12-003170BID Laboratory Corporation Of America vs. Department Of Health Status: Closed Recommended Order on Monday, December 10, 2012.

Summary: Award of contract to low bidder was not clearly erroneous, contrary to competition, arbitrary or capricious; requirement that bidder "identify" key personnel was satisfied by detailed list of job descriptions that did not name specific current employees.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LABORATORY CORPORATION OF )

AMERICA , )

)

Petitioner , )

) Case No. 12 - 3170 BID

vs. )

)

DEPARTMENT OF HEALTH , )

)

Respondent, )

)

and )

)

QUEST DIAGNOSTICS CLINICAL )

LABORATORIES, INC. , )

)

Intervenor . )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 24, 2012 , in Tallahassee , Florida, before Lawrence P.

Stevenson, a duly - designated Administra tive Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert R. Hearn , Esquire

Eric R. Pellenbarg, Esquire

Phelps Dunbar LLP

100 South Ashley Drive

Suite 1900

Tampa , Florida 3 3602

For Respondent: Janine Bamping Myrick , Esquire

Susan P. Stephens, Esquire

Department of Health

40 52 Bald Cypress Way, Bin A - 02

Tallahassee , Florida 32399

For Intervenor: Merle M. Delancey , Esquire

Dickstein Shapiro, LLP

1 825 Eye Street, Northwest

Washington, D.C . 2006

STATEMENT OF THE ISSUE

At issue in this proceeding is w hether Respondent ,

Department of Health ("Department") , acted contrary to the

agency's governing statutes, rules or policies, or the bid

specifications in its proposed decision to award the c ontract

for Invitation to Bid No. DOH 12 - 007 (the "ITB") to Intervenor

Quest Diagnostics Clinical Laboratories, Inc. ("Quest") .

PRELIMINARY STATEMENT

On September 4, 2012 , the Department posted its intended

award of the contract pursuant to the ITB for the provision of

clinical laboratory testing services for the Department and

county health departments. The notice of intent to award

reflected that the winning bidder was Quest . Laboratory

Corporation of America, Inc. ("LabCorp") submitted the second -

low es t bid. LabCorp filed a notice of protest on September 7,

2012 , and filed a formal written protest on September 17, 2012 .

On September 24, 2012, Quest filed a P etition for L eave to

I ntervene with the Department. The case was forwarded to the

Division of Administrative Hearings ("DOAH") on September 26,

2012 for assignment of an administrative law judge and the

conduct of a formal hearing. By orders dated September 27,

2012, t he hearing was scheduled to be held on October 24 and 25,

2012 and Quest's petit ion for leave to intervene was granted .

On October 1, 2012, LabCorp filed an unopposed motion for

leave to file an amended petition, which was granted by order

dated October 2, 2012. On October 23, 2012, LabCorp filed an

unopposed motion for leave to fi le a second amended petition,

which was granted by order dated October 23, 2012. The second

amended petition raised the single issue of whether Quest's bid

should be deemed non - responsive for failure to provide the names

of personnel in the staffing plan it was required to include in

its bid. The final hearing convened on October 24, 2012, and

concluded on that date.

At the outset of the final hearing, the parties stipulated

to the admission of Joint Exhibits 1 through 10, which were

admitted into evidenc e. LabCorp presented the testimony of

Renee Gregory, the Department's assistant director of purchasing

who coordinated the bid process, and Regina Taylor, the

administrative service director of the Department's Bureau of

Public Health Laboratories. LabCo rp offered no additional

exhibits into evidence. The Department and Quest called no

witnesses and offered no additional exhibits into evidence.

A transcript of the proceeding was filed at DOAH on

November 5, 2012. LabCorp and the Department timely filed

P roposed R ecommended O rders on November 15, 2012. Quest did not

file a proposed recommended order.

All references to the Florida Statutes are to the 20 12

edition, unless otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presente d at the

final hearing and on the entire record of the proceeding, the

following findings of fact are made:

1. On July 10, 2012 , the Department issued the ITB.

The ITB solicited bids for a three - year contract for the

provision of clinical laboratory ser vices to the Department and

county health departments. The ITB estimated that the winning

bidder will perform approximately 861,000 tests annually, w hich

will produce sales of $9.3 million per year.

