03-002168BID Just For Kids, Inc. vs. Palm Beach County School Board Status: Closed Recommended Order on Friday, November 7, 2003.

Summary: The evidence was insufficient to provide a basis for setting aside the School Board`s award of contracts.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUST FOR KIDS, INC., )

)

Petitioner, )

)

vs. ) Case No. 03 - 2168BID

)

PALM BEACH COUNTY SCHOOL )

BOARD, )

)

Respondent. )

__________________________)

RECOMMEN DED ORDER

Pursuant to notice, a final hearing was held in this case

in West Palm Beach, Florida, on August 19 and 20, 2003, before

Administrative Law Judge Michael Parrish of the Division of

Administrative Hearings

APPEARANCES

For Petitioner: Paul A. Tu rk, Esquire

Aaron R. Resnick, Esquire

Gunster, Yoakley Law Firm

777 South Flagler Drive, Suite 500 East

West Palm Beach, Florida 33401

For Respondent: Stephen L. Shochet, Esquire

School District of Palm Beach County

3318 Forest Hill Boulevard, Suite C - 302

West Palm Beach, Florida 33406

STATEMENT OF THE ISSUES

The issues in this case concern whether Respondent’s action

in awarding a contract to two proposers under Request for

Proposal No.: 03 - C014B; Nursing Se rvices, is contrary to the

agency's governing statutes, the agency's rules or policies, or

the solicitation specifications, as well as whether such award

was clearly erroneous, contrary to competition, arbitrary, or

capricious.

PRELIMINARY STATEMENT

On or about April 16, 2003, a recommendation was sent by

the Purchasing Department of the School District of Palm Beach

County, Florida, to the School Board of Palm Beach County,

Florida (Respondent or School Board), recommending that a

contract for nursing ser vices for Exceptional Student Education

students be awarded to both Maxim Healthcare Services, Inc.

(Maxim), and Private Care, Inc. (Private Care).

Petitioner herein, Just For Kids, Inc. (Just for Kids),

timely filed its informal and formal bid protests a nd otherwise

fully complied with all requirements to have its protest heard

before the Division of Administrative Hearings (DOAH).

At the final hearing, Petitioner presented the testimony of

all four members of the evaluation committee, Janice Miller,

Kathleen Leith, Pamela Buchanan, and Dr. John Sargeant, as well

as the Purchasing Agent who acted as facilitator for the

committee, Karen Brazier, and the Director of Purchasing, Sharon

Swan. In addition, Petitioner presented the testimony of its

adminis trator, Felisa Robinson, and its Clinical Director of

Services, Kathi Deakyne. Respondent did not call any additional

witnesses.

Petitioner’s Exhibits 1 through 27 were admitted into

evidence without objection. Respondent did not offer any

exhibits. The transcript of the formal hearing was filed with

DOAH on September 3, 2003. The parties' Proposed Recommended

Orders were timely submitted and have been carefully considered

during the preparation of this Recommended Order. All citations

to the Florida S tatutes are to the current version, unless

otherwise indicated.

FINDINGS OF FACT

Findings admitted by all parties:

1. On February 28, 2003, a request for proposal, Request

for Proposal No.: 03 - C014B; Nursing Services (the "RFP"), was

issued by the Purchas ing Department for the School District of

Palm Beach County.

2. The purpose of the RFP was to establish a contract

which would provide the School Board, with nursing services to

individual students, whose Individual Education Plan indicated

medical needs so severe as to require a nurse during the school

day. The nursing services were to be provided by Registered

Nurses ("RNs"), Licensed Practical Nurses ("LPNs"), and

Certified Nurse Assistances ("CNAs").

3. The nursing services under the RFP were to also include

training in procedures for care of Exceptional Student Education

("ESE") students who needed services such as tube feeding,

catherization, seizure precautions, etc.

4. The contract period for the nursing services was from

July 1, 2003, through Ju ne 30, 2005, with an estimated budget of

$3,000,000.

5. The proposal return date for the RFP was April 2, 2003.

6. The evaluation committee met to discuss the proposals

on April 9, 2003.

7. The Purchasing Department solicited proposals from 12

companies regarding the RFP.

8. Only three (3) companies actually responded to the

Purchasing Department's solicitation: Just for Kids, Maxim, and

Private Care.

9. The RFP designated four areas of criteria to be

evaluated in relation to the RFP: Experience and Qualifications

of Firm and Staff (40 possible points), Scope of Service (20

possible points), Cost of Services (30 possible points), and

Minority/Woman Business Participation (10 possible points).

10. The RFP did not request or require that a proposer

sta te how long it had been in business or state that a proposer

would receive additional points the longer it had been in

business.

11. Section 10 of the RFP, Scope of Services, required

among other things, that all the proposer's RNs, LPNs, and CNAs

be prof essionally licensed, and that the proposer become a

Medicaid provider for the District by the contract date.

12. The Scope of Services section of the RFP required a

proposer to agree to design and implement a minimum of three in -

service programs designate d for the District for non - medical

staff in procedures and care of students.

13. In Section 12.8, Cost of Services, of the RFP

proposers were only instructed to state the hourly rate for RNs,

LPNs, and CNAs.

14. Nothing in the RFP indicated how the comm ittee would

evaluate the costs of services.

15. Section 12.9, Minority/Woman Business Participation,

of the RFP stated that a proposer could sub - contract minority

business participation and receive participation points.

16. Nothing in the RFP indicated h ow Minority/Woman

Business Participation points would be awarded.

17. The members of the evaluation committee were Kathleen

Leith, Janice Miller, Pamela Buchanan, and John Sargeant.

18. Dr. Sargeant was elected as the chairperson of the

committee.

19. M s. Buchanan was selected to take minutes of the

meeting and Ms. Leith was chosen to total the score sheets.

