02-001998BID Mental Health Resource Center, Inc. vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, September 27, 2002.

Summary: Petitioner failed to prove that Agency`s proposed action to award contract to Intervenor is contrary to statutes, rules, policies, or language of the Request for Proposal. Recommend dismiss protest.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MENTAL HEALTH RESOURCE )

CENTER, INC. )

)

Petitioner, )

)

vs. ) Case No. 02 - 1998BID

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent, )

and )

)

PSYCHOTHERAPEUTIC SERVICES, )

OF FLORIDA, INC. )

)

Intervenor. )

_________________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on June 17 and 18,

2002, in Tallahassee, Florida, by Barbara J. Staros, assigned

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Bruce Culpepper, Esquire

Laura Boyd Pearce, Esquire

Akerman, Senterfitt & Eidson, P.A.

Post Office Box 10555

Tallahassee, Florida 32302 - 5555

For Respon dent: William A. Frieder, Esquire

Department of Children and Family Services

1317 Winewood Boulevard

Building Two, Room 204

Tallahassee, Florida 32399 - 0700

For Intervenor: Thomas R. Tatum, Esquire

Brinkley, McNerney, Morgan

Solomon & Tatum, LLP

Post Office Box 522

Fort Lauderdale, Florida 33302 - 0522

STATEMENT OF THE ISS UE

Whether the proposed decision of the Department of Children

and Family Services to award the contract for Florida Assertive

Community Treatment (FACT) Programs in District 4 as set forth in

RFP No. 01H02FP5, to Psychotherapeutic Services of Florida, I nc.,

is contrary to the Agency's governing statutes, the Agency's

rules or policies, or the specifications of the RFP?

PRELIMINARY STATEMENT

On or about February 18, 2002, the Department of Children

and Family Services (DCF) issued a Request for Proposals

No. 01H02FP5 for FACT Programs for persons with severe and

persistent mental illnesses for DCF's Districts 4, 7, and 11.

Petitioner, Mental Health Resource Center, Inc. (MHRC), responded

to the RFP for the proposed program in District 4.

On April 16, 2002, DCF posted the results of its evaluation

committee in a document entitled "Proposal Tabulation" which

indicated that Psychotherapeutic Services, Inc. received the

highest score and that Petitioner received the second highest

score of the proposal s evaluated for District 4.

On April 17, 2002, MHRC filed a Notice of Intent to Protest

DCF's intended action.

On May 9, 2002, MHRC filed an Amended Petition to Protest

Department Action and for Referral to the Division of

Administrative Hearings (DOA H). The case was referred to DOAH on

or about May 16, 2002. A related case involving the same RFP was

also forwarded to DOAH on May 16, 2002. On May 17, 2002, the

undersigned, sua sponte , issued an Order of Consolidation

consolidating this case with DOA H Case No. 02 - 1999BID and a

formal hearing was scheduled for June 13, 2002.

On May 21, 2002, Psychotherapeutic Services of Florida,

Inc., filed a Petition to Intervene in the protest involving RFP

No. 01H02FP5 for DCF District 4. The Motion to Intervene was

granted.

Petitioner filed an unopposed Motion to Sever from Case

No. 02 - 1999BID. On May 29, 2002, the Motion to Sever was granted

and an Amended Notice of Hearing was issued scheduling the

hearing for June 17 and 18, 2002.

On June 11, 2002, Petitio ner filed an Amended Motion to

Amend Petition to Protest Department Action with a proposed

Second Amended Petition to Protest Department Action and Referral

to the Division of Administrative Hearings. Respondent and

Intervenor filed objections to the Moti on to Amend Petition. The

motion was granted in part and denied in part.

The Second Amended Petition to Protest alleged the following

disputed issues of material fact:

(a) Whether the PSFI proposal deviates

materially from the terms, conditions and

spe cifications set forth in the subject RFP

(RFP No. 01H02FP5).

(b) Whether the proposal submitted by PSFI

contains material misstatements of facts.

(c) Whether PSFI's proposal is in fact the

most advantageous to the Department of

Children and Familie s, the State of Florida,

District 4 and individuals served.

(d) Whether the Evaluation Committee

performed its duties in an objective and fair

manner, consistent with the methodology

specified in the RFP.

(e) Whether the Evaluation Committee member s

had the necessary experience and knowledge to

fairly evaluate the proposals.

