06-002393BID Logisticare Solution, Llc vs. Commission For The Transportation Disadvantaged Status: Closed Recommended Order on Friday, September 29, 2006.

Summary: Petitioner failed to prove bias or failure to follow mandatory requirements by the evaluators; the evaluation was not arbitrary; the bids are responsive. Recommend that the bid challenge be dismissed. Attorney`s fees are denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOGISTICARE SOLUTION, LLC , )

)

Petitioner , )

)

vs. ) Case No. 06 - 2393BID

)

COMMISSION FOR THE )

TRANSPORTATION DISADVANTAGED , )

)

Respondent, )

)

and )

)

TRANSPORTATION MANAGEMENT )

SERVICES OF BREVARD, INC., )

)

Intervenor . )

)

RECOMMENDED ORDER

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

before Daniel M. Kilbride, the designated Administrative Law

Judge of the Division of Administrative Hearings, on July 27

and 28, 2006, in Tallahassee, Florida .

APPEARANCES

For Petitioner: Geoffrey D. Smith, Esquire

Timothy B. Elliot, Esquire

Smith and Associates

2873 R emington Green Circle

Tallahassee , Florida 32308

For Respondent: Jeffrey D. Jones, Esquire

Tom Barnhart, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Interve nor: E. A. "Seth" Mills , Esquire

Quinn A. Henderson, Esquire

Mills Paskert Divers, P. A.

100 N. Tampa Street, Su ite 2010

Tampa, Florida 33602

STATEMENT OF THE ISSUES

Whether Petitioner's substantial interest s are at issue in

this proceeding; w hether Respondent's decision to award a

contract to Intervenor was clearly err oneous, arbitrary,

capricious, illegal, dishon est, or contrary to competition ;

whether Petitioner brought this protest for an improper purpose ;

whether Intervenor should be awarded its attorney's fees for

Petitioner's violation of Section 57.10 5 , Florida S tatutes

(2005).

PRELIMINARY STATEMENT

This is an administrative proceeding involving a public

procurement protest filed by Logisticare Solutions, L.L.C.

("Petitioner" or "Logisticare") as it relates to the decision of

the Commission for the Transportatio n Disadvantaged

( "Respondent" or "Commission") to award a contract to

Transportation Management Services of Brevard, Inc. ("TMSB" or

"Intervenor" ) to provide Non - Emergency Transportation ("NET")

services to Medicaid recipients in Broward County.

Respond ent is administratively housed within the Florida

Department of Transportation ("FDOT"). Respondent, through the

FDOT, issued a formal Request for Proposals ("RFP") for the

coordination of Medicaid NET Services provided to Medicaid

Beneficiaries in Browar d County. Intervenor and Petitioner were

among the four bidders that submitted proposals in response to

the RFP.

On May 26, 2006, after an evaluation committee graded the

proposals, FDOT posted its Notice of Intent to award a contract

for Broward County to TMSB. Petitioner submitted its Notice of

Intent to Protest and filed its Petition for Formal

Administrative Hearing on June 9, 2006. On June 30, 2006, TMSB

filed a Motion to Dismiss . The Commission referred the matter

to the Division of Administrativ e Hearings on July 7, 2006 , and

discovery followed. The under signed Administrative Law Judge

(ALJ) granted TMSB's Motion to Intervene and denied Intervenor's

Motion to Dismiss by Order, dated July 21, 2006.

At the final hearing, the parties stipulated to the

admission of Joint Exhibits 1 through 18. Petitioner presented

the testimony of Henry Hardy, Byron Underwood, Lisa Bacot, and

Robert Cornell in its case - in - chief. Petitioner's Exhibits 1

through 5, 8, 11 through 13 and 15 were admitted into eviden ce

as part of Petitioner's case - in - chief. Petitioner's Exhibits 6,

7 and 9 were admitted subject to the ALJ's rulings on pending

objections. Petitioner's Exhibit 10 was admitted after the ALJ

granted Intervenor's objection striking select portions of the

deposition testimony.

During the testimony of Henry Hardy, Logisticare's

corporate r epresentative, TMSB raised several objections as to

relevance and improper lay witness opinion concerning who m the

lay witness believed should be awarded the contract , or how he

would have scored the proposals. Ruling was reserved and TMSB

was granted a continuing objection throughout the testimony.

T he objection is sustained and the testimony is stricken .

§ 90.401, Fla. Stat. (2005) 1 ; Zabner v. Howard Johnson's, Inc . ,

227 So. 2d 543 (Fla. 4th DCA 1969) (Plaintiff's history of

litigiousness was not relevant; it did not have a tendency to

prove or disprove a given proposition that was material as was

shown by the pleadings).

TMSB objected to Petitioner's Exhibit 6 on the grounds of

relevance. T he objection is sustained and the exhibit is not

admitted. § 90.401 - 402, Fla. Stat. ; § 90.701, Fla. Stat. ; Fino

v. Nodine , 646 So. 2d 746 , 748 - 749 (Fla. 4th DCA 1994)

("[A]cceptable lay opinion testimony typically involves mat ters

such as distance, time, size, weight, form and identity.").

TMSB objected to select portions of Petitioner's Exhibit 7

on the grounds of relevance, improper lay witness testimony

offering opinions on how the proposals should have been scored

and impr oper expert testimony about a topic that is not a

recognized field of expertise. T he objections are sustained and

the testimony is excluded. § 90.401 - 402, Fla. Stat. ;

§ 90.701, Fla. Stat.; Kumho Tire Co., Ltd. v . Carmichael , 526

U.S. 137 (1999); Daubert v. Merrell Dow Pharmaceuticals, Inc. ,

509 U.S. 579 (1993); Feller v. State , 637 So. 2d 911 (Fla. 1994)

(Reversible error for an expert to state her opinion that victim

was telling the truth and had not fabricated her story that she

had been sexually abuse d.); Fino , Zabner , supra .

TMSB objected to select portions of Petitioner's Exhibit 9

on the grounds of relevance and improper lay witness testimony.

The objections are sustained and the testimony is excluded.

§ 90.401 - 402, Fla. Stat. ; Fino , supra . Zab ner , supra .

§ 90.701, Fla. Stat.

Respondent and Intervenor presented no oral testimony , or

exhibits during their cases - in - chief.

A Transcript of the hearing was filed on August 7, 2006,

and Petitioner and Intervenor timely filed Proposed Recommended

Ord ers, which have been carefully considered in preparation of

this Recommended Order.

FINDINGS OF FACT

1. Respondent is an independent commission of the State of

Florida , created pursuant to Section 427.012, Florida Statutes,

and housed administratively and fiscally within the Florida

Department of Transportation ("FDOT"). Respondent's address is

605 Suwannee Street, MS - 49, Tallahassee, Florida 32399 - 0450.

2. The stated purpose of the Commission is "to accomplish

the coordination of transportation serv ices provided to the

transportation disadvantaged."

3. Section 427.013, Florida Statutes, provides for a

coordinated system of transportation under which the Commission

serves as the coordinating and policy - setting body that oversees

the provision of se rvices to the transportation disadvantaged

throughout the state.

4. The Commissioners appoint an executive director who

serves "under the direction, supervision and control of the

Commission." § 427.012(6), Fla. Stat.

5. Under the coordinated system, l ocal Metropolitan

Planning Organizations (MPOs) established under federal law for

transportation planning purposes, nominate a "Community

Transportation Coordinator" ("CTC") , which ma y be a public body

such as the county c ommission, or may be a not - for - pro fit , or

for - profit transportation provider . The CTC is charged with the

statutory duty to provide or arrange to provide transportation

to the disadvantaged.

