 and the statement of activities and its cash flows for the

year then ended in conformity with generally accepted

accounting principles.”

58. Following the main independent auditor’s report, the

1999 financial statements comprise a statement of financial

position, statement of activities, statement of functional

expenses, and statement of cash flows. Following the four

financial statements, twelve pages of notes explain in detail

many of the individual items contained in the financial

statements. Following a nonrequired schedule of revenues, a

schedule of expenditures of federal awards and other contract

and grant activity, with accompanying notes, responds to the

requirements of OMB Circular A-133. Following these items is

another independent auditor’s report, also responding to the

requirements of OMB Circular A-133. Next is another

independent auditor’s report, responding to the state

requirement that it opine as to management’s assertion of its

compliance with state law. The final document in this set is a

management letter from the auditor identifying deficiencies in

internal controls, making recommendations for improving

operating efficiency, and recording management’s response to

each of these observations and recommendations.

59. Strict ly speaking, Appendix 18 of Petitioner’s

response contains audited financial statements, including

notes, only for the fiscal year ending in 1999. However, the

statement of financial position and statement of cash flows

contain the identical information for the fiscal years ending

1998 and 1999. The statement of activities contains nearly the

same information for both years, adding for 1999 only a

breakdown of which revenues are unrestricted and which are

restricted. The statement of functional expenses contains

considerably more detailed information for 1999.

60. The main independent auditor’s report states:

“Information for the year ended June 30, 1998, is presented for

comparative purposes only and was extracted from the financial

statements from that year, on which we presented an auditor’s

report dated [approximately one year earlier].”

61. Thus, Petitioner’s response contains audited

financial statements only for the fiscal year ending in 1999,

but also contains considerable, but not all, information from

the audited financial statements for the preceding fiscal year.

Petitioner’s response contains considerably less information

for the fiscal year ending in 1997.

62. The adequacy of Petitioner’s response, of course,

depends on the determination of the specific requirements of

the disqualification provisions. There is little agreement on

these specific requirements.

63. Respondent and Intervenor erroneously contend that

Criterion 8 of Domain A incorporates by reference all of the

requirements of Sections 6.1 through 6.9. However, Criterion 8

requires only that the “application followed the document

structure listed” in these sections. Nothing in the record

casts much light upon the meaning of “document structure.” At

a minimum, though, the requirement that each application

“follow” the “document structure” listed in Sections 6.1

through 6.9 would be an odd way of requiring that the

application contain all of the items required in these

sections.

64. In opposition to this contention of Resp ondent and

Intervenor, Petitioner identifies several scoring matrices that

assign zero points to responses showing no evidence in response

to a specific requirement within Sections 6.1 through 6.9.

Petitioner reasons that the absence of evidence is tantamount

to the omission of an item. Petitioner then concludes that it

would make little sense if the absence of evidence, or omission

of such an item, meant the disqualification of the application.

65. Petitioner makes a good point here. The scoring

matrices for items for which an omission explicitly means

disqualification, such as financial statements, do not assign

zero points for the omission of such items. The scoring

matrices assign zero points for the omission of an item only as

to items that are not explicitly the subject of

disqualification.

66. Petitioner relies upon the common definition of

structure as, according to Webster’s III New College Dictionary

(1995): “Something made up of a number of parts held or put

together in a specific way. The manner in which parts are

arranged or combined to form a whole.” This is a good

definition of “structure” and helps define the meaning of the

somewhat obscure phrase, “document structure.”

67. It suffices for this case to determine that

“document structure” does not mean each and every requirement

contained in Sections 6.1 through 6.9. Most likely, “document

structure” means only that each application has to contain

documents corresponding to each of the requirements stated in

each of these sections: i.e., a standard acknowledgement,

title page, executive summary, table of contents and cross-

reference table, organizational perspective, description of

organizational capacity, proposed statement of work, proposed

implementation plan, and all of the specified mandatory

certifications. Thus, an applicant could avoid

disqualification under Criterion 8 by, as to Section 6.6,

including a document describing its organizational capacity,

even though the document may have omitted certain items

required under Section 6.6, such as professional affiliations

of the applicant.

68. Because “document structure” does not incorporate

all of the Section 6 requirements into Criterion 8, Respondent

has erroneously relied upon the first three, bulleted grounds

for disqualification, which identify omissions of Section 6

requirements. Respondent and Intervenor have never contended

that Petitioner’s response fails to satisfy the narrower

interpretation given “document structure” in this recommended

order. Thus, Criteria 18 and 21 are the only grounds on which

Respondent could disqualify Petitioner’s response.