20. The committee awarded points for Experience and

Qualifications of Firm and Staff as follows: Just for Kids

35 points; Maxim 40 points; and Pri vate Care 36 points.

21. The breakdown of the proposers' scores was as follows:

Criteria Just for Kids Maxim Private

Experience

(40 total) 35 40 36

Scope of Service

(20 total) 17 20 15

Cost

(30 total) 28 26 30

Minority

(10 total) 4 0 10

Total 84 86 91

22. Ms. Buchanan's hand - written minutes regarding the

committee meeting were given to Dr. Sargeant. These minutes

cannot be located. The Respondent asserts that typed minutes

were made of those handwritten minu tes.

23. On or about April 16, 2003, a recommendation was sent

by the Purchasing Department to the School Board recommending

that the contract be awarded to Private Care and Maxim.

24. Within 72 hours of the posting of the recommendation

to award the RFP to Maxim and Private Care, Just for Kids filed

its notice of protest and posted the required bond.

25. On May 12, 2003, Just for Kids met with the School

District staff in an attempt to informally resolve the issues

set forth in Just for Kids' Petition.

Facts established by evidence at hearing

26. Services were to be provided to approximately 1300

students including approximately 11 who would need private duty,

or one - to - one nursing care. The contract period for the nursing

services was from July 1, 20 03 through June 30, 2005, with an

estimated budget of $3,000,000.

27. The second paragraph of a Memorandum provided to the

committee members stated that “The following procedures will be

used to evaluate the proposals and award contract(s).” The

Memorand um, in paragraph numbered 6, also instructed the

committee members that the committee chairperson must provide a

written recommendation containing various information, to the

purchasing agent, signed by the chairperson and the Director of

ESE no later that 1:00 p.m. on Monday, April 14, 2003.

Information that was to be included in the written

recommendation was the “[r]ecommendation of acceptable

proposal(s) with an explanation for the basis of selection and

non - selection.” (Emphasis added).

28. The Scho ol Board, through its Policy 6.14, established

the Purchasing Department to perform the District's purchasing

functions in compliance with applicable Florida Statutes and

applicable rules of the State Board of Education.

29. The Purchasing Department is a support department

“dedicated to providing professional and efficient procurement

services and supports the activities of the School District,

which includes: education, financial responsibility, and

community service, through contracting for all commod ities and

services; by maintaining procedures which foster fair and open

competition, inspiring public confidence that all contracts are

awarded equitably and economically; and by acquiring the

greatest possible value and quality in services and products,

with timely delivery.”

30. The Purchasing Department adopted procedures

applicable to all District personnel involved in the

requisitions, receiving, transferring, and replacement of

supplies, material, equipment and services. “The purpose of

[the] manua l is to point out District Policy and Procedure in

respect to purchasing and to serve as a general framework within

which consistent sound business decisions can be made.”

31. Chapter 16 of the Purchasing Department Manual sets

forth the procedures regard ing requests for proposals. Section

16 - 4(F) of the Purchasing Manual requires that committee

member’s evaluations of proposals “must be done in accordance

with the criteria contained in the RFP.” Section 16 - 4(H) states

that “[W]hen the committee complete s its evaluation, it will

submit a recommendation through the Principal/Department Head to

the Purchasing Agent. A copy of the committee minutes will

accompany the recommendation.” Further, Enclosure 16 - 1 to

Chapter 16, RFP Evaluation Memorandum, states that the

“committee must provide a written recommendation to the

Purchasing Agent signed by the Committee Chairperson and the

Principal/Department Head.”

32. Section 16 - 5(B) requires that members of the

evaluation committee “shall not have any financial i nterest in

or any personal relationship with any of the proposing firms .”

(Emphasis added). Section 16 - 5(D) states that “[p]roposals

shall ONLY be evaluated by using the criteria listed in the

EVALUATION CRITERIA section of the RFP. Initial evaluation m ust

be based solely on the proposal submitted, no other additional

information is to be used.”

33. Section 16 - 5(C) requires that each “member of the

evaluation committee must receive a complete copy of each

proposal, a copy of the original RFP including a ll addenda, and

an evaluation committee Scoring Sheet for each proposal. . . .

Each committee member should have a preliminary score entered

for each proposal prior to the first committee evaluation

meeting.” Section 16 - 5(F) states that “[a]fter discussio ns and

reports, each member will review their scoring sheets and pass

them to the Chairperson for tabulation.”

34. Section 16 - 5(H) requires that “[o]nce the finalists

have been rated the committee should review the process and

reach a consensus on the ra tings and on a recommendation for

award to the first ranked proposer(s).” And enclosure 16 - 1 goes

on to provide that “[t]he committee must [then] provide a

written recommendation to the Purchasing Agent signed by the

Committee Chairperson and the Principa l/Departmental Head.”

35. Section 16 - 5(I) mandates that the District may only

negotiate and recommend the award to the next highest rated

proposer if an agreement cannot be reached with the highest

rated proposer. According to Section 16 - 5(B), the purc hasing

agent who issued the RFP, in this case Ms. Brazier, is a non -

voting member of the evaluation committee and acts in an

advisory role.

36. The facilitator for the Purchasing Committee, who had

no vote, was Ms. Brazier.

37. The members of the evalu ation committee collectively

had the requisite experience and knowledge in the program areas

and service requirements for which the subject nursing services

were being sought. Each of the panel members was directly and

intimately involved with ESE student s on an almost daily basis.

The Chairperson, Dr. Sargeant, and committee member Ms. Leith,

are both Managers in the ESE Department. Ms. Miller is ESE Team

Leader for the School District’s Area 2 office and Ms. Buchanan

is a principal of an elementary sch ool with a high concentration

of medically complex students. Each of the committee members

has an advanced degree in education.