(f) Whether the Department's intended award

to PSFI is contrary to the Department's

governing statutes, rules, policies, and

specifications set forth in the RFP.

(g) Whether MHRC's proposal is the most

advantageous to the State.

(h) Whether the Department's intended award

of the contract to PSFI is clearly erroneous,

contrary to competition, arbitrary or

capricious.

The parties filed a Prehearing Stipulation. Intervenor

filed a Motion in Limine which was denied. At hearing,

Petitioner presented the testimony of Stephen Poole, Timothy

Griffith, Luther Cox, and Robert Sommers, and the deposition

testimony of Phyllis Holder, Robert Miles, Cheryl Fordyce and

Bar bara Johanningsmeier. Petitioner's Exhibits numbered 1

through 24 were admitted into evidence. Respondent did not

present any witnesses. Respondent's Exhibit numbered 1 was

admitted into evidence. Petitioner's request for official

recognition was withd rawn during the hearing. Intervenor

presented the testimony of Randall Cooper and Richard Warfel.

Intervenor's Exhibits numbered 1 through 7 were admitted into

evidence.

A Transcript of the hearing, consisting of four volumes, was

filed on August 5, 2002 . The parties filed a Joint Request for

Additional Time to file Proposed Recommended Order which was

granted. The parties timely filed Proposed Recommended Orders

which have been considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

Background

1. On or about February 18, 2002, DCF issued RFP No.

01H02FP5 for the implementation of Florida Assertive Community

Treatment (FACT) Programs for persons with severe and persistent

mental illnesses in DCF Districts 4, 7, and 11. The review in

this case is limited to DCF's proposal to award a FACT contract

in District 4. Four vendors submitted proposals for District 4,

including Petitioner and Intervenor.

2. Section 5.2 of the RFP requires that each proposal

include a title page as page two of the proposal and include the

RFP number; title of proposal; prospective offeror's name;

organization to which the proposal is submitted; name, title,

phone number and address of person who can respond to inquiries

regarding the proposal; and name of pr oject director, if known.

3. The proposal submitted by Intervenor contained a title

page identifying the offeror as Psychotherapeutic Services of

Florida, Inc., with a mailing address in Chesterfield, Maryland.

Further, every page of Intervenor's proposa l had the name

Psychotherapeutic Services of Florida, Inc., printed on the

bottom left corner.

4. Section 6.1 of the RFP describes two phases of DCF's

review of the proposals. The first is an initial screening of

all proposals for what the RFP describes as "Fatal Criteria."

The second is the qualitative review of each proposal using

criteria set out in the RFP by an evaluation team.

Fatal Criteria

5. Section 5.4 of the RFP reads as follows:

5.4 RESPONSE TO INITIAL SCREENING

REQUIREMENTS

The init ial screening requirements are

described as FATAL CRITERIA on the RFP Rating

Sheet (see section 6.1). Failure to comply

with all initial screening requirements will

render a proposal non - responsive and

ineligible for further evaluations. The

fatal criter ia are:

a). Was the proposal received by the date,

time and location as specified in the Request

for Proposal ( section 2.4 )?

b). Was one (1) original and eight (8)

copies of the proposal submitted and sealed

separately? ( section 5.12 )?

c). Did the provider include a Proposal

Guarantee payable to the department in the

amount of $1,000.00 ( section 2.11 )?

d). Did the application include the signed

State of Florida Request for Proposal

Contractual Services Acknowledgement Form,

PUR 7033 for each proposal submitted?

e). Did the provider submit the Notice of

Intent to Submit form contained in Appendix 2

by the required due date?

f). Did the provider register and attend the

offeror's conference?

g). Did the propos al include the signed

Certification Regarding Debarment,

Suspension, Ineligibility and Voluntary

Exclusion Contracts/Subcontracts ( Appendix

6 )?

h). Did the proposal include the signed

Statement of No Involvement( Appendix 7 )?

i). Did the proposal in clude the signed

Acceptance of Contract Terms and Conditions

indicating that the offeror agrees to all

department requirements, terms and conditions

in the Request for Proposal and in the

Department's Standard Contract ( Appendix 8 )?

j). Did the propos al include a signed

lobbying form ( Appendix 9 )?

k). Did the proposal include an audited

financial statement for fiscal years 1999 -

2000 and 2000 - 2001?

l). Did the proposal include a certification

of the offeror's good standing ( Appendix 1 )?

m). Did the proposal contain evidence the

minimum staffing levels in section 3.11 will

be hired and employed?

n). Did the proposal contain a signed

Certification of a Drug - Free Workplace

program ( Appendix 10 )?

o). Did the proposal contain a ce rtification

regarding electronic mailing capability as

referenced in section 3.20 ( Appendix 5 )?