69. Criterion 18 requires a “three [sic] history of

financial statements.” This obvious typographical error did

not obscure for Petitioner the intended meaning of this

criterion: any application omitting three years of financial

statements would be disqualified. The key question is exactly

what the ITN requires, as to financial statements, to avoid

disqualification.

70. The failure of Criterion 6 to incorporate, am ong

other provisions, the specific requirements of Sections 6.6.B.2

for a three-year history of “audited” financial statements is

significant. Criterion 18 does not require “audited” financial

statements, so, unless Criterion 18 incorporates Section

6.6.B.2 into the disqualifying criteria, the omission of

audited financial statements, while possibly a scoring matter,

is not a basis for disqualification.

71. The identification of a requirement in Domain A does

not equate to the identification of a near counterpart to that

requirement in Sections 6.1 through 6.9. For example,

Criterion 19, which requires disclosure of “any financial

difficulties and extraordinary obligations,” has no counterpart

in Section 6, or anywhere else in the ITN. Likewise, the

portion of Criterion 22 requiring “evidence of sound credit

rating” has no counterpart in Section 6, or anywhere else in

the ITN.

72. By adding new requirements for disqualification

purposes, Domain A does not serve merely as a collection of

references to requirements contained in Section 6 or elsewhere

in the ITN. This means that it is not possible to read into or

out a specific Domain-A requirement that resembles a specific

Section-6 requirement those elements necessary to transform it

into the Section-6 requirement.

73. Therefore, except for the uncontroversial correction

of the obvious typographical error, Criterion 18 is a complete

statement of the disqualification requirement concerning

financial statements. And Criterion 18 obviously omits the

requirement in Section 6.6.B.2 that the financial statements be

“audited.”

74. For a not-for-profit corporation, a set of financial

statements comprises four financial statements: a statement of

financial position, statement of activities, statement of

functional expenses, and statement of cash flows.

75. Petitioner’s response contains a full set of the

four, audited financial statements applicable to not-for-profit

corporations, but only for the fiscal year ending in 1999.

These 1999 financial statements are accompanied by all required

independent auditor’s reports and notes.

76. Petitioner’s response also contains the three prior

years of two of the four financial statements--the statement of

financial position (resembling what was traditionally known as

the balance sheet for for-profit corporations) and the

statement of activities (resembling what was traditionally

known as the income statement for for-profit corporations).

However, these additional financial statements are

unaccompanied by notes and independent auditor’s reports.

77. Petitioner’s response for 1997 and 1998 includes the

two financial statements that provide the most information and

for 1998 includes considerable information from one of the two

missing financial statements. Criterion 18 does not explicitly

require all of the financial statements that constitute a

complete set of financial statements, so the omission of the

information from the 1997 and 1998 financial statements is not

necessarily disqualifying, at least if the information provided

is substantially complete.

78. The omission of the notes for 1997 and 1998 merits

careful consideration. Petitioner’s auditor warns, on each

financial statement, that the accompanying notes are an

“integral” part of the financial statements. According to the

American Heritage Dictionary (1981), “Integral” means:

“Essential for completion; necessary to the whole constituent.”

In other words, the financial statements submitted by

Petitioner are not whole or complete without the accompanying

notes.

79. The notes accompanying the 1999 financial statements

add explanatory material. Note 1 discloses that Bridgeway

Center, Inc. is an accrual-basis taxpayer; values its inventory

on the lower of cost or market basis on a last-in, first-out

basis; and capitalizes all equipment expenditures over $500 and

depreciates its fixed assets over stated cost-recovery periods.

Note 3 schedules the receivables owed Bridgeway Center, Inc. by

payor and, in the case of Respondent, program. Note 6 details

notes payable and lines of credit with terms, interest rates,

and monthly payments. Note 7 describes a bond payable in the

amount of nearly $2 million. Note 8 identifies real estate

leases and rental payments for which Bridgeway Center, Inc. is

obligated. Note 10 itemizes by program the sources of income

from the State of Florida.

80. As explained in the Conclusions of Law, the

determination of whether Petitioner’s response contains three

years of financial statements is governed by the less-

deferential standard of a preponderance of the evidence, rather

than the more-deferential evidentiary standard of clearly

erroneous, contrary to competition, arbitrary, or capricious.

