03-000129BID Consultech Of Jacksonville, Inc. vs. Department Of Health Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Thursday, March 3, 2005.

Summary: Petitioner did not present evidence to overturn intent to award to Intervenor.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONSULTECH OF JACKSONVILLE, )

INC., )

)

Petitioner, )

)

vs. ) Case No. 03 - 0129BID

)

DEPARTMENT OF HEALTH, )

)

Respondent, )

)

and )

)

INFORMATION SYSTEMS OF FLORIDA, )

INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for final hearing on

February 7, 2003, in Tallahassee, Florida, before Ella Jane P.

Davis, a duly - assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Albert E. Ford, II, Esquire

994 Lake Destiny Road, Suite 102

Altamonte Springs, Florida 32714

For Respondent: Gary L. Asbell, Esquire

Department of Health

4052 Bald Cypress Way , Bin A02

Tallahassee, Florida 32399 - 1701

For Intervenor: Timothy G. Schoenwalder, Esquire

Gary V. Perko, Esquire

Hopping Green & Sams, P.A.

123 South Calhoun Street

Tallahassee, Florida 32314

STATEMENT OF THE ISSUE

Whethe r the Department of Health's (DOH's) notice of intent

to award the contract for RFP DOH02 - 021 was clearly erroneous,

contrary to competition, arbitrary, or capricious.

PRELIMINARY STATEMENT

This case concerns a protest filed by Consultech of

Jacksonville , Inc. (Consultech), in response to DOH's notice of

intent to award a contract for continuing education unit

tracking systems development to the highest ranked proposer,

Information Systems of Florida, Inc. (ISF), as a result of

RFP DOH02 - 021 issued Oct ober 4, 2002.

Consultech submitted to DOH a document styled, "RE: Formal

PROTEST to Department of Health # DOH02 - 021 bid Award," within

the time frame for filing a bid protest. Consultech

subsequently filed an Amended Protest, and the case was referred

t o the Division of Administrative Hearings on January 15, 2003.

ISF was granted intervenor status.

Originally, there were time - filing issues raised by DOH and

ISF, which issues have since been abandoned.

Upon the Division's receipt of the file, the fin al hearing

date was scheduled for February 7, 2003, which was seven days

short of the last permissible date for the merits hearing within

the mandatory statutory time frame. Petitioner's counsel at the

time requested the date of February 7, 2003, and reje cted

February 14, 2003, the last possible date. All parties declined

to waive the statutory time frame. An expedited discovery

schedule was established by a pre - hearing order.

Numerous discovery motions were ruled upon and more motions

were ruled upon i n connection with the withdrawal and

substitution of up to three of the five attorneys who have

represented Petitioner in this case. Some, but not all, of the

rulings were committed to written orders. Some, but not all, of

the rulings are recorded by tra nscripts of telephonic conference

calls filed with the Division. Repetitive motions for

continuance, made by successive attorneys for Petitioner, were

denied because, under the circumstances presented, neither legal

grounds nor agreement existed for alter ing the previously agreed

hearing date. The record adequately reflects these matters.

DOH's first Requests for Admission were deemed admitted,

pursuant to rule, and Consultech did not move to set them aside.

At the commencement of hearing, ISF's Motio n in Limine and

to Strike was granted in part and denied in part (TR - 12 - 21). As

a result, Consultech was precluded from asserting arguments that

directly or indirectly challenged specifications of the RFP,

because there had been no timely challenge to the RFP's

specifications as required by Section 120.57(3), Florida

Statutes. 1/ Consultech was further precluded from introducing

evidence on standard deviations statistics, because such

evidence could not legally demonstrate that DOH's notice of

intent to a ward was clearly erroneous, contrary to competition,

arbitrary, or capricious. 2/

Petitioner presented the oral testimony of Nanneta

Upchurch, Bob Ford, Thomas Solans, and Jan Simmons, and had

Petitioner's Exhibits 1, 5, 8, 10, and 12, admitted in evidence .

The deposition of Scott Futrell was admitted as Petitioner's

Exhibit 5. Ruling on Exhibit P - 11 was reserved for this

Recommended Order (TR - 209). Exhibit P - 11 is not admitted

because it is a combination of protected settlement negotiations

and immateri al communications. By agreement, Joint Exhibits 1

through 4 were admitted in evidence. Neither Respondent nor

Intervenor presented any witnesses. At the close of hearing,

the parties waived the statutory periods for filing of Proposed

Recommended Orders and this Recommended Order.

A Transcript of the merits hearing was filed on

February 24, 2003. All parties timely filed Proposed

Recommended Orders on March 11, 2003. These proposals have been

considered in preparation of this Recommended Order.