(emphasis in original)

6. Section 6.1 of the RFP includes a Fatal Criteria rating

sheet requiring "yes" or "no" responses by the review er, which

included, among other provisions, the following:

4. Did the proposal include a signed Form

PUR 7033?

* * *

11. Did the proposal include independent

audited financial statement from a CPA firm

for fiscal years 1999 - 2000 and 2000 - 2001?

Form PUR 7033

7. Section 5.1 of the RFP, entitled, STATE OF FLORIDA

REQUEST FOR PROPOSAL CONTRACTUAL SERVICES ACKNOWLEDGMENT FORM,

PUR 7033, requires proposers to manually sign an origi nal Form

7033 on the appropriate signature line. The signed form 7033

must appear as the first page of the proposal. Form PUR 7033 is

not a form generated by DCF but is generated by the Department of

Management Services. The RFP did not set forth any fa tal

criteria in connection with this form other than it be signed.

8. The proposal of Intervenor, PSFI, contained form PUR

7033 with the signature of its Chief Executive Officer, D. Cherry

Jones, within the signature block designated as "authorized

signat ure."

9. The name Psychotherapeutic Services appears on

Intervenor's form 7033 in the block entitled "vendor name." The

address which appears in the block designated as "vendor's

mailing address" on Intervenor's form PUR 7033 is the same

mailing addres s in Chesterfield, Maryland, that appears on the

title page of Intervenor's proposal. The block designated on as

"state purchasing subsystem (SPURS) vendor number" on

Intervenor's form PUR 7033 is blank.

10. In completing the RFP forms designated as Appe ndix 1,

Offeror Certification of Good Standing; Appendix 5, Certification

of Electronic Mail Capability; Appendix 7, Statement of No

Involvement; Appendix 8, Acceptance of Contract Terms and

Conditions; and Appendix 10, Certification of a Drug - Free

Workpla ce Program, Psychotherapeutic Services appears in the

blank designated for the name of the vendor or offeror. These

appendices were all signed by D. Cherry Jones.

11. Petitioner contends that the use by Intervenor of

Psychotherapeutic Services or other s hortened version of its full

name instead of Psychotherapeutic Services of Florida, Inc., on

Form PUR 7033 and the required appendices renders Intervenor's

proposal non - responsive, creates confusion as to what entity was

responding to the RFP, is misleadin g and, therefore, is contrary

to competition. Petitioner notes that the Proposal Tabulation

prepared by DCF referenced Intervenor as Psychotherapeutic

Services, Inc., rather then Psychotherapeutic Services of

Florida, Inc.

12. In Appendix 8 to Intervenor 's proposal, the corporate

documents from the Florida Department of State were for

Psychotherapeutic Services of Florida, Inc.

13. As to the SPURS vendor number, the RFP did not require

the provision of a vendor number on the PUR 7033 as a preliminary

scr eening requirement of fatal criteria. The RFP does not

contain a requirement that a proposer have an existing SPURS

vendor number. According to Mr. Poole, there were no

restrictions on who could submit a proposal. In response to a

written inquiry, which asked whether local mental health agencies

be given preference in the bidding process over out of state

companies, DCF responded:

No. We want as many entities as possible

to compete for these teams. The competition

is fair and open to all who meet t he

requirements outlined in the RFP.

14. Thus, DCF encouraged all interested providers to submit

proposals, not just those who had previously contracted with DCF.

Accordingly, an offeror may not have an existing vendor number

when submitting a proposal . Although Intervenor had previously

contracted with DCF, the vendor number was not a specified

requirement of the RFP.

15. Timothy Griffith is Deputy Executive Director of

Psychotherapeutic Services of Florida, Inc. Mr. Griffith

describes their use o f Psychotherapeutic Services as similar to

the use of a trademark or servicemark. The parent company of all

Psychotherapeutic Services affiliates, including

Psychotherapeutic Services of Florida, Inc., is Associated

Service Specialists, Inc. The relation ship between Psycho -

therapeutic Services of Florida, Inc., and Associated Service

Specialists, Inc., as well as other affiliates, was set forth in

sufficient detail in Intervenor's proposal.