Petitioner has proved by a preponderance of the evidence that

the omission of two financial statements for 1997 and the

omission of some information from the same two financial

statements for 1998 does not necessarily preclude its

satisfaction of the disqualification requirement of three years

of financial statements.

81. However, Pe titioner’s omission of the notes for 1997

and 1998 precludes its satisfaction of this disqualification

criterion, even by a preponderance of the evidence.

Petitioner’s auditor describes the notes as “integral” to those

selected financial statements that Petitioner submitted.

Absent an integral part of the already-incomplete submission,

Petitioner has failed to prove, even by the less deferential

preponderance standard, that its response satisfies the

requirement of Criterion 18 for three years of financial

statements.

82. Criterion 21 requires “[d] ocumentation of compliance

with past departmental or Florida state contracts.” Appendix

19 of Petitioner’s response contains, by program type, 171

schedules identifying compliance issues, corrective action

plans, responsible persons, and completion dates.

83. Again, Respondent and Intervenor attempt to add

elements from Section 6 to this disqualification criterion of

documentation of compliance with past agency contracts. Both

parties contend that Criterion 21 should be read in conjunction

with Section 6.6.B.5, which requires: “Evidence of compliance

with previous correction action plans proposed by [Respondent]

through any contract.”

85. For the reasons set forth above, it is impossible to

engraft onto Criterion 21 the more demanding requirements of

Section 6.6.B.5. In this instance, Respondent answered a

question posed by Intervenor consistent with Respondent’s

present interpretation of Criterion 21, but this answer--absent

an accompanying amendment of the ITN--cannot override the clear

disqualification requirement imposed by Criterion 21.

86. Petitioner’s response omits corrective action plans

related to contracts for the Family Services Program. This

omission was inadvertent, occasioned by the death of the sole

Bridgeway employee with knowledge of these matters.

87. As for Criterion 21, Petitioner has proved by a

preponderance of the evidence that its response contains

documentation of compliance with past agency contracts. Even

if a substantiality requirement were inferred as to Criterion

21, Petitioner’s substantive response would still, by a

preponderance of the evidence, satisfy this disqualification

requirement. Criterion 21 does not incorporate the

comprehensiveness required by Section 6.6.B.5, which requires

information concerning “any contract.”

88. Petitioner raises numerous challenges to

Intervenor’s response. Partly, these challenges are intended

to show how Respondent evaluated Petitioner’s response more

stringently. Partly, these challenges are intended to show

that Intervenor’s response should be disqualified, regardless

of whether Petitioner prevails on its challenge to the

disqualification of its response. The latter purpose of

Petitioner’s challenges depends upon a ruling allowing it to

amend its petition to raise the issue of whether Intervenor’s

response should also be disqualified.

88. In challenging Intervenor’s response, however,

Petitioner repeats the same mistaken assumptions made by

Respondent and Intervenor about the relationship between Domain

A and Section 6.

89. In fact, Petitioner extends these mistaken

assumptions one level by faulting Intervenor’s response for

failing to satisfy non-Domain A provisions that are not even

applicable to responses to the ITN. The ITN imposes very few

requirements upon ITN responses outside Section 6 and Domains A

through E of Appendix II. The two such requirements are

Section 2.2, which disqualifies certain applicants with

unsatisfactory histories with Respondent; Section 2.6, which

requires attendance at the applicant’s conference; Section 2.9,

which sets the deadline for submitting responses; and Section

3.9 (first sentence), which requires that responses include

proposed staffing for technical, administrative, and clerical

support. Apart from some general background descriptions

contained in the introductory sections of the ITN, the

remainder of the ITN, apart from Section 6 and Domains A

through E, deal with the start-up contract and the ultimate

service contract. This orientation is amply revealed by

frequent use in these provisions of the future tense and

descriptions of the non-agency party as the “successful

applicant,” “lead agency,” or “selected applicant.”

90. In its proposed recommended order, Petitioner first

challenges Intervenor’s response with respect to Criterion 22,

which requires the most recent financial audit reports

“complete with management response.”

91. Criterion 22 is in Domain A, so it is a

disqualification requirement. However, Petitioner failed to

prove by a preponderance of the evidence that such a response

is required when, as here, Intervenor’s auditor uncovered no

material weaknesses or disagreements to which Intervenor was

obligated to respond.

92. In its proposed recommended order, Petit ioner

challenges Intervenor’s response with respect to Section

6.6.E.3, which addresses the ability of the applicant with

respect to federal funding. This is not a Domain-A

requirement. In fact, Petitioner’s contentions require

application of ITN provisions apart from Section 6 and Domain A

that involve the start-up process and are inapplicable to the

present stage of this procurement.

