06-003412BID
Lakeview Center, Inc., D/B/A Access Behavioral Health vs.
Agency For Health Care Administration
Status: Closed
Recommended Order on Wednesday, December 6, 2006.
Recommended Order on Wednesday, December 6, 2006.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8LAKEVIEW CENTER, INC., d/b/a )
13ACCESS BEHAVIORAL HEALTH, )
17)
18Petitioner, )
20)
21vs. ) Case No. 06 - 3412BID
28)
29AGENCY FOR HEALTH )
33CARE ADMINISTRATION, )
36)
37Respondent, )
39)
40and )
42)
43MAGELLAN BEHAVIORAL )
46HEALTH OF FLORIDA, INC., )
51)
52Intervenor. )
54)
55RECOMMENDED ORDER
57On October 25 and 26, 2006, a hearing was held in
68Tallahassee, Florida, pursuant to the authority provided in
76Sectio ns 120.569 and 120.57(1), Florida Statutes. The case was
86considered by Lisa Shearer Nelson, Administrative Law Judge.
94APPEARANCES
95For Petitioner: Seann Frazier, Esquire
100Greenberg Traurig, P.A.
103101 East College Avenue
107Tallaha ssee, Florida 32301
111For Respondent: Anthony Conticello, Esquire
116Agency for Health Care Administration
1212727 Mahan Drive, Mail Station 3
127Tallahassee, Florida 32308
130For Intervenor: George Meros, Esquire
135Gray Robinson, P.A.
138301 South Bronough Street , Suite 600
144Tallahassee, Florida 32301
147STATEMENT OF THE ISSUE
151Whether the Agency for Health Care Administration's ( the
160Agency's or AHCA's) decision to award the contract contemplated
169in RFP No. 0610, Area 9, is contrar y to the A gency's governing
183statutes , the A gency's rules or policies, or the proposal
193specifications.
194PRELIMINARY STATEMENT
196On July 26, 2006, AHCA posted its notice of intent to award
208RFP No. 0610, Area 9, to Magellan Behavioral Health of Flor ida,
220Inc. (Magellan). On July 27, 2006, Lakeview Center, Inc., d/b/a
230Access Behav i oral Health (Lakeview) filed a Notice of Protest
241signifying its intent to challenge the award. On August 4,
2512006, a Formal Written Protest was filed with AHCA.
260On Septembe r 11, 2006, AHCA forwarded the Formal Written
270Protest to the Division of Administrative Hearings (DOAH). On
279September 12, 2006, M a gellan filed a Petition to Intervene.
290That same day, the Petition to Intervene was granted and the
301case was noticed for hear ing October 10, 2006. By agreement of
313all parties, the case was continued and hearing was rescheduled
323for October 25 and 26, 2006. At hearing, Joint Exhibits
333numbered 1 - 4 were admitted. Petitioner presented the testimony
343of five witnesses and Petitioner 's Exhibits numbered 1 - 8 were
355admitted. AHCA and Magellan presented one witness, and
363Magellan's Exhibits numbered 3 and 5 were admitted into
372evidence. The parties stipulated at hearing to certain facts
381which are incorporated into the findings of fact bel ow.
391A three - volume hearing transcript was filed with the
401Division on November 7, 2006. AHCA and Magellan filed their
411Joint Proposed Recommended Order November 20, 2006 , as well as a
422Renewed Joint Motion for Relinquishment of Jurisdiction .
430Petitioner req uested a one - day extension to file a proposed
442recommended order, which was unopposed , and filed its Proposed
451Recommended Order November 21, 2006. Both Proposed Recommended
459Orders are considered to be timely filed and have been
469considered in the preparatio n of this Recommended Order. The
479Renewed Joint Motion for Relinquishment of Jurisdiction is
487denied.
488FINDINGS OF FACT
4911. On April 3, 2006, AHCA issued solicitation number AHCA
501RFP 0610, titled Prepaid Mental Health Plan, AHCA Areas 8 and 9.
5132. The RFP sought a Prepaid Mental Health Plan vendor for
524certain Medicaid recipients in the Agency's Area 9, defined as
534Indian River, Martin, Okeechobee, Palm Beach and St. Lucie
543Counties. 1/
5453. Lakeview did not challenge the RFP specifications.
5534 . Lakeview, Mage llan and Mental Health Network submitted
563responses to the RFP.
