02-002967BID Correctional Services Corporation vs. Department Of Juvenile Justice Status: Closed Recommended Order on Tuesday, October 29, 2002.

Summary: Petitioner failed to show that intended contract awards to Ramsay were arbitrary or capricious, contrary to competition, or clearly erroneous, or that contract awards were contrary to Department`s governing statutes or applicable rules.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CORRECTIONAL SERVICES )

CORPORATION, )

)

Petitioner, )

)

vs. ) Case Nos. 02 - 2966BID

) 02 - 2967BID

DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent, )

)

and )

)

RAMSAY YOUTH SERVICES, INC., )

)

Intervenor. )

____________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law

Judge for the Division of Administrative Hearings, held a

formal hearing in this matter on August 29 - 30, 2002, in

Tallahassee, Florida.

APPEARANCES

For Petitioner: R. Terry Rigsby, Esquire

Law Offices of R. Terry Rigsby, P.A.

215 South Monroe Street, Suite 505

Tallahassee, Florida 32301

James C. Hauser, Esquire

Wa rren C. Husband, Esquire

Metz, Hauser, and Husband, P.A.

Post Office Box 10909

Tallahassee, Florida 32302 - 2909

For Respondent: Brian Berkowitz, Esquire

Scott Wr ight, Esquire

Kimberly Cobb, Esquire

Department of Juvenile Justice

2737 Centerville Road

Tallahassee, Florida 32399 - 3100

For Intervenor: Gary V. Perko, Esquire

Gary P. Sams, Esquire

Matthew L. Hicks, Esquire

Hopping, Green, Sams & Smith

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314

STATEMENT OF THE ISSUE

Are the intended contract awards by the Department of

Juvenile Justice (Department) to Intervenor, Ramsay Youth

Services, Inc. (Ramsay) under Request for Proposal (RFP)

Numbers J5G01 and J5G02 contra ry to the Department's governing

statutes, applicable rules or policies, or the specifications

of the RFPs?

PRELIMINARY STATEMENT

On July 8, 2002, Correctional Services Corporation, (CSC)

filed Petitions for Formal Administrative Hearing (Petitions)

chall enging the Department's notice of intent to award

contracts to Ramsay pursuant to RFP Nos. J5G01 and J5G02. The

Department then forwarded the Petitions to the Division of

Administrative Hearings (Division) for the assignment of an

Administrative Law Judge and for the conduct of a formal

hearing.

By an Order of Consolidation dated July 30, 2002, Case

Nos. 02 - 2966BID and 02 - 2967BID were consolidated. By an Order

Granting Intervention dated July 30, 2002, Ramsay's Unopposed

Petition to Intervene was granted. The consolidated cases

were scheduled for hearing on August 23, 2002.

By stipulation of all parties, the consolidated

proceeding was continued and rescheduled for final hearing on

August 29 - 30, 2002, with the understanding that any time

constraints impos ed under Section 120.57(3)(e), Florida

Statutes (2001), were waived.

By Order dated August 27, 2002, Petitioner's Motion for

Summary Order was denied.

On August 28, 2002, the parties filed a Joint Prehearing

Stipulation.

At the hearing, CSC presented the t estimony of Marvin

Floyd, Paul Donnelly, Larry Ochalek, Jacqueline Foster and

David Scharoun. CSC's Exhibits 1 through 6 were admitted in

evidence. CSC's attempt to have the depositions of Marvin

Floyd and Larry Ochalek admitted in evidence was rejected.

CSC then made a proffer of the depositions of Marvin Floyd and

Larry Ochalek. Ramsay presented the testimony of Jorge Rico.

Ramsay's Exhibits 7 through 10 were admitted in evidence. The

Department presented the testimony of Mary Mills, but did not

pre sent any documentary evidence. The Department presented

the deposition of Mary Mills for impeachment purposes. Joint

Exhibits 1 through 18 were admitted in evidence.