J urisdiction having been reserved to address any pending

discovery issues, an Order was entered February 19, 2003, by

which movants DOH and ISF were permitted to file updated

speaking motions for monetary sanctions, reflecting the oral

extensions of respons e time made during motions already heard by

telephonic conference call and discovery events occurring

subsequent to filing the pending motions to compel; and to file

appropriate supporting cost and/or fee affidavits, provided same

were filed on or before t he twentieth day after the filing of

the Transcript (March 18, 2003). By the same Order, Consultech

was granted until the thirtieth day after the filing of the

Transcript (March 26, 2003), to file responses in opposition to

any updated motions and any reb uttal affidavits as to DOH's and

ISF's fees and costs affidavits. Only ISF and Consultech have

filed these items, and the Conclusions of Law of this

Recommended Order will address those discovery issues, which are

separate from the merits of this case and which also are not

dependent upon which party(ies) prevail.

FINDINGS OF FACT

1. On or about October 4, 2002, DOH issued RFP DOH02 - 201

(RFP). Section 1.1 of the RFP, entitled "Statement of Need,"

provides in pertinent part:

Florida law (Chapter 456.025( 7), Florida

Statutes) requires the Department of Health,

Division of Medical Quality Assurance

(Department) to implement an electronic

continuing education (CE) tracking system

for each new biennial renewal cycle for

which electronic renewals are implement ed

and to integrate such system into the

licensure and renewal system.

2. DOH issued the RFP to secure proposals for designing,

implementing, and maintaining a new system for tracking

continuing education units (CEU) which must be earned by the

more than 470,000 health care professionals DOH regulates.

3. The RFP defined "Eligible Proposers" as "any company

with CE tracking systems development background or other

organization with demonstrated expertise in system development

projects and experi ence with providing similar services."

4. Consultech, a company that appears to primarily provide

computer training or education to employees of companies and

governmental entities, timely submitted a proposal to DOH in

response to the RFP.

5. I SF, a company that primarily develops, implements, and

integrates software database systems for governmental entities,

also timely submitted a proposal to DOH in response to the RFP.

6. Petitioner Consultech and Intervenor ISF were the only

proposers . DOH did not disqualify either proposer as "non -

responsive" or "not responsible." Because no evaluator

testified, the procedure and scoring system for the RFP

proposals can only be gleaned from the documents in evidence,

but it appears that each proposa l was evaluated by the same

procedure.

7. A review panel of DOH employees evaluated the proposals

submitted by Consultech and ISF. Consultech's proposal received

a combined total of 298 points. ISF's proposal received a

combined total of 573.5 po ints.

8. Section 2.10 of the RFP provides:

NOTICE OF CONTRACT AWARD

BASIS OF AWARD

The awards shall be made for the responsible

Proposer whose proposal has scored the

highest based on the evaluation criteria in

Section 6, PROPOSAL E VALUATION CRITERIA AND

RATING SHEET.

9. On or about November 7, 2002, DOH issued its notice of

intent to award the contract ("CEU Tracking Systems Contract")

to ISF, in accordance with the requirements imposed by Section

2.10 of the RFP.

10. O n November 18, 2002, Consultech submitted to DOH a

document of that same date, which contains the following

reference: "RE: FORMAL PROTEST to Department of Health # DOH02 -

021 bid Award."

11. On or about December 16, 2002, Consultech filed an

Amended Written Protest/Petition with DOH.

12. In its Amended Protest/Petition, Consultech mainly

focused upon DOH's scoring of selected portions of the competing

proposals of ISF and Consultech and upon whether or not DOH's

notice of intent to award to ISF contravenes Section 456.003(5),

Florida Statutes. Consultech's pleadings did not contend that

ISF's proposal was not responsive to the RFP or that ISF was not

a responsible proposer. 3/

13. Section 6.2 of the RFP, entitled "RFP RATING

METHODOLOGY," provides in pertinent part: "Proposals which meet

the minimum requirements will be reviewed by a panel of

appropriate staff."

14. Consultech initially contended that DOH failed to

assemble a review panel comprised of appropriate DOH employees.

This argument is not, however, put forth in Consultech's post -

hearing proposal, and the allegation must fail because there was

no evidence presented to show that DOH's review panel included

anyone who, in any manner, was not appropriate for such duty.

Moreove r, the resumes of the five DOH employees who served on

the DOH review panel affirmatively demonstrated that the panel

was, in fact, comprised of appropriate staff.

