02-001999BID
Bayview Center For Mental Health, Inc. vs.
Department Of Children And Family Services
Status: Closed
Recommended Order on Friday, September 27, 2002.
Recommended Order on Friday, September 27, 2002.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8BAYVIEW CENTER FOR MENTAL )
13HEALTH, INC., )
16)
17Petitioner, )
19)
20vs. ) Case No. 02 - 1999BID
27)
28DEPARTMENT OF CHILDREN )
32AND FAMILY SERVICES, )
36)
37Respondent, )
39and )
41)
42PSYCHOTHERAPEUTIC SERVICES, )
45OF FLORIDA, INC. )
49)
50Intervenor. )
52_________________________________)
53RECOMMENDED ORDER
55A hearing was hel d pursuant to notice, on June 19 and 20,
682002, in Tallahassee, Florida, by Barbara J. Staros, assigned
77Administrative Law Judge of the Division of Administrative
85Hearings.
86APPEARANCES
87For Petitioner: Gary J. Clark, Esquire
93Fr ank P. Rainer, Esquire
98Sternstein, Rainer & Clark, P.A.
103101 North Gadsden Street
107Tallahassee, Florida 32301
110For Respondent: William A. Frieder, Esquire
116Department of Children and Family Services
1221317 Winewood Boulevard
125Building Two, Room 204
129Tallahassee, Florida 32399 - 0700
134For Intervenor: Thomas R. Tatum, Esquire
140Brinkley, McNerney, Morgan
143Solomon & Tatum, LLP
147Post Office Box 522
151Fort Lauderdale, Florida 33302 - 0522
157STATEMENT OF THE ISSUE
161Whether the proposed decision of the De partment of Children
171and Family Services to award the contract for Florida Assertive
181Community Treatment (FACT) Programs for District 11, as set forth
191in RFP No. 01H02FP5, to Psychotherapeutic Services of Florida,
200Inc., was contrary to the Agency's governi ng statutes, the
210Agency's rules or policies, or the specifications of the RFP?
220PRELIMINARY STATEMENT
222On or about February 18, 2002, the Department of Children
232and Family Services (DCF) issued a Request for Proposals
241No. 01H02FP5 for Florida Assertive Community Treatment (FACT)
249Programs for persons with severe and persistent mental illnesses
258in DCF's Districts 4, 7, and 11. Petitioner, Bayview Center for
269Mental Illness, Inc. (Bayview), responded to the RFP for the
279proposed program in District 11.
284On April 16, 2002, DCF posted the results of its evaluation
295committee in a document entitled "Proposal Tabulation" which
303indicated that Psychotherapeutic Services, Inc., received the
310highest score and that Petitioner received the second highest
319score of the proposals evaluated for District 11.
327On April 16, 2002, Bayview filed a notice of protest
337regarding DCF's intended action.
341On April 26, 2002, Bayview filed a Formal Written Protest
351and Petition for Administrative Hearing with DCF. Bayview then
360filed an Amended Formal Written Protest and Petition for
369Administrative Hearing which was referred to the Division of
378Administrative Hearings (DOAH) on or about May 16, 2002. A
388related case involving the same RFP, Case no. 02 - 1998BID, was
400also forwarded to DOAH on May 16, 2002. On May 17, 2002, the
413undersigned, sua sponte , issued an Order of Consolidation
421consolidating this case with DOAH Case No. 02 - 1998BID and a
433formal hearing was scheduled for June 13, 2002.
441On May 21, 2002, Psychotherapeutic Services of F lorida,
450Inc., filed a Petition to Intervene in the protest involving RFP
461No. 01H02FP5 for DCF District 11. The Motion to Intervene was
472granted.
473Petitioner in Case No. 02 - 1998BID filed an unopposed Motion
484to Sever from Case No. 02 - 1999BID. On May 29, 2002 , the Motion
498to Sever was granted and an Amended Notice of Hearing was issued
510scheduling the hearing for June 19, 2002.
517On June 3, 2002, Petitioner filed a Motion to Amend Petition
528for Formal Administrative Hearing and Second Amended Formal
536Written Protest . The motion was granted.
543The Second Amended Formal Written Protest was based upon the
553following:
554(a) the selection of a bidder whose answers
562were, in part, non - responsive;
568(b) the use of an evaluation team which in
577part, included persons not quali fied and not
585authorized by law to review proposals of the
593financial magnitude of this RFP;
598(c) scoring of competitive proposals by one
605evaluation team reviewer that was so
611dramatically different from all other
616reviewers as to suggest either the use of
624u ndisclosed criteria, erroneous scoring,
629undisclosed conflict of interest, or
634arbitrary and capricious scoring; and
639(d) the resulting proposed award of a
646contract to Psychotherapeutic Services, Inc.,
651(PSI) based on these erroneous, arbitrary and
658caprici ous scores is itself so erroneous,
665arbitrary and capricious that the award of
672contract should be overturned and awarded to
679Bayview as the most qualified bidder.