5675 . The Agency rejected the response filed by Mental Health
578Network because it failed to meet a mandatory requirement of the
589RFP.
5906 . The Agency accepted Lakeview and Magellan's proposals
599a s responsive to the RFP.
6057 . The Agency employed three evaluators to review part s of
617the bids submitted . Those reviewers were Erica Carpenter,
626George Woodley and Jill Sorenson. 2/
6328 . After calculation of the average ranking of the
642scores, Magellan was ranked as the highest scored bidder and
652Lakeview was ranked second.
656Terms of the RFP
6609 . The RFP is made up of an initial two - page transmittal
674letter and 30 attachments. Relevant to this inquiry are terms
684contained in the transmittal letter and Attachme nts A, C, D and
696E.
69710 . Attachment A specifies the following with regard to
707submitting a proposal:
7109. Respondent's Representation and
714Authorization. In submitting a response,
719e ach respondent understands, represents and
725acknowledges the following (if th e
731respondent cannot so certify to any of the
739following, the respondent shall submit with
745its response a written explanation of why it
753cannot do so)
756* * *
759The product offered by the respondent
765will conform to the specifications
770without exception.
772· The respondent has read and understands
779the Contract terms and conditions and
785the submission is made in conformance
791with those terms and submissions.
796· If an award is made to the respondent,
805the respondent agrees that it intends
811to be legally bound to th e Contract
819that is formed with the State.
825· The respondent has made a diligent
832inquiry of its employees and agents
838responsible for preparing, approving,
842or submitting the response, and has
848been advised by each of them that he or
857she has not participated in any
863communication, consultation,
865discussion, agreement, collusion, act
869or other conduct inconsistent with any
875of the statements and representations
880made in the response.
884· The respondent shall indemnify, defend
890and hold harmless the Buyer and its
897employee s against any cost, damage or
904expense which may be incurred or may be
912caused by any error in the respondent's
919preparation of its bid.
923· All information provided by, and
929representations made by, the respondent
934are material and important and will be
941relied u pon by the Buyer in awarding
949the contract. Any misstatement shall
954be treated as fraudulent concealment
959from the Buyer of the true facts
966relating to submission of the bid. A
973misrepresentation shall be punishable
977under law, including but not limited
983to, Ch apter 817 of the Florida
990Statutes.
9911 1 . T his provision is understood to indicate that the
1003Agency will take all representations at face value, a conclusion
1013that is consistent with the provisions in the following
1022paragraph:
102310. Performance qualifications . The Buyer
1029reserves the right to investigate or inspect
1036at any time whether the product,
1042qualifications, or facilities offered by
1047respondent meet the Contract requirements.
1052Respondent shall at all times during the
1059Contract term rema in responsive and
1065res ponsible. . . . If the Buyer determines
1074that the conditions of the solicitation
1080documents are not complied with, or that the
1088product proposed to be furnished does not
1095meet the specified requirements, or that the
1102qualifications, financial standing, or
1106faci lities are not satisfactory, or that
1113performance is untimely, the Buyer may
1119reject the response or terminate the
1125Contract. . . . This paragraph shall not
1133mean or imply that it is obligatory upon the
1142Buyer to make an investigation either before
1149or after th e award of the Contract, but
1158should the Buyer elect to do so, respondent
1166is not relieved from fulfilling all Contract
1173requirements.
117412. Attachment C of the RFP contains the special
1183conditions relevant to this procurement, including the timeline
1191for the solicitation, a description of mandatory requirements,
1199provision for vendor questions and a vendor's conference, and
1208required certifications to be included with any proposals. In
1217terms of mandatory requirements, Section C.7 of Attachment C
1226states:
1227C.7 Ma ndatory Requirements. The State has
1234established certain requirements with
1238respect to responses submitted to
1243competitive solicitations. The use of
"1248shall", "must", or "will" (except to
1254indicate futurity) in this solicitation,
1259indicates a requirement or c ondition from
1266which a material deviation may not be waived
1274by the State. A deviation is material i f ,
1283in the State's sole discretion, the
1289deficient response is not in substantial
1295accord with the solicitation requirements,
1300provides an advantage to one respo ndent over
1308another, or has a potentially significant
1314effect on the quality of the response or
1322cost to the state. Material deviations
1328cannot be waived. The words "should" or
"1335may" in this solicitation indicate
1340desirable attributes or conditions but are
1346pe rmissive in nature. Deviation from, or
1353omission of, such desirable features will
1359not in itself cause rejection of a response.