38. At the beginning of its deliberations, the committee

members decided to award points by consensus rather than

individually .

39. The RFP did not request or require that a proposer

state how long it had been in business or state that a proposer

would receive additional points the longer it had been in

business.

40. Sections 4.6, 4.7, and 13.5 of the RFP read as

follows:

4 .6 The proposal with the highest number

of points will be ranked first; however,

nothing herein will prevent the School Board

of Palm Beach County, Florida, from making

multiple awards and to deem all proposals

responsive, and to assign work to any firm

d eemed responsive . (Emphasis added

4.7 The District reserves the right to

further negotiate any proposal, including

price, with the highest rated proposer. If

an agreement cannot be reached with the

highest rated proposer, the District

reserves the rig ht to negotiate and

recommend award to the next highest proposer

or subsequent proposers until an agreement

is reached.

* * *

13.5 The Evaluation Committee reserves

the right to negotiate further terms and

conditions, including price with the highest

ranked proposer. If the Evaluation

Committee cannot reach a mutually beneficial

agreement with the first selected proposer,

the Committee reserves the right to enter

into negotiations with the next highest

ranked proposer and continue this process

until agreement is reached.

41. The committee discussed the Experience and

Qualifications of Firm and Staff of each of the three proposers.

During the committee discussion, Ms. Miller and Ms. Buchanan

indicated their preliminary intention to award Just for Ki ds

higher points than were ultimately awarded to that company.

42. During the evaluation of Private Care's Experience and

Qualifications, Ms. Leith advised the committee that she

personally knew a Private Care employee, Sheryl Policastro, and

advised the committee that she believed Ms. Policastro’s

experience as a parent of a child with a special need would

allow Ms. Policastro to serve as true liaison between Private

Care, the District, and the parents of the students requiring

special nursing services. Ms. Leith stated that she wanted to

give Private Care 38 points for its experience because of

Ms. Leith's knowledge of Mrs. Policastro's skills and

experiences. The comments of Ms. Leith notwithstanding, the

ultimate score for Private Care was 36 points, rather than the

38 points preliminarily indicated by Ms. Leith. Ms. Leith was a

Child Find Specialist with the School District from 1982 to

2000. While working with Child Find, Ms. Leith identified

Ms. Policastro’s child as having special needs. Accordi ng to

Ms. Leith, Ms. Policastro’s child was the most severely involved

child that the School District ever had. Ms. Leith does not

know Mrs. Policastro very well. Ms. Leith has seen

Mrs. Policastro only about six times. Ms. Leith has never

socialized wi th Mrs. Ploicastro. Ms. Leith’s “best friend”

became Mrs. Policastro’s child’s private duty nurse.

43. During the evaluation of Scope of Service,

Dr. Sargeant stated that he did not see that Just for Kids was a

Medicaid provider or that it could become o ne in time for the

contract. This was immediately corrected by one of the other

committee members.

44. Dr. Sargeant also questioned where in the proposal

from Just for Kids was there information about providing

training to non - medical District staff and about Just For Kids

providing four RN supervisors as required by the specifications.

45. Nothing, however, in Just for Kids’ proposal indicated

that Just for Kids was only in business for three years. In

fact, the documents attached to its proposal dem onstrated

unequivocally that Just for Kids had been in business since

1997. In addition, the RFP expressly stated for proposers to

state "the experience your firm has had in the past three years

providing nursing services similar to those requested by the

District." (Emphasis added). Just for Kids was not allowed to

correct the evaluation committee’s misapprehension as no

comments were allowed to be made and, in fact, Ms. Brazier

refused Ms. Deakyne’s request to clear up any erroneous

statements made at the meeting regarding Just for Kids.

46. The Committee considered and discussed points for

M/WBE Ownership and Participation. Private Care received the

full ten points because it was a minority - owned business

certified by the School District. Just for Kids, as allowed by

the RFP, sub - contracted with a minority owned business for 10%

of its contract. During the discussion of Just For Kids,

committee members discussed awarding from 2 points to 8 points.

Ultimately, Just for Kids was awarded 4 participation points out

of the possible 10 for its 10 percent sub - contracting with a

minority owned business. The committee did not award any M/WBE

points to Maxim because Maxim was not a minority - owned business

and Maxim did not assert that i t had sub - contracted with a

minority - owned business for any portion of the work under the

subject proposal.

47. At the end of the Evaluation Meeting, the committee

had ranked Private Care first. They also discussed and left

open the possibility that the contract could be jointly awarded

to Private Care and to Maxim.

48. After the meeting, neither Ms. Miller, Ms. Leith, nor

Ms. Buchanan had anything more to do with the RFP. After the

evaluation committee meeting ended, Dr. Sargeant had meetings

with Ms. Brazier and with his supervisor, Russell Feldman, who

is the Director of the ESE Department. Mr. Feldman and

Dr. Sargeant, in conjunction with Ms. Brazier, decided to

recommend the contract be awarded to Maxim and Private Care.

After the evaluation commi ttee meeting, Dr. Sargeant and

Ms. Brazier were not finished and Ms. Brazier participated in

post - evaluation committee meetings with Dr. Sargeant and

Mr. Feldman to make sure policies and procedures were followed

and to act in an advisory position regardin g the request for

proposal. None of those meetings were open to the public, no

notice was given of the meetings, and the meetings were not

recorded.

49. On April 9, 2003, Dr. Sargeant and Ms. Brazier met.

At this time, Dr. Sargeant decided to recommend to his boss that

the School Board award the contract to both Maxim and Private

Care. On April 10, 2003, Ms. Brazier and Dr. Sargeant met with

Private Care and then with Maxim. The companies were advised

that they would both be recommended to the Board. On or about

April 16, 2003, a recommendation was sent by the Purchasing

Department to the School Board recommending that the contract be

awarded to both Private Care and Maxim.