685Intervenor filed a Motion in Limine which was granted to the
696extent that Petitioner waived a ny objection to the makeup of the
708evaluation committee by failing to timely bring a solicitation
717protest.
718At hearing, Petitioner presented the testimony of Luther
726Cox, Stephen Poole, Barbara Johanningsmeier, Robert Ward, Susan
734Kelly and the depos ition testimony of Neil Meister, Roman Roldan,
745Randall Cooper, Timothy Griffith, Celeste Putnam and Stephen
753Poole. Petitioner 's Exhibits 1 through 20, except for Exhibit
76310, were admitted into evidence. Petitioner's Exhibit numbered
77110 was rejected. Re spondent's Exhibit numbered one, the
780deposition testimony of Robert Ward, was admitted into evidence.
789Intervenor presented the testimony of Timothy Griffith and
797Randall Cooper. Intervenor's Exhibit numbered 1, which was the
806deposition testimony of Martin Kurtz, was admitted into evidence.
815A Transcript of the hearing, consisting of four volumes, was
825filed on August 20, 2002. The parties filed a Joint Request for
837Additional Time to file Proposed Recommended Order which was
846granted. The parties timely file d Proposed Recommended Orders
855which have been considered in the preparation of this Recommended
865Order.
866FINDINGS OF FACT
869Background
8701. On or about February 18, 2002, DCF issued RFP
880No. 01H02FP5 for the implementation of Florida Assertive
888Community Treatment (FACT) Programs for persons with severe and
897persistent mental illnesses in DCF Districts 4, 7, and 11. The
908review in this case is limited to DCF's proposal to award a FACT
921contract in District 11. Three vendors submitted proposals fo r
931District 11, including Petitioner and Intervenor.
9372. Section 5.2 of the RFP requires that each proposal
947include a title page as page two of the proposal and include the
960RFP number; title of proposal; prospective offeror's name;
968organization to which t he proposal is submitted; name, title,
978phone number and address of person who can respond to inquiries
989regarding the proposal; and name of project director, if known.
9993. The proposal submitted by Intervenor contained a title
1008page identifying the offeror a s Psychotherapeutic Services of
1017Florida, Inc., (PSFI) with a mailing address in Chesterfield,
1026Maryland. Further, every page of Intervenor's proposal had the
1035name Psychotherapeutic Services of Florida, Inc. printed on the
1044bottom left corner of every page.
10504. Section 6.1 of the RFP describes two phases of DCF's
1061review of the proposals. The first is an initial screening of
1072all proposals for what the RFP describes as "Fatal Criteria."
1082The second is the qualitative review by an evaluation team of
1093each propos al using criteria set out in the RFP.
1103Fatal Criteria
11055. Section 5.4 of the RFP reads as follows:
11145.4 RESPONSE TO INITIAL SCREENING
1119REQUIREMENTS
1120The initial screening requirements are
1125described as FATAL CRITERIA on the RFP Rating
1133Sheet (see section 6.1). Failure to comply
1140with all initial screening requirements will
1146render a proposal non - responsive and
1153ineligible for further evaluations. The
1158fatal criteria are:
1161a). Was the proposal received by the date,
1169time and location as specified in the Request
1177for Proposal ( section 2.4 )?
1183b). Was one (1) original and eight (8)
1191copies of the proposal submitted and sealed
1198separately? ( section 5.12 )?
1203c). Did the provider include a Proposal
1210Guarantee payable to the department in the
1217amount of $1,0 00.00 ( section 2.11 )?
1226d). Did the application include the signed
1233State of Florida Request for Proposal
1239Contractual Services Acknowledgement Form,
1243PUR 7033 for each proposal submitted?
1249e). Did the provider submit the Notice of
1257Intent to Submit form contained in Appendix 2
1265by the required due date?
1270f). Did the provider register and attend the
1278offeror's conference?
1280g). Did the proposal include the signed
1287Certification Regarding Debarment,
1290Suspension, Ineligibility and Voluntar y
1295Exclusion Contracts/Subcontracts ( Appendix
12996 )?
1301h). Did the proposal include the signed
1308Statement of No Involvement( Appendix 7 )?
1315i). Did the proposal include the signed
1322Acceptance of Contract Terms and Conditions
1328indicating that the offeror agrees to all
1335department requirements, terms and conditions
1340in the Request for Proposal and in the
1348Department's Standard Contract ( Appendix 8 )?
1355j). Did the proposal include a signed
1362lobbying form ( Appendix 9 )?
1368k). Did the proposal include an audited
1375financial statement for fiscal years 1999 -
13822000 and 2000 - 2001?