15. At hearing, Consultech contended that its proposal

should have received an unspeci fied higher number of points than

the 298 points it was awarded by DOH and that ISF's proposal

should have received an unspecified lower number of points than

the 573.5 points that ISF was awarded by DOH. Consultech

generally argued that DOH acted in an a rbitrary and capricious

manner because members of DOH's review panel (proposal

evaluation team) had awarded Consultech's proposal different

(and generally higher) scores for their respective responses to

certain RFP criteria, but this is like comparing app les and

oranges. Unlike invitations to bid, requests for proposals, by

their very nature, solicit proposals for different ways of

addressing the same subject or which assemble different methods

of achieving the same goal, and evaluators bring their own

pe rspectives and expertise to the task of ranking the proposals.

The applicable statutory and case law make it clear that the

undersigned is not free to substitute her evaluation for that of

the Agency's team, made up of technically competent evaluators. 4/

Because in this case, no evaluator testified, it is, in large

part, unclear either why or how Consultech contends the

unspecified points should be reallocated, even if some flaw in

the scoring could be detected, which it was not. (See Findings

of Fact 17 - 26.) Overall, Consultech failed to offer any

evidence to show that the different scores that Consultech's

proposal received from the evaluators require a finding that

DOH's proposed award of the CEU Contract to ISF was irrational,

erroneous, arbitrary, c apricious, or contrary to competition.

See , infra .

16. Consultech did not present any evidence to show that

members of the DOH review panel were given instructions for

reviewing the proposals which were inconsistent with the RFP's

specifications.

17. Consultech did not allege that a mathematical error

occurred in DOH's tabulation of the total number of points that

the respective members of DOH's review panel awarded to either

Consultech or ISF. At most, Consultech has argued that

Consultech sh ould have received at least one "automatic" point

for each reference provided in its proposal, per language

contained at pages 24 - 25 of the RFP. Assuming arguendo , but not

ruling, that this were a correct interpretation of the RFP, even

these additional p oints for Consultech's nine named supportive

references would not be sufficient to result in award of the

contract to Consultech. 5/

18. In fact, the RFP required proposers to submit at least

two supportive references. It did not obligate DOH to cont act

anyone identified in a letter of reference or in a list of

references submitted by a proposer.

19. ISF's proposal included letters of reference from

eleven individuals who described in detail their satisfaction

with ISF's provision of large - scale software development and

integration services to one private and ten governmental

entities. ISF's letters of reference were obtained from

representatives of private and governmental entities who had

contracted with ISF for the development, implementation , and

integration of large - scale software database systems, some of

which utilize ISF's proprietary continuing education system

known as "CE Broker."

20. By comparison, Consultech's proposal provided a list

that identified nine individuals as refere nces, along with

addresses for each, but Consultech's proposal did not include

letters of reference from those named.

21. It would not be erroneous, irrational, arbitrary,

capricious, or contrary to competition if one or more evaluators

had been more favorably impressed with comprehensive letters of

reference than with mere names and addresses.

22. Consultech named as one of its nine references Scott

Futrell, who has been serving as the chief information officer

for Gwinnett County Schools in Ge orgia since the fall of 2002.

Prior to holding that position, Mr. Futrell had been employed as

the chief information officer of the Duval County School System.

Acting on behalf of the Duval County School System, Mr. Futrell

had purchased software develop ment and integration services from

ISF, and had purchased employee computer training services from

Consultech. He expressed knowledge of Consultech's training

network staff and deployment of support and design of Windows

2000 and Enterprise networks. Mr. Futrell was complimentary of

the quality of some of Consultech's staff members, but he was

"uncomfortable" expressing an opinion that Consultech could

deliver the services that DOH sought through its RFP. On the

other hand, Mr. Futrell testified clearly that he believed that

ISF has a strong capability for developing software and the

ability to partner with an organization, while understanding

that organization's functions. Since Mr. Futrell was the

supervisor of two of the other individuals Consultech's proposal

named as references, it may be inferred that Consultech named at

least three references who lacked knowledge of Consultech's

ability to succeed in providing services similar to those sought

by the RFP.

23. A proposer could receive up to ele ven points from an

evaluator for demonstrating in its proposal "successful

experience" providing services similar to those sought by DOH.

24. ISF identified in its proposal several projects for

similar large - scale web - based services that it had devel oped,

implemented, and integrated. Those projects include, but are

not limited to, the following:

a. Florida Department of Insurance (FDOI),

Bureau of Agent & Agency Licensing - ISF,

using its proprietary CE Broker system,

developed, implemented and inte grated the

continuing education unit tracking system

that FDOI currently uses for the various

agents it licenses;

b. Florida Building Commission (FBC) - ISF

developed, implemented and integrated the

FBC's Building Code Information System,

which tracks us ers, maintains searchable

records of training providers and course

attendees, provides searchable continuing

education courses by name, date and

location, and provides real - time license

validation and processing of attendee

continuing education course cred it to the

Department of Business and Professional

Regulation.

c. The Schultz Center for Teaching and

Leadership (Schultz Center) - ISF, again

using its proprietary CE Broker system,

developed, implemented and integrated for

the Schultz Center a system th at, inter

alia , helps teachers search for available

courses and access their continuing

education points (both traditional and non -

traditional points), and sends in - service

continuing education points electronically

to participating districts.