16. Other than the assertions of Petitioner's President and

Ch ief Executive Officer, Robert Sommers, as to his perception,

there is no evidence that anyone in DCF or its evaluators were

confused as to what entity was identified in the proposal

submitted by Intervenor.

17. Stephen Poole is a Senior Management Analys t II with

DCF, and is the procurement manager for the RFP. According to

Mr. Poole, DCF looks within a proposal for the identity of the

proposer on the title or cover page of the proposal. There was

never any confusion in his mind as to what entity was ma king the

offer to DCF. He understood Psychotherapeutic Services to be a

"tradename." When asked what entity he was talking about when he

refers to Psychotherapeutic Services, he replied:

I'm talking about Psychotherapeutic Services,

Psychotherapeutic Ser vices of Florida, or

Psychotherapeutic Services, Inc. To me, they

are one in the same. We have been under

contract with Psychotherapeutic Services of

Florida for other programs, FACT programs.

And I, early on, got accustomed, as a matter

of convenience and expediency, to refer to

them as PSI.

18. Consistent with his testimony, Mr. Poole's reference to

Psychotherapeutic Services, Inc., on the bid tabulation sheet was

simply shorthand for Psychotherapeutic Services of Florida, Inc.

Similarly , the bid tabulation sheet references Petitioner as

Mental Health Resource Center even though it's full name is

Mental Health Resource Center, Inc.

19. There is no evidence that the evaluators were confused

or misled as to Intervenor's identity or co rporate affiliations.

Evaluator Robert Miles was not confused and considered

Psychotherapeutic Services and Psychotherapeutic Services of

Florida, Inc. to be one and the same. Evaluator Jan Holder was

not confused as to Intervenor's identity:

Q And we h ave been calling that company

alternatively Psychotherapeutic and several

other shortened versions of the name. Has

that created any confusion in your mind as to

what entity we're talking about?

A No.

20. Petitioner's assert ion that Intervenor's proposal was

non - responsive as a result of the use of an abbreviated form of

Intervenor's name is not supported by the above findings.

Financial Statements

21. Petitioner asserts that Intervenor failed to meet the

requirement se t forth in Section 5.4k of the RFP, and referenced

in paragraph 11 of the Fatal Criteria checklist, that proposers

include independent audited financial statements for fiscal years

1999 - 2000 and 2000 - 2001. The RFP did not provide any definition,

standard, guidelines or mandatory requirement for the format or

content of financial statements, audits, or audited financial

statements. The RFP simply required that they be included.

22. Intervenor's proposal contained audited financial

statements for fiscal ye ars 1999 - 2000 and 2000 - 2001.

Intervenor's 2000 - 2001 audited financial statements consisted of

an independent auditor's report from Nardone, Pridgeon & Company,

P.A., Certified Public Accountants, dated August 10, 2001;

balance sheets; statements of cash flow; statements of operations

and retained earnings (deficit); and personnel and operating

expenses. However, four pages, consisting of the Notes to

Financial Statements, were omitted. There is no dispute

regarding the contents of the audited financial statements for

1999 - 2000 submitted by Intervenor.

23. The independent auditor's report for fiscal years 2000 -

2001 stated in pertinent part:

We have audited the accompanying balance

sheets of Psychotherapeutic Services of

Florida, Inc. as of June 30, 2001 and 2000,

and the related statements of operations and

retained earnings (deficit) and cash flows

for the years then ended. . . . In our

opinion, the financial statements referred to

above present fairly, in all material

respects, the financial p osition of

Psychotherapeutic Services of Florida, Inc.

as of June 30, 2001 and 2000. . . . We

conducted our audits to form an opinion on

the 2001 and 2000 basic financial statements

taken as a whole.

24. Luther Cox is a certified public accountan t and has

expertise in accounting, financial statements, and generally

accepted accounting principles relative to financial statements.

It is Mr. Cox's opinion that the notes to financial statements

are a required element of an audited financial statement .