50. Dr. Sargeant never presented a written recommendation

to Ms. Brazier, or a nyone at the Purchasing Department, signed

by him and the Director of ESE. Ultimately, the Purchasing

Department prepared a written recommendation that, among other

things, stated that it was the “recommendation of the committee”

to award the contract to the two highest rated proposers,

Private Care and Maxim.

51. At the conclusion of a meeting held on May 12, 2003,

to attempt informal resolution of the matters at issue here, the

School District advised Just for Kids that the award process was

going to be stayed while it attempted to resolve the matter. On

May 20, 2003, the School District advised Just for Kids that it

was sending the Petition to the DOAH. At that time, unbeknown

to Just for Kids and to Ms. Swan, legal counsel for the School

Board, had a lready decided to present the recommendation to the

School Board on its May 21, 2003, consent agenda as an emergency

contract. No notice of the May 21, 2003, meeting was provided

to Just for Kids. As a result of not receiving notification

regarding the M ay 21, 2003, School Board Meeting, Just for Kids

missed an opportunity to address the School Board regarding its

protest to the proposed School Board action.

52. After the May 21, 2003, School Board meeting, the

School Board’s attorney advised Just for K ids’ counsel that the

School Board had made an emergency award of the contract to

Private Care and Maxim. On June 9, 2003, Just for Kids’

Petition was sent to DOAH. An Order was entered on July 25,

2003, which allowed Just for Kids to amend its Petition. A

final administrative hearing took place on August 19 and 20,

2003.

53. Just for Kids was founded in 1997 by Ms. Robinson,

Ms. Deakyne, and Stuart Russell. Just for Kids provides private

duty nursing care to critically ill children in Palm Beach

Cou nty, Florida. Prior to Just for Kids submitting its proposal

regarding the RFP, it provided private duty nursing services to

over 200 children in Palm Beach County, Florida, including

students who attended school in the Palm Beach County School

District. Just for Kids also provided in - home pediatric nursing

care as well as nursing services to a number of non - profit

organizations in Palm Beach County. Just for Kids has

approximately 287 nurses on its staff.

CONCLUSIONS OF LAW

54. The Division of Administ rative Hearings has

jurisdiction in this matter pursuant to Section 120.57.

55. Section 120.57(3)(f) 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, proposals, or

replies, 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 or policies, or the

solicitation specifications. The standard

of proof for such proceedings shall be

whether the proposed agency action was

clearly erroneous, contrary to competition,

arbitrary, or capricious.

56. The basic principle s governing the disposition of

protests in cases involving agency invitations to bid or

requests for proposals are described as follows by

Administrative Law Judge Stuart M. Lerner in his Recommended

Order in SBR Joint Venture vs. Miami - Dade County School Board ,

DOAH Case No. 03 - 1102BID (Recommended Order issued August 1,

2003):

70. Section 120.57(3), Florida Statutes,

sets forth the "procedures applicable to

protests to contract bidding or award[s]" by

"agencies," such as the School Board, that

are subjec t to the provisions of Chapter

120, Florida Statutes. See Sublett v.

District School Board of Sumter County , 617

So. 2d 374, 377 (Fla. 5th DCA 1993)("A

county school board is a state agency

falling within Chapter 120 for purposes of

quasi - judicial adminis trative orders.");

Davis v. School Board of Gadsden County , 646

So. 2d 766, 768 (Fla. 1st DCA 1994)("[T]he

Administrative Procedure Act of 1974,

section 120.50 et seq. , Florida Statutes

(1993) [APA] governs school boards and other

state agencies alike."); and Mitchell v.

Leon County School Board , 591 So. 2d 1032,

1033 (Fla. 1st DCA 1991)("Petitioner is

correct that the [Leon County School] Board

is an agency for purposes of Florida's

Administrative Procedure Act, chapter 120,

Florida Statutes.").

* * *

73. The "de novo proceeding" that, pursuant

to the mandate of Section 120.57(3), Florida

Statutes, must be conducted by an

Administrative Law Judge when an "adversely

affected" person has filed a "competitive -

procurement protest, other than [one

involvin g] a rejection of all bids," and

there are disputed issues of material fact,

is "a form of intra - agency review. The

Judge may receive evidence, as with any

formal hearing under section 120.57(1), but

the object of the proceeding is to evaluate

the action taken by the agency" based upon

the information that was available to the

agency at the time it took such action.

State Contracting and Engineering

Corporation v. Department of Transportation ,

709 So. 2d 607, 609 (Fla. 1st DCA 1998); Cf.

Fairbanks North S tar Borough School District

v. Bowers Office Products, Inc. , 851 P.2d

56, 60 (Alaska 1992)("The determination of

whether the school district had a reasonable

basis for its decision should be made based

on the information the school district had

at the time it awarded the contracts.").

The standard of review the Administrative

Law Judge is required to employ in

evaluating the "protested" agency action is

a deferential one. If the Administrative

Law Judge concludes that the agency's

procurement action had a reasonable basis in

fact and law, the Judge may not recommend

that the agency reverse its action, even if

the Judge, had he or she been in the

agency's position, would have taken a

different course of action. Compare with

Latecoere International, Inc. v. Department

of the Navy , 19 F.3d 1342, 1355 - 56 (11th

Cir. 1994)(" The APA provides in pertinent

part: "The reviewing court shall . . . (2)

hold unlawful and set aside agency action,

findings, and conclusions found to be -- (A)

arbitrary, capricious, an abus e of

discretion, or otherwise not in accordance

with law. . . ." This standard requires a

disappointed bidder to show 'either that (1)

the procurement official's decisions on

matters committed primarily to his own

discretion had no rational basis, or (2) the

procurement procedure involved a clear and

prejudicial violation of applicable statutes

or regulations.' This deferential standard

reflects the respect that reviewing courts

are required to accord to agencies in their

evaluation of bids and in their

i nterpretation and application of

procurement regulations. 'While contracting

officers may not opt to act illegally, they

are entitled to exercise discretion upon a

broad range of issues confronting them,

including considerations of price, judgment,

skill, ability, capacity, and integrity in

the selection of businesses with whom the

government will enter into contracts.'