136713. Sections C.13 and C.14 of Attachment C address several
1377certifications which must be included with any response to the
1387soli citation. At the end of each of these sections, is a
1399statement in bolded and capital letters stating, "FAILURE TO
1408SUBMIT ATTACHMENT [G , REQUIRED CERTIFICATIONS, SIGNED BY AN
1416AUTHORIZED OFFICIAL, or ATTACHMENT J, GENERAL VENDOR ELIGIBILITY
1424REQUIREMENTS , r espectively ] SHALL RESULT IN THE REJECTION OF A
1435PROSPECTIVE RESPONSE. Similarly, Section C.15 states that an
1443original technical response must be accompanied by a proposal
1452guarantee payable to the State of Florida in the amount of
1463$5,000 and made in the fo rm of a bond, cashier's check,
1476treasurer's check, bank draft or certified check. As with
1485S ections C.13 and C.14, Section C.15 ends with a statement in
1497bolded and capital letters, stating, "FAILURE TO INCLUDE THE
1506PROPOSAL GUARANTEE WITH THE SUBMISSION OF T HE ORIGINAL RESPONSE
1516WILL RESULT IN THE REJECTION OF A PROSPECTIVE VENDOR'S
1525RESPONSE."
152614. Subcontracts for the project are discussed in Section
1535C.20 of Attachment C. This section provides in pertinent part:
1545The vendor shall be responsible for the
1552admin istration and management of all aspects
1559of the contract and the Prepaid Mental
1566Health Plan resulting from the RFP. This
1573includes all aspects of network management,
1579subcontracts, employees, agents and anyone
1584acting for or on behalf of the vendor. The
1593vend or may, with the consent of the Agency,
1602enter into written subcontract(s) for
1607performance of certain of its functions
1613under the contract. The vendor must have
1620subcontracts with all administrative and
1625service providers who are not salaried
1631employees of the plan prior to the
1638commencement of services under this
1643contract . . . .
1648The vendor must submit signed subcontracts,
1654for a complete provider network in order
1661obtain Agency approval for operation in an
1668area, within sixty (60) days of the
1675execution of this c ontract, for each
1682proposed subcontracted provider. (Emphasis
1686supplied.)
16871 5 . Section C.38 provides the general instructions for
1697response preparation and submission. It specifies that the
1705response shall include a transmittal letter; proof of
1713appropriate licensure o r application for same; an accreditation
1722certification; the proposal guarantee; a cross - reference table
1731between the proposal and the RFP scope of service requirements;
1741and the actual technical response. With respect to the
1750technical response, t he RFP require s that it be prepared in the
1763order specified, with sections tabbed for ease of identification
1772and evaluation. The RFP further state s that "[s]pecific
1781questions to be answered within these sections can be found in
1792Attachment E."
17941 6 . Attachm ent D describes the scope of services sought
1806through the solicitation. It provides a general background for
1815issuing the RFP, describes its purpose, and the type of services
1826that a successful vendor must provide. Included within this
1835Attachment are many o f the definitions pertaining to the
1845services sought, and the Attachment outlines both mandatory and
1854optional services to be provided by a successful vendor to
1864enhance the plan's covered services for enrollees. The scope of
1874services provides guidance conce rning what must be included for
1884each section of the technical response.
189017. Nothing in the RFP required a respondent to submit
1900letters of intent with potential subcontractors as part of its
1910submission in response to the RFP.
19161 8 . Attachment E is entit led "Evaluation Criteria." The
1927relevant portions of Attachment E provide the following:
1935E.1 Review of Mandatory Criteria.
1940Responses to this solicitation will be
1946evaluated against the mandatory criteria
1951found in Part I, Technical Response
1957Mandatory Crite ria . Responses failing to
1964comply with all mandatory criteria will not
1971be considered for further evaluation.
1976E.2 Evaluation of Responses.
1980Each response determined to be in compliance
1987with all mandatory criteria will be
1993evaluated based on the criteria and points
2000scale delineated in Part II, Evaluation
2006Criteria . Each response will be
2012individually scored by at least three
2018evaluators having expertise and knowledge of
2024the services required by this solicitation.
2030However, the Agency reserves the right to
2037have s pecific sections of the responses
2044evaluated by less than three individuals.
2050Responses will be evaluated on a per area
2058basis.