A Transcript of this proceeding was filed with the

Division on September 17, 2002. As agreed at the close of the

hearing, the parties timely filed their Proposed Recommended

Orders on October 4, 2002.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of

fact are made:

Background

1. On March 29, 2002, the Department issued RFP No.

J5G01 for the operation of a 350 - bed residential commitment

program for high - risk males in Polk City, Florida (Polk

Program).

2. On April 5, 2002, the Department issued RFP No. J5G 02

for the operation of a 74 - bed, multi - level residential

commitment program in Homeland, Florida (Bartow Program).

3. CSC is the incumbent provider for both the Polk and

Bartow Programs.

4. On or about April 25, 2002, two proposals were

submitted in res ponse to the RFP for the Polk Program, one

from CSC and one from Ramsay.

5. On or about May 3, 2002, four separate proposals were

submitted by CSC, Ramsay, Sescuricor New Century (Securicor),

and Lighthouse Care Center (Lighthouse) in response to the RF P

for the Bartow Program.

6. On June 25, 2002, the Department posted separate

notices of its intent to award contracts for the Polk and

Bartow Programs to Ramsay.

7. The Notice of Intended Contract Award for the Polk

Program (RFP No. J5G01) lists Ramsa y as the highest - ranked

bidder with 655.3 average points, and CSC as the second - ranked

bidder with 537 average points.

8. The Notice of Intended Contract Award for the Bartow

Program (RFP No. J5G02) lists Ramsay as the highest - ranked

bidder with 590.3 po ints, followed by Securicor with 542.7

average points, CSC with 535.7 points, and Lighthouse with

233.3 points.

9. All parties stipulated to the Department's scoring of

the past performance portion of both CSC proposals.

10. With the exception of Item C - 3.7, all parties

stipulated to the Department's scoring of the past performance

portion of both Ramsay proposals. With regard to Item C - 3.7,

the parties stipulated the Department's scoring for Ramsay

should have reflected 60 additional points because Rams ay's

Manatee Adolescent Treatment Services program (Department's

Contract No. F7027) met or exceeded the approved Performance

Based Budgeting performance measure for recidivism for the

past two years.

11. In light of the corrections for Item C - 3.7, Ramsay 's

total average score for the Polk Program should have been

715.3 (i.e., 655.3), compared to CSC's score of 537.

Likewise, for the Bartow Program, Ramsay's total average score

should have been 650.3 (i.e., 590.3 60), compared to CSC's

score of 535. 7.

The Process

12. Since at least the end of 2001, the Department has

utilized two procurement methods: one provides for the

scoring of costs; the other does not because the RFP specifies

a fixed maximum contract price. When the fixed price method

is us ed and costs are not scored the Department conducts a so -

called "negotiation phase" after issuing notice of intent to

award the contract.

13. During the so - called "negotiation phase," the

Department and offeror determine such things as the unfilled

bed r ate and maintenance rate, but the Department does not

negotiate material terms of the technical proposal or allow

the selected offeror to modify its proposal. The Department

does not allow the selected offeror to increase the cost or

price included in its proposal. However, if an error is

discovered in the selected offeror's budget, the budget can be

adjusted to redistribute expenses from one line item to

another, so long as the proposed services are provided and the

proposed cost or price is not exceeded .

14. If the Department is unable to complete execution of

the contract because the selected offeror is unable to provide

the program services within the contract set forth in its

proposal, the Department moves on to negotiate with the next

offeror.

15. Use of the "fixed price" procurement method has

enabled the Department to reduce procurement process from 180

to less than 120 days on average, and often as low as 60 days.

Speeding up the procurement process helps to ensure that

services will continue to be provided and that legislatively

appropriated funds do not go unused and, as a result, become

subject to forfeiture. This is important because the State

has a "waiting list" of committed youth who require program

services. The "fixed price" method als o allows the Department

to place its principal emphasis on the quality of programs

offered.

16. In this case, the RFPs for both programs contemplate

fixed priced contracts. Each RFP specifies a maximum contract

dollar amount that the Department will awar d for each

contract. The dollar amount is a "fatal criterion," meaning

that any proposal with a cost exceeding that amount would be

rejected.