2. Bids were received from four vendors: LabCorp, Que st,

Florida Reference Laboratory, and Ecolab Group Co. The bids

were opened on August 17, 2012. The Department found all four

bids responsive.

3. The ITB specified that the Department would make a

single award based on the grand total of pricing for spe cified

"core tests" for the initial three - year term and for a

contingent three - year renewal term. Quest was the low est

bidder, and LabCorp was the second lowest bidder. The sum of

Quest's core test pricing for the original three - year term and

the conting ent three - year renewal term for the relevant

laboratory services was $29,555,864.96. The sum of LabCorp's

core test pricing for the original three - year term and the

contingent three - year renewal term was $36,059,437.52.

4. Section 3.2 of the ITB provided definitions pertinent

to the bid, including the following:

Mandatory Requirements or Minimum

Requirements -- means that the Department

has established certain requirements with

respect to proposals to be submitted by

Respondent. 1 / The use of shall, must, or

will (except to indicate simple futurity) in

this solicitation indicates compliance is

mandatory. Failure to meet mandatory

requirements will cause rejection of the bid

or termination of the Contract/Purchase

Order.

Minor I rregularity -- used in the context of

this solicitation and prospective

Contract/Purchase Order, indicates a

variation from the proposal terms and

conditions which does not affect the price

of the response, or give the respondent an

advantage or benefit not enjoyed by other

Bidders, or does not adversely impact the

interests of the Department. 2 /

5 . Section 4.15 of the ITB, titled "Responsive and

Responsible," provided as follows:

The Bidder shall complete and submit the

following mandatory information or

documentation as a part of the Bid Package.

Any response which does not contain the

information below shall be deemed non -

responsive .

* Licensures -- Centers for Medicare &

Medicaid Services, Clinical Laboratory

Improvement Amendments, Certificate of

Compliance and State of Florid a Agency for

Health Care Administration Clinical

Laboratory License

* Staffing Plan Attachment I

Bid Price Pages -- Attachment III Initial

Term & Renewal term (including balance of

line minimum volume discount and phlebotomy

services

* Required Certificat ions, Attachment VI

6 . The ITB provide d no further clarification regarding the

contents of the "Staffing Plan" beyond directing the bidders to

"Attachment I" to the ITB. Attachment I was titled

"Specifications of Clinical Laboratory Services" and contai ned

six pages of additional specifications regarding services

included in the bidders' prices, contractor liability, minimum

tasks to be completed by the winning bidder, deliverables, and

other requirements.

7 . Attachment I included the following specific ations

regarding staffing:

Staffing Levels

Each prospective offeror shall include its

proposed staffing for technical,

administrative, and clerical support

including but not limited to a Contract

Representative, Quality Control Manager,

Staff Pathologist, Project Manager,

Technical Support Manager, Technical Support

Staff and statewide field rep resentatives .

The bidder shall provide hourly rate

pricing, as an option to the contract, for

an on - site Phlebotomist. The successful

offeror shall maintain an ad equate

administrative organizational structure and

support staff sufficient to discharge its

contractual responsibilities. In the event

the Department determines that the

successful bidder's staffing levels do not

conform to those promised in the proposal ,

it shall advise the successful offeror in

writing and the successful offer o r shall

have 30 days to remedy the identified

staffing deficiencies.

Professional Qualification

The successful bidder will be responsible

for the staff affiliated with this prop osal,

insuring that they have the education, any

professional licensure or certification

which may be required by law, and experience

necessary to carry out their duties.

Staffing Changes

The successful bidder shall staff the

project with key personnel i dentified in the

bidder's proposal , which are considered by

the Department to be essential to this

project. The bidder shall keep the

Department notified of key staffing changes

that directly impact services related to

this solicitation. (Textual emphasi s

added.)

8 . The underscored language require d the prospective

offerer to include "proposed staffing" and required that the

winning bidder staff the project with "key personnel identified

in the bidder's proposal."