20591. Evaluation points awarded will be based
2066on the following point structure:
2071Points
20720 The component was not addressed.
20781 The component contained
2082significant deficiencies.
20842 The component is below average.
20903 The component is average.
20954 The component is above average.
21015 The component is excellent.
2106* * *
2109E.3 Ranking of respo nses.
2114Each evaluator will calculate a total score
2121for each response. The Chairman will use
2128the total point scores to rank the responses
2136by evaluator (response with the highest
2142number = 1. second highest = 2, etc.). The
2151Chairman will then calculate an ave rage rank
2159for each response for all the evaluators.
2166The average rankings for each response shall
2173be used to determine a recommendation for
2180contract award for each area. . . .
2188(Emphasis supplied.)
21901 9 . Page 3 of 12 in Attachment E contains Part I,
2203TECHNICAL RESPONSE MANDATORY CRITERIA, referenced in Section
2210E.1, above. It states:
2214This evaluation sheet will be used by the
2222Agency for Health Care Administration to
2228de signate responses as qualified or not
2235qualified. If the answer to any of the
2243ques tions in the table below falls into the
"2252No" column, the response will be designated
2259as "not qualified" and will not be
2266considered for further evaluation.
2270QUESTIONS YES NO
22731 Did the response include the signed
2280Attachment G, Required Certificati ons
2285Form required in Section C.13?
22902 Did the response include the completed
2297Attachment J, General Vendor
2301Eligibility Requirements Form as
2305required in Section C.14?
23093 Did the response include a transmittal
2316letter, signed by an individual having
2322the au thority to bind the vendor, as
2330outlined in Section C.38?
23344 Did the response include a copy of the
2343vendor's certificate of authority
2347issued by OIR; or documentation proving
2353application for the certificate as
2358required in Section C.38?
23625 Did the respons e include Attachment DD,
2370Prepaid Mental Health Plan Attestation
2375of Accreditation Status Form Required in
2381Section C.38?
23836 Did the response include a proposal
2390guarantee in the original Technical
2395Proposal in the amount of $5,000 as
2403specified in Sections C .15 and C.38?
241020 . Pages 4 through 12 of Attachment E identified the
2421evaluation criteria used to score responses meeting the
2429mandatory criteria identified in Part I. The general category
"2438Organization and Corporate Capabilities" could receive a total
2446of 80 points. Within that category, points would be awarded
2456under the subcategories labeled legal entity; network;
2463organizational structure; mental health care experience;
2469community coordination and partnerships; management information
2475system; administra tive reporting; financial statements; legal
2482actions; financial risk and insolvency protection; surplus fund
2490requirement; and contractor's and subcontractor's facilities and
2497network management.
249921 . The general category "Operational Functions" could
2507r eceive a total of 90 points. The subcategories identified for
2518scoring include the service area of proposed plan; outreach
2527requirements; mental health care provider assignment procedures;
2534enrollee services; grievance procedures; quality improvemen t
2541require ments; care coordination; clinical records requirements;
2548out - of - plan services; cost sharing policies; after hours access;
2560and the proposed subcontractor/provider network.
256522. The RFP anticipates that the winning proposer would
2574contract with Community M ental Health Centers (CMHCs) to provide
2584a portion of the services to be provided under the contract
2595awarded pursuant to the RFP. Three CMH S s are located in Area 9:
2609Oakwood Center of the Palm Beaches, New Horizons of the Treasure
2620Coast and South County Me ntal Health Center.
262823. Oakwood Centers of the Palm Beaches and New Horizons
2638of the Treasure Coast both operate multiple locations throughout
2647Area 9. South County Mental Health Center operates from a
2657single office in Delray Beach, Palm Beach County. Bo th
2667Lakewood's and Magellan's proposals anticipated contracting with
2674all three CMHCs. Neither had binding agreements with any of the
2685CMHCs.
2686Review of the Proposals
269024 . AHCA found that b oth Magellan's and Lakeview's
2700proposals met the requirements outline d in Part I, Technical
2710Response Mandatory Criteria. As previously stated, the proposal
2718submitted by Mental Health Network was rejected for not meeting
2728this criteria. The Agency's decision that Lakeview's and
2736Magellan's proposals were responsive to the RF P and would be
2747evaluated is consistent with the terms of the RFP as specified
2758in Attachment E.