25. Co nsultech protested that its staff (proposed project

team) was more highly qualified and certified than ISF's

proposed project team and should have been ranked higher by

DOH's evaluators than ISF's proposed project team. However, it

would not be erroneous, irrational, arbitrary, capricious, or

contrary to competition if DOH's evaluators had decided that

ISF's proposed project team, comprised of individuals who had

served on one or more of the foregoing significant similar

projects possessed the specific kno wledge, skills, and

experience required for DOH's project.

26. In its proposal to DOH, Consultech did not describe or

identify a single project in which it had developed,

implemented, and integrated a CEU tracking system program or a

single large - scale so ftware development, implementation, and

integration project it had successfully completed. Therefore,

it would seem that only ISF submitted a proposal that

affirmatively demonstrated to the evaluators both that it was an

eligible proposer (RFP 1. 2. 3, pa ge 6) and that it possessed

"successful experience" providing services similar to those

sought by DOH. (RFP 6.1, pages 24 - 25)

27. Consultech's staff's qualifications to develop and

maintain a new system were attested - to by Ms. Upchurch, its

President, an d by Mr. Ward, an Executive Account Manager for

Microsoft. Both witnesses put great emphasis on Microsoft

certifications over any other computer training or experience.

ISF's existing proprietary system, "CE Broker," was not

addressed by their testimony. Consultech's President's computer

qualifications were impressive. A majority of Consultech's

existing staff are certified Microsoft Systems Engineers and two

hold even higher Microsoft certifications. In Mr. Ward's

opinion, Consultech's proposal demons trated that its staff would

be qualified to enter into the project Consultech had proposed

to DOH, but he could not say he knew the project solution

presented in Consultech's proposal would work, because it was

outside his area of expertise. Mr. Ward had never "completely"

read the RFP and could not rank the two proposals. No evaluator

testified.

28. The major thrust of Consultech's case was to the

effect that lower cost should be the sole criterion utilized in

DOH's award. When Consultech was well into its case - in - chief,

an attempt was made to offer a new legal theory of "fraud," but

no compelling evidence to that effect was presented. 6/

29. Under RFP DOH02 - 021, a proposer's price proposal was

significant only insofar as its business plan de monstrated the

adequacy of private funding and a minimal dependency upon

limited available state funds. The RFP did not contain any

provision which either required or permitted DOH to award a

proposer a certain number of points based on that proposer's

pr ice proposal methodology. (See Finding of Fact 15.)

30. The RFP required each proposal to demonstrate how the

proposer would generate revenues from third parties, e.g., the

CEU course providers and/or the more than 470,000 health care

professionals who must obtain CEU credits, during respective

two - year cycles, in order to maintain their specific

professional licenses.

31. It is noted that Ms. Upchurch understood that $100,000

was all DOH had available to invest in the project.

Consultech's bu siness plan was dependent upon receipt of

$100,000 "up front," as it were, from DOH, and upon revenues

being paid by the licensed health care professionals. Money

received from the licensed health care professionals would be

generated back into Consultech 's profit - sharing plan with DOH.

ISF's proposal was completely funded through private sources,

such as ISF's own capital, bank loans, and revenues from the

credit unit charges paid by the licensed health care

professionals. ISF had secured a $2,000,000 p erformance bond to

back its obligation to perform the DOH contract, and ISF's

business plan did not require or propose to use any of the

limited available state funds.

32. Depending upon one's concept of whether or not making

a profit should be a governm ent goal, DOH's award to fully -

funded ISF instead of "profit - sharing" with Consultech may be

"good" or "bad," but it would not be erroneous, irrational,

arbitrary, capricious, or contrary to competition if the DOH

evaluators saw it as advantageous to the a gency to retain its

$100,000 for other projects and let ISF front all the money and

take all the risks.

33. Also, because no Agency funds are involved in an award

to ISF, Consultech has failed to affirmatively demonstrate that

DOH's intent to award to IS F in any way offended Section

456.003(5), Florida Statutes, which requires DOH to promulgate

policies which are cost - effective. See the Conclusions of Law.

