02-001999BID Bayview Center For Mental Health, 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

BAYVIEW CENTER FOR MENTAL )

HEALTH, INC., )

)

Petitioner, )

)

vs. ) Case No. 02 - 1999BID

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent, )

and )

)

PSYCHOTHERAPEUTIC SERVICES, )

OF FLORIDA, INC. )

)

Intervenor. )

_________________________________)

RECOMMENDED ORDER

A hearing was hel d pursuant to notice, on June 19 and 20,

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

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Gary J. Clark, Esquire

Fr ank P. Rainer, Esquire

Sternstein, Rainer & Clark, P.A.

101 North Gadsden Street

Tallahassee, Florida 32301

For Respondent: 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 ISSUE

Whether the proposed decision of the De partment of Children

and Family Services to award the contract for Florida Assertive

Community Treatment (FACT) Programs for District 11, as set forth

in RFP No. 01H02FP5, to Psychotherapeutic Services of Florida,

Inc., was contrary to the Agency's governi ng 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 Florida Assertive Community Treatment (FACT)

Programs for persons with severe and persistent mental illnesses

in DCF's Districts 4, 7, and 11. Petitioner, Bayview Center for

Mental Illness, Inc. (Bayview), responded to the RFP for the

proposed program in District 11.

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 proposals evaluated for District 11.

On April 16, 2002, Bayview filed a notice of protest

regarding DCF's intended action.

On April 26, 2002, Bayview filed a Formal Written Protest

and Petition for Administrative Hearing with DCF. Bayview then

filed an Amended Formal Written Protest and Petition for

Administrative Hearing which was referred to the Division of

Administrative Hearings (DOAH) on or about May 16, 2002. A

related case involving the same RFP, Case no. 02 - 1998BID, 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 DOAH Case No. 02 - 1998BID and a

formal hearing was scheduled for June 13, 2002.

On May 21, 2002, Psychotherapeutic Services of F lorida,

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

No. 01H02FP5 for DCF District 11. The Motion to Intervene was

granted.

Petitioner in Case No. 02 - 1998BID 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 19, 2002.

On June 3, 2002, Petitioner filed a Motion to Amend Petition

for Formal Administrative Hearing and Second Amended Formal

Written Protest . The motion was granted.

The Second Amended Formal Written Protest was based upon the

following:

(a) the selection of a bidder whose answers

were, in part, non - responsive;

(b) the use of an evaluation team which in

part, included persons not quali fied and not

authorized by law to review proposals of the

financial magnitude of this RFP;

(c) scoring of competitive proposals by one

evaluation team reviewer that was so

dramatically different from all other

reviewers as to suggest either the use of

u ndisclosed criteria, erroneous scoring,

undisclosed conflict of interest, or

arbitrary and capricious scoring; and

(d) the resulting proposed award of a

contract to Psychotherapeutic Services, Inc.,

(PSI) based on these erroneous, arbitrary and

caprici ous scores is itself so erroneous,

arbitrary and capricious that the award of

contract should be overturned and awarded to

Bayview as the most qualified bidder.

Intervenor filed a Motion in Limine which was granted to the

extent that Petitioner waived a ny objection to the makeup of the

evaluation committee by failing to timely bring a solicitation

protest.

At hearing, Petitioner presented the testimony of Luther

Cox, Stephen Poole, Barbara Johanningsmeier, Robert Ward, Susan

Kelly and the depos ition testimony of Neil Meister, Roman Roldan,

Randall Cooper, Timothy Griffith, Celeste Putnam and Stephen

Poole. Petitioner 's Exhibits 1 through 20, except for Exhibit

10, were admitted into evidence. Petitioner's Exhibit numbered

10 was rejected. Re spondent's Exhibit numbered one, the

deposition testimony of Robert Ward, was admitted into evidence.

Intervenor presented the testimony of Timothy Griffith and

Randall Cooper. Intervenor's Exhibit numbered 1, which was the

deposition testimony of Martin Kurtz, was admitted into evidence.