1387l). Did the proposal include a certification
1394of the offeror's good standing ( Appendix 1 )?
1403m). Did the proposal contain evidence the
1410minimum staffing levels in section 3.11 will
1417be hi red and employed?
1422n). Did the proposal contain a signed
1429Certification of a Drug - Free Workplace
1436program ( Appendix 10 )?
1441o). Did the proposal contain a certification
1448regarding electronic mailing capability as
1453referenced in section 3.20 ( Appendix 5 )?
1461(emphasis in original)
14646. Section 6.1 of the RFP includes a Fatal Criteria rating
1475sheet requiring "yes" or "no" responses by the reviewer, which
1485included, among other provisions, the following:
14914. Did the proposal include a signed Form
1499PUR 7033?
1501* * *
150411. Did the proposal include independent
1510audited financial statement from a CPA firm
1517for fiscal years 1999 - 2000 and 2000 - 2001?
1527Form PUR 7033
15307. Section 5.1 of the RFP, entitled, STATE O F FLORIDA
1541REQUEST FOR PROPOSAL CONTRACTUAL SERVICES ACKNOWLEDGMENT FORM,
1548PUR 7033, requires proposers to manually sign an original Form
15587033 on the appropriate signature line. The signed form 7033
1568must appear as the first page of the proposal. Form PUR 7 033 is
1582not a form generated by DCF but is generated by the Department of
1595Management Services. The RFP did not set forth any fatal
1605criteria in connection with this form other than it be signed.
16168. The proposal of Intervenor, PSFI, contained form PUR
16257033 with the signature of PSFI's Chief Executive Officer,
1634D. Cherry Jones, within the signature block designated as
"1643authorized signature."
16459. The name Psychotherapeutice [sic] Services appears on
1653Intervenor's form 7033 in the block entitled "vendor na me." The
1664address which appears in the block designated as "vendor's
1673mailing address" on Intervenor's form PUR 7033 is the same
1683mailing address in Chesterfield, Maryland, that appears on the
1692title page of Intervenor's proposal.
169710. In completing the RFP forms designated as Appendix 1,
1707Offeror Certification of Good Standing; Appendix 5, Certification
1715of Electronic Mail Capability; Appendix 7, Statement of No
1724Involvement; Appendix 8, Acceptance of Contract Terms and
1732Conditions; and Appendix 10, Certificati on of a Drug - Free
1743Workplace Program, Psychotherapeutic Services appears in the
1750blank designated for the name of the vendor or offeror. These
1761appendices were all signed by D. Cherry Jones. No required
1771appendix was omitted or unsigned in Intervenor's propo sal.
178011. Petitioner contends that the use by Intervenor of
1789Psychotherapeutic Services or a shortened version of its full
1798name instead of Psychotherapeutic Services of Florida, Inc., on
1807Form PUR 7033 and the required appendices renders Intervenor's
1816proposa l non - responsive to fatal criteria and caused confusion
1827within DCF as to the corporate status of the actual offeror.
183812. In Appendix 8 to Intervenor's proposal, the corporate
1847documents from the Florida Department of State were for
1856Psychotherapeutic Servic es of Florida, Inc.
186213. Timothy Griffith is Deputy Executive Director of
1870Psychotherapeutic Services of Florida, Inc. According to
1877Mr. Griffith, the use of the term Psychotherapeutic Services
1886refers to a group of companies that make up the Psychotherapeut ic
1898Services Group. The parent company of all Psychotherapeutic
1906Services affiliates, including Psychotherapeutic Services of
1912Florida, Inc., is Associated Service Specialists, Inc. The
1920relationship between Psychotherapeutic Services of Florida, Inc.,
1927and A ssociated Service Specialists, Inc., was set forth in
1937sufficient detail in Intervenor's proposal.
194214. There is no evidence that anyone in DCF or its
1953evaluators were confused as to what entity was identified in the
1964proposal submitted by Intervenor.
196815. S tephen Poole is a Senior Management Analyst II with
1979DCF, and is the procurement manager for the RFP. There was never
1991any confusion in his mind as to what entity was making the offer
2004to DCF. He understood Psychotherapeutic Services to refer to
2013Psychothera peutic Services of Florida, Inc., and had a "common
2023sense" understanding of who the offeror was.
203016. Consistent with his testimony, Mr. Poole's reference to
2039Psychotherapeutic Services, Inc., on the bid tabulation sheet was
2048simply shorthand for Psychoth erapeutic Services of Florida, Inc.
2057Similarly, the bid tabulation sheet references Petitioner as
2065Bayview Center for Mental Health even though its full name is
2076Bayview Center for Mental Health, Inc.
208217. Likewise, his reference to "PSI" on the fat al criteria
2093evaluation sheet "stood for and stands for, in our language,
2103Psychotherapeutic Services of Florida, Inc."