17. Both RFPs required each offer to submit a technical

proposal (Volume I) setting forth an introductory statem ent

and specific sections describing the offeror's management

capability, the offeror's past performance, and the program

services being offered.

18. Both RFP's required offerors to submit financial

data (Volume II) including, among other things, a total cost

or price for the program and an itemized budget. The total

costs submitted by Ramsay and CSC did not differ

significantly; the difference was less than one dollar for the

Polk Program and only two dollars for the Bartow Program.

19. Both RFP's provi ded that zero points would be

assigned for costs or price, indicating that costs or price

would not be scored. Instead, the primary scoring criteria

are "program services" and "past performance." Together,

these criteria reflect 700 out of the 1000s tota l points

available.

20. Nothing in the RFPs requires the Department to

evaluate budget details in conjunction with its review of the

technical proposals prior to the notice of intended award.

The Department uses the budget information primarily as a

base line to assist it in moving through the "negotiation

phase." It enables the Department to determine if specific

costs would not be incurred or not allowable. It enables the

Department to negotiate the unfilled bed rate, which allows

the Department to red uce the contract rate to account for

costs that would not be incurred for beds that are not

occupied. It also forces offerors to determine whether they

can provide the required services within the maximum price

before they submit proposals.

21. Based on a Department document entitled "Briefing

for SSET Team Members and Advisors," CSC claims that the "RFP

Process" requires the Department to evaluate proposed costs

for realism, reasonableness, and completeness. The "Briefing"

document does state that "the contract administrator is

responsible for evaluating the cost proposals of each offeror

for completeness, reasonableness, and reality using the COST

[PRICE] PROPOSAL EVALUATING form. However, the "Briefing"

document is not a part of the RFP's and does not reflect

official Department policy. The "Briefing" document is merely

a guideline.

22. In this case, the Contract Administrator, Marvin

Floyd, did not sign the "Briefing" document and did not score

or perform an extensive analysis of the specifics of th e

proposed budgets for realism, reasonableness, and

completeness. However, Marvin Floyd did review each cost

proposal to determine whether it included a total cost or

price and whether the budget information in Attachment H was

filled out. In that sense, Marvin Floyd did review the cost

proposal for completeness. Similarly, Marvin Floyd also

reviewed the proposed costs and price to determine whether it

exceeded maximum contract dollar amount, which the Department

had previously determined to be realisti c and reasonable. In

that sense, Marvin Floyd did review the costs or price for

realisms and reasonableness.

23. CSC failed to demonstrate that the evaluation

process utilized by the Department provided a competitive

advantage to Ramsay. To the contrary , the same evaluation

process and guidelines were used for both CSC and Ramsay.

Ramsay's Proposed Budget

24. Based on isolated statements made in Ramsay's

technical proposal and a review of Ramsay's budget, CSC's

senior Vice President, Paul Donnelly, opin ed that Ramsay's

proposal was somewhat "naïve" and a "virtual primer . . . for

a novice[.]" However, Donnelly opinions must be weighed in

light of the fact that CSC received "minimal performance" and

"noncompliance" ratings for both the Polk and Bartow Pr ograms

in the latest Department Quality Assurance reviews.

Furthermore, Donnelly himself testified in deposition that

Ramsay submitted an "impressive technical proposal." The

record demonstrated that Ramsay is an experienced provider

that currently opera tes nine programs for the Department,

including the Department's only contracted maximum - risk

program.

25. CSC contends that the budget included in Volume II

of Ramsay's proposal for the Polk Program is not realistic,

reasonable, or complete because it di d not include specific

line items for certain direct expenses, including start - up

costs, overtime, employee expenses, and taxes, as well as

certain indirect expenses, such as insurance and corporate

overhead. CSC failed to demonstrate that the RFP

specifi cations or the Department policy requires such

budgetary detail. Moreover, Ramsay's Chief Operating Office,

Jorge Rico, explained that Ramsay's budget did address most of

the costs identified by CSC in other, more general line items.