276125. Both Magellan's and Lakeview's proposals contained
2768information for each of the technical sections of the RFP
2778dealing with provision of a network of provide rs. Once the
2789submissions were provid ed to the Evaluators for scoring, no
2799evaluator gave a "0" for any section of either proposal. In
2810other words, the E valuators were satisfied that each submission
2820provided information for each section identified as manda tory
2829under the scoring criteria.
28332 6 . Inst ructions for scoring proposals t h at met the
2846requirements of the Technical Response Mandatory Criteria were
2854provided by Barbara Vaughan of the Agency's procurement office,
2863and by Deborah McNamara , who was in part r esponsible for
2874preparing the RFP . Those instructions directed the E valuators
2884to use the evaluation criteria contained in the RFP. The
2894instructions specified that each evaluator was to review the
2903proposals separately and under no circumstance were they to
2912discuss their evaluations with anyone other than the Chairman or
2922the Procurement office. The evidence reflects that the
2930Evaluators followed these instructions.
293427 . There are four sections of the RFP that could be said
2947to address the assembling and coor dination of a network
2957providers: Section 3.B (Network); Section 3.E (Community
2964Coordination and Partnerships); Section 3.L (Contractor's and
2971Subcontractor's Facilities and Network Management); and Section
29785.M (Subcontracts/Provider Network).
298128 . With regard to provision of a network under
2991Organization and Corporate Capabilities (Section 3.B of the
2999Detailed Evaluation Criteria Components) , the Evaluators were
3006instructed to consider Sections D.19 through D.23 of the RFP,
3016titled Overview of Prepaid Menta l Health Plan; General Service
3026Requirements; Medicaid Service Requirements; Additional Service
3032Requirements and Minimum Access and Staffing Standards. The
3040written instructions also directed the Evaluators to consider
3048the following questions with respect t o the proposed network:
3058* Are traditional community providers
3063represented?
3064* Are rural areas sufficiently covered?
3070* Is there evidence that sufficient
3076providers are available to cover the full
3083range of required services?
3087* Are there innovatio ns or does the vendor
3096propose to expand the current provider
3102community in a positive way?
3107* Has the vendor identified and responded
3114to any gaps in the current system of
3122care?
312329 . Magellan's proposal devoted 24 pages to explaining its
3133proposed network. It affirmed that a contract for inclusion in
3143the network would be offered to all of the providers in Section
3155409.912(4)(b)(7), Florida Statutes. Magellan advised that it
3162sent proposed letters of intent to all CMHCs in Area 9. It
3174disclo sed that two of the CMHCs (Oakwood Center of Palm Beaches
3186and New Horizons of the Treasure Coast) had infor med Magellan
3197that they were "owners/partners" with a competitor for the RFP,
3207but that it fully expected both entities to participate in the
3218network s hould Magellan be awarded the contract. It also noted
3229that it had an existing contractual relationship for commercial
3238patients with one of the CMHCs. Magellan's response regarding
3247this component was responsive to the RFP.
325430 . Erica Carpenter gave bot h Lakeview and Magellan a
3265score of 3 for this component. George Woodley gave both vendors
3276a score of 4. Jill Sorenson gave Lakeview a score of 3 and
3289Magellan a score of 2.
329431 . Under Community Coordination and Partnerships (Section
33023.E), the Evaluators were given the following written
3310instructions:
3311Consider:
3312* RFP, D . 22
3317* Are there existing collaborative
3322agreements with community partners? If
3327not, what are the plans to develop
3334collaborative agreements?
3336* Will the vendor facilitate develo pment
3343of a community system of care?
3349* Are there any innovative approaches in
3356the vendor's plans for community
3361involvement?
336232 . With respect to Community Coordination and
3370Partnerships , Magellan submitted a seven - page description of its
3380relati onships with community stakeholders , such as United Way;
3389coordination of the partnership between Magellan and its
3397providers; use of a database of community resources and other
3407aspects of its proposed community coordination. Magellan's
3414proposal for this c omponent was responsive to the RFP.
34243 3 . Erica Carpenter awarded both Lakeview and Magellan 3
3435points for Community Coordination and Partnerships. George
3442Woodley awarded 4 points to each. Jan Sorenson awarded 4 points
3453to Lakeview and 3 points to Magellan .