34. Consultech has apparently garnered considerable

support among health care professionals and their professional

associations' lobbyists by stressing Consultech's proposal's

allegedly lesser out - of - pocket expense to health care

professionals because Consultech's fees are based upon

"transactions" instead of upon the "unit cost of CEUs." ISF's

proposal is based upon "the unit cost of CEUs." Ms. Simmons, a

licensed Physician's Assistant who testified on this issue,

testified that with the $1.60 per CEU cost that ISF projected in

its proposal, her licensing fee based on 100 - 130 CEUs per year

woul d increase dramatically, and any increase in licensing fees

would deter licensees from taking more CEUs than the minimum

required. However, Ms. Simmons believed her current fees were

already excessive and, as nearly as can be determined from her

testimony , she had never read both proposals for comparison. 7/

35. Ms. Upchurch testified that Consultech's proposed

system reduces or minimizes costs by running its "help desk"

entirely internally, with existing Consultech staff, and by

assuming that its "help desk" will eventually only have to deal

with one in - coming phone call each day from a licensee inquiring

why a particular CEU provider has not posted that licensee's CEU

credits to the internet system (website) created by Consultech.

Basically, under Cons ultech's plan, all licensees will be

expected to first go to the website, which will then create an

e - mail inquiry to the appropriate provider or DOH staff member,

and if the matter is not resolved within 48 hours, only then

will Consultech's staff place a n out - going telephone call to

assist or advise the inquiring licensee. It is hard to imagine

that the foregoing would be the only kind of inquiry whereby a

licensee would wish to contact a live person. It seems likely

that some licensees would want to su bmit inquiries of other

kinds. It further seems likely that CEU providers or employers

of health care providers also might want to submit a variety of

inquiries or reach a live person. The RFP specifically requires

that DOH staff would need to make inqui ries. Ms. Upchurch also

testified that another way of keeping costs down in Consultech's

proposal was to assume that all a licensee's CEU credits could

be posted simultaneously, or perhaps simultaneously per year, in

each two - year cycle, so that each lice nsee would be paying only

$5.00 per "transaction" for a maximum of two "transactions" (or

multiple CEU unit postings) in each two - year licensing cycle.

This assumption includes the further assumption that each

licensee earns all necessary CEUs from the sa me provider in no

more than two educational sessions per year, an assumption that

seems to have no back - up statistics in Consultech's proposal and

which suggests a higher number of "transactions" could occur for

those licensees who earn CEUs in small incre ments from several

different providers over the two - year cycle. Even if one

assumes Ms. Upchurch meant this testimony to include references

to direct fees from providers and licensees as set out in

Consultech's proposal, it appears that more than Consulte ch's

estimated number of CEU providers might require monitoring

and/or might have to be contacted by the proposer upon more

frequent inquiries from licensees. However, not a single

witness testified as to how effective for DOH's registration of

CEU provid ers and monitoring purposes Consultech's system would

be, how healthcare professionals would react to Consultech's

delayed response system, or how Consultech's proposed system

compared with ISF's proposal other than on costs. Therefore,

none of the forego ing testimony is helpful in comparing the two

proposals in the context of this bid protest. On the other

hand, Ms. Upchurch's testimony does create a valid doubt that

Consultech's projected costs to licensees and providers, as

described in its business pl an, would be accurate in practice

for all categories of licensed health care professionals.

36. The DOH evaluators did not have Ms. Upchurch's

foregoing testimony to consider. They could only compare the

two written proposals. In so doing, they could h ave, and

without error, irrationality, arbitrariness, capriciousness, or

acting contrary to competition, have preferred ISF's "help desk"

component. ISF proposed a "help desk" manned by four highly

trained persons with the goal to resolve all aspects of a ny

inquiry during a single in - coming phone call, without referring

the caller to successive personnel. The evaluators could

reasonably have considered this a factor of superior technical

excellence in ISF's proposal.

37. ISF's cost projection is based, in part, on a detailed

analysis of projected CEU units required by all, or at least

many, of the existing health care professional categories over a

two - year period. (J - 3, Section 8a, pages 3 - 5) This detailed

calculation was not refuted by Consultech.

38. Consultech's price proposal arguments are predicated,

at best, upon conjecture and speculation, and thus must fail.

CONCLUSIONS OF LAW

39. The Division of Administrative Hearings has

jurisdiction of the parties and subject matter of this cause,

purs uant to Section 120.57(1) and (3), Florida Statutes.

40. All parties have standing in this case.

41. The duty to go forward and prove its position by a

preponderance of the evidence is upon Petitioner Consultech.