26. Whereas CSC's bu dget was more specific as to some

items, Ramsay's budget was more specific as to others. For

example, Ramsay included a specific line item for recruiting,

but CSC addressed this expense in the general category of

corporate overhead. Similarly, Ramsay inc luded specific line

items for nursing staff, whereas CSC addressed nursing staff

in the general category of medical services.

27. CSC also faulted Ramsay for not including start - up

or "transition" costs in its budget for the Polk Program. But

had such a line item been included, it would have been

eliminated during the so - called "negotiation phase" because

the Department does not allow start - up costs for existing

programs. CSC's argument that Ramsay should have budgeted

these costs amounts to a claim that CSC should be given a

competitive advantage because, as the incumbent provider, CSC

would not incur transitional costs and, therefore, would have

no reason to budget them. Such an advantage would be contrary

to competitive principles by favoring the incu mbent provider

over other offerors.

28. The primary indirect expense that CSC criticized

Ramsay for not including in its budget is corporate overhead.

As Rico explained, however, corporate overhead is a fixed cost

that will not increase with the addition of a new program.

Ramsay made a business decision to put whatever funds that

might be allocated as corporate overhead into the program

itself.

29. CSC claims that Ramsay cannot provide the services

outlined in its proposal without incurring a loss. Ric o

acknowledged that Ramsay likely would incur losses for at

least the first year of the programs, as is common when a new

provider takes over an existing program. However, whether or

not a provider makes a profit on a program is not the

Department's conce rn and is not an award criterion. In fact,

when corporate overhead is allocated as CSC suggests Ramsay

should have in its budget, CSC itself incurred losses on both

Polk and Bartow Programs over the twelve - month period ending

July 2002.

30. In its totali ty, the evidence indicates that the

budgets submitted by Ramsay and CSC differ due to differences

in management styles. Those differences do not render

Ramsay's budget unrealistic, unreasonable, or incomplete. The

differences in total costs proposed by C SC and Ramsay were

negligible. In any event, budgets are estimates, actual

expenses never match budget line items.

31. The evidence does not support CSC's claim that

Ramsay will need to make material changes to its budget in

order to provide the program services at the cost or price set

forth in its proposal. Ramsay is committed to providing the

services described in its technical proposal at the cost set

forth in its cost proposal.

Staffing Ratio

32. Based on a statement in Ramsay's technical proposal ,

CSC suggests that Ramsay would not meet the staffing ratios

required for the Polk Program. However, Ramsay's technical

proposal clearly states in bold lettering that Ramsay "will

meet staffing requirements documented in the RFP (1:8 days and

evening; 1: 12 nights)." Moreover, Ramsay's budget includes

enough positions and dollars to meet the required staffing

ratios. In fact, with regard to "youth workers," who provide

the core of the program staff, Ramsay's budget includes

considerably more positions (1 86 full time equivalent or

"FTEs"), than does CSC's budget (120.9 FTEs).

Instructions to Evaluators

33. CSC failed to demonstrate that the Department failed

to provide its evaluators with specific and legally sufficient

instructions regarding the scoring of proposals. To the

contrary, the scoring sheets provided to the evaluators

contain specific and detailed instructions on how each scoring

criterion was to be evaluated. For example, in evaluating

"Programs Services," the scoring sheets advise the evalu ators

to assess "soundness of approach" and "compliance with

requirements" as follows:

C.4.1 SOUNDNESS OF APPROACH:

(Does the proposal reasonably and logically

identify the proposed approach to perform

the services as specified and required by

the RFP, A ttachment G, Exhibit 1, Scope of

Services?)

C.4.2 COMPLIANCE WITH REQUIREMENTS:

(The degree to which the proposal complies

with the requirement specified and required

by the RFP, Attachment G, Exhibit 1, Scope

of Services)(Does the proposal comply with

all requirements for all service

components, as identified in Attachment G,

Exhibit 1, Scope of services, of the RFP?)

The evaluators were then required to provide a numeric score

ranging from 5 to zero. The scoring sheets provide specific

criteria for d etermining the appropriate numeric score. For

example, an "excellent" score of 5 would be appropriate if

"[t]he proposal exceeds all technical specifications and

requirements for all program components (and it) is

innovative, comprehensive, and complete i n every detail."