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

filed on August 20, 2002. The parties filed a Joint Request for

Additional Time to file Proposed Recommended Order which was

granted. The parties timely file d 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 11. Three vendors submitted proposals fo r

District 11, 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 t he proposal is submitted; name, title,

phone number and address of person who can respond to inquiries

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

3. The proposal submitted by Intervenor contained a title

page identifying the offeror a s Psychotherapeutic Services of

Florida, Inc., (PSFI) with a mailing address in Chesterfield,

Maryland. Further, every page of Intervenor's proposal had the

name Psychotherapeutic Services of Florida, Inc. printed on the

bottom left corner of every page.

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 by an evaluation team of

each propos al using criteria set out in the RFP.

Fatal Criteria

5. Section 5.4 of the RFP reads as follows:

5.4 RESPONSE TO INITIAL SCREENING

REQUIREMENTS

The initial 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 criteria 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 $1,0 00.00 ( 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 proposal include the signed

Certification Regarding Debarment,

Suspension, Ineligibility and Voluntar y

Exclusion Contracts/Subcontracts ( Appendix

6 )?

h). Did the proposal include the signed

Statement of No Involvement( Appendix 7 )?

i). Did the proposal include 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 proposal 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 hi red and employed?

n). Did the proposal contain a signed

Certification of a Drug - Free Workplace

program ( Appendix 10 )?

o). Did the proposal contain a certification

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 reviewer, 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 O F FLORIDA

REQUEST FOR PROPOSAL CONTRACTUAL SERVICES ACKNOWLEDGMENT FORM,

PUR 7033, requires proposers to manually sign an original Form

7033 on the appropriate signature line. The signed form 7033

must appear as the first page of the proposal. Form PUR 7 033 is

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

Management Services. The RFP did not set forth any fatal

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 PSFI's Chief Executive Officer,

D. Cherry Jones, within the signature block designated as

"authorized signature."

9. The name Psychotherapeutice [sic] Services appears on

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

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

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

mailing address in Chesterfield, Maryland, that appears on the

title page of Intervenor's proposal.

10. In completing the RFP forms designated as Appendix 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, Certificati on of a Drug - Free

Workplace 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. No required

appendix was omitted or unsigned in Intervenor's propo sal.

11. Petitioner contends that the use by Intervenor of

Psychotherapeutic Services or a shortened version of its full

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

Form PUR 7033 and the required appendices renders Intervenor's

proposa l non - responsive to fatal criteria and caused confusion

within DCF as to the corporate status of the actual offeror.

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

documents from the Florida Department of State were for

Psychotherapeutic Servic es of Florida, Inc.

13. Timothy Griffith is Deputy Executive Director of

Psychotherapeutic Services of Florida, Inc. According to

Mr. Griffith, the use of the term Psychotherapeutic Services

refers to a group of companies that make up the Psychotherapeut ic

Services Group. The parent company of all Psychotherapeutic

Services affiliates, including Psychotherapeutic Services of

Florida, Inc., is Associated Service Specialists, Inc. The

relationship between Psychotherapeutic Services of Florida, Inc.,

and A ssociated Service Specialists, Inc., was set forth in

sufficient detail in Intervenor's proposal.

14. 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.

15. S tephen Poole is a Senior Management Analyst II with

DCF, and is the procurement manager for the RFP. There was never

any confusion in his mind as to what entity was making the offer

to DCF. He understood Psychotherapeutic Services to refer to

Psychothera peutic Services of Florida, Inc., and had a "common

sense" understanding of who the offeror was.

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

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

simply shorthand for Psychoth erapeutic Services of Florida, Inc.

Similarly, the bid tabulation sheet references Petitioner as

Bayview Center for Mental Health even though its full name is

Bayview Center for Mental Health, Inc.

17. Likewise, his reference to "PSI" on the fat al criteria

evaluation sheet "stood for and stands for, in our language,

Psychotherapeutic Services of Florida, Inc."

18. Petitioner's assertion that Intervenor's proposal was

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

Intervenor's na me is not supported by the above findings.

Financial Statements

19. Petitioner asserts that Intervenor failed to meet the

requirement set forth in Section 5.4k of the RFP and referenced

in paragraph 11 of the fatal criteria RFP rating sheet, that

pro posers include independent audited financial statements for

fiscal years 1999 - 2000 and 2000 - 2001. The RFP did not provide

any definition, standard, guideline, or mandatory requirement for

the format or content of financial statements, audits, or audited

s tatements. The RFP simply required that they be included.