According to Mr. Cox, notes to financial statements explain the

financial statements to the reader and are, according to

generally accepted accounting principals, an essential component

to an independent audited financial statement. Mr. Cox

acknowledge d, however, that there was no negative information

which should have been disclosed in the subject auditor's opinion

letter and that the letter was a "clean opinion," meaning that no

adverse financial information was known to the auditors which

otherwise w ould have been required to be reported.

25. Martin Kurtz is also a certified public accountant. He

acknowledged that the omission of the notes is not consistent

with the standards of the practice of accountancy in Florida.

However, he was of the opinion that, based upon the way the

independent auditor's opinion letter is written, the letter

relates to a full set of financial statements. "They may not

have all been presented in the proposal. But there was a full

set of audited financial statements." Th us, the auditor's clean

opinion letter included a review of the notes.

26. According to Mr. Kurtz, the text of Intervenor's

proposal contains more information about the relationship between

the parent company and Psychotherapeutic Services of Florida,

I nc., than the notes to the financial statements.

27. With the above - competing opinions by certified public

accountants, it is appropriate to examine the agency's use of the

audited financial statements in its review of the proposals.

28. According to Mr. Poole, the requirement to have the

proposals contain independently audited financial statements was

to assure DCF that the offeror possessed sufficient financial

sophistication and organizational capacity to perform a FACT

contract. In reviewing complian ce with the requirement for an

audited financial statement, DCF reviewed the submission to

determine whether or not it had a letterhead from an independent

auditor and whether there were financial statements. The

submitted financial statements were not re viewed by a certified

public accountant of DCF. According to Mr. Poole, DCF was

looking generally for the "strength, administratively of the

offeror. If it had the level of management expertise to be able

to perform a contract in that amount of money of a million

dollars."

29. The independent auditor's letter represents that

Invervenor's financial statements for fiscal years 2000 - 2001 were

indeed audited. Petitioner's assertion that Intervenor's

proposal is non - responsive because of the omission of the notes

to the financial statements is not supported by the above

findings.

30. In further support for its assertion that Intervenor's

omission of the notes to the financial statements renders

Intervenor's proposal non - responsive, Petitioner asserts that t he

requirement for the inclusion of audited financial statements was

not only considered within the fatal criteria of the RFP, but

also was a "key consideration" for scoring criterion 36 of the

RFP.

31. Organizational capacity is set forth in section 5. 5(4)

of the RFP which states in pertinent part:

To assist in the determination of the

offeror's organizational capacity, please

provide, as part of this section, the

following:

4. A copy of the financial statements or

audits for state fiscal years 1999 - 2000 and

2000 - 2001.

6. Evidence that the offeror has met its

financial obligations in a timely and

consistent manner without the need to incur

loans or a line of credit to routinely meet

its expenses. (emphasis in original)

32. Section 6.3.6 of the RFP contains certain criteria for

the evaluators to score with regard to the organizational

capacity of the proposers. Criterion 36 reads as follows:

36. What evidence did the proposal provide

that the offeror has not had to obtain loans

or a line of c redit to routinely meet its

financial obligations and expenses in a

timely and consistent manner as referenced in

section 5.5(4)?

Key considerations for scoring:

Its independently audited financial

statements for fiscal years 1999 - 2000 and

2000 - 2001 su pport response.

Offeror's independently audited financial

statements for the last two years give

evidence of ability to start a new program

without benefit of start - up funds. (emphasis

in original)

33. Each of the evaluation criteria contai ned references to

key considerations for scoring. The key considerations were to

assist the evaluators in assessing the merits of the proposal.

In evaluating criterion 36 pertaining to lines of credit, it was

the role of the individual evaluator to inter pret the degree of

routine reliance and assign accordingly a particular score from

zero to three. Intervenor directly addressed loans and lines of

credit in the text of its proposal in response to criterion 36.

As with the other criteria, evaluators coul d score this criterion

from zero to three. The Department deferred to the evaluators

regarding how they interpreted offerors' responses to the

requirements of 5.5(4). Thus, the omission of the auditor's

notes in regard to criterion 36 goes to the weight of the

information in the proposal, not whether fatal criteria were met.