42. This is not a rejection of all bi ds, and therefore,

the standard is not whether the Agency's intended action is

illegal, dishonest, or fraudulent. Consultech hinted at fraud,

but there is no affirmative evidence as to illegality,

dishonesty, or fraud.

43. Section 120.57(3) provides, in pertinent part:

Unless otherwise provided by statute, the

burden of proof shall rest with the party

protesting the proposed agency action. In a

competitive - procurement protest, other than

a rejection of all bids, the administrative

law judge 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 of policies, or

the bid or proposal specifications. The

standard of proof for such proceedings shall

be whether the proposed agency action was

clearly erroneous, contrary to competition,

arbitrary, or capricious.

44. An agency action is clearly "erroneous" if it results

from substantial procedural error or a clear misapplication of

the law or is contrary to the clear weight of the evidence.

Black's Law Dictionary, page 228, (5th Ed. 1979).

45. "A capricious action is one which is taken without

thought or reason or irrationally. An arbitrary decision is one

not supported by facts or logic, or despotic." Agrico Che mical

Co. vs. State Department of Environmental Regulation , 365 So. 2d

759. 763 (Fla. 1st DCA 1978), cert. den. , 376 So. 2d 74 (Fla.

1979).

46. "Contrary to competition" is best understood by its

plain and obvious meaning, i.e. against or in opposition t o

competition. "The purpose of the competitive bidding process is

to secure fair competition on equal terms to all bidders by

affording an opportunity for an exact comparison of bids."

Harry Pepper and Associates, Inc. vs. City of Cape Coral , 352

So. 2d 1190 (Fla. 2nd DCA 1977)

47. There is no evidence of irrational scoring, and the

evidence presented does not compare the two proposals in a way

that permits a finding of error, arbitrariness, capriciousness,

or any act or omission that is contrary to com petition either in

the evaluation of the two proposals or in the notice of intent

to award.

48. Consultech demonstrated no irregularity in the make - up

of the proposal review panel or the instructions to the panel.

49. Consultech did not demonstrate tha t scores assigned to

its proposal by the proposal review panel were erroneous to the

extent that the error would raise Consultech's score to that of

the winning proposer.

50. Consultech failed to offer any evidence to show that

the different scores tha t Consultech's and ISF's respective

proposals received require a determination of error,

arbitrariness, capriciousness, or behavior contrary to

competition by the evaluators or by the intent to award to ISF.

51. Consultech never alleged or proved that a m athematical

error occurred in DOH's tabulation of the total number of points

that the respective members of DOH's review panel awarded to

either Consultech or ISF.

52. Based on a comparative review of the extent and

quality of references in the competing proposals, only ISF

submitted a proposal that demonstrated both that it is an

"eligible proposer" and possesses "successful experience"

providing services similar to those sought through the RFP.

53. Under the RFP, a proposer's price proposal was

signi ficant only insofar as its business plan demonstrated the

adequacy of private funding and a minimal dependency upon

limited available state funds. The RFP did not contain any

provision which either required or permitted DOH to award a

proposer certain poi nts based on that proposer's price proposal

methodology.

54. Consultech's other legal argument as to cost/price is

based on Section 456.003(5), Florida Statutes, which provides:

Policies adopted by the department shall

ensure that all expenditures are mad e in the

most cost - effective manner to maximize

competition, minimize licensure costs, and

maximize public access to meetings conducted

for the purpose of professional regulation.

The long - range planning function for the

department shall be implemented to

facilitate effective operations and to

eliminate inefficiencies.

55. Consultech contends that DOH will violate this

statutory provision if it awards the CEU Tracking Systems

Contract to ISF, but Consultech did not prove that the price

proposal desc ribed in its business plan would be accurate in

practice, or that ISF's price proposal was inaccurate.

Consultech also did not demonstrate the overall superiority of

its proposal, a factor that is highly relevant to an RFP in ways

that do not apply to an invitation to bid. (See Finding of

Fact 15).

56. Assuming arguendo , but not ruling, that Consultech's

proposal was demonstrably less expensive for all licensed health

care professionals, making price/cost the sole criterion at this

stage would effectiv ely revise the RFP after the fact, as it

were, to include a criterion that converts the RFP into a de

facto invitation to bid, wherein price would become the

determining factor.

57. Consultech lost the opportunity to challenge the bid

specifications whe n it missed that statutory window of

opportunity prior to submitting its proposal. It is well -

settled law that having failed to institute a timely challenge

to the bid specifications, the protestant is now powerless to

directly or indirectly attack or mod ify the terms of the RFP.

R.N. Expertise vs. Miami - Dade Co. Sch. Bd. , DOAH Case

No. 01 - 2663BID, (RO 2/4/2002; FO 3/13/2002); Optiplan, Inc. vs.