210818. Petitioner's assertion that Intervenor's proposal was
2115non - responsive as a result to the use of an abbreviated form of
2129Intervenor's na me is not supported by the above findings.
2139Financial Statements
214119. Petitioner asserts that Intervenor failed to meet the
2150requirement set forth in Section 5.4k of the RFP and referenced
2161in paragraph 11 of the fatal criteria RFP rating sheet, that
2172pro posers include independent audited financial statements for
2180fiscal years 1999 - 2000 and 2000 - 2001. The RFP did not provide
2194any definition, standard, guideline, or mandatory requirement for
2202the format or content of financial statements, audits, or audited
2212s tatements. The RFP simply required that they be included.
222220. Intervenor's proposal contained audited financial
2228statements for fiscal years 1999 - 2000 and 2000 - 2001.
2239Intervenor's 2000 - 2001 audited financial statements consisted of
2248an independent aud itor's report from Nardone, Pridgeon & Company,
2258P.A., Certified Public Accountants, dated August 10, 2001;
2266balance sheets; statements of cash flow; statements of operations
2275and retained earnings (deficit); and personnel and operating
2283expenses. However, f our pages, consisting of the Notes to
2293Financial Statements, were omitted. There is no dispute
2301regarding the contents of the audited financial statements for
23101999 - 2000 submitted by Intervenor.
231621. The independent auditor's report stated in pertinen t
2325part:
2326We have audited the accompanying balance
2332sheets of Psychotherapeutic Services of
2337Florida, Inc. as of June 30, 2001 and 2000,
2346and their related statements of operations
2352and retained earnings (deficit) and cash
2358flows for the years then ended. . . . In our
2369opinion, the financial statements referred to
2375above present fairly, in all material
2381respects, the financial position of
2386Psychotherapeutic Services of Florida, Inc.
2391as of June 30, 2001 and 2000 . . . . We
2403conducted our audits to form an opinion on
2411the 2001 and 2000 basic financial statements
2418taken as a whole.
242222. Luther Cox is a certified public accountant and has
2432expertise in accounting and financial statements. It is
2440Mr. Cox's opinion that the notes to financial statements are a
2451required element of an audited financial statement. Mr. Cox's
2460opinion was based in part on the Florida Board of Accountancy
2471Rules in defining the term, "financial statement." Mr. Cox
2480acknowledged, however, that based upon the representation that
2488the auditors prov ided in the first paragraph of their letter, the
2500auditors reviewed all of the financial statements. Additionally,
2508Mr. Cox acknowledged that based upon his review of the notes to
2520the financial statements, there was no negative information which
2529should have been disclosed in the subject auditor's opinion
2538letter and that the letter was a "clean opinion", meaning that no
2550adverse financial information was known to the auditors which
2559otherwise would have been required to be reported.
256723. Martin Kurtz is also a certified public accountant. He
2577acknowledged that that the omission of the notes is not
2587consistent with the standards of the practice of accountancy in
2597Florida. However, he was of the opinion that, based upon the way
2609the independent auditor's opinion let ter is written, the letter
2619relates to a full set of financial statements. "They may not
2630have all been presented in the proposal. But there was a full
2642set of audited financial statements." Thus, the auditor's clean
2651opinion letter included a review of the notes.
265924. According to Mr. Kurtz, the text of Intervenor's
2668proposal contains more information about the relationship between
2676the parent company and Psychotherapeutic Services of Florida,
2684Inc., than the notes to the financial statements.
269225. With th e above competing opinions by certified public
2702accountants, it is appropriate to examine the agency's use of the
2713audited financial statements in their review of the proposals.
272226. According to Mr. Poole, the requirement to have the
2732proposals contain indep endently audited financial statements was
2740to assure DCF that the offeror possessed sufficient financial
2749sophistication and organizational capacity to perform a FACT
2757contract. In reviewing compliance with the requirement for an
2766audited financial statement, DCF reviewed the submission to
2774determine whether or not it had a letterhead from an independent
2785auditor and whether there were financial statements. The
2793submitted financial statements were not reviewed by a certified
2802public accountant of DCF. According to Mr. Poole, DCF was
2812looking generally for the "strength, administratively of the
2820offeror. If it had the level of management expertise to be able
2832to perform a contract in that amount of money of a million
2844dollars."
284527. The independent audi tor's letter represents that
2853Intervenor's financial statements for fiscal years 2000 - 2001 were
2863in fact audited. Petitioner's assertion that Intervenor's
2870proposal is non - responsive because of the omission of the notes
2882to the financial statements is not sup ported by the above
2893findings.
289428. In further support for its assertion that Intervenor's
2903omission of the notes to the financial statements renders
2912Intervenor's proposal non - responsive for failure to meet fatal
2922criteria, Petitioner asserts that the require ment for the
2931inclusion of audited financial statements was not only considered
2940within the fatal criteria of the RFP, but also was a "key
2952consideration" for scoring criterion 36 of the RFP.