Evaluation Committee Process

34. At the outset, all evaluators were to meet in

Tallahassee to receive copies of the proposals they were to score

at an initial meeting of the evaluato rs. One of the evaluators,

Mr. Costlow, became ill before he arrived in Tallahassee to

attend this meeting. Ms. Holder, the District 4 substitute for

Mr. Costlow, did not attend the meeting and did not receive her

copies of the proposals she was assigned to score until April 12,

2002. The rest of the evaluators received their copies on

April 9, 2002, as scheduled. Petitioner alleges that Ms. Holder

had insufficient time to review the three proposals for District

4. According to Ms. Holder, however, she did have sufficient

time to adequately review them.

35. At the initial meeting of evaluators on April 9, 2002,

Stephen Poole, the Department's procurement manager for this RFP,

gave all the evaluators except Ms. Holder instructions as to how

the evaluati on was to be accomplished. Ms. Holder was not

present at that meeting because she had not yet been appointed to

serve in Mr. Costlow's place. Because of Ms. Holder's absence

from this initial meeting, Petitioner alleges that she was

unqualified to accomp lish the task of evaluation having missed

Poole's instructions, therefore rendering her scoring of its

proposal not fair and contrary to the agency's procedures.

36. However, Mr. Poole gave Ms. Holder instructions over

the telephone and those instructio ns were essentially the same as

those given to the other evaluators. Ms. Holder was experienced

in evaluating proposals and was not a novice to the process.

Nevertheless, she was given Mr. Poole's home telephone number and

told to contact him if any ques tions should arise. Ms. Holder

was only required to evaluate the three proposals which pertained

to District 4, not all of the proposals for all three districts

covered by the RFP.

37. Petitioner also alleged that Ms. Holder was not

qualified by trai ning or experience to serve of the evaluation

team. During Ms. Holder's twenty - year tenure with the Alcohol,

Drug Abuse and Mental Health Program Office, she served as an

evaluator between 15 and 20 times for RFP's for Mental Health and

Substance Abuse. Ms. Holder was the program director for Mental

Health and Substance programs in District 4, with responsibility

for developing contracts for substance abuse and mental services

for adults and children. She is familiar with the PACT manual

and the model de veloped by the National Association for the

Mentally Ill. She has a bachelor's degree in psychology and

sociology and a master's degree in rehabilitative counseling from

the University of Florida.

38. The only evidence offered by Petitioner that Ms. Hold er

was not competent to perform her duties as an evaluator was

testimony by Mr. Sommers, Petitioner's president and chief

executive officer, that she does not answer her telephone

messages as promptly as he would wish; that she did not

correspond with him as quickly as he wanted her to; and other

similar promptness issues.

39. Richard Warfel is a former DCF employee with extensive

experience in the area of mental health services in District 4.

He has been personally acquainted with Ms. Holder for many y ears

and did not have any reason to question Ms. Holder's competence

to perform her duties.

40. The evidence does not support Petitioner's assertion

that Ms. Holder was unqualified to be an evaluator or was not

sufficiently prepared to conduct t he evaluation.

41. Petitioner contends that the evaluation committee did

not perform its duties in an objective and fair manner consistent

with the Rating Methodology specified in Section 6.3 of the RFP.

Specifically, the members of the evaluation commit tee reviewed

the proposals for each of the three districts in random order and

did not compare competing proposals to one another within each

district.

42. The members of the Evaluation Committee were given

specific instruction by Mr. Poole as to how to c onduct the

evaluation. The evaluators were not required to go through each

district's proposals before going through another, and they were

to consider the RFP as the beginning and the ending of the

universe in terms of the proposal. The evaluators were to read

the proposals independently from one another and were to select a

proposal at random and to score it based upon that proposal

alone. They were not to compare one proposal to another, but

evaluate a proposal on its own merit.

43. There was no subs tantial or material evidence presented

by Petitioner to show that any of the members of the evaluation

committee's review of the various proposals was not done in an

objective and fair manner consistent with the RFP and the

instructions given to them by Mr . Poole. 1/

CONCLUSIONS OF LAW

44. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case

pursuant to Sections 120.569, and 120.57(1) and (3), Florida

Statutes.

45. The burden of proof resides with Petitioner. See

Section 120.57(3)(f), Florida Statutes.

46. The underlying findings of fact in this case are based

on a preponderance of the evidence. Section 120.57(1)(j),

Florida Statutes. The standard of proof is whether the proposed

agency a ction was clearly erroneous, contrary to competition,

arbitrary, or capricious. Section 120.57(3)(f), Florida

Statutes.