20. Intervenor's proposal contained audited financial

statements for fiscal years 1999 - 2000 and 2000 - 2001.

Intervenor's 2000 - 2001 audited financial statements consisted of

an independent aud itor'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, f our 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.

21. The independent auditor's report stated in pertinen t

part:

We have audited the accompanying balance

sheets of Psychotherapeutic Services of

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

and their 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 position 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.

22. Luther Cox is a certified public accountant and has

expertise in accounting and financial statements. It is

Mr. Cox's opinion that the notes to financial statements are a

required element of an audited financial statement. Mr. Cox's

opinion was based in part on the Florida Board of Accountancy

Rules in defining the term, "financial statement." Mr. Cox

acknowledged, however, that based upon the representation that

the auditors prov ided in the first paragraph of their letter, the

auditors reviewed all of the financial statements. Additionally,

Mr. Cox acknowledged that based upon his review of the notes to

the financial statements, 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 would have been required to be reported.

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

acknowledged that 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 let ter 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." Thus, the auditor's clean

opinion letter included a review of the notes.

24. 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,

Inc., than the notes to the financial statements.

25. With th e above competing opinions by certified public

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

audited financial statements in their review of the proposals.

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

proposals contain indep endently audited financial statements was

to assure DCF that the offeror possessed sufficient financial

sophistication and organizational capacity to perform a FACT

contract. In reviewing compliance 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 reviewed 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."

27. The independent audi tor's letter represents that

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

in fact audited. Petitioner's assertion that Intervenor's

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

to the financial statements is not sup ported by the above

findings.

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

omission of the notes to the financial statements renders

Intervenor's proposal non - responsive for failure to meet fatal

criteria, Petitioner asserts that the require ment 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.

29. Organizational capacity is set forth in section 5.5(4)

of th e RFP and 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 - 200 0 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)

30. Section 6.3.6 of the RFP contains certain criteria for

the evaluators to score with regard to 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 credit 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 support res ponse.

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.

31. Each of the evaluation criteria contained references to

key con siderations for scoring. The key considerations were to

assist the evaluators in assessing the merits of the proposals.

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

the role of the individual evaluators to interpret the degree of

routi ne 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 could 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 as to whether or not fatal

criteria were met.

Evaluation Committee Process

32. Members of the Evaluation Committee were given

instructions by Mr. Poole prior to commencing the qualitative

review of each proposal. Each Evaluation Co mmittee member signed

a conflict of interest statement indicating they had no

conflicts. The members were specifically instructed that the

proposals were to be reviewed independently from one another and

from each other; that any problem an evaluator may have with a

proposer was not to be considered as part of their score; that

the universe began and ended within the confines of the proposal;

and that they were to use a scoring protocol to affix their score

and to report back the following week to give tha t score, but not

to share their results with anyone until the briefing meetings

that followed the qualitative review.

33. The Evaluation Committee consisted of employees of DCF,

except for Barbara Johanningsmeier, who is a National Alliance

for th e Mentally Ill (NAMI) representative. Mr. Poole spoke to

the executive director of NAMI explaining that the NAMI evaluator

should be a person who is knowledgeable either through life

experience or work of Florida's community mental health system;

who has an understanding of the system of care that is publicly

funded; and who has an interest and some knowledge and expertise

in the area of programs either through employment or through

other factors.

34. NAMI provided Ms. Johanningsmeier as the evaluator

re quested by DCF. Mr. Poole explained DCF's unquestioned

acceptance of Ms. Johanningsmeier as an evaluator:

We accepted Mrs. Johanningsmeier as the

representative of NAMI because of our

relationship with NAMI and our shared vision

and mission of a community mental health

system of Florida that is responsive to the

individual needs with persons with severe and

persistent illness and that our goals in some

ways are the same, that we want a responsive

system to people with a very serious

disability . . . . [T] here would be no

reason to question the validity or expertise

of a representative of NAMI because NAMI has

an interest in Florida's publically funded

community mental health system.

35. According to Celeste Putman, DCF's Director of Mental

Health , the evaluation team included a NAMI representative to

make sure that the team had a strong representative who really

understood the needs of people with very severe, persistent

mental illness, and who has worked closely with that population.