Sch. Bd. of Broward County , 710 So. 2d 569 (Fla. 4th DCA 1998);

Accordia of South Florida, Inc. vs. Dept. of Management

Services , (DOAH Case No. 94 - 6454 (RO 3/13/95; FO 4/21/95);

Restat vs. Div. of State Employees Ins. , DOAH Case

No. 92 - 0337BID (RO 2/20/92; FO 4/13/92); Capeletti Bros. Inc.

vs. Dept. of Transportation , 499 So. 2d 855 (Fla. 1st DCA 1 987).

58. Finally, Section 456.003(5), Florida Statutes, on its

face, is inapplicable to an evaluation of ISF's proposal or

DOH's proposed award of the contract to ISF, because ISF's

proposal does not involve any DOH "expenditures" for "licensure

costs. "

59. The Amended Protest/Petition should be dismissed on

the merits.

Attorneys Fees And Costs Issue

60. On March 14, 2003, Intervenor ISF filed an Affidavit

in Support of Intervenor's Motion to Compel and for Sanctions,

which Motion to Compel and for Sanctions had been pending since

its filing on February 4, 2003. Also on March 14, 2003,

Respondent DOH filed a Transcript of the two hearings on the

pending Motion to Compel and for Sanctions. These two hearings

took place on February 6, 2003. Interven or's Attorney's

Affidavit as to Costs and Fees seeks $214.25 in costs and

$1,705.00 in attorney's fees, totaling $1,919.25.

61. On March 18, 2003, Petitioner Consultech filed its

Combined Response in Opposition (to the pending Motion) and

Attorney's Affi davit as to Costs and Fees.

62. Neither Petitioner nor Intervenor has filed affidavits

of other attorneys as to reasonableness, vel non , of the amounts

claimed.

63. Petitioner's "request for immediate discovery,"

contained in its Response, to seek bill ing information

concerning hours listed by Intervenor's counsel, Mr.

Schoenwalder, for the 5.8 hours he claims for driving to

Jacksonville from Tallahassee, waiting there for Consultech's

President to appear for her deposition, and driving back to

Tallahas see when she did not appear, and concerning the 1.5

hours in fees claimed for work done by Jennifer Tschetter in

connection with the non - appearance by Consultech's President, is

denied.

64. Although the charges of the court reporter for the

deposition whi ch did not take place February 3, 2003, and for

the transcripts of the telephonic hearings on the pending

motions could be estimated, they are not adequately itemized in

Intervenor's Affidavit. Moreover, the telephonic hearing

transcripts were filed by Re spondent, who presumably paid for

them. There also is no evidence of Ms. Tschetter's involvement

in this case or any explanation of the fees attributed to her.

Therefore, these claims for costs and fees are denied.

65. However, any ordinarily prudent person knows that just

ground travel time from Tallahassee to Jacksonville and back

amounts to between five and six hours. Therefore, it is not

necessary to permit Petitioner to explore by discovery (see

Conclusion of Law 63), or by scheduling further hea rings,

whether Intervenor's counsel had any opportunity to do anything

of a billable legal nature at ISF's offices instead of attending

the deposition, as alleged in Consultech's Response.

66. Intervenor is entitled to a minimum of five hours in

fees f or Attorney Schoenwalder, at $250 per hour or a total of

$1250 from Petitioner. Payment of same is hereby ordered.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Department of Health e nter a

final order awarding its RFP DOH02 - 021 CEU Tracking Systems

Contract to Intervenor Information Systems of Florida, Inc., and

dismissing the Amended Protest/Petition of Consultech of

Jacksonville, Inc.

DONE AND ENTERED this 29th day of April, 2003, i n

Tallahassee, Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

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 29th day of April, 2003.

ENDNOTES

1/ See Conclusion of Law 57.

2/ See Blue Shield of Florida, Inc. vs. Agency for Health Care

Ad min. , DOAH Case No. 95 - 3635BID (RO 9/27/95; FO 10/18/95).

3/ At hearing, however, Ms. Upchurch was permitted to express

"concerns" and conjectures that ISF could not do the job as well

as Consultech because ISF's proposal involved hiring more staff

and outsourcing some of the work, because some of ISF's staff

had been trained in South America, and because some of ISF's

staff did not hold the same, or in Ms. Upchurch's opinion, "as

good," computer certifications as some of Consultech's staff.

However, i t was not demonstrated that any of these components

was foreclosed by the terms of the RFP or explained precisely

how they would preclude ISF fulfilling the DOH contract. In any

case, ISF offered a performance bond to protect DOH. ( See

Finding of Fact 31 .) See also discussion in Finding of Fact 15

and Endnote 6.