296029. Organizational capacity is set forth in section 5.5(4)
2969of th e RFP and states in pertinent part:
2978To assist in the determination of the
2985offeror's organizational capacity,
2988please provide, as part of this section,
2995the following:
29974. A copy of the financial statements or
3005audits for state fiscal years 1999 - 200 0 and
30152000 - 2001.
30186. Evidence that the offeror has met its
3026financial obligations in a timely and
3032consistent manner without the need to incur
3039loans or a line of credit to routinely meet
3048its expenses. (emphasis in original)
305330. Section 6.3.6 of the RFP contains certain criteria for
3063the evaluators to score with regard to organizational capacity of
3073the proposers. Criterion 36 reads as follows:
308036. What evidence did the proposal provide
3087that the offeror has not had to obtain loans
3096or a line of credit to routinely meet its
3105financial obligations and expenses in a
3111timely and consistent manner as referenced in
3118section 5.5(4)?
3120Key considerations for scoring:
3124Its independently audited financial
3128statements for fiscal years 1999 - 2000 and
31362000 - 2001 support res ponse.
3142Offeror's independently audited financial
3146statements for the last two years give
3153evidence of ability to start a new program
3161without benefit of start - up funds.
316831. Each of the evaluation criteria contained references to
3177key con siderations for scoring. The key considerations were to
3187assist the evaluators in assessing the merits of the proposals.
3197In evaluating criterion 36 pertaining to lines of credit, it was
3208the role of the individual evaluators to interpret the degree of
3219routi ne reliance and assign, accordingly, a particular score from
3229zero to three. Intervenor directly addressed loans and lines of
3239credit in the text of its proposal in response to criterion 36.
3251As with the other criteria, evaluators could score this criterion
3261from zero to three. The Department deferred to the evaluators
3271regarding how they interpreted offerors' responses to the
3279requirements of 5.5(4). Thus, the omission of the auditor's
3288notes in regard to criterion 36 goes to the weight of the
3300information in the proposal, not as to whether or not fatal
3311criteria were met.
3314Evaluation Committee Process
331732. Members of the Evaluation Committee were given
3325instructions by Mr. Poole prior to commencing the qualitative
3334review of each proposal. Each Evaluation Co mmittee member signed
3344a conflict of interest statement indicating they had no
3353conflicts. The members were specifically instructed that the
3361proposals were to be reviewed independently from one another and
3371from each other; that any problem an evaluator may have with a
3383proposer was not to be considered as part of their score; that
3395the universe began and ended within the confines of the proposal;
3406and that they were to use a scoring protocol to affix their score
3419and to report back the following week to give tha t score, but not
3433to share their results with anyone until the briefing meetings
3443that followed the qualitative review.
344833. The Evaluation Committee consisted of employees of DCF,
3457except for Barbara Johanningsmeier, who is a National Alliance
3466for th e Mentally Ill (NAMI) representative. Mr. Poole spoke to
3477the executive director of NAMI explaining that the NAMI evaluator
3487should be a person who is knowledgeable either through life
3497experience or work of Florida's community mental health system;
3506who has an understanding of the system of care that is publicly
3518funded; and who has an interest and some knowledge and expertise
3529in the area of programs either through employment or through
3539other factors.
354134. NAMI provided Ms. Johanningsmeier as the evaluator
3549re quested by DCF. Mr. Poole explained DCF's unquestioned
3558acceptance of Ms. Johanningsmeier as an evaluator:
3565We accepted Mrs. Johanningsmeier as the
3571representative of NAMI because of our
3577relationship with NAMI and our shared vision
3584and mission of a community mental health
3591system of Florida that is responsive to the
3599individual needs with persons with severe and
3606persistent illness and that our goals in some
3614ways are the same, that we want a responsive
3623system to people with a very serious
3630disability . . . . [T] here would be no
3640reason to question the validity or expertise
3647of a representative of NAMI because NAMI has
3655an interest in Florida's publically funded
3661community mental health system.
366535. According to Celeste Putman, DCF's Director of Mental
3674Health , the evaluation team included a NAMI representative to
3683make sure that the team had a strong representative who really
3694understood the needs of people with very severe, persistent
3703mental illness, and who has worked closely with that population.
3713Ms. Putnam explained that DCF has always felt that it is
3724important to have a family member, someone who is close, from a
3736personal standpoint, to the service delivery involved.
374336. Ms. Johanningsmeier had experience evaluating at least
3751three other similar procurement s. Further, Ms. Johanningsmeier
3759was a member of the Board of Directors of NAMI, Florida, at the
3772time she served on the Evaluation Committee and was a member of a
3785local Board of Directors of NAMI. She was familiar with the NAMI
3797PACT manual. Ms. Johanning smeier gave an extensive description
3806of her personal experiences with the public and private mental
3816health systems in Florida, from her child's experience in those
3826systems.