9 . The issue is whether the "Staffing Levels" and

"Staffing Changes" provisions quoted above require d the bidder

to name the specific persons who w ould fill the "proposed

staffing" and "key personnel" positions, or whether it would

suffice for a bidder to indicate that it would fill those

posi tions with qualified persons to be named after the bid is

awarded.

10 . The term "key personnel" is undefined by the ITB. It

is unclear from the specifications whether the "key personnel"

referenced in "Staffing Changes" is synonymous with the

"proposed staffing" referenced in "Staffing Levels." LabCorp

interpreted "key personnel" to mean those persons named in the

"Staffing Levels" provision: Contract Representative, Quality

Control Manager, Staff Pathologist, Project Manager, Technical

Support Manager , Technical Support Staff , and statewide field

representatives.

11. In its staffing plan, LabCorp provided the names of

persons corresponding to each of the "Staffing Levels" positions

named in the ITB, including a list of 69 field representatives

and 19 sales support persons.

12 . The s taff ing p lan submitted by Quest stated as

follows:

Quest Diagnostics has more than adequate

staffing and capacity to meet the needs of

the Florida Department of Health. Quest

Diagnostics employs a Customer Solutions

Ma nager (contract representative), Quality

Assurance Manager (quality control manager),

Medical Director and Senior Staff

Pathologists, Project Manager, Specimen

Processing Manager (technical support

manager), Lab Manager (technical support

staff), and Accou nt Managers (statewide

field representatives).

Job descriptions for these positions are

attached.

1 3 . Following this statement was a series of detailed job

descriptions setting forth the qualifications , experience

requirements and responsibilities for e ach of the named

positions. Thus, Quest provided the Department with a set of

job qualifications corresponding to the "Staffing Levels"

provision of Attachment I to the ITB , but did not provide the

name of a specific person to fill any of the positions . T he

Department concluded that Quest had sufficiently "identified"

its key personnel .

1 4 . LabCorp did not provide the detailed job descriptions

that Quest provided. For example, Sharon Kaplan is listed as

"Project Manager" without further description of h er

qualifications , experience or duties.

15 . LabCorp contends that the ITB required the vendors to

name specific persons who would fill those positions. The

Department counters that the requirement to "identify" key

personnel does not necessarily mean th at the bidder must name

the persons involved, and that Quest satisfied the ITB's

requirement by "identifying" the positions it intended to fill

and the qualifications for th e positions named in the "Staffing

Levels" section of Attachment I .

1 6 . Reg ina Taylor, the administrative service director of

the Department's Bureau of Public Health L aboratories , performed

the "responsive and responsible" review of the bids. 3 /

Ms. Taylor testified that the ITB "left the staffing plan a bit

open - ended and left it up to the vendor as to how they would

present it to us." The Department found both bids responsive

th ough Quest and LabCorp each took a different approach to

describing its staffing plan.

1 7 . Ms. Taylor stated that Quest would be able to name its

pe rsonnel during the implementation process. She noted that

LabCorp's bid provided the names of personnel but offered no

detailed information regarding the qualifications or

responsibilities of those persons beyond their job titles,

whereas Quest provided d etailed job descriptions without naming

the persons who would fill the jobs. Ms. Taylor was not overly

concerned about either company's ability to satisfy the

requirements of the ITB. She stated, "Both Quest and LabCorp

are national companies, so I'm sur e that they have the adequate

staff."

18. The "Professional Qualification" section of Attachment

I provides that the successful bidder is responsible for

insuring that staff is properly qualified and certified. The

"Staffing Levels" section allows the Department to review the

successful bidder's staffing levels and require the bidder to

remedy any deficiencies within 30 days of the Department's

written notice.

1 9 . Ms. Taylor testified that the staffing provision

section of the ITB was intended to en sur e that the winning

bidder had within its organization certain critical positions.

The Department relied on its own experience in operating the

state public health laboratory to identify the staffing

requirements of the ITB.