6. In many counties in the st a te, the approved CTC is the

c ounty c ommission . In Broward County , the CTC is th e c ounty

government.

7. The Agency for Health Care Administration ("AHCA") was

one of the state agencies that was a voting member on the

Commission until legislative changes were made in 2006, and AHCA

is now an ex officio member of the Co mmission. AHCA is the

state Medicaid agency and provides the largest source of funds

for the provision of transportation disadvantaged services under

the state's Medicaid Non - Emergency Transportation ("Medicaid

NET") program that is funded through a combi nation of state and

federal dollars.

8. As the state Medicaid agency, AHCA receives annual

appropriations to provide transpor tation services for health

care - related purposes to eligible Medicaid recipients.

Historically, AHCA has purchased these service s through the

"coordinated system" administered by the Commission, pursuant to

Chapter 427, Florida Statutes.

9. In addition to actual transportation in vehicles such

as buses, vans, taxi cabs, ambulances, or other means, the

Medicaid NET services inclu de "gate keeping" responsibilities to

determine eligible riders, routing, and scheduling requirements,

record keeping and reporting, complaint handling, resolution and

reporting, and overall management of the system of

transportation.

10. In 2003, AHCA, concerned with controlling Medicaid

costs, began to explore ways in which it could reduce the amount

it pays for transportation services by using "capitated"

arrangements under which a provider would be paid a lump sum

amount to provide all such transporta tion services for all

Medicaid eligible riders.

11. In 2003, AHCA issued an RFP seeking to select a single

statewide provider for Medicaid NET services. Logistic are and

other transportation providers submitted proposals, as did the

Commission.

12. T he Commission negotiated with AHCA to withdraw its

RFP, and enter into a contract that would allow the Commission

t o act as the state wide provider. A HCA agreed with the

Commission and withdrew its RFP. AHCA then entered into a

contract directly with the C ommission , allowing the Commission

to sub contract the Medicaid NET responsibilities to the local

CTCs, and if the CTC did not accept responsibility for providing

Medicaid NET services with in the available funding amount then a

private provider would be se lected under a competitive

procurement process.

13. In the majority of counties in the state, the local

CTC has agreed to provide services as the Medicaid NET provider

under capi ta ted agreements. However, in a small number of

counties, the CTC refused to provide services under the proposed

funding formula for a capi t ated or lump sum contract.

14. In Brevard , Hillsborough, Manatee, Broward , and Duval

counties , the CTC did not agree to accept responsibility for

Medicaid NET services. In each of those c ounties, an RFP

process was utilized to select a Medicaid NET provider.

15. In Broward C ounty , an RFP was issued in January 2005,

and the preliminary award was made to Logisti c are. However, as

a result of a protest filed by Transportation Management

Ser vices of Broward, Inc. (an affiliate of Petitioner), a

Recommended Order and Final Order was entered rejecting all

proposals and requiring a new RFP.

16 . The Commission created an internal subcommittee to

modify its procurement procedures and incorporate the ALJ's

comments contained in the Recommended Order.

17. After revising its procedures, the Commission again

requested written proposals from qualified Proposers to provide

Med icaid NET Services to Medicaid b eneficiaries in Broward

County.

18. AHCA reviewed, provided input to , and approved the

provisions of the Respondent's current Request for Proposals.

19. The FDOT assisted the Commission administratively in

obtaining the Medicaid NET services described in the RFP.

20. The notice of solicitat ion was issued in April 2006,

with addenda issued on April 18, 21, May 3, 8 and 10, 2006.

Responses were due on May 16, 2006.

21. In each of the prior RFPs for Medicaid NET services in

various counties, local experience of the proposer was an

evaluation criterion, and this criterion was adopted into the

initial RFP at issue in this proceeding. TMSB requested during

the Question and Answer period that the local experience

r equirement be removed, but the C ommission responded that it

could not be removed.

22. TMSB then filed a Notice of Protest, seeking removal

of the evaluation criteri a for local experience. The TM SB

protest w a s settled based upon a teleconference call between

Executive Director Lisa Bacot, Byron Underwood ( Respondent's

Medicaid NET pro ject manager ) , and Jeffrey Jones, counsel for

the Commission. No notice was provided to Logistic are , or any

other registered vendors that a protest had been filed , or that

there was a meeting to settle the protest, nor were any minutes

of this meeting kep t.

23. The elimination of the local experience evaluation

criteria was incorporated in Addendum No. 5 to the RFP which was

issued on May 8, eight days prior to the proposal submission

deadline.

24. When the notice of solicitation and all addenda were

posted, no party filed a protest within 72 hours.

25. TMSB, Logisticare, F irst Transit, Inc. ("First

Transit") and Hannah's Care, LLC submitted bids i n response to

the RFP.

26. An Evaluation Committee was selected by the

Respondent's Medicaid Committee to evaluate and score proposals.

The e valuators included Lisa Bacot, executive d irector to the

Commission ; Karen Somerset, a ss istant executive d irector; and

Vera Sharitt, a member of the Broward County local coordinating

board for transportation disadvan taged services.

27. The RFP specified individual evaluation criteria that

were divided into three categories with points for each category

including executive summary (10 points), Management Plan (60

points) and Technical Plan (30 points), for a total of 100

possible points. There was no weighting of the individual

evaluation criteria in each broad category identified in the

RFP , or on the evaluator score sheets disclosed in the RFP.

28. The e valuation committee members scored the proposals

as follows:

Logistic ar TMSB First Transit Hannah's

e Care

Lisa Bacot 92 94 87 3

Karen Somerset 83 88 75 20

Vera Sharitt 56 77 88 5

29. The proposals were ranked as follows: TMSB (86.32

points); First Transit (83.33 points); LogistiCare (76.99

points); and Hannah's Care (13.32 points). B ased on the scoring

of the proposals, the Commission posted its Notice of Intent to

award the contract for Broward County to TMSB on May 26, 2006.

The TMSB and Fi r st Transit BIDS are Responsive

30 . The RFP included la nguage informing bidders that the

stated price listed in the RFP could change due to Florida's

ongoing efforts to reform Medicaid.

31. The RFP also included a provision allowing the

selected provider to terminate the contract, without cause,

after provi ding 30 days notice.

32. Despite First Transit's proposal language indicating

it would abide by the terms of the contract, Logist i care alleged

that First Transit's proposal included language reserving the

right to ne gotiate the price, if necessary. Peti tioner alleged

that this language made First Transit's bid non - responsive.

33. This allegation is not correct . I f faced with actual

price reductions, it was not improper for First Transit to seek

to negotiate with the Commission in order to attempt to r educe

the impact of any future price fluctuations.

34. Logisticare alleged that TMSB's proposal did not

comply with the RFP requirement to provide "documentation

demonstrating the number of Medicaid NET trips provided on a

monthly basis and show the com plaint ratios on said trips."

35. TMSB's proposal provided complai nt ratio data for the

month of March 2006, as well as othe r more general complaint

ratio data. This is sufficient for compliance.

36. In their proposals, both Logisticare and TMSB claim ed

credit for the corporate experience of their predecessors and

affiliates.

37. Both FDOT and the Commission found the four bidder's

proposals to be responsive.