4/ The distinction between an RFP and an invitation for/to bid

is set forth in Systems Development Corp. vs. Department of

Health and Rehabilitative Services , 423 So. 2d 433 (Fla. 1st DCA

1982). In that case, the appellate court stated:

Implicit in the definition of an RFP is the

underlying rationale that, in some types of

competitive procurement, the agency may

desire an ultimate goal but cannot

specifically tell the offerors how to

perform to ward achieving that goal; thus, a

ready distinction arises between an RFP and

IFB. Typically, an IFB is rigid and

identifies the solution to the problem. By

definition, the invitation specifically

defines the scope of the work required by

soliciting bids responsive to the detailed

plans and specifications set forth. On the

contrary, an RFP is flexible, identifies the

problem, and requests a solution.

Consideration of a response to an IFB is

controlled by cost, that is the lowest and

best bid, whereas co nsideration of an offer

to an RFP is controlled by technical

excellence as well as cost.

5/ The RFP scoring system specifies that "both the presence and

quality of the responses will be considered in assigning a

score." The RFP also states it is worth " one (1) point per

supportive references up to 9 points." If Consultech had

received nine points from each of the five evaluators instead of

the points they actually assigned it, this would only raise

Consultech's score as follows: 298 35 = 333 points v ersus

ISF's score of 573.5 points.

6/ "Fraud," "non - responsive proposer," and "not responsible

proposer" are terms of art in the context of Section 120.57(3),

Florida Statutes, and bid protests brought under that statute.

They are not interchangeable co ncepts. ( See TR 132 - 149.)

In any bid case, "fraud" generally embraces the concept of

misbehavior by bidders or agency personnel or collusion of

agency personnel with one or more bidders. The legislature also

has gone so far as to make "fraud" a sta ndard of proof in the

relatively few cases where agencies have rejected all bids.

Petitioner herein never alleged in its pleadings fraud,

misrepresentation, collusion, or any other "buzz word" that

would alert Respondent Agency to this concern. This also is not

a situation in which all bids have been rejected.

"Non - responsive proposer" usually refers to an untimely

proposal or a proposal which fails to supply a material

component requested by the RFP. Petitioner herein never alleged

in its pleading s anything in this category, either.

A proposer may be deemed "not responsible" if some

component within its proposal is materially false or

misrepresented. Petitioner herein never alleged in its

pleadings anything of this nature, either.

Pet itioner has never suggested that ISF hid costs, only

that ISF's proposal charged too much to DOH and raised license

fees. Petitioner's Proposed Recommended Order characterizes the

exchange at TR - 143 - 149, as Consultech's attempt to proffer

evidence and no t as an attempt to amend its protest. The

Amended Protest/Petition and the Transcript are of record, and

speak for themselves, but it may be noted here that the Amended

Protest/Petition never mentioned "fraud" or even

"misrepresentation;" the undersigned Administrative Law Judge

acknowledged that fraud, if proven, is always contrary to

competitive bidding; Petitioner declined to make a proffer of

evidence of fraud unless ISF's CEO were ordered out of the

hearing room over objection; and when ISF's CEO was not excluded

from the hearing room, only the speculation of fraud was

proffered by Petitioner upon the conjecture that if a proposal

in response to an RFP is complex and/or significantly higher

than that of competing proposers it "must" constitute fraud.

The attempt to amend the protest in the course of the hearing

was denied for the reasons set out in Conclusion of Law 57.

7/ Consultech portrayed its proposal as being for $1,300,000

over a period of 2 - 1/2 years with an annual profit of $2,000,000

to be shared with DOH as well as all profits above $2,000,000 to

be returned to DOH, and portrayed ISF's proposal as being for

$13,600,000 for the same 2 - 1/2 year period with no mention of

profit - sharing. These figures, in fact, appear in the

respective proposa ls. Assuming, arguendo , but not ruling, that

the foregoing portrayal were true, it still would not be

controlling. The quality of each proposal must be weighed by

the evaluation team. (See the discussion in Finding of

Fact 15).

COPIES FURNISHED :

Albe rt E. Ford, II, Esquire

994 Lake Destiny Road, Suite 102

Altamonte Springs, Florida 32714

Gary L. Asbell, Esquire

Department of Health

4052 Bald Cypress way, Bin A02

Tallahassee, Florida 32399 - 1701

Timothy G. Schoenwalder, Esquire

Gary V. Perko, Esquir e

Hopping Green & Sams, P.A.

123 South Calhoun Street

Tallahassee, Florida 32314

R.S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

Department of Health

4052 Ba ld Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.