382737. Ms. Johanningsmeier's purpose on the evaluation team
3835was to represent NAM I and not to promote the NAMI viewpoint in
3848the evaluation. She denied scoring any of the criteria out of
3859bias toward or against any of the participants using criteria
3869outside of those that were given to her in the RFP, or attempting
3882to skew the score in a ny way.
389038. Petitioner alleges that many of its responses to
3899subjective questions were better than those of Intervenor and
3908therefore should have been scored higher. Robert Ward, President
3917and chief executive officer of Bayview, believed that
3925Ms. Johan ningsmeier scored Petitioner low, and as a result he
3936felt there was either a bias of some kind or that the evaluator
3949did not know what she was doing. Mr. Ward felt that something
3961was wrong, but did know what it was.
396939. Petitioner's expert witness, Dr. Susan Kelly, is a
3978senior research consultant with a private company. She works
3987with data analysis and research and has expertise in statistics
3997with a Ph.D. in sociology. She conducted a statistical test of
4008the scoring by all evaluators for the purpose of determining the
4019existence of patterns or any kind of irregularities or
4028differences in scoring. The statistical significance test
4035performed by Dr. Kelly showed variations between the scores of
4045Ms. Johanningsmeier and two of the other reviewers. Dr. Kelly
4055characterized Ms. Johanningsmeier's scores as an "outlier," but
4063did not know the reason why there was a difference in scores
4075between Ms. Johanningsmeier and the other evaluators.
4082Dr. Kelly's analysis did not involve any review of the RFP, the
4094proposals o r information regarding Ms. Johanningsmeier's
4101background or position to the Evaluation Committee.
410840. There was no substantial or material evidence presented
4117by Petitioner to show that Ms. Johanningsmeier's scoring of the
4127proposals was inconsistent with the scoring methodology in the
4136RFP, clearly erroneous, contrary to competition, arbitrary or
4144capricious.
4145CONCLUSIONS OF LAW
414841. The Division of Administrative Hearings has
4155jurisdiction over the parties and subject matter in this case
4165pursuant to Secti ons 120.569, and 120.57(1) and (3), Florida
4175Statutes.
417642. The burden of proof resides with Petitioner. See
4185Section 120.57(3)(f), Florida Statutes.
418943. The underlying findings of fact in this case are based
4200on a preponderance of the evidence. Section 120.57(1)(j),
4208Florida Statutes. The standard of proof is whether the proposed
4218agency action was clearly erroneous, contrary to competition,
4226arbitrary, or capricious. Section 120.57(3)(f), Florida
4232Statutes.
423344. The de novo proceeding in this case was con ducted to
4245examine DCFs proposed action in an attempt to determine whether
4255that action is contrary to the agencys governing statutes, the
4265agency's rules or policies, or the RFP specifications. See
4274Section 120.57(3)(f), Florida Statutes, and State Contrac ting and
4283Engineering Corporation v. Department of Transportation , 709 So.
42912d 607 (Fla. 1st DCA 1998).
429745. Section 2.9 of the RFP states that DCF reserves the
4308right to waive minor irregularities when to do so would be in the
4321best interest of the State of Florida. That section defines a
4332minor irregularity as a variation from the RFP terms and
4342conditions which does not affect the price of the proposal, or
4353give the prospective offeror an advantage or benefit not enjoyed
4363by other prospective applicants, or do es not adversely impact the
4374interests of DCF. See also Harry Pepper & Associates, Inc. v.
4385City of Cape Coral , 352 So. 2d 1190, 1193 (Fla. 2nd DCA 1977).
439846. A "responsive offeror" is a person who has submitted a
4409proposal which conforms in all material re spects to an invitation
4420to bid or a request for proposals. Section 287.012(17), Florida
4430Statutes (2001).
443247. Intervenor's proposal conforms in all material respects
4440to the RFP. Intervenor's use of less than its full name did not
4453cause any confusion with DCF staff or the evaluators. When
4463reading Intervenor's proposal, the identity of the offeror was
4472not in doubt to DCF staff and its evaluators.
448148. Intervenor's omissions of the notes to financial
4489statements do not constitute a material deviation from the fatal
4499criteria of the RFP. Intervenor's 2000 - 2001 complete financial
4509statements were audited as required by the RFP. The auditor's
4519opinion letter was a "clean opinion." The RFP did not contain
4530guidelines or standards for the form or content of the a udited
4542financial statements required by the RFP. DCF's purpose of
4551requesting this information was to determine a level of
4560sophistication and organizational capacity of an offeror. DCF
4568did not undertake any detailed review by a certified public
4578accountant to review the content of the audited financial
4587statements. There was no evidence that the omission of the notes
4598gave Intervenor any unfair advantage or misrepresented
4605Intervenor's finances. In summary, the omission of the notes to
4615financial statements c onstituted a minor irregularity waivable by
4624the agency.