The Evaluators Were Not Shown to be Biased for One Bidder over

Another

38 . When structurin g the evaluation committee that would

be responsible for scoring the bidder's proposals, the

Commission directed t he ex ecutive director and assistant

executive director to serve as evaluators. The Commission also

required a local representative from Browa rd County to serve as

an evaluator.

39 . All of the evaluators signed Conflict of Interest

forms confirming there was no present conflict with their

service as evaluators.

4 0 . An evaluator had the ability to recuse herself if she

believed a conflict o f interest existed with any of the bidders.

41 . None of the evaluators recused themselves from serving

as evaluators.

42 . Through their positions on the Commission staff, Bacot

and Somerset had opportunities to interact socially with other

individuals involved in the NET industry, including

Commissioners, private providers , and other industry

representatives. Bacot and Somerset each have professional

relationships with other individuals involved in the NET

services industry, including the principals, c onsultants , and

employees of TMSB and Logisticare. The social interactions

between Bacot and Somerset and the principals, consultants , and

employees of TMSB and Logisticare were always in group settings

that occurred in conjunction with Commission events and

activities. Bacot and Somerset did not independently meet with

or visit any of the bidder's principals for reasons other than

Commission business.

43 . The evidence did not demonstrate any improper conduct

by Bacot and/or Somerset in the implementati on of this bidding

process.

44 . Petitioner did not demonstrate that the evaluations

conducted by Bacot and Somerset were influenced by their

professional relationships with any of the bidders' principals

or employees.

45 . The evidence is insufficient to suppo rt any

allegations of bias.

46 . The differences between the scores that Bacot and

Somerset assigned to TMBS and Logisticare in this evaluation

were extremely slight. Bacot scored TMSB two points higher than

Logisticare and Somerset scored TMSB higher by only five points.

47 . Local coordinating boards supervise the availability

and quality of NET services in each county. Vera Sharitt is a

member of the Broward County Local Coordinating Board and was

selected by the Board to serve as an evalua tor for this

procurement.

48 . Sharitt has a long history of involvement with the NET

service industry in Broward County. She gained experience and

familiarity with the individuals and entities involved with the

provision of NET services in Broward Coun ty .

49 . Sharitt and Karen Caputo , owner of AAA Wheelchair

Wagon Service, Inc., serve together on the Broward County Local

Coordinating Board.

5 0 . There is no evidence in the record demonstrating any

type of business, legal, or financial relationship be tween

Sharitt and Caputo.

5 1 . Sharitt's involvement with the local coordinating

board allowed her to observe Logist i care's quality of service

and gain knowledge of some user's public dissatisfaction with

Logisticare 's performance under the fee - for - servic e contract in

Broward County.

52 . The evidence did not indicate that Sharitt's

evaluation of Logisticare's proposal was based on any other

factors other than her personal judgment and experience, which

included her knowledge regarding Logisticare's ope rations in

Broward.

53 . There was no reli able evidence to support the

ass ertion that Sharitt's evaluation of the Logisticare proposal

was influenced by Sharitt's professional relationship with

Caputo.

5 4 . Petitioner did not prove that Sharitt showed an y bias

favoring TMBS while evaluating and scoring the proposals.

55 . The evaluators considered the evaluation criteria

found in the RFP's evaluation summary sheet to determine the

proposal's scores.

56 . The evaluators did not apply or weigh the scoring

criteria differently than how it w a s described on the score

sheet .

57 . The evaluators assigned a greater number of p o ints

when a proposal more thoroughly explained a concept and assigned

fewer points when a proposal did not adequately address an RFP

req uirement.

58 . Each evaluator's total score reflected her independent

assessment of the bidder's ability to provide the services

requested in the RFP.

59 . Sharitt scored First Transit as the best proposal.

TMSB's Proposal Did Not Create a Conflict of In terest

60 . Since its creation, the Commission has entered into

various types of contracts with individuals (or their employers)

who have simultaneously served as Commis sioners. In fact, the

Florida S tatutes, in effect at the time this bid process was

in itiated , expressly required that some sitting Commissioners be

under contract with the Commission.

61 . The RFP included a conflict of interest provision

subjecting the procurement to Chapter 112, Florida Statutes , and

requiring the disclosure of all stat e employees that own

5 percent or more of the bidder, or who also serve as officers,

directors, employees , or other agents of the bidder.

62 . David McDonald owns less than 5 percent of TMSB, the

bidding entity , and is employed as TMSB's executive operat ions

manager and was appointed to serve as a volunteer commissioner

in September or October of 2005.

63 . David McDonald owns 20 percent of a separate corporate

entity, TMS of Florida, Inc., that has an agreement with TMSB to

share resources, but is othe rwise not a legal affiliate, parent,

subsidiary, or in any other way related to TMSB.

64 . While serving as a volunteer commissioner, David

McDonald was not a state employee.

65 . David McDonald's dual roles as a TMSB employee and a

volunteer Commissione r were disclosed in the TMSB proposal.

66 . David McDonald provided input into TMSB's preparation

of its proposal. However, David McDonald was not involved in

the drafting of the RFP, in the evaluation of the bidder's

proposals, or in the award of the p roposed contract at issue in

this case.

67 . There is no evidence to indicate that David McDonald

used his position as a Commissioner to influence the evaluators ,

or the evaluation process.

68 . Other than providing input to TMSB's proposal ,

David McDon ald's involvement with the RFP process was limited to

one e - mail he sent to the FDOT contact person listed in the RFP,

Lillian Graham, requesting clarification of an answer the

Commission provided to one of TMSB's written questions.

69 . Section 427.012, Florida Statutes , was extensively

rewritten after the proposed award of this contrac t, during the

2006 legislative session, and the entire Commission structure

was revised.

70 . David McDonald voluntarily served as a Commissioner .

He ceased filling this p osition when the Governor signed the

legislation on May 31, 2006.

Logisticare's Untimely C hallenge of the RFP's Specifications

71 . Logisticare's protest included several allegations

challenging the RFP's specifications and provisions, including

the follo wing:

a. Whether price was properly considered

under this RFP;

b. Whether it w a s proper to delete language

from the evaluation score sheet, via

addenda, describing a bidder's past

experience providing NET services in Broward

County;

c. Whether it was proper to use a Request

for Proposal format to conduct this

procurement;

d. Whether there was a lack of clarity in

the RFP's description of its software

requirements;

e. Whether the RFP was required to include

a method for weighting each sub - evaluation

factor;

f. Whether the RFP should have included a

provision automatically prohibiting bidders

with employees , or principals currently

serving as Commissioners from submitting

p roposals in response to the RFP.

72 . In regard to allegations in parag rap h 74a , the RFP

provided a set price that was only subject to change based upon

the actions of the Legislature , or other outside agencies in

their exerci se of control of the state's budget, and it is not

contrary to Florida law when the RFP offers a set pri ce for the

sought - after services.

73 . In regard to allegations in paragraph 74b, t he

Commission stated that it removed from the score sheet the

criterion specifically describing local county experience in

order to level the playing field and to preclude a bidder from

unfairly receiving extra points. There was no evidence to show

otherwise.

74 . As to the allegations in paragraph 7 1 c through 7 1 f,

Petitioner did not protest any of the RFP's terms , or provisions

until after the evaluation process was compl eted, which resulted

in it s being ranked as the third - highest bidder.

75 . A challenge to the terms and specifications of an RFP

must be filed within 72 hours of notice of the posting of the

RFP. There were no challenges filed to the terms and

specificat ions of this RFP .