Accordingly, reviewing courts should be

concerned with whether the contracting

agency provided a coherent and reasonable

explanation of i ts exercise of discretion.

Proof that the award lacked a reasonable

basis generally establishes arbitrary and

capricious action. Thus, if a reviewing

court finds a reasonable basis for the

agency's action, the court should stay its

hand even though it mi ght, as an original

proposition, have reached a different

conclusion as to the proper administration

and application of the procurement

regulations. Only when the court concludes

that there has been a clear violation of

duty by the procurement officials s hould it

intervene in the procurement process and

proceed to a determination of the

controversy on the merits.")(citations

omitted); Cincom Systems, Inc. v. United

States , 37 Fed. Cl. 663, 671 - 72

(1997)("Contracting officials may properly

exercise wide dis cretion in their evaluation

of bids and the application of procurement

regulations. . . . It is well - settled that

courts should respect acts of procuring

officials when they exercise their

discretionary functions. The court should

not substitute its judg ment for that of a

procuring agency and should intervene only

when it is clear that the agency's

determinations were irrational or

unreasonable. It is the burden of the

aggrieved bidder to demonstrate that there

is no rational basis for the agency's

deter mination.")(citations omitted); and

Herbert F. Darling, Inc. v. Beck , 442 F.

Supp. 978, 981 (W.D. N.Y. 1977)("The

question before the court on the defendants'

motion for summary judgment is whether the

Regional Administrator's decision

disapproving the pro posed award to Darling

had a rational basis. This standard of

review is designed to ensure that judicial

deference is given to the well - reasoned

decisions of E.P.A. officials in

interpreting the agency's own procurement

and contracting regulations. A cou rt may

not set aside agency action solely because

it would have interpreted the bidding

procedures or the regulations differently

had it made the initial

determination.")(citations omitted).

57. The Recommended Order in SBR Joint Venture also

contains the following observations in endnotes 27 through 29:

27/ An agency's decision or intended

decision will be found to be "clearly

erroneous" if it is without rational support

and, consequently, the Administrative Law

Judge has a " definite and firm convict ion

that a mistake has been committed." U.S. v.

U.S. Gypsum Co. , 68 S. Ct. 525, 542 (1948);

see also Pershing Industries, Inc. v.

Department of Banking and Finance , 591 So.

2d 991 , 993 (Fla. 1st DCA 1991)(" It is

axiomatic that an agency's construction of

its governing statutes and rules will be

upheld unless clearly erroneous. If an

agency's interpretation is one of several

permissible interpretations, it must be

upheld despite the existence of reasonable

alternatives.")(citations omitted); Motel 6,

Opera ting L.P. v. Department of Business

Regulation, Division of Hotels and

Restaurants , 560 So. 2d 1322 , 1323 (Fla. 1st

DCA 1990)(" It is axiomatic that an agency's

construction of its governing statutes and

rules will be upheld unless clearly

erroneous; if an agency's interpretation is

one of several permissible interpretations,

it must stand despite the existence of other

reasonable alternatives."); and Hinton v.

Judicial Retirement and Removal Commission ,

854 S.W.2d 756, 758 (Ky. 1993)("The standard

of review on appeals from the Judicial

Retirement and Removal Commission is that

the Supreme Court must accept the findings

and conclusions of the commission unless

they are clearly erroneous; that is to say,

unreasonable.").

28/ An act is "contrary to competitio n" if

it unreasonably interferes with the

objectives of competitive bidding, which, it

has been said, are:

[T]o protect the public against

collusive contracts; to secure fair

competition upon equal terms to all

bidders; to remove not only collusion

but te mptation for collusion and

opportunity for gain at public expense;

to close all avenues to favoritism and

fraud in various forms; to secure the

best values for the [public] at the

lowest possible expense; and to afford

an equal advantage to all desiring to do

business with the [government], by

affording an opportunity for an exact

comparison of bids.

Wester v. Belote , 138 So. 721, 723 - 24 (Fla.

1931); and Harry Pepper & Associates, Inc.

v. City of Cape Coral , 352 So. 2d 1190, 1192

(Fla. 2d DCA 1977).

29/An "arbitrary" action is "one not

supported by facts or logic, or [is]

despotic." A "capricious" action is "one

which is taken without thought or reason or

[is] irrational[]." Agrico Chemical Co. v.

Department of Environmental Regulation , 365

So. 2d 759, 7 63 (Fla. 1st DCA 1978); see

also Board of Clinical Laboratory Personnel,

v. Florida Association of Blood Banks , 721

So. 2d 317, 318 (Fla. 1st DCA 1998)("An

'arbitrary' decision is one not supported by

facts or logic. A 'capricious' action is

one taken irr ationally, without thought or

reason."); and Dravo Basic Materials

Company, Inc. v. Department of

Transportation , 602 So. 2d 632, 634 n.3

(Fla. 2d DCA 1992)("If an administrative

decision is justifiable under any analysis

that a reasonable person would use to reach

a decision of similar importance, it would

seem that the decision is [not]

arbitrary.").