Other Issues

34. CSC failed to prove its allegations that the

Departments' scorers evaluated and scored the proposals

inconsistently or incorrectly or that the Department deviated

from the RFP criteria in evaluating and scoring the propo sals.

CSC also failed to demonstrate that the Department's reduction

in the number of beds for the Bartow Program from 74 to 50

beds after issuance of the RFP provided an unfair advantage to

Ramsay or was otherwise contrary to competition.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.57(3), Florida Statutes.

36. Pursuant to Subsection 120.57(3)(f), Florida

Statutes, CSC, as the party prot esting the Department's

proposed contract award, has the burden of proof. Subsection

120.57(3)(f) Florida Statutes, provides:

(f) In a competitive - procurement

protest, no submissions made after the bid

or proposal opening amending or

supplementing the bid or proposal shall be

considered. Unless otherwise provided by

statute, the burden of proof shall rest

with the party protesting the proposed

agency action. In a competitive -

procurement protest, other than a rejection

of all bids, the administrative l aw judged

shall conduct a de novo proceeding to

determine whether the agency's proposed

action is contrary to the agency's

governing statutes, the agency's rules or

policies, or the bid or proposal

specifications . The standard of proof for

such proceeding s shall be whether the

proposed agency action was

clearly erroneous, contrary to competition,

arbitrary, or capricious . (Emphasis

furnished.)

37. In State Contracting and Engineering Corporation v.

Department of Transportation , 709 So. 2d 607, 609 (Fla. 1st

DCA 1998), the court opined on the role of the Administrative

Law Judge in a bid protest proceeding and stated:

[T]he phase ' de novo hearing' is used to

describe a form of intra - agency review.

The judge may receive evidence, as with any

formal hear ing under section 120.57(1), but

the object of the proceeding is to evaluate

the action taken by the agency. See

Intercontinental Properties, Inc. v. State

Department of Health and Rehabilitative

Services , 606 So. 2d 380 (Fla. 3rd DCA

1992) (interpreting the phase ' de novo

hearing' as it was used in bid protest

proceedings before the 1996 revision of the

Administrative Procedure Act.)

38. CSC claims that the evaluation process was

"fundamentally flawed" because the Department failed to

follow the procu rement requirements of Section 287.057,

Florida Statutes. In support, CSC relies primarily on

Department of Lottery v. GTECH Corporation , 816 So. 2d 648

(Fla. 1st DCA 2001), where the court held that the agency

could not use the RFP process for ranking pu rposes only and

then negotiate a contract with little or no concern for the

original proposal of the preferred offeror. However, the

GTECH court's holding was based on the agency's assertion

that, once it identified a preferred offeror, it was free to

neg otiate "without limitation" revised terms of the contract.

In this case, the Department makes no such assertion. To the

contrary, the evidence demonstrates that the Department will

not negotiate material terms of Ramsay's proposal or increase

Ramsay's pr oposed cost or price. Thus the record does not

support CSC's claim.

39. CSC also claims that the Department's procurement

process violates Subsection 120.53(3)(f), Florida Statutes,

which provides; "in a competitive procurement protest, no

submissions m ade after the bid or proposal opening amending

or supplementing the bid or proposal shall be considered."

In essence, CSC claims that the Department will accept

submissions after the proposal opening during the so - called

"negotiation phase." By its terms , however, Subsection

120.57(3)(f), Florida Statutes, refers to post - bid - opening

submissions "in a competitive procurement protest," not after

the protest has been completed. Moreover, even if Subsection

120.57(3)(f), Florida Statutes, applied after the p rotest,

CSC's claims are speculative and premature at this time

because there is no evidence that Ramsay has made or will

make any such submissions.

40. CSC has failed to demonstrate that any governing

statute, applicable rule or policy or the RFP specif ications

requires the Department to perform a detailed evaluation of

the cost proposals (Volume II) when it scores the technical

proposals (Volume I) prior to the notice of intended award.