CONCLUSIONS OF LAW

76 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter pursuant to

Section 120.569 and Subsection 1 20.57(3), Florida Statutes .

Burden of Proof

77 . Subsection 120.57(3)( f) , Florida Statutes , reads in

relevant 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, o r

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

o f proof for such proceedings shall be

whether the proposed agency action was

clearly erroneous, contrary to competition,

arbitrary, or capricious . . . .

78 . The protestor has the burden of providing by a

preponderance of the evidence that Respondent's proposed agency

action is invalid under the standards set forth in Subsection

120. 57(3)(f), Florida Statutes . See § 120.57 (1)(j), Fla. Stat.

("Findings of fact shall be based upon a preponderance of the

evidence, except in penal , or licensure disciplina ry proceedings

or except as otherwise provided by statute, and shall be based

exclusively on the evidence of record and on matters officially

recognized.")

79 . The requirement that the Administrative Law Judge

conduct a de novo hearing has been interpre ted by the First

District Court of Appeal. The court described a de novo hearing

in the context of a bid protest as "a form of intra - agency

review. The judge may receive evidence, as with any formal

hearing under S ubs ection 120.57 (1) , Florida Statutes , b ut the

object of the proceeding is to evaluate the action taken by the

agency. [citations omitted.]." State C ontracting and

E ngineering Corp. , 709 So. 2d at 607, 609 (Fla. 1st DCA 1998).

8 0 . As outlined in Subsection 1 20.57 (3)(f), Florida

Statutes , the ultimate issue in this proceeding is "whether the

agency's proposed action is contrary to the agency's governing

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

specifications. " See , e.g . , R.N . Expertise , Inc. v. Miami - Dade

County School Bo ard , Case No. 01 - 2663BID (DOAH February 4, 2002)

(Final Order March 14, 2002, adopting Recommended Order), where

the Administrative Law Judge J.G. Van Lan ingham stated:

By framing the ultimate issue as being

"whether the agency's proposed action is

contrar y to the agency's governing statutes,

the agency's rules or policies, or the bid

or proposal specifications," it is probable

that the legislature, rather than describing

a standard of review, intended t o establish

a standa rd of conduct for the agency. The

standard is: In soliciting and accepting

bids or proposals, the agency must obey its

governing statute, rules, and the project

specifications. If the agency breaches this

standard of conduct, its proposed action is

subject to (recommended) reversal by t he

administrative law judge in a protest

proceeding.

Id . at 34 .

8 1 . In addition to proving that Respondent breached this

statutory standard of conduct, a protester additionally must

establish that an agency's violation was either clearly

erroneous, cont rary to competition, arbitrary, or capricious.

§ 120.57(3)(f), Fla. Stat.

8 2 . Each of these phrases has been construed by Florida's

appellate courts. See , e.g . , Colbert v. Department of Health ,

890 So. 2d 1165 (Fla. 1st DCA 2004) (" [O]ur review

stand ard . . . is that of clearly erroneous, meaning the

interpretation will be upheld if the agency's construction falls

within the permissible range of interpretations. [citation

omitted.] If, however, the agency's interpretation conflicts

with the plain an d ordinary intent of the law, judicial

deference need not be give n to it. [citation omitted.] " ) Id . at

1166. Agrico Chemical Co. v. State Department of Environmental

Regulation , 365 So. 2d 759 (Fla. 1st DCA 1978), cert. denied ,

376 So. 2d 74 (Fla. 1979) ( " 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 . ") Id . at 763.

83 . The inquiry to be made in determining whether an

agency has acted in an arbitrary or capricious manner involves

consideration of "whether the agency: (1) has co nsidered all

relevant factors; (2) had given actual, good faith consideration

to those factors; and (3) has used reason rather than whim to

progress from consideration of these fa ctors to its final

decision." Adam Smith Enterprises v. Department of

Environmental Regulation , 553, So. 2d 1260, 1273 (Fla. 1st DCA

1989). The standard has also been formulated by the court in

Dravo Basic Materials Co., Inc. v . State Department of

Trans portation , 602 So. 2d 632, 634 n. 3 (Fla. 2d DCA 1992), as

follows: "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 neither a rbitrary nor capricious." The court in Dravo also

observed this "is usually a fact - intensive determination."

I d . at 634.

84 . An agency is given wide discretion in soliciting and

accepting competitive bids and proposals. Department of

Transportation v. Groves - Watkins Constructors , 530 So. 2d 912,

913 (Fla. 1988) 2 ; Liberty County v. Baxter's Asphalt and

Concrete, Inc. , 421 So. 2d 505, 507 (Fla. 1982). In Tropabest

Foods, Inc. v. State of Florida, Department of General Services ,

493 So. 2d 50, 52 (Fla. 1st DCA 1986), the court found that an

agency has the discr etion to waive an irregularity in a bid when

the irregularity is not material, that is, when it does not give

the bidder "a substantial advantage over the other bidders."

85 . The purpose of co mpetitive bidding requirements for

the award of public contracts is to ensure fairness to

prospective vendors and to secure the best value at the lowest

possible price to the public. The Florida Supreme Court

established this as the first paradigm of publ ic procurement in

Wester v. Belote , 138 So. 721, 723 - 724 (Fla. 1938), where it

explained that:

[ T ] he object and purpose of [ competitive

bidding statutes ] is to protect the public

against collusive contracts; to secure fair

competition upon equal terms to a ll bidders;

to remove, not only collusion, but

temptation for collusion and opportunity f or

gain at public expense; to close all avenues

to favoritism and fraud in its various

forms; to secure the best values at the

lowest possible expense; and to afford a n

equal advantage to all desiring to do

business with the [ public authorities ] , by

providing an opportunity for an exact

comparison of bids.

86 . Since federal dollars from the U.S. Health and Human

Services Department are funding this procurement, we mu st also

look at relevant federal regulations. Those regulations also

require "to the maximum extent practical, open and free

competition." 45 C.F.R. § 74.43.

87 . Additionally, federal law provides:

No employee, officer or agent [of the

recipient of fed eral funds] shall

participate in the selection, award or

administration of a contract supported by

Federal funds if a real or apparent conflict

of interest would be involved.

See 45 C.F.R. § 74.42; Medco Behavioral Care Corporation v.

State of Iowa Depart ment of Human Services , 553 N.W. 2d 556

(Iowa 1996) (holding appearance of conflict of interest

sufficient under state and federal law to nullify proposed

contract award).

Logisticare Lacks Standing

88 . To bring a protest, a party is required to show tha t

its substantial interest will be affected by the proposed agency

action or proceedings. § 120.52(12)(b), Fla. Stat. (defining a

"party" as one " whose substantial interest will be affected by

proposed agency action"); Fla. Admin. Code R. 28 - 106.101 (200 5)

(governing administrative proceedings when the substantial

interests of a party are determined by the agency).

89 . As the third - ranked bidder, Logisticare can only

demonstrate it has standing if it proves that the proposals

submitted by TMSB and First Transit are non - responsive, and,

thus, neither of the higher - ranked bidders are proper awardees.