58. The general nature of the evidence in this case as

well as the general nature of the issues to be addressed in this

case, are reminiscent of the eviden ce and issues presented in

Optiplan, Inc. v. School Board of Broward County, Florida , DOAH

Case No. 95 - 4560BID (Recommended Order issued December 22,

1995); reversed on other grounds , 710 So. 2d 569 (Fla. 4th DCA

1998). The Recommended Order in the Optipl an case included the

following observations, which also seem to be relevant here:

107. There were some scores by some

members of the Insurance Committee that, on

the record in this case, appear to be what

can best be described as unexplained

aberrations . Because they are unexplained,

the evidence is insufficient to establish

that these apparent aberrations were based

on arbitrary considerations. It is possible

they were merely honest mistakes. It is

possible there is some logical explanation

for some or all of the apparent aberrations,

which explanation is not part of the record

in this case because the members who made

those scores were not called as witnesses

or, if called, were not asked about those

scores. Unexplained aberrations are an

insufficie nt basis upon which to conclude

that bidding process is arbitrary.

* * *

131. While it is possible that some of

the scoring decisions about which Optiplan

complains may have been arbitrary, there is

no persuasive competent substantial evidence

in th e record of this case to establish that

such is the case. Further, on the record in

this case there is no way in which the

impact of any such possible arbitrary

scoring can be quantified. Absent

quantification it cannot be shown that any

such possible ar bitrary scoring resulted in

any substantial injury to the Petitioner's

interests.

132. A great deal of the Petitioner's

argument appears to be based on the notion

that an unexplained deviation from an

expected scoring result constitutes proof

that the unexpected result was the result of

some arbitrary action by one or more

Committee members. Such is not the case.

Deviations from expectations can result from

any number of different reasons. In order

to demonstrate entitlement to relief from

unexpected results, the Petitioner must

present evidence of the reason from the

results and must prove that the reason

constituted an arbitrary, illegal,

fraudulent, or dishonest act. Absent such

proof, relief must be denied.

* * *

135. In brief conclusion, the evidence in

this case is an insufficient basis for

granting the relief sought by the

Petitioner. The few instances of mistaken

scoring that were actually proved were too

few in number to have any material impact on

the average scores. Unexplained abe rrations

are an insufficient basis upon which to

conclude that a bidding process is

arbitrary. Accordingly, the Petition and

Formal Protest should be dismissed and all

relief requested in the Petition should be

denied.

59. Turning first to Petitioner's contention that the

make - up of the evaluation committee did not comply with Section

287.057(17), Florida Statutes, Petitioner asserts that the

members did not have sufficient experience and knowledge in the

program areas and service requirements for the ES E recipients of

the nursing services being procured through the RFP. As noted

in the Findings of Fact, above, the greater weight of the

evidence is otherwise. Inasmuch as the committee members were

sufficiently qualified, there was no deviation from the

requirements of Section 287.057(17), Florida Statutes.

60. Petitioner also argues that the contract award process

was defective and should be set aside because of certain

statements made by Dr. Sargeant during the committee's

discussion of the "Scope of Service" component of the proposals.

Specifically, Petitioner points to Dr. Sargeant’s statements to

the effect that he did not see that Just for Kids was a Medicaid

provider or that it could become one in time for the contract.

However, Dr. Sargeant's ov ersights reflected in his comments

were immediately corrected by one of the other committee

members. Dr. Sargeant also questioned where in the proposal

from Just for Kids there was information about providing

training to non - medical District staff and whe re in that

proposal there was information about providing four RN

supervisors as required by the specifications. Petitioner

argues that the comments by Dr. Sargeant discussed above were

erroneous and that the comments adversely affected the consensus

scor e given to Just for Kids. Petitioner's arguments get bogged

down in the trivia and fail to address the questions that might

lead to answers that would resolve the real issue at hand. It

is obvious from the evidence in this case that Dr. Sargent

believed that Just for Kids was entitled to only 17 of the 20

points available for "scope of service," and that he

successfully persuaded the other three members of the evaluation

committee to agree with his view of the matter. What is not

obvious, and what cannot be determined from the record in this

case, is whether Dr. Sargent's conclusion that 17 was the proper

score was a wise or wonderful determination or an irrational or

unreasonable determination. As we learn from the SBR Joint

Venture case quoted at lengt h, above, "[I]t is the burden of the

aggrieved bidder to demonstrate that there is no rational basis

for the Agency's determination." Where the evidence is

insufficient to prove that an agency determination was

irrational or unreasonable, there is no basi s upon which to set

aside the agency decision.

61. In this regard, it should also be noted that there is

no requirement that the proceedings of an evaluation committee

be error free. See , e.g. , Gibbons & Company v. State of

Florida, State of Florida Bo ard of Regents, et al. , DOAH Case

No. 99 - 0697BID (September 17, 1999), where the Administrative

Law Judge stated:

Even if there were minor errors made

during this lengthy procurement process, it

has not been demonstrated that any error was

made that impa ired either the fairness of

the process or the correctness of [the

selector’s] ultimate decision.

Gibbons & Company , at p.77.

62. The evaluation committee did not violate applicable

law, regulation, or policy by utilizing consensus voting for

awardi ng points. As noted in the Findings of Fact above, the

evaluation committee met on April 9, 2003, in an open meeting

fully in accordance with Florida’s Sunshine Law, Section

287.011, Florida Statutes. See Silver Express Co. v. District

Board of Lower Tr ibunal of Miami - Dade Community College , 691 So.

2d 1099 (Fla. 3d DCA 1997). At the April 9 meeting, the members

of the committee decided to award points by consensus rather

than individually. Although the use of consensus voting may not

be the best appro ach for evaluating proposals, there is nothing

about the use of consensus voting that per se runs afoul of the

statutes, rules, and decisional law that regulate the

competitive procurement process. Further, consensus voting is

not prohibited by the subjec t RFP specifications.