462649. Petitioner failed to prove that Ms. Johanningsmeier did
4635not have the necessary experience and knowledge to fairly
4644evaluate the proposals. There was no substantial evidence that
4653Ms. Johanningsmei er's scoring was not done in an objective and
4664fair manner.
466650. Petitioner failed to demonstrate by the applicable
4674standard of proof (clearly erroneous, contrary to competition,
4682arbitrary or capricious), that DCF's proposed action to award the
4692District 11 contract to Psychotherapeutic Services of Florida,
4700Inc., is contrary to the agency's governing statutes, the
4709agency's rules or policies or the language of the RFP.
4719RECOMMENDATION
4720Based upon the foregoing Findings of Fact and Conclusions of
4730Law set fort h herein, it is
4737RECOMMENDED:
4738That the Department of Children and Families enter a final
4748order dismissing the bid protest filed by Bayview Center for
4758Mental Health, Inc.
4761DONE AND ENTERED this 27th day of September, 2002, in
4771Tallahassee, Leon County, Florida.
4775BARBARA J. STAROS
4778Administrative Law Judge
4781Division of Administrative Hearings
4785The DeSoto Building
47881230 Apalachee Parkway
4791Tallahassee, Florida 32399 - 3060
4796(850) 488 - 9675 SUNCOM 278 - 9675
4804Fax Filing (850) 921 - 6847
4810www.doah.state.fl.us
4811Filed with the Clerk of the
4817Division of Administrative Hearings
4821this 27th day of September, 2002.
4827COPIES F URNISHED:
4830Gary J. Clark, Esquire
4834Frank P. Rainer, Esquire
4838Sternstein, Rainer & Clark, P.A.
4843101 North Gadsden Street
4847Tallahassee, Florida 32301
4850William A. Frieder, Esquire
4854Department of Children and Family Services
48601317 Winewood Boulevard
4863Building Two, Room 204
4867Tallahassee, Florida 32399 - 0700
4872Thomas R. Tatum, Esquire
4876Brinkley, McNerney, Morgan,
4879Soloman & Tatum, LLP.
4883Post Office Box 522
4887Fort Lauderdale, Florida 33302 - 0522
4893Paul F. Flounlacker, Jr., Agency Clerk
4899Department of Children and Family Serv ices
49061317 Winewood Boulevard
4909Building 2, Room 204B
4913Tallahassee, Florida 32399 - 0700
4918Josie Tomayo, General Counsel
4922Department of Children and Family Services
49281317 Winewood Boulevard
4931Building 2, Room 204
4935Tallahassee, Florida 32399 - 0700
4940NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
4946All parties have the right to submit written exceptions within
495610 days from the date of this recommended order. Any exceptions to
4968this recommended order should be filed with the agency that will
4979issue the final order in th is case.
- Date
- Proceedings
- PDF:
- Date: 09/27/2002
- Proceedings: Recommended Order issued (hearing held June 19 and 20, 2002) CASE CLOSED.
- PDF:
- Date: 09/27/2002
- Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
- PDF:
- Date: 08/30/2002
- Proceedings: Intervener Psychotherapeutic Services of Florida, Inc.`s Proposed Recommended Order (filed via facsimile).
- PDF:
- Date: 08/29/2002
- Proceedings: Respondent`s Proposed Findings of Fact and Conclusions of Law filed.
- Date: 08/20/2002
- Proceedings: Transcript (4 Volumes) filed.
- PDF:
- Date: 07/16/2002
- Proceedings: Order Granting Extension of Time issued. (proposed recommended orders are due August 20, 2002, or 10 days after the filing of the transcript)
- PDF:
- Date: 07/15/2002
- Proceedings: Joint Request for Additional Time to File Proposed Recommended Order (filed via facsimile).
- Date: 06/19/2002
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
- PDF:
- Date: 06/19/2002
- Proceedings: Intervenor`s Notice of Joinder in Respondent`s June 16, 2002 Objection to Petitioner`s Request for Official Recognition (filed via facsimile).
- PDF:
- Date: 06/14/2002
- Proceedings: Objection to Petitioner`s Request for Official Recognition (filed by Intervenor via facsimile).
- PDF:
- Date: 06/12/2002
- Proceedings: Notice of Taking Telephonic Deposition and Notice to Produce at Deposition, S. Kelly (filed via facsimile).
- PDF:
- Date: 06/11/2002
- Proceedings: Order on Motion to Amend Petition for Formal Administrative Hearing issued. (motion is granted)
- PDF:
- Date: 06/07/2002
- Proceedings: Supplemental Certificate of Counsel Conference for Bayview`s Motion to Amend Petition for Formal Administrative Hearing (filed by Petitioner via facsimile).