Preston Carroll Company, Inc. v. Florida Keys Aqueduct

Authority , 400 So. 2d 524 (Fla. 3d DCA 1981) (holding that

third - ranked bidder was unable to demonstra te it was

substantially affected by intended award of a contract, and,

thus, lacked standing to bring protest); Hemophilia Health

Services, Inc. v. Agency for Health Care Administration ,

Case No. 05 - 2804BID, at para. 81 ( DOAH December 2, 2005)

(rejecting lower - tiered bidder's protest and concluding "[i]n

order to establish the required substantial interest for

standing, a protestor must demonstrate that, but for the

agency's error, the protestor would have been a winner");

Metcalf & Eddy, Inc. v. Dep't of Transportation , Case

No. 00 - 0494BID (DOAH July 30, 2001)(third - ranked bidder able to

withstand a motion to dismiss by alleging that its substantial

interests would be affected by proposed agency action after

specifically alleging that the two higher ranke d bidder's

proposals were non - responsive); Enabling Technologies Company v.

Dep't of Labor and Employment Security , Case No. 96 - 3265BID

(DOAH September 11, 1996) (concluding a bidder who is ineligible

to be awarded the contract at issue does not have stand ing to

protest the award).

90 . Before a party can be considered to have a substantial

interest in the outcome of a proceeding, it must show:

(1 ) that it will suffer injury in fact which is of sufficient

immediacy to entitle it to a hearing under Chapte r 120, Florida

St atutes, and (2) that its subs tantial interest is of a type or

nature which the proceeding is designed to protect. The first

aspect of the test deals with the degree of injury; the second

deals with the nature of the injury. Agrico Chemic al Co. v.

Department of Environmental Regulation , 406 So. 2d 478, 482

(Fla. 2nd DCA 1981) (establishing the two - prong test for

determining if a party had standing); Ybor III, Ltd. v . Florida

Housing Finance Corp. , 843 So. 2d 344 (Fla. 1st DCA 2003 )

( applyi ng the Agrico test to determine a party did have standing

to request a formal administrative hearing).

91 . Logisticare, as the third - ranked bidder, must prove

but for the agency's errors it would have won the competition.

Metcalf & Eddy, Inc. v. Dep't of Transportation , Case No.

00 - 0494BID (DOAH July 30, 2001).

92 . On the ba sis of the findings of fact herein ,

Petitioner has not proven by a preponderance of evidence that

the Commission's decision to accept the proposals of all four

bidders as respons ive was contrary to its governing statutes,

rules or policies, or the provisions of the RFP , or that its

decision was clearly erroneous, contrary to competition,

arbitrary, or capricious.

93 . By failing to demonstrate that the higher - ranked

proposals wer e non - responsive, Logisticare failed to establish

that, but for the Commission's errors, it would be the winner.

By failing to establish its right to the contract, Logisticare

failed to establish that its substantial interests would be

affected by the pro posed agency action. Because Logisticare's

substantial interests will not be affected by the proposed

agency action, Logisticare lacks standing to bring this protest ,

and its Petition should be dismissed. Exterior Assessments, LLC

v. Dep't of Business an d Professional Regulation , Case

No. 03 - 1722BID, para. 56 - 58 ( DOAH August 22, 2003) (holding that

third - ranked bidder did not meet its burden to show that it

should have received the award over the higher - ranked bidders,

and, thus, failed to prove its sta nding to challenge the award).

TMSB and First Transit Proposals are Responsive

94 . A "responsive bid," "responsive proposal," or

"responsive reply" means a bid, or proposal, or reply submitted

by a responsive and responsible vendor that conforms in all

material respects to the solicitation. A "responsive vendor"

means a vendor that has submitted a bid, proposal, or reply

"that conforms in all material respects to the solicitation."

§ 287.012(24) and ( 25 ), Fla. Stat.

95 . The RFP is the governing docu ment containing the

criteria with which a responsive proposal must comply. The

Commission determined that the TMSB, Logisticare and First

Transit proposals complied with the RFP's requirements and were

responsive.

96 . Under Florida law, a n " [ ALJ ] need n ot, in effect,

second guess the members of the evaluation commit tee to

determine whether he and/ or other reasonable and well - informed

persons might have reached a contrary result. Rather a 'public

body has wide discretion' in the bidding process and ' its

decision, when based on an honest exercise' of the discretion,

should not be overturned 'even if it may appear erroneous and

even if reasonable persons may disagree.' The [ ALJ's ] sole

responsibility is to ascertain whether the agency acted

fraudulently, a rbitrarily, illegally, or dishonestly."

Scientific Games, Inc. v. Dittler Brothers, Inc. , 586 So. 2d

1128, 1131 (Fla. 1st DCA 1991).

97 . After reviewing the bidder's proposals and the

relevant testimony, there is reasonable and credible evidence in

the record to support the Commission's determination of

responsiveness.

98 . Logisticare failed to demonstrate that the TMSB or

First Transit proposals were non - responsive for failing to

materially conform to the RFP's requirements. Therefore, the

Commission 's decision to name TMSB as the intended awardee of

the proposed contract is not clearly erroneous, arbitrary,

capricious or contrary to competition.

99 . On the basis of the foregoing findings of fact, and

for the reasons discussed above, it is concluded that the

proposals submitted by TMSB and First Transit are responsive in

all material respects.

10 0 . Evaluators are selected specifically for their

knowledge and expertise within a specified field or industry.

Evaluators are not require d to be blank sl ates, but must apply

their knowledge and expertise, including their familiarity with

other people and entities operating in the industry, to

successfully accomplish their duties. Old Tampa Bay

Enterprises, Inc. v. Dep't of Transportation , Case No.

98 - 522 5BID, para. 158 - 162 (DOAH May 27, 1999); Experior

Assessments, LLC v. Dep't of Business and Professional

Regulation , Case No. 03 - 1722BID, para. 77 - 79 ( DOAH August 22,

2003)(declaring "[i]f evaluation committee members are required

to be experienced and kno wledgeable, they must be allowed to

rely on that experience and knowledge in evaluating

proposals."); Morall & Carey v. Dep't of Revenue , Case No .

95 - 3029BID, par a . 47 - 52 (DOAH August 31, 1995) (holding "the

pre - existing relationship between the evaluators and Intervenor

did not transform the honest exercise of the evaluator's

discretion into an arbitrary, fraudulent, dishonest, or illegal

exercise of agency discretion."); Gibbons & Company, Inc. v.

Florida Board of Regents , Case No. 99 - 0697BID, para. 205, 281

(DOAH September 17, 1999) ("It would make little or no sense to

require the members of the evaluation committee to be

experienced and knowledgeable . . . and then, once they have

been appointed to the committee, to forbid them, in discharging

their dut ies as evaluators, from relying on the experience and

knowledge that qualified them to serve on the committee").

10 1 . In Old Tampa Bay , the ALJ dismissed claims of bias

arising from an evaluator's alleged preference for the winning

bidder. According t o the ALJ , it was reasonable to conclude the

evaluator's familiarity with the "nuts and bolts" of the

operations that made his opinions more reliable. This

familiarity included experience with the services being sought

and some of the individuals identifi ed in the various proposals.

An evaluator is "not required to put on blinders or disregard

his own first - hand knowledge of the operations . . . and of the

people who have worked on them." Old Tampa Bay Enterprises,

Inc. v. Dep't of Transportation , Case No 98 - 5225BI D, para.

158 - 162 (DOAH May 27, 1999).

10 2 . Based on the principles stated in Wester and Old

Tampa , Petitioner failed to prove that any of the evaluators

were biased for or against any bidder. Evaluators are not

expected to disregard the ver y knowledge and experience that

qualifies them to conduct an evaluation. Moreover, a finding of

bias "must be based upon 'hard facts,' not mere 'suspicion or

innuendo.'" Barton Protective Services, LLC v. Dep't of

Transportation , Case No. 06 - 1541BID, par a. 213 (DOAH July 20,

2006) (citing CACI, Inc. - Federal v. United States , 719 F.2d

1567, 1581 - 82 (Fed. Cir. 1983) and Filtration Development Co. ,

LLC v. United States , 60 Fe d. Cl. 371, 380 (Fed. Cl. 2004) .