93. The deficiency described in the preceding paragraph

characterizes the remainder of Petitioner’s challenges to

Intervenor’s response, such as with respect to a staff-

retention study and demonstration of infrastructure capability.

It is thus unnecessary to consider the extent to which

Intervenor’s response addresses these items.

94. Based on these findings, Petitioner has failed to

prove that Respondent’s proposed determination disqualifying

Petitioner’s response is clearly erroneous, contrary to

competition, arbitrary, or capricious.

95. Based on these findings, Petitioner has failed to

prove that Respondent’s proposed determination failing to

disqualify Intervenor’s response is clearly erroneous, contrary

to competition, arbitrary, or capricious.

CONCLUSIONS OF LAW

96. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1) and

(3), Florida Statutes. (All references to Sections are to

Florida Statutes. All references to Rules are to the Florida

Administrative Code.)

97. Section 120.57(3)(f) provides:

. . . Unless otherwise provided by

statute, the burden of proof shall rest

with the party protesting the proposed

agency action. In a competitive-

procurement protest, other than a rejection

of all bids, the administrative law judge

shall conduct a de novo proceeding to

determine whether the agency's proposed

action is contrary to the agency's

governing statutes, the agency's rules or

policies, or the bid or proposal

specifications. The standard of proof for

such proceedings shall be whether the

proposed agency action was clearly

erroneous, contrary to competition,

arbitrary, or capricious. In any bid-

protest proceeding contesting an intended

agency action to reject all bids, the

standard of review by an administrative law

judge shall be whether the agency's

intended action is illegal, arbitrary,

dishonest, or fraudulent.

98. The presence in the statute of two standards of

proof or review means that the standard of proof applied in

cases in which an agency selects one bid or offer is less

deferential than the standard of review applied in cases in

which an agency rejects all bids or offers.

99. However, the de novo hearing devised by the

Legislature to apply to cases in which an agency selects one

bid or offer is not necessarily as comprehensive as the de

novo hearing applied to other administrative hearings. Even

prior to the 1996 revisions, a de novo hearing typically has

meant less in bid hearings than it means in other areas of

administrative law. See, e.g. , Intercontinental Properties,

Inc. v. Department of Health and Rehabilitative Services , 606

So. 2d 380, 386 (Fla. 3d DCA 1992), in which the court stated:

Although the hearing before the hearing

officer was a de novo proceeding, that

simply means that there was an evidentiary

hearing during which each party had a full

and fair opportunity to develop an

evidentiary record for administrative

review purposes. It does not mean, as the

hearing officer apparently thought, that

the hearing officer sits as a substitute

for the Department and makes a

determination whether to award the bid de

novo. Instead, the hearing officer sits in

a review capacity, and must determine

whether the bid review criteria set forth

in Baxter's Asphalt [i.e., agency has wide

discretion to waive minor irregularity]

have been satisfied.

100. Section 120.57(3)(f) states that the standard of

proof in this case is whether the proposed agency action is

clearly erroneous, contrary to competition, arbitrary, or

capricious (Clearly Erroneous Standard).

101. Typically, a standard of proof governs the

determination of the basic facts that underlie the

determination of the ultimate facts, and the determination of

the ultimate facts underlie the determination of the legal

issues. However, the language of Section 120.57(3)(f) applies

the Clearly Erroneous Standard only to the proposed agency

action. Requiring the protestor to prove by the Clearly

Erroneous Standard the ultimate issue--i.e., that the proposed

award is contrary to statutes, rules, policies, or the ITN--

may, with difficulty, be harmonized with the notion of a de

novo hearing. However, requiring the protestor to prove by

the Clearly Erroneous Standard the basic facts of the case--

e.g., the contents of financial statements--is inconsistent

with the notion of a de novo hearing. The law does not

contemplate that the finding of basic facts will be governed

by the review-like Clearly Erroneous Standard; instead, the

law contemplates that the finding of basic facts will be

governed by the residual administrative standard of proof, a

preponderance of the evidence.

102. There are ulti mate questions of fact to which the

Clearly Erroneous Standard may be applied. Ultimate questions

of fact--express and implied--link the basic facts to the

final legal conclusion, which is whether the proposed decision

to award is contrary to statute, rule, policy, or the ITN. In

some bid cases, the question arises whether a deviation in a

bid is a material variance or a minor irregularity or whether

a bid is responsive. These are ultimate questions of fact,

and the Clearly Erroneous Standard defers to these policy-

influenced determinations. However, the underlying factual

determinations, such as how the deviation may or may not yield

a financial advantage or the interpretation of the contents of

a bid, are governed by the less deferential preponderance

standard of proof.