20 . LabCorp points out that Qu est was the only bidder that

failed to submit a list of names of key personnel. Like

LabCorp, Florida Reference Laboratory, and Ecolab Group Co.

submitted the names of their key personnel.

21 . LabCorp also points out that Ms. Taylor 's initial

reaction to Quest's staffing p lan submission was to call it

"lame." Ms. Taylor's pronouncement on the quality of the Quest

staffing plan was not a part of her review or of the

Department's decision. Whether or not it she found it "lame,"

Ms. Taylor concluded that Q uest's staffing plan was responsive

to the bid criteria.

22 . The ITB require s the bidder to "identify" the "key

personnel" with whom it proposes to staff the project. The ITB

also states that the Department considers these key personnel to

be "essential to this project." However, the ITB does not

expressly define the term "key personnel." LabCorp named

persons to fill the positions named in the Staffing Levels

provision of Attachment I, which it reasonably took to be

synonymous with "key personnel" ref erenced in the Staffing

Changes provision of Attachment I. Via its staffing plan, Quest

"identified" the key personnel without naming them.

23 . Given the lack of precision in these "open - ended" ITB

specifications, both LabCorp and Quest made reasonable r esponses

to the staffing requirements . Each chose a different way of

"identifying" key personnel. Neither could be found to have

clearly failed to comply with the bid specifications. The

Department acted reasonably in finding both bids responsive.

24 . I f LabCorp were correct that Quest's bid response did

not comply with the staffing specifications, t he question would

arise as to whether Quest's deviation from the ITB

specifications was a "minor irregularity" that could be waived

by the Department. As noted above, the ITB defines "minor

irregularity" as a variation from the bid specifications that

does not affect the bidder's price or give the bidder an

advantage or benefit not enjoyed by other bidders, or does not

adversely impact the interests of the Department.

25 . LabCorp has not identified any adverse impact on the

Department that Quest's failure to name its proposed staff or

key personnel would have. Indeed, LabCorp is hard pressed to

state what advantage the Department gains by having the ven dor

name 69 field representatives and 19 sales support persons in

its bid. The names are likely meaningless to the Department .

"Sharon Kaplan, Project Manager" provides no more useful

information than does Quest's description of the education,

knowledge, and experience it requires of a project manager. The

Department's concern was vendor capability to adequately staff

the project, and the Department reasonably concluded that both

vendors' bids demonstrated that capability.

26. The basis for award of thi s bid was the lowest price.

There was no scored evaluation of the ITB responses, no ranking

of the staffing plans, and no effort contemplated by the

Department to investigate the qualifications of the named

personnel. The staffing plans submitted by LabC orp and Quest

were of equal value to the Department as an indication of the

vendor s' understanding of the bid criteria and ability to fill

the necessary positions. The ITB anticipates that the

Department will deal with any staffing problems after the

cont ract is awarded and the successful bidder begins to

implement its program.

27 . LabCorp fails to identify any price advantage that

Quest would gain by not naming the persons who would fill the

key personnel positions , and none is apparent . Whether or not

the personnel are named in the bid, the key positions would have

to be filled at a cost that would presumably be roughly the same

for each vendor . Again, the ITB gives the Department the power

to raise staffing questions with the successful bidder and to

require that problems be remedied within 30 days of written

notice.

28 . LabCorp contends that Quest's failure to name key

personnel gave it an advantage not enjoyed by other bidders.

LabCorp argues that it went to the time and expense of preparing

a deta iled staffing plan, whereas Quest cut corners by

submitting a set of generic job descriptions. Quest's method of

setting forth its staffing plan may or may not have made its bid

preparation easier , but did nothing to improve its competitive

position in th e bidding process. Quest's commitment to fill the

required staffing positions was equal to LabCorp's.

29. LabCorp points out that its own staffing plan included

persons who are already on its payroll. LabCorp did not offer

an estimate as to the likel ihood that all of t he approximately

102 persons named in its staffing plan would still be on its

payroll by the time the company commenced performing the

contract. LabCorp has no way of guaranteeing that all of those

persons will be present to perform on the contract . Under the

"Staffing Changes" provision, LabCorp would be allowed to

substitute other qualified LabCorp employees for the named

persons should the need arise. The virtual certainty of

employee turnover supports the Department's position that the

ITB did not require that bidders undertake the task of nam ing

the employees w ho would fill the positions set forth in the

"Staffing Levels" section of Attachment I .