Logisticare's reliance on innuendo and opinion do es not

demonstrate that the evaluators were unable to fairly evaluate

the TMSB or Logisticare proposals.

103 . Logisticare failed to establish with persuasive

evidence that the evaluators' scores were not based on a fair

and honest judgment of how well th e proposal met the RFP's

evaluation criteria. The evaluators were shown to have relied

on their experience and knowledge in comparing the proposals

against the RFP. If evaluation committee members are required

to be experienced and knowledgeable, they mu st be allowed to

rely on that experience and knowledge in evaluating proposals.

104 . In fact, Logisticare admitted that other reasonable

or plausible explanations, not involving bias, exist to explain

the evaluators scoring of the proposals. Therefore, this

tribunal can readily conclude that Logisticare failed to carry

its burden of proof to demonstrate bias. See Colbert , 890

So. 2d at 1166; Dravo , 602 So. 2d at 635.

105 . Furthermore, it is well - settled that "a party

protesting an award to the low bidder must be prepared to show

not only that the low bid was deficient , but must also show that

the protestor's own bid does not suffer from the same

deficiency." Intercontinental Properties, Inc. v. Dep't of

Health and Rehabilitative Services , 606 So. 2 d 380, 384 (Fla. 3d

DCA 1992).

106 . At hearing , Logisticare also raised the issue of the

evaluators giving unearned points based on the experience of

TMSB's affiliates. Logisticare failed to establish the extent

of the credit given on this basis or whet her it would have

impacted the resulting award to TMSB. Moreover, Logisticare

waived the issue because its proposal also claimed credit for

experience earned by a different (predecessor) entity.

Logisticare cannot allege wrongdoing on the part of the

Com mission and TMSB when it, too, suffers from the same

deficiency.

107 . It appears that the evaluators followed the scoring

methodology outlined in the RFP. Unlike the previous

procurement effort, where the evaluators jointly developed their

own weighting scheme outside of the RFP's published guidelines,

this procurement's evaluations were conducted according to the

terms of the score sheets provided to the bidders. The

evaluators did not alter or exceed the scoring methodology

described in the RFP. The evaluators are allowed, even

required, to apply their own personal expertise to the

completion of their duties, and Logisticare did not challenge or

protest the evaluation plan until after it had lost the

competition.

108 . Ultimately, Logisticare's attem pts to demonstrate

arbitrary and erroneous scoring or some level of bias by the

evaluators, either for TMBS or against Logisticare, fell short

of its burden or proof.

Conflict of Interest

109 . The RFP included the state of Florida's standard form

PUR 100 1, General Instructions to Respondents. This form

includes a prohibition against "conflicts of interest" and

requires a bidder to disclose all state employees that are also

"officers, directors, employees, or other agents," as well as

state employees that own 5 percent or more of the bidding

entity.

110 . The Florida S tatutes define a "conflict of interest"

as "a situation in which regard for a private interest tends to

lead to disregard of a public duty or interest." § 112.312(8),

Fla. Stat.

111 . T he wording of Section 427.012, Florida Statutes, in

effect at the time of the issuance of the RFP, expressly

required the Commission to include at least six private for

profit and/or non - prof it providers with a minimum of five years

of continuous experienc e in the NET services industry. The

statute also required the Commission to include a representative

of the community tr ansportation coordinators ("CTC s"), entities

from each county that were individually under contract with the

Commission.

112 . One con sequence of the now - revised statute's

commission staffing requirement was that the Commission had a

history of filling its seats with individuals, or employees of

entities, that simultaneously contracted with the Commission.

Both statutory language and hi storical practice confirm that no

conflict of interest was created when a sitting Commissioner or

his employer bid on a proposal. This is a reasonable conclusion

after recognizing that the Legislature specifically required the

Commission to include repres entatives from the private sector

and the CTC s. To conclude otherwise would contradict the

statute's express requirement and penalize the private providers

who volunteered to represent segments of an industry that is

largely funded by contracts with gover nmental entities. In

essence, Logisticare argues the very nature that qualifies these

private providers for service as a Commissioner would then

disqualify them from bidding on the work that is their

livelihood. This is an illogical conclusion.

113 . "The conflict of interest theory is based , as we

understand it, on the fact that an individual occupying a public

position uses the trust imposed in him and the position he

occupies to further his own personal gain. It is the influence

he exerts in his of ficial position to gain personally in spite

of his official trust which is the evil the law seeks to

eradicate." City of Coral Gables v. Weksler , 164 So. 2d 260,

263 (Fla. 3d DCA 1964).

114 . In Weksler , the D istrict Court of Appeal held that

there was n o conflict of interest in the contractual

relationship between a city and one of its employees, whereby

the employee would manage a golf course and return a percentage

of the revenue to the city. After reviewing the facts and the

applicable law, the c ourt concluded that the employee did not

act in an official capacity to personally gain a direct or

indirect benefit. While the employee had acted on his own

behalf, he took no official action on behalf of the city.

Weksler , 164 So. 2d at 263.

115 . As in W eksler , McDonald took no official action on

behalf of the Commission regarding the award to TMSB. Moreover,

there is no evidence in the record demonstrating that McDonald

used his position as a voluntary Commissioner to influence the

procurement process f or personal gain or to help TMSB obtain the

contract.

116 . In this case, it is unnecessary to decide what would

qualify as a t rue conflict of interest under C hapter 112,

Florida Statutes. David McDonald's roles as a commissioner and

a TMSB employee were disclosed in the TMSB proposal. Moreover,

McDonald's voluntary service as a Commissioner legally

terminated on May 31, 2006, when the Governor signed into law

the legislation revising the Commission's structure. Chapter

2006 - 61, Laws of Florida (2006). 3

117 . During the time he served as a commissioner, David

McDonald was an employee of TMSB, not the state, and, p o ssessing

less than four percent of the shares, did not own a material

interest in the company. § 112.312 (15) , Fla. Stat. (defining

"material interest" as "direct or indirect ownership of more

than 5 percent of the total assets or capital stock of any

business entity).

118 . Furthermore, McDonald took no official action as a

Commissioner regarding the procurement. He was not involved in

the d evelopment of the RFP or the evaluation of the proposals or

TMSB's selection as the wining bidder.

119 . McDonald's role in the process was limited to

providing input to the TMSB proposal and contracting the FDOT

point of contact to request clarification of the Commission's

answer to one of TMSB's written questions.

12 0 . Therefore, it is concluded that no conflict of

interest arose from David McDonald's roles as a voluntary

Commissioner and a TMSB employee.

Logisticare's Untimely Challenge of RFP Specifi cations

12 1 . When challenging an RFP's spec ifications,

Section 120.57(3)(b ), Florida Statutes requires the following:

With respect to a protest of the terms,

conditions, and specifications contained in

a solicitation, including any provisions

governing the methods for ranking bids,

proposals, or replies, awarding contracts,

reserving rights of further negotiation, or

modifying or amending any contract, the

notice of protest shall be filed in writing

within 72 hours after the posting of the

solicitation.

12 2 . When a bidder fails to timely challenge a procurement

document's specifications, it waives its right to do so, and is

prohibited from raising any such issue during a later protest.