41. The "Briefing" document that CSC claims requires

such a detai led evaluation of the cost proposal is not an

official agency policy. Moreover, if anything, the "Briefing

document" suggests that the contract administrator -- not the

evaluators -- should evaluate the costs proposals for realism,

reasonableness, and complet eness. Under Section 287.057(14),

Florida Statutes, the contract administrator is responsible

for maintaining the contract file and financial information,

not for evaluating the substance of proposals. The limited

review performed by Floyd, the contract administrator in this

case, is consistent with the administrative role contemplated

in the statute.

42. To the extent CSC now argues that the evaluators

should have reviewed the cost proposals, that argument has

been waived. The RFP clearly indicates th at the cost or

price information would not be scored. Subsection

120.57(3)(b), Florida Statutes, provides:

With respect to a protest of the

specifications contained in an invitation

to bid or in a request for proposals, the

notice of protest shall be file d in writing

within 72 hours after the receipt of notice

of the project plans and specifications or

intended project plans and specifications

in an invitation to bid or request for

proposals, and the formal written protest

shall be filed within 10 days aft er the

date the notice of protest is filed.

Failure to file a notice of protest or

failure to file a formal written protest

shall constitute a waiver of proceeding

under this chapter. (Emphasis furnished.)

The policy underlying this requirement and the waiver

provision is obvious: If a would - be offeror takes issue with

the State's proposed method of procurement, it should

challenge that method at the inception, so that any legal or

other element of the State's request can be remedied in a

timely fashio n, rather than at the end of the process. A

late challenge to the method of procurement in which an

offeror has participated without objection cannot affect the

validity of the procurement process nor the ultimate award.

See Medimpact Healthcare Systems. , Inc v Department of

Management Services , Case Nos. 00 - 3553RU and 00 - 3900BID

(Final Order entered November 21, 2000); Humana Health Care

Plan v. Department of Administration and Gulfstream Health

Plan v, Department of Administration , Case Nos. 87 - 5526BID

and 87 - 5543BID (Final Order entered April 28 1998); Capitol

Group Health Services Of Florida, Inc. v. Department of

Administration , Case No 87 - 5387BID (Final Order entered

April 28, 1998.)

43. For the same reason discussed in Conclusion of Law

No. 42 an d in the Order Denying Petitioner's Motion for

Summary Order dated August 27, 2002, CSC also waived any

protest of the Department's alleged failure to make a written

determination that use of competitive sealed bidding was not

practicable in accordance wit h Subsection 287.057(2), Florida

Statutes.

44. CSC has failed to demonstrate that the intended

contract awards to Ramsay are arbitrary or capricious,

contrary to competition, or clearly erroneous. Likewise, CSC

has failed to demonstrate that the intende d contract awards

to Ramsay are contrary to the Department's governing

statutes, applicable rules, or policies, or the

specifications of the requests for proposals.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOM MENDED that the Department enter a final order

dismissing CSC's protests and awarding the contracts to Ramsay

pursuant to RFP Nos. J5G01 and J5G01 as originally proposed.

DONE AND ENTERED this 29th day of October, 2002.

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM R. CAVE

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 - 6947

www.doah.state.f l.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of October, 2002.

COPIES FURNISHED :

Brian Berkowitz, Esquire

Department of Juvenile Justice

2 737 Centerview Drive

Tallahassee, Florida 32399 - 3100

James C. Hauser, Esquire

Warren Husband, Esquire

Metz, Hauser and Husband, P.A.

Post Office Box 10909

Tallahassee, Florida 32302 - 2909

Gary V. Perko, Esquire

Hopping, Green, Sams & Smith

123 South Cal houn Street

Post Office Box 6526

Tallahassee, Florida 32314

R. Terry Rigsby, Esquire

Law Offices of R. Terry Rigsby, P.A.

215 South Monroe Street, Suite 505

Tallahassee, Florida 32301

Gary P. Sams, Esquire

Hopping, Green, Sams & Smith

Post Office Box 6526

Tallahassee, Florida 32314

William G. Bankhead, Secretary

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

Robert N. Sechern, General Counsel

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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.