47. The de novo proceeding in this case was conducted to

examine DCF’s proposed action in an attempt to determine whether

that action is contrary to the agency’s governing statutes, the

agency's rules or policies, or the RFP specifications. See

Section 120.57(3)(f), Florida Statutes, and State Contracting and

Engineering Corporation v. Department of Transportation , 709 So.

2d 607 (Fla. 1st DCA 1998).

48. Section 2.9 of the RFP states that DCF reserves the

right to waive minor irregularities when to do so would be in the

best interest of the State of Florida. That section defines a

minor irregularity as a variation from the RFP terms and

conditions which does not affect the price of the proposal, or

give the prospective offeror an advantage or benefit not enjoyed

by other prospective applicants, or does not adversely impact the

interests of DCF. See also Harry Pepper & Associates, Inc . v.

City of Cape Coral , 352 So. 2d 1190, 1193 (Fla. 2nd DCA 1977).

49. A "responsive offeror" is a person who has submitted a

proposal which conforms in all material respects to an invitation

to bid or a request for proposals. Section 287.012(17), Flori da

Statutes (2001).

50. Intervenor's proposal conforms in all material respects

to the RFP. Intervenor's use of less than its full name did not

cause any confusion with DCF staff or the evaluators. When

reading Intervenor's proposal, the identity of the offeror was

not in doubt to DCF staff and its evaluators.

51. Intervenor's omissions of the notes to financial

statements do not constitute a material deviation from the fatal

criteria of the RFP. Intervenor's 2000 - 2001 complete financial

statements w ere audited as required by the RFP. The auditor's

opinion was a "clean opinion." The RFP did not contain

guidelines or standards for the form or content of the audited

financial statements required by the RFP. DCF's purpose of

requesting this informatio n was to determine a level of

sophistication and organizational capacity of an offeror. DCF

did not undertake any detailed review by a certified public

accountant to review the content of the audited financial

statements. There was no evidence that the o mission of the notes

gave Intervenor any unfair advantage or misrepresented

Intervenor's finances. In summary, the omission of the notes to

financial statements constituted a minor irregularity waivable by

the agency.

52. Petitioner failed to prove that the members of the

evaluation committee did not have the necessary experience and

knowledge to fairly evaluate the proposals. DCF designed the RFP

evaluation process to allow each evaluator to independently

review, evaluate, and score each proposal. Ther e is no evidence

that the evaluation process was not done in an objective and fair

manner.

53. Petitioner failed to demonstrate by the applicable

standard of proof (clearly erroneous, contrary to competition,

arbitrary, or capricious) that DCF's proposed action to award the

District 4 FACT contract to Psychotherapeutic Services of

Florida, Inc., is contrary to the agency's governing statutes,

the agency's rules or policies or the language of the RFP.

RECOMMENDATION

Based upon the foregoing Finding s of Fact and Conclusions of

Law set forth herein, it is

RECOMMENDED:

That the Department of Children and Families enter a final

order dismissing the bid protest filed by Mental Health Resource

Center, Inc.

DONE AND ENTERED this 27th day of Se ptember, 2002, in

Tallahassee, Leon County, Florida.

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apal achee 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 27th day of September, 2002.

ENDNOTE

1/ Petitioner asserts in its Second Amended Petition that

Intervenor's response to criterion #8, Role of The Advisory

Committee, contains material misstatements of fact. This issue

is not addressed in Petiti oner's Proposed Recommended Order. In

any event, the evidence does not support a finding of any

material misstatement of fact that would render Intervenor's

proposal non - responsive.

COPIES FURNISHED:

Bruce Culpepper, Esquire

Laura Boyd Pearce, Esq uire

Akerman, Senterfitt & Eidson, P.A.

Post Office Box 10555

Tallahassee, Florida 32302 - 5555

William A. Frieder, Esquire

Department of Children and Family Services

1317 Winewood Boulevard

Building Two, Room 204

Tallahassee, Florida 32399 - 0700

Thomas R. Tatum, Esquire

Brinkley, McNerney, Morgan

Solomon & Tatum, LLP

Post Office Box 522

Fort Lauderdale, Florida 33302 - 0522

Paul F. Flounlacker, Jr., Agency Clerk

Department of Children and Family Services

1317 Winewood Boulevard

B uilding 2, Room 204B

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children and Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399 - 0700

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.