Consultech of Jacksonville, Inc. v. Dep't of Health , 876 So. 2d

73 1 (Fla. 1st DCA 2004)(affirming Department's final order

rejecting untimely protest of RFP's specifications); Optiplan,

Inc. v. School Bd. of Broward County , 710 So. 2d 569 (Fla. 4th

DCA 1998)(bidder waived right to challenge School Board's stated

evaluati on criteria by failing to bring protest within 72 hours

of publication of bid solicitation); Capeletti Brothers, Inc. v.

Dep't. of Transportation , 499 So. 2d 855 (Fla. 1st DCA

1986)(holding bidder waived right to protest bid solicitation

specifications whe n it failed to bring challenge within 72 hours

of receipt of project plans).

12 3 . In this case, Logisticare raised numerous challenges

to the RFP's specifications and requirements, but only in the

formal bid protest.

124 . Logisticare's challenge to th e RFP's price terms w a s

untimely. Commission witnesses testified that the price was

fixed and only subject to change based on Legislative funding

decisions. The price offered in the RFP was not subject to the

Commission's discretion. If Logisticare wishe d to challenge the

RFP's price terms, it was required to do so within 72 hours of

the RFP being published, and not only after being ranked as the

third - highest bidder.

125 . It is concluded that the RFP 's price terms were not

contrary to Florida law.

126 . Logisticare also challenged the propriety of the

Commission's decision to delete from the evaluation sheet the

language concerning a bidder's experience in Broward County.

Logisticare admits that it received this information through an

addendum, and it only raised the issue after losing the

competition to both TMSB and First Transit. Again,

Logisticare's protest was brought after the statutory deadline

had expired, and the issue was waived.

127 . This same conclusion applies to Logisticare's

protests concerning the Commission's use of a Request for

Proposals format over another procurement method, the alleged

lack of clarity in the RFP's description of its software

requirement, the RFP's scoring methodology and the alleged

failure to include in the RFP a provision limiting the pool of

bidders to those entities without owners or employees currently

serving as Commissioners. Logisticare was required to raise

these allegations within 72 hours of the RFP's issuance;

however, it failed to do so. Therefore, it is concluded that

Logisticare's protests of various RFP specifications was

untimely and waived under Florida Law. § 120.57(3), Fla. Stat.

Intervenor's Motions A lleging Petitioner Filed this Protes t for

Improper Purpose and Seeking Sanctions

128 . U nder Section 120.595, Florida Statutes, a protest

brought for an "improper purpose" is one that is frivolous or

without a justiciable issue of fact or law. Consultech of

Jacksonville v. Dep't of Health , 876 So. 2d 731, 736 (Fla. 1st

DCA 2004)(holding an a ppeal is frivolous under the statute if it

presents " 'no justiciable question and is so devoid of merit on

the face of the record that there is little prospect it will

ever succeed.' " ). Summer Place Condo Assoc. v. Brenda Steiner ,

Case No. 05 - 1924F (DOAH July 15, 2005)(defining "improper

purpose" as one that is frivolous or without just iciable issue

of fact or law).

129 . Under S ubs ection 57.105(1), Florida Statutes, an

award of attorney's fees is required after a finding that "the

losing party or the los ing party's attorney knew or should have

known that a claim or defense when initially presented to the

court or at any time before trial (a) [w]as not supported by the

material facts necessary to establish the claim or defense; or

(b) [w]ould not be suppor ted by the application of then - existing

law to those material facts." Subsection 57.10 5 (5), Florida

Statutes, expressly applies this same standard to administrative

proceedings.

130 . Although Logisticare failed to carry its burden of

proof in this case, it is not clear that Logisticare knew, or

should have known, that its protest was not supported by

material facts or existing law. Therefore, this tribunal does

not conclude that Logisticare brought this protest for an

improper purpose, and Intervenor's motion for sanctions under

Section 57.105, Florida Statutes, is denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby:

RECOMMENDED that the C ommission enter a final order

adopt ing this Recommended Order, dismiss ing Logisticare's

protest , and award ing the contract to TMSB .

DONE AND ENTERED this 29th day of September , 2006 , in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Adm inistrative 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 September , 2006 .

ENDNOTE S

1/ Unless otherwise indicated, all references to the Florida

Statutes shall be to the 2005 Version.

2/ Although the ruling of the court in Groves - Watkins that an

agency's decision "to award or reject all bids" may be

ove rturned only if the agency acted "fraudulently, arbitrarily,

illegally, or dishonestly" has been limited in Section

120.57(3)(f), Florida Statutes, to an agency's decision to

reject all bids, there is nothing in the statute to indicate

that the Legislature intended to change the degree of deference

given to agency decisions to award a contract pursuant to the

competitive procurement process.

3/ Chapter 2006 - 61, Laws of Florida (2006) , reads as follows:

CHAPTER 2006 - 61

House Bill No. 487

An act relating to the Commission for the

Transportation Disadvantaged; amending

s. 427.012, F.S.; revising the membership

of the commission; establishing term limits;

directing each member of the commission to

serve without regional bias; providing

qualifications for appointment to membership

on the commission; providing for nonvoting

advisory members; requiring candidates for

appointment to the commission to meet

certain standards for background screening;

requiring the Department of T ransportation

to inform the com mi ssion if a candidate

fails to meet the screening standards;

providing that costs of screening be borne

by the department or the candidate for

appointment; authorizing the commission to

appoint technical working groups; providing

for membership of the worki ng groups;

amending s. 427.013, F.S.; requiring the

commission to develop a transportation fund

allocation methodology for certain purposes;

specifying methodology criteria; preserving

Agency for Health Care Administration

authority to distribute Medicaid funds;

providing an effective date.

Be It Enacted by the Legislature of the

State of Florida:

Section 1. Section 427.012, Florida

Statutes, is amended to read:

427.012 The Commission for the

Transportation Disadvantaged. — There

is created the Commission for the

Transportation Disadvantaged in the

Department of Transportation.

(1) The commission shall consist of seven

members, all of whom shall be appointed by

the Governor, in accordance with the

requirements of s. 20.052 .

(a) Five of the members must have

significant experience in the operation of a

business and it is the intent of the

Legislature that, when making an

appointment, the Governor select persons who

reflect the broad diversity of the business

community in this state, as well as the

racial, ethnic, geo graphical, and gender

diversity of the population of this state .

(b) Two of the members must have a

disability and use the transportation

disadvantaged system .

(c) Each member shall represent the needs

of the transportation disadvantaged

th roughout the state. A member may not

subordinate the needs of the transportation

disadvantaged in general in order to favor

the needs of others residing in a specific

location in the state.

(d) Each member shall be appointed to a

term of 4 years. A mem ber may be

reappointed for one additional 4 - year term.

(e) Each member must be a resident of the

state and a registered voter.

(f) At any given time, at least one member

must be at least 65 years of age.

(g) The Secretary of Transportation, the

Secre tary of Children and Family

Services, the director of Workforce

Innovation, the executive director of the

Department of Veterans’ Affairs, the

Secretary of Elderly Affairs, the Secretary

of Health Care Administration, the director

of the Agency for Persons with Disabilities,

and a county manager or administrator who is

appointed by the Governor, or a senior -

management - level representative of each,

shall serve as ex officio, nonvoting

advisors to the commission.