30. LabCorp argues that Quest's staffing plan gives it the

opportunity to delay or avoid altogether hiring the staff

necessary to perform the contract to the Department's

satisfaction. As noted above, the inclusion of employee names

in the bid could not guarantee that th e named employees would

still be working for LabCorp after the bid award. Quest's

commitment to staff the project was no less than LabCorp's.

LabCorp's argument suggests that Quest's bid should be rejected

because Quest may later choose to breach the contract, which

specifically requires the vendor to provide adequate qualified

staff. In any procurement, there is always a remote potential

that the winning vendor will breach or default. The

Department's contract provides remedies for such defaults.

31. In summary, it is found that the bids of both LabCorp

and Quest me t the requirements of the ITB as to staffing plans.

Even if LabCorp's narrow interpretation of the ITB's

requirements were correct , Quest's non - conforming response would

constitute a minor irregularity.

CONCLUSIONS OF LAW

32 . The Division of Administrat ive Hearings has

jurisdiction over the parties to and subject matter of this

cause, pursuant to s ection 120.569 and s ubsection 120.57(3),

Florida Statutes .

33 . Subsection 120.57(3)(f), Florida Statutes, provides in

pertinent part:

. . . . 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,

proposals, or replies, the administrative

law judge shall conduct a de nov o 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 solicitation specifications. The

standard of proof for such proceedings shall

be whether the proposed age ncy action was

clearly erroneous, contrary to competition,

arbitrary, or capricious. . . .

34 . Pursuant to s ubsection 120.57(3)(f), Florida Statutes ,

the burden of proof rests with LabCorp as the party opposing the

proposed agency action to prove "a grou nd for invalidating the

award." See State Contracting and Eng Óg Corp. v. Dep Ó t of

Transp . , 709 So. 2d 607, 609 (Fla. 1st DCA 1998). LabCorp must

prove by a preponderance of the evidence that the Department 's

proposed award of the contract to Quest is arb itrary,

capricious, or beyond the scope of the Department 's discretion

as a state agency. Dep Ó t of Transp . v. Groves - Watkins

Constructors , 530 So. 2d 912, 913 - 914 (Fla. 1988); Dep Ó t of

Transp . v. J.W.C. Co., Inc. , 396 So. 2d 778, 787 (Fla. 1st DCA

1981). See also § 120.57(1)(j), Fla. Stat.

35 . The First District Court of Appeal has interpreted the

process set forth in Subsection 120.5 7(3)(f), Florida Statutes ,

as follows:

A bid protest before a state agency is

governed by the Administrative Procedure

Act . Section 120.57(3), Florida Statutes

(Supp. 1996) [ 4 / ] provides that if a bid

protest involves a disputed issue of

material fact, the agency shall refer the

matter to the Division of Administrative

Hearings. The administrative law judge must

then conduct a de novo hearing on the

protest. See § 120.57(3)(f), Fla. Stat.

(Supp. 1996). In this context, the phrase

" de novo hearing" is used to describe a form

of intra - agency review. The 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. See Intercontinental

Properties, Inc. v. Dep Ó t of HRS , 606 So. 2d

380 (Fla. 3d DCA 1992) (interpreting the

phrase " de novo hearing" as it was used in

bid protest proce edings before the 1996

revision of the Administrative Procedure

Act).

State Contracting and Eng Óg Corp. , 709 So. 2d at 609.

36 . As outlined in s ubsection 120.5 7(3)(f), Florida

Statutes , the ultimate issue in this proceeding is "whether the

agency's propo sed action is contrary to the agency's governing

statutes, the agency's rules or policies, or the bid or proposal

specifications." In addition to proving that the Department

breached this statutory standard of conduct, LabCorp also must

establish that the Department 's violation was either clearly

erroneous, contrary to competition, arbitrary, or capricious.