63. Petitioner argues that in evaluating the proposals,

the evaluation committee failed to consider the stated

evaluation criteria. The greater weight of the evidence is

otherwise. The committee considered, discussed, and awarded

points for each of the proposers in each of the categories set

forth in the Request for Proposals. During the course of the

committee's discussions there may have been an occasional minor

comment suggesting an oversight of one or more criteria, but

there is nothing in the evidence sufficient to support a

conclusion that any such oversight gave an advantage to any

proposer or worked an injustice on any proposer.

64. Petitioner contends that the committee evaluated the

proposers, at least in part, by the u se of criteria not included

in the RFP. Specifically, Petitioner claims that:

1. Nothing in the RFP indicated how the

committee would evaluate the Costs of

Services.

2. Nothing in the RFP indicated how

Minority/Woman Business Participation

points w ould be awarded.

65. With regard to both of the issues identified in the

immediately preceding paragraph, it is first noted that the

specified shortcomings in the RFP were obvious to anyone who

read the RFP, and the most appropriate time and manner to

address such matters is by challenge to the language of the RFP

prior to the submission of bids. No one filed such a challenge,

so all of the proposers must take the RFP as it was written. As

noted in the appellate court opinion in Optiplan, Inc. v. Scho ol

Board of Broward County , 710 So. 2d 569 (Fla. 4th DCA 1998):

Finally, with respect to the

constitutional challenge to the RFP's

specifications because it awarded points

tied to race - based classifications, we agree

with the hearing officer that Optipla n

waived its right to contest the School

Board's use of the criteria by failing to

formally challenge the criteria within 72

hours of the publication of the

specifications in a bid solicitation

protest. The purpose of such a protest is

to allow an agency to correct or clarify

plans and specifications prior to accepting

bids in order to save expense to the bidders

and to assure fair competition among them.

See Capeletti Bros. Inc. v. Department of

Transp., 499 So.2d 855, 857 (Fla. 1st DCA

1986) . Having fa iled to file a bid

specification protest, and having submitted

a proposal based on the published criteria,

Optiplan has waived its right to challenge

the criteria.

66. In regard to the Costs of Services, Petitioner argues

that the consideration and calcu lation of Cost of Services were

flawed because the RFP, at paragraph 12.8, Cost of Services,

required proposers to state only the hourly rate for the three

categories of service providers, RNs, LPNs and CNAs and gave no

indication as to how the committee w ould evaluate the costs of

services.

67. Even though the RFP fails to explain how the

information requested at paragraph 12.8 would be evaluated, it

was quite clear what information was requested. And once the

information was received, the evaluation com mittee used the

information in a reasonable way; perhaps not the best way, but

at least in a reasonable way. Reasonable conduct by the

evaluation committee is all that is required.

68. In regard to the consideration and scoring of the

M/WBE portion of t he RFP, Petitioner claims that the criteria of

the RFP were flawed because paragraph 12.9 of the RFP stated

that a proposer could sub - contract minority business

participation and receive participation points, yet gave no

indication as to how Minority/Woman Business Participation

points would be awarded in such event.

69. Even though the RFP fails to explain how the

information requested at paragraph 12.9 of the RFP would be

evaluated, it was quite clear what information was being

requested. And once the evaluation committee received the

information, it was required to evaluate the information in some

reasonable way. The maximum number of points available for

M/WBE participation was 10. Maxim, which was not an M/WBE

certified business and which did not propose to subcontract with

any M/WBE certified businesses, was awarded 0 points because it

had 0 M/WBE participation. That seems reasonable. Private

Care, which was itself a fully certified M/WBE, was awarded 10

points because it met 100 percent of the requirements and 10

points was 100 percent of the available points. That seems

reasonable. Just for Kids was not an M/WBE certified business,

but it had subcontracted 10 percent of the work contemplated by

the RFP to a business that was certified as an M /WBE business,

so it was awarded 4 points based on the subcontracting

arrangement. Because there is no issue in this case as to

whether Just For Kids received more points than it should, the

four points awarded to Just for Kids will be deemed to be

reason able, too, although some might be inclined to think that

under the circumstances presented here, 4 points was a bit too

high. Where, as here, all of the points awarded in the M/WBE

category were awarded on a reasonable basis, there is nothing

more that ne eds to be said on this issue. Under circumstances

like these, reasonable is good enough.

70. Petitioner has additional objections based upon the

following contentions:

1. Respondent failed to follow the

provisions governing this procurement in

that:

(a) The initial evaluation was not based

solely on the proposal submitted, but

permitted additional information to be used

because a member of the Committee commented

as to her personal knowledge about and

relationship with an employee of one of the

pr oposers.

(b) The Committee considered and awarded

points based upon whether the proposers were

in business longer than 3 years, despite the

fact that the RFP only asked for experience

for the past 3 years.

Petitioner supports these positions based on s everal

allegations, some of which share the common objection that the

Respondent failed to follow the provisions of its Purchasing

Manual.

71. Based on the foregoing, Petitioner argues that the

evaluation committee violated Section 16 - 4(F) of the Purchas ing

Manual and Section 16 - 5(D) which mandate that "[p]roposals shall

ONLY be evaluated by using the criteria listed in the EVALUATION

CRITERIA section of the RFP. Initial evaluation must be based

solely on the proposal submitted, no other additional

infor mation is to be used."

72. The language of the Purchasing Manual at Section 16 -

5(B), mandates that members of the evaluation committee "shall

not have any financial interest in or any personal relationship

with any of the proposing firms." Relying on th is, Petitioner

contends that the selection process was improper because of an

alleged personal relationship between Kathleen Leith and Cheryl

Policastro.

73. Petitioner alleges the committee violated the

Purchasing Manual’s strictures when it considere d committee

member Kathleen Leith’s comment that she personally knew a

Private Care employee, Sheryl Policastro, who was the parent of

a child with an exceptional need, a congenital anomaly of his

brain. Petitioner's arguments regarding the Policastro iss ue

fail for several reasons. As noted in the Findings of Fact, Ms.