- PDF:
- Date: 06/05/2002
- Proceedings: Psychotheraputic Services of Florida, Inc.`s Supplemental Response to Bayview Center for Mental Health, Inc.`s Request for Production (filed via facsimile).
- PDF:
- Date: 06/04/2002
- Proceedings: Notice of Service of Bayview Center for Mental Health, Inc.`s Responses to Psychotheraputic Services of Florida, Inc.`s First Set of Interrogatories filed.
- PDF:
- Date: 06/04/2002
- Proceedings: Notice of Request for Production by Nonparty filed by Petitioner.
- PDF:
- Date: 06/03/2002
- Proceedings: Amended Notice of Hearing issued. (hearing set for June 19, 2002; 9:00 a.m.; Tallahassee, FL, amended as to Date).
- PDF:
- Date: 06/03/2002
- Proceedings: Second Amended Formal Written Protest and Petition for Administrative Hearing filed by Petitioner.
- PDF:
- Date: 06/03/2002
- Proceedings: Motion to Amend Petition for Formal Administrative Hearing filed by Petitioner.
- PDF:
- Date: 05/31/2002
- Proceedings: Stipulation as to Discovery and as to Hearing Date and Limited Waiver of Time Constraints filed by Respondent.
- PDF:
- Date: 05/31/2002
- Proceedings: Notice of Service of Intervenor, Psychotherapeutic Services of Florida, Inc.`s Answers to Petitioner, Bay View Center for Mental Health, Inc.`s Interrogatories Propounded May 22, 2002 (filed via facsimile).
- PDF:
- Date: 05/29/2002
- Proceedings: Amended Notice of Hearing issued. (hearing set for June 13, 2002; 9:00 a.m.; Tallahassee, FL).
- PDF:
- Date: 05/29/2002
- Proceedings: Intervener, Psychotherapeutic Services of Florida, Inc.`s Notice of Serving First Set of Interrogatories to Petitioner, Bayview Center for Mental Health, Inc. (filed via facsimile).
- PDF:
- Date: 05/29/2002
- Proceedings: Intervener, Psychotherapeutic Services of Florida, Inc.`s Notice of Serving First Set of Interrogatories to Petitioner, Mental Health Resource Center, Inc. (filed via facsimile). (filed via facsimile).
- PDF:
- Date: 05/29/2002
- Proceedings: Intervenor, Psychotherapeutice Services of Florida, Inc.`s, Response to Petitioner, Bayview Center for Mental Health, Inc.`s, Request to Produce Dated May 22, 2002 (filed via facsimile).
- PDF:
- Date: 05/28/2002
- Proceedings: Objections to Bayview Center`s First Request to Produce filed by Respondent.
- PDF:
- Date: 05/24/2002
- Proceedings: Notice of Taking Deposition and Request for Production of Documents, B. Johanningsmeier filed.
- PDF:
- Date: 05/24/2002
- Proceedings: First Rquest to Produce to State of Florida, Department of Children and Families (filed via facsimile).
- PDF:
- Date: 05/23/2002
- Proceedings: Petitioner Mental Health Resouirce Center, Inc.`s Motion to Sever filed.
- PDF:
- Date: 05/22/2002
- Proceedings: Notice of Service of Bayview Center for Mental Health, Inc.`s First Set of Interrogatories to State of Florida, Department of Children and Families filed.
- PDF:
- Date: 05/22/2002
- Proceedings: First Request to Produce to Psychotherapeutic Services of Florida, Inc. filed.
- PDF:
- Date: 05/22/2002
- Proceedings: Notice of Service of Bayview Center for Mental Health, Inc.`s First Set of Interrogatories to Psychotherapeutic Services of Florida, Inc. filed.
- PDF:
- Date: 05/21/2002
- Proceedings: First Request to Produce to State of Florida, Department of Children and Families filed by Petitioner.
- PDF:
- Date: 05/17/2002
- Proceedings: Notice of Hearing issued (hearing set for June 13, 2002; 9:30 a.m.; Tallahassee, FL).
- PDF:
- Date: 05/17/2002
- Proceedings: Order of Consolidation issued. (consolidated cases are: 02-001998BID, 02-001999BID)
Case Information
- Judge:
- BARBARA J. STAROS
- Date Filed:
- 05/16/2002
- Date Assignment:
- 05/16/2002
- Last Docket Entry:
- 12/30/2002
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
- Suffix:
- BID
Counsels
-
Gary J. Clarke, Esquire
Address of Record -
William Frieder, Esquire
Address of Record -
Thomas R Tatum, Esquire
Address of Record -
Thomas R. Tatum, Esquire
Address of Record