§ 120.57(3)(f), Fla. Stat.

37 . The First District Court of Appeal has described the

"clearly erroneous" standard as meaning that an agency's

interpr etation of law will be upheld "if the agency's

construction falls within the permissible range of

interpretations. If, however, the agency's interpretation

conflicts with the plain and ordinary intent of the law,

judicial deference need not be given to it ." Colbert v. Dep Ó t

of Health , 890 So. 2d 1165, 1166 (Fla. 1st DCA 2004) ( c itations

omitted).

38 . An agency decision is "contrary to competition" when

it unreasonably interferes with the objectives of competitive

bidding. Those objectives have been stat ed to be:

[T]o protect the public against collusive

contracts; to secure fa i r competition upon

equal terms to all bidders; to remove not

only collusion but temptation for collusion

and opportunity for gain at public expense;

to close all avenues to favorit ism and fraud

in various forms; to secure the best values

for the [public] at the lowest possible

expense; and to afford an equal advantage to

all desiring to do business with the

[government], by affording an opportunity

for an exact comparison of bids.

Harry Pepper & Assoc . , Inc. v. City of Cape Coral , 352 So. 2d

1190, 1192 (Fla. 2d DCA 1977), ( quoting Wester v. Belote , 138

So. 721, 723 - 724 (Fla. 1931) ) .

39 . An agency action is capricious if the agency takes the

action without thought or reason or irrat ionally. An agency

action is arbitrary if is not supported by facts or logic. See

Agrico Chemical Co. v. Dep Ó t of Envtl . Reg . , 365 So. 2d 759, 763

(Fla. 1st DCA 1978).

40 . To determine whether an agency acted in an arbitrary

or capricious manner, it mus t be determined "whether the agency:

(1) has considered all relevant factors; (2) has given actual,

good faith consideration to those factors; and (3) has used

reason rather than whim to progress from consideration of these

factors to its final decision." Adam Smith Enter . v. Dep Ó t of

Envtl . Reg . , 553 So. 2d 1260, 1273 (Fla. 1st DCA 1989).

41 . However, if a decision is justifiable under any

analysis that a reasonable person would use to reach a decision

of similar importance, the decision is neither arbit rary nor

capricious. Dravco Basic Materials Co., Inc. v. Dep Ó t of

Transp . , 602 So. 2d 632, n. 3 (Fla. 2d DCA 1992).

42 . LabCorp failed to meet its burden of proof. The

evidence presented at the hearing did not establish that the

Department's proposed aw ard of the contract for Invitation to

Bid No. DOH 12 - 007 to Quest is contrary to the bid solicitation,

contrary to the Department's governing statutes, rules or

policies, or that the proposed award is clearly erroneous,

contrary to competition, arbitrary o r capricious. The

preponderance of the evidence established that Quest 's proposal

was responsive to the requirements of the bid solicitation and

that the Department acted well within its governing statutes,

rules and policies.

44. The evidence at hearing established that the

Department issued a price - driven ITB containing four items that

a bidder must provide in order to be considered "responsive and

responsible." Among these items was a staffing plan with

"proposed staffing for technical, administrative , and clerical

support" positions including a list of specific positions. The

successful bidder would be responsible for ensuring that its

employees have the education and licensure required by law, and

the experience necessary to carry out their duties. The ITB

required the successful bidder to staff the project "with key

personnel identified in the bidder's proposal."

45. LabCorp read the term "identified" as requiring the

bidders to name each employee in a "key personnel" position.

Quest read the t erm as requiring th e vendor to identify and

describe the duties, qualifications and experience i t would

require of persons in "key personnel" position s . Both readings

were reasonable interpretations of the specifications, which

were not a model of clarity . In recognition of the "open - ended"

nature of the staffing specifications, the Department accepted

the bids of both vendors as responsive to the ITB. This

decision was not contrary to the bid specifications, and was n ot

clearly erroneous, contrary to co mpetition, arbitrary, or

capricious .