Ms. Putnam explained that DCF has always felt that it is

important to have a family member, someone who is close, from a

personal standpoint, to the service delivery involved.

36. Ms. Johanningsmeier had experience evaluating at least

three other similar procurement s. Further, Ms. Johanningsmeier

was a member of the Board of Directors of NAMI, Florida, at the

time she served on the Evaluation Committee and was a member of a

local Board of Directors of NAMI. She was familiar with the NAMI

PACT manual. Ms. Johanning smeier gave an extensive description

of her personal experiences with the public and private mental

health systems in Florida, from her child's experience in those

systems.

37. Ms. Johanningsmeier's purpose on the evaluation team

was to represent NAM I and not to promote the NAMI viewpoint in

the evaluation. She denied scoring any of the criteria out of

bias toward or against any of the participants using criteria

outside of those that were given to her in the RFP, or attempting

to skew the score in a ny way.

38. Petitioner alleges that many of its responses to

subjective questions were better than those of Intervenor and

therefore should have been scored higher. Robert Ward, President

and chief executive officer of Bayview, believed that

Ms. Johan ningsmeier scored Petitioner low, and as a result he

felt there was either a bias of some kind or that the evaluator

did not know what she was doing. Mr. Ward felt that something

was wrong, but did know what it was.

39. Petitioner's expert witness, Dr. Susan Kelly, is a

senior research consultant with a private company. She works

with data analysis and research and has expertise in statistics

with a Ph.D. in sociology. She conducted a statistical test of

the scoring by all evaluators for the purpose of determining the

existence of patterns or any kind of irregularities or

differences in scoring. The statistical significance test

performed by Dr. Kelly showed variations between the scores of

Ms. Johanningsmeier and two of the other reviewers. Dr. Kelly

characterized Ms. Johanningsmeier's scores as an "outlier," but

did not know the reason why there was a difference in scores

between Ms. Johanningsmeier and the other evaluators.

Dr. Kelly's analysis did not involve any review of the RFP, the

proposals o r information regarding Ms. Johanningsmeier's

background or position to the Evaluation Committee.

40. There was no substantial or material evidence presented

by Petitioner to show that Ms. Johanningsmeier's scoring of the

proposals was inconsistent with the scoring methodology in the

RFP, clearly erroneous, contrary to competition, arbitrary or

capricious.

CONCLUSIONS OF LAW

41. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case

pursuant to Secti ons 120.569, and 120.57(1) and (3), Florida

Statutes.

42. The burden of proof resides with Petitioner. See

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

43. 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 action was clearly erroneous, contrary to competition,

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

Statutes.

44. The de novo proceeding in this case was con ducted 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 Contrac ting and

Engineering Corporation v. Department of Transportation , 709 So.

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

45. 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 do es 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).

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

proposal which conforms in all material re spects to an invitation

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

Statutes (2001).

47. 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.

48. 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 were audited as required by the RFP. The auditor's

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

guidelines or standards for the form or content of the a udited

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

requesting this information 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 omission of the notes

gave Intervenor any unfair advantage or misrepresented

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

financial statements c onstituted a minor irregularity waivable by

the agency.

49. Petitioner failed to prove that Ms. Johanningsmeier did

not have the necessary experience and knowledge to fairly

evaluate the proposals. There was no substantial evidence that

Ms. Johanningsmei er's scoring was not done in an objective and

fair manner.

50. 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 11 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 Findings of Fact and Conclusions of

Law set fort h herein, it is

RECOMMENDED:

That the Department of Children and Families enter a final

order dismissing the bid protest filed by Bayview Center for

Mental Health, Inc.

DONE AND ENTERED this 27th day of September, 2002, in

Tallahassee, Leon County, Florida.

BARBARA J. STAROS

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 27th day of September, 2002.

COPIES F URNISHED:

Gary J. Clark, Esquire

Frank P. Rainer, Esquire

Sternstein, Rainer & Clark, P.A.

101 North Gadsden Street

Tallahassee, Florida 32301

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,

Soloman & Tatum, LLP.

Post Office Box 522

Fort Lauderdale, Florida 33302 - 0522

Paul F. Flounlacker, Jr., Agency Clerk

Department of Children and Family Serv ices

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 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 th is case.