Leith and Mrs. Policastro did not know each other very well, had

never socialized, and had seen each other only about six times.

This is hardly the type of friendship the drafters of the

Purchasing Manual had in mind when they used the term "personal

relationship." In this regard it is also important to note that

the subject prohibition in the Purchasing Manual is that members

of evaluation committees "shall not have any . . . personal

re lationship with any of the proposing firms ." (Emphasis

added.) Mrs. Policastro is not one of the "proposing firms,"

she is an employee of such a firm. Further, the discussion

about Mrs. Policastro did not arise from information outside the

proposal subm itted by Private Care. Rather, it arose for

information included in Private Care's proposal regarding the

skills and experience of its employee, Mrs. Policastro, whom it

planned to use in an important role if it were to be awarded the

contract.

74. Peti tioner also alleges that the committee violated

the restriction against using information outside of the

proposal by considering whether the proposers were in business

longer than three years, despite the fact that the RFP only

asked for experience for the past three years. The evidence

reflects that Petitioner has failed to meet its burden of proof

as to these objections. There is no persuasive evidence that

the consensus score given by the committee was affected by any

consideration of whether the propo sers had been in business for

more than the 3 years required by the RFP. Although there

apparently was some discussion about the length of experience,

all of the committee members testified credibly that their final

score was not, in any way based on more than the three - year

information.

75. Petitioner contends that the recommendation to award

the contract to both Private Care and Maxim was legally

impermissible. In support of this contention, Petitioner points

to the language at Section 16 - 5 of the Pu rchasing Manual which

provides, at I:

The District reserves the right to further

negotiate any terms or conditions, including

price, with the highest rated proposer. If

an agreement cannot be reached with the

highest rated proposer, the District

reserve s the right to negotiate and

recommend award to the next highest rated

proposer or subsequent proposers until an

agreement is reached.

76. It is undisputed that there was no unsuccessful

negotiation between the School District and the highest rated

prop oser, Private Care. Petitioner contends that, because of

this, an award to anyone other than Private Care, including a

dual award such as occurred here, is defective. In making this

argument, Petitioner overlooks the following provisions of the

RFP:

4. 5 The District reserves the right to:

(1) accept the proposal of any or all of the

items it deems, at its sole discretion, to

be in the best interest of the District; and

(2) the District reserves the right to

reject any and/or all items proposed or

award to multiple proposers .

4.6 The proposals with the highest number

of points will be ranked first; however,

nothing herein will prevent the School Board

of Palm Beach County, Florida, from making

multiple awards and to deem all proposals

responsive and to assign work to any firm

deemed responsive. (Emphasis added.)

77. Notwithstanding the language of the RFP, quoted

immediately above, Petitioner argues that, in order for the

multiple award to be valid, it had to be at least contemplated

and left ava ilable by the committee. Petitioner then contends

no decision was ever made by the full committee to award the

contract to both Private Care and Maxim. Here again, Petitioner

falls short of proving its contention. The evidence presented

made it clear th at the possibility of multiple awards was

discussed by the Committee with the decision left to

Dr. Sargeant, the Committee Chairperson, and his boss, the

Executive Director of the ESE Department, Russell Feldman. This

is supported by the notes of Petition er’s own Director of

Nursing, Kathi Deakyne.

78. Petitioner contends that certain meetings between the

representative of the Purchasing Department and Dr. Sargeant

violated Florida’s Sunshine Law, Section 286.011, Florida

Statutes, thereby making the aw ard void ab initio . Disputes

about alleged violations of Section 286.011 are normally

resolved in civil actions in the courts of this state. There

does not appear to be any jurisdiction for the judges of the

Division of Administrative Hearings to dispose of such disputes.

Accordingly, the Petitioner must seek relief related to Section

286.11 in another forum.

79. The failure of the Chairman of the committee to

provide a written recommendation does not require that the

contract award be set aside. Attac hed to the packets of

proposals provided to each of the committee members was a

memorandum describing the proceedings. The memorandum, in

relevant part, stated, “6. The committee chairperson must

provide a written recommendation to the purchasing agent, signed

by the chairperson and the Director of ESE. This is due no

later than 1:00 p.m. Monday, April 14th, and must contain the

following: . . . .”

80. There is no dispute that this written recommendation

was not provided. The question is whether this failure so

tainted the process that the award must be set aside. The

answer is “no.” First, beyond this memo prepared by the

Purchasing Agent, Petitioner can point to no requirement in

statute, policy, or even in the Purchasing Manual which mandates

the subject written recommendation. The written recommendation

was neither required by law, nor did its absence in any way

adversely impact any of the proposers. Rather, it constituted,

at worst, harmless error. E.g. Polk v. School Board of Polk

County , 37 3 So.2d 960 (Fla 1st DCA 1979).

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is RECOMMENDED that the School Board of Palm Beach

County, Florida issue a final order dismissing this Bid Protest

and denying all relief requested by Petitioner.

DONE AND ENTERED this 7th day of November, 2003, at

Tallahassee, Leon County, Florida.

S

MICHAEL M. PARRISH

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 7th day of November, 2003.

COPIES FURNISHED :

Aaron R. Resnick, Esquire

Gunster, Yoakley & Stewart, P.A.

One Biscayne Tower, Suite 3400

Two South Biscayne Boulevard

Miami, Florida 33131

Stephen L. Shochet, Esquire

Palm Beach County School District

3318 Forest Hill Boulevard, Suite C - 302

West Palm Beach, Florida 33406 - 5813

Dr. Arthur C. Johnson, Superintendent

Palm Beach County School Board

3340 Forest Hill Boulevard, C316

West Palm Beach, Florida 33406 - 5869

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exc eptions 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.