103. The Clearly Erroneous Standard also applies to

subordinate questions of law and mixed questions of fact and

law, such as interpretations of an agency rule or ITN, and

questions of fact requiring the application of technical

expertise, such as whether a specific product offered

qualitatively complies with the specifications.

104. This approach is consistent with State Contracting

and Engineering Corporation v. Department of Transportation ,

709 So. 2d 607 (Fla. 1st DCA 1998). In State Contracting , the

court affirmed the agency's final order that rejected the

recommendation of the administrative law judge to reject a bid

on the ground that it was nonresponsive. The bid included the

required disadvantaged business enterprise form, but, after

hearing, the administrative law judge determined that the

bidder could not meet the required level of participation by

disadvantaged business enterprises. The agency believed that

responsiveness demanded only that the form be facially

sufficient and compliance would be a matter of enforcement.

Rejecting the recommendation of the administrative law judge,

the agency reasoned that the administrative law judge had

failed to determine that the agency's interpretation of its

rule was clearly erroneous.

105. In affirming the agency's final order, the State

Contracting court quoted the provisions of Section

120.57(3)(f) for evaluating the proposed agency action against

the four criteria and Clearly Erroneous Standard. Addressing

the meaning of a de novo hearing in an award case, the court

stated, at page 609:

In this context, the phrase "de novo

hearing" is used to describe a form of

intra-agency review. The [administrative

law judge] may receive evidence, as with

any formal hearing under section 120.57(1),

but the object of the proceeding is to

evaluate the action taken by the agency.

106. Significantly, the State Contracting court did not

apply the Clearly Erroneous Standard merely to the agency

decision to award. The court concluded that the agency's

interpretation of one of its rules and determination that the

bid was responsive were not "clearly erroneous."

107. In the subject case, then, the Administrative Law

Judge has applied the preponderance standard to all basic

facts and the Clearly Erroneous Standard to the ultimate

questions of fact, mixed questions of fact and law,

subordinate questions of law, and questions of fact involving

agency expertise. In the Conclusions of Law, the

Administrative Law Judge takes the resulting findings and

determines whether the proposed agency decision to award the

contract to Intervenor is consistent with the statutes, rules,

policies, and ITN. This three-step process effectuates the

Legislative intent that the Administrative Law Judge defer

less to the agency decision in an award case than in a case in

which the agency rejects all bids or offers.

108. Nothing about an invitation to negotiate demands a

different approach as compared to the more common invitation to

bid or request for proposals. As defined by the Department of

Management Services in Rule 60A-1.001(2), an invitation to

negotiate as a “[c] ompetitive solicitation used when an

Invitation to Bid or Request for Proposals is not practicable.”

Rule 60A -1.002 also contemplates the use of invitations to

negotiate under procedures identical to those governing

invitations to bid and requests for proposal.

109. In this case, Petitioner has failed to prove the

underlying factual bases to its challenge to Respondent’s

determination to disqualify Petitioner’s response or

Respondent’s determination not to disqualify Intervenor’s

response. Petitioner has thus failed to prove that these

proposed agency actions are clearly erroneous, contrary to

competition, arbitrary, or capricious and that the proposed

agency actions are contrary to statute, rule or policy, or the

ITN.

RECOMMENDATION

It is

RECOMMENDED that the Department of Children and Family

Services enter a final order dismissing the protest of

Petitioner to the disqualification of its response to the ITN

and to the failure to disqualify Intervenor’s response to the

ITN.

DONE AND ENTERED this 2nd day of February, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of February, 2001.

COPIES FURNISHED:

Virginia A. Daire, Agency Clerk

Department of Children and

Family Services

1317 winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399-0700

Wilbur E. Brewton

Kenneth J. Plante

Gray, Harris & Robinson, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

Katie George

Chief Legal Counsel

Lori Lee Fehr

Legal Counsel

Department of Children and Family Services

District 1

160 Government Center, Room 601

Pensacola, Florida 32501

Martha Harrell Chumbler

Kelly A. Cruz-Brown

Carlton Fields

Post Office Drawer 190

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 days from the date of this recommended order. Any

exceptions to this recommended order must be filed with the

agency that will issue the final order in this case.