46. Even if LabCorp's reading of the staffing

specifications were the only permissible interpretation, the

Department would have been within its discretion to waive

Quest's non - conforming response as a minor irregulari ty.

Quest's staffing plan had no demonstrable effect on its price

bid. The staffing plan did not adversely impact the interests

of the Department. No perceptible competitive advantage accrued

to Quest by virtue of its failure to name the employees in it s

proposal , and no real advantage was conveyed to the Department

by LabCorp's inclusion of employee names. The Department sought

assurances from the vendors that they were capable of adequately

staffing the project with qualified employees. Both LabCorp and

Quest provided adequate assurances in their bids.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED that the Department of Health enter a final

order dismissing Laboratory Corporation of America, Inc. 's

formal written protest and awarding the contract for Invitation

to Bid No. DOH 12 - 007 to Quest Diagnostics Clinical

Laboratories, Inc.

DONE AND ENTERED this 10th day of December, 2012 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state. fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of December, 2012 .

ENDNOTES

1 / "Respondent" was defined as a term interchangeable with

"proposer" and "vendor," i.e., "the entity that submits

materials to the Department in accordance with these

instructions, or other entity responding to this solicitation."

2 / Section 1.0 of the ITB incorporated by reference Department

of Management Services Form PUR 1001, "General Instructions t o

Respondents." Paragraph 16 of PUR 1001, "Minor

Irregularities/Right to Reject," provided as follows, in

relevant part:

The Buyer reserves the right to accept or

reject any and all bids, or separate

portions thereof, and to waive any minor

irregularity, technicality, or omission if

the Buyer determines that doing so will

serve the State's best interests. . . .

In Section 6.8 of the ITB, the Department expressly

reserves the right to waive any "minor irregularity,

technicality, or omission if the Dep artment determines that

doing so will serve the State's best interests."

3 / Ms. Taylor's review came after another Department employee,

Renee Gregory, reviewed the bids to be sure the bidders had

enclosed all items required by Section 4.15 of the ITB.

M s. Gregory did not engage in a qualitative review of those

items, leaving that for Ms. Taylor.

4 / The meaning of the operative language has remained the same

since its adoption in 1996:

In a competitive - procurement protest, no

submissions made after the bid or proposal

opening amending or supplementing the bid or

proposal shall be considered. Unless

otherwise provided by statute, the burden of

proof shall rest with the party protesting

the proposed agency action. In a

competitive - procurement protest, o ther than

a rejection of all bids, the administrative

law judge shall conduct a de novo proceeding

to determine whether the agency Ó s proposed

action is contrary to the agency's governing

statutes, the agency's rules or policies, or

the bid or proposal spec ifications. The

standard of proof for such proceedings shall

be whether the proposed agency action was

clearly erroneous, contrary to competition,

arbitrary, or capricious. . . .

§ 120.57(3)(f), Fla. Stat. (1997).

COPIES FURNISHED :

Robert Raymond Hear n, Esquire

Phelps Dunbar LLP

Suite 1900

100 South Ashley Drive

Tampa, Florida 33602

Merle M. DeLancey, Esquire

Dickstein Shapiro, LLP

1825 Eye Street, Northwest

Washington, DC 20006

Adele Helen Lack, Esquire

Dickstein Shapiro, LLP

1825 Eye Street, Nor thwest

Washington, DC 20006

Susan P. Stephens, Esquire

Department of Health

Bin A - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399

Janine Bamping Myrick, Esquire

Department of Health

Bin A02

4052 Bald Cypress Way

Tallahassee, Florida 32399

Erin Le vingston, Agency Clerk

Department of Health

Bin A02

4052 Bald Cypress Way

Tallahassee, Florida 32399

Jennifer A. Tschetter, General Counsel

Department of Health

Bin A02

4052 Bald Cypress Way

Tallahassee, Florida 32399

John H. Armstrong, M.D., F.A.C.S.

State Surgeon General

Department of Health

Bin A00

4052 Bald Cypress Way

Tallahassee, Florida 32399

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 should be filed with the agency that

will issue the Final Order in this case.