(h) A member may not, within the 5 years

imm ediately before his or her appointment,

or during his or her term on the commission,

have or have had a financial relationship

with, or represent or have represented as a

lobbyist as defined in s. 11.045, the

following:

1. A transportation operator;

2. A community transportation coordinator;

3. A metropolitan planning organization;

4. A designated official planning agency;

5. A purchaser agency;

6. A local coordinating board;

7. A broker of transportation; or

8. A provider of transportation service s .

the following members:

(a) The secretary of the Department of

Transportation or the secretary’s

designee.

(b) The secretary of the Department of

Children and Family Services or the

secretary’s designee.

(c) The Commissioner of Education or the

com missioner’s designee.

(d) The director of the Agency for

Workforce Innovation or the director’s

designee.

(e) The executive director of the

Department of Veterans’ Affairs or the

executive director’s designee .

(f) The secretary of the Department of

E lderly Affairs or the secretary’s

designee.

(g) The director of the Agency for Health

Care Administration or the

director’s designee.

(h) A representative of the Florida

Association for Community Action,

who shall serve at the pleasure of that

associat ion.

(i) A representative of the Florida Transit

Association, who shall serve at the pleasure

of that association.

(j) A person over the age of 60 who is a

member of a recognized statewide

organization representing elderly

Floridians. Such person shal l be appointed

by the Governor to represent elderly

Floridians and shall be appointed to serve a

term of 4 years .

(k) A handicapped person who is a member of

a recognized statewide organization

representing handicapped Floridians. Such

person shall be a ppointed by the Governor to

represent handicapped Floridians and shall

be appointed to serve a term of 4 years.

(l) Two citizen advocate representatives

who shall be appointed by the Governor for a

term of 4 years, one representing rural

citizens and one representing urban

citizens.

(m) A representative of the community

transportation coordinators. Such person

shall be appointed by the Governor to

represent all community transportation

coordinators and shall be appointed to serve

a term of 4 years.

(n ) One member of the Early Childhood

Council. Such person shall be

appointed by the Governor to represent

maternal and child health care providers and

shall be appointed to serve a term of 4

years.

(o) Two representatives of current private

for - profit o r private not - for - profit

transportation operators each of which have

a minimum of 5 years of continuous

experience operating a broad - based system of

ambulatory and wheelchair/stretcher type

transportation, utilizing not less than 50

vehicles and including dispatch and

scheduling responsibilities. Such persons

shall be appointed by the Commissioner of

Agriculture to serve a term of 4 years.

(p) Four representatives of current private

for - profit or private not - for - profit

transportation operators, each of wh ich

having a minimum of 5 years of continuous

experience operating a broad - based system of

ambulatory and wheelchair or stretcher - type

transportation, utilizing not less than 50

vehicles, and including dispatch and

scheduling responsibilities. Such person s

shall be appointed by the Commissioner of

Agriculture to serve a term of 4

years.

(q) Six citizens representing the

nontransportation business community

of the state, three members appointed by the

President of the Senate and three members

appointed by the Speaker of the House of

Representatives.

(2) The chairperson shall be appointed by

the Governor and the vice chairperson of the

commission shall be e lected annually from

the member ship of the commission.

(3) Members of the commission shall serve

w ithout compensation but shall be allowed

per diem and travel expenses, as provided in

s. 112.061.

(4) The commission shall meet at least

quarterly, or more frequently at the call of

the chairperson. Five Nine members of the

commission constitute a quoru m, and a

majority vote of the members present is

necessary for any action taken by the

commission.

(5) The Governor may remove any member of

the commission for cause.

(6) Each candidate for appointment to the

commission must, before accepting the

appoi ntment, undergo background screening

under s. 435.04 by filing with the

Department of Transportation a complete set

of fingerprints taken by an authorized law

enforcement agency. The fingerprints must

be submitted to the Department of Law

Enforcement for state processing, and

that department shall submit the

fingerprints to the Federal Bureau of

Investigation for federal processing. The

Department of Transportation shall screen

the background results and inform the

commission of any candidate who does not

meet level 2 screening standards. A

candidate who has not met level 2 screening

standards may not be appointed to the

commission. The cost of the background

screening may be borne by the Department of

Transportation or the candidate.

(7) (6) The commis sion shall appoint an

executive director who shall serve

under the direction, supervision, and

control of the commission. The executive

director, with the consent of the

commission, shall employ such personnel

as may be necessary to perform adequately

the functions of the commission

within budgetary limitations. All Employees

of the commission are exempt from the Career

Service System.

(8) The commission shall appoint a

technical working group that includes

representatives of private paratransit

provide rs. The technical working group

shall advise the commission on issues of

importance to the state, including

information, advice, and direction regarding

the coordination of services for the

transportation disadvantaged. The

commission may appoint other t echnical

working groups whose members may include

representatives of community transportation

coordinators; metropolitan planning

organizations; regional planning councils;

experts in insurance, marketing, economic

development, or financial planning; and

p ersons who use transportation for the

transportation disadvantaged, or their

relatives, parents, guardians, or service

professionals who tend to their needs.

(9) (7) The commission is assigned to the

office of the secretary of the Department of

Transporta tion for administrative and fiscal

accountability purposes, but it shall

otherwise function inde pendently of the

control, super vision, and direction of the

department.

(10) (8) The commission shall develop a

budget pursuant to chapter 216. The budget

is not subject to change by the department

staff after it has been approved by the

commission, but it shall be transmitted to

the Governor, as head of the department,

along with the budget of the department.

Section 2. Subsection (28) is added to

section 42 7.013, Florida Statutes,

to read:

427.013 The Commission for the

Transportation Disadvantaged; purpose

and responsibilities. The purpose of the

commission is to accomplish the

coordination of transportation services

provided to the transportation

disadv antaged. The goal of this

coordination shall be to assure the cost -

effective provision of transportation by

qualified community transportation

coordinators or transportation operators for

the tr ansportation disadvantaged with out any

bias or presumption in favor of

multioperator systems or not - for - profit

transportation operators over single

operator systems or for - profit

transportation operators. In carrying out

this purpose, the commission

shall:

(28) In consultation with the Agency for

Health Care Admi nistration and the

Department of Transportation, develop an

allocation methodology that equitably

distributes all transportation fun ds under

the control of the com mission to compensate

counties, community transportation

coordinators, and other entities pro viding

transportation disadvantaged services. The

methodology shall separately account for

Medicaid beneficiaries. The methodology

shall consider such factors as the actual

costs of each transportation disadvantaged

trip based on prior - year information,

efficiencies that a provider might adopt to

reduce costs, results of the rate and cost

comparisons conducted under subsections (24)

and (25), as well as cost efficiencies of

trips when compared to the local cost of

transporting the general public. This

su bsection does not supersede the authority

of the Agency for Health Care Administration

to distribute Medicaid funds.

Section 3. This act shall take effect upon

becoming a law.

COPIES FURNISHED :

Jeffrey D. Jones, Esquire

Tom Barnhart, Esquire

Departmen t of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Geoffrey D. Smith, Esquire

Timothy B. Elliot, Esquire

Smith and Associates

2873 Remington Green Circ le

Tallahassee, Florida 32308

E.A. "Seth" Mills, Esquire

Quinn A. Hend erson, Esquire

Mills Paskert Divers P.A.

100 North Tampa Street

Suite 2010

Tampa, Florida 33602

Lisa Bacot, Executive Director

Florida Commission for the

Transportation Disadvantage

605 Suwannee Street Mail Station 49

Tallahassee, Florida 32399 - 0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to sub mit 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.