34613 4 . Under Section 3 .L (Contractor's and Subcontractor's
3471Facilities and Network Management), the written instructions
3478stated:
3479The adequacy, accessibility and quality of
3485the proposed plan facilities as indicated in
3492the vendor's facility standards plan.
3497Consider:
3498* RFP, D.23, B., 5.
3503* Is there evidence that the facilities are
3511accessible to the disabled?
35153 5 . For this category, Magellan made assurances that its
3526subcontractors would meet the seven standards required by AHCA.
3535Magellan provided its f acility standards plan as well as its
3546physical security facility assessment protocol for monitoring
3553providers and subcontractors for compliance with these
3560requirements. Magellan also described its credentialing process
3567for providers , its custom of organiz ational site reviews and its
3578plan for disaster preparedness. Magellan's proposal for this
3586component was responsive to the RFP.
35923 6 . Erica Carpenter awarded both Lakeview and Magellan 3
3603points for Contractor's and Subcontractor's Facilities and
3610Network Ma nagement. George Woodley awarded 4 points each and
3620Jan Sorenson awarded 3 points each.
36263 7 . Finally, u nder Section 5. M. (Subcontracts/Provider
3636Network), the written instructions provided:
3641The quality, adequacy, acceptability and
3646responsiveness of the vendor's protocol,
3651policies and procedures for network
3656management, including the types of providers
3662selected, the selection process, and risk
3668determination.
3669Consider:
3670* RFP, C.20
3673* What are the minimum criteria providers
3680meet to be included in the n etwork?
3688* How do the minimum criteria ensure
3695providers are qualified to work with
3701Severely and Persistently Mentally Ill
3706and Seriously Emotionally Disturbed
3710enrollees?
37113 8 . For this category, Magellan provided certification of
3721network pro vider eligibility, and samples of Magellan contracts
3730for facility, group and individual providers. The proposal
3738states in pertinent part:
3742Partnership. The Magellan of Florida plan
3748for network management is founded on our
3755primary partnership with consumer s, the
3761Agency for Health Care Administration,
3766(AHCA), and preferred providers Children's
3771Home Society and Family Preservation
3776Services of Florida, as well as a range of
3785broader collaborative relationships with
3789providers throughout Area 9. Our network
3795wil l encompass all willing current Medicaid
3802providers, ranging from major community
3807provider agencies such as Oakwood Center of
3814the Palm Beaches, New Horizons of the
3821Treasure Coast, Healthy Solutions Resource
3826Center, Suncoast Mental Health Center, South
3832Count y Mental Health and Center for Child
3840Development; to leading hospitals such as
3846Fair Oaks Pavilion of Delray Medical Center,
3853St. Mary's Medical Center, and Savannas
3859Hospital; to specialty providers like
3864Hibiscus Children's Center and Mutilingual
3869Psychothera py Centers. We will help them to
3877continuously improve the quality of their
3883efforts and to comply with State and Federal
3891Medicaid requirements. (Emphasis supplied.)
3895Magellan also provided a reference table that identified
3903requirements under AHCA's contra ct and where those requirements
3912are met in Magellan's contract and/or addendum. Again,
3920Magellan's proposal with respect to this component was
3928responsive to the RFP.
39323 9 . Erica Carpenter awarded both Lakeview and Magellan 3
3943points for Subcontracts/Prov ider Network. George Woodley
3950awarded 4 points each, and Jan Sorenson awarded 4 points to
3961Lakeview and 3 points to Magellan.
396740 . If only these four areas were to be considered,
3978Lakeview's scores were higher than Magellan's for these
3986components of the RF P. These, however, reflect only a portion
3997of the elements to be considered in determining the winner of
4008the contract award. Ultimately, Magellan's proposal received a
4016higher overall score than Lakeview's when all components of the
4026proposals were consider ed .
4031C ONCLUSIONS OF LAW
403541 . The Division of Administrative Hearings has
4043jurisdiction over the subject matter and the parties to this
4053action in accordance with Sections 120.569 and 120.57(1),
4061Florida Statutes.
406342 . As Petitioner, Lakeview has the bur den to establish
4074that the decision to award the contract to Magellan must be
4085invalidated. A s the party challenging the proposed agency
4094action, Lakeview has the burden of proof in this proceeding and
4105must show that the agency's proposed action is contrary to the
4116agency's governing statutes, rules or policies, or the bid or
4126proposal specifications. A de novo hearing was conducted to
4135evaluate the action taken by the agency. Section 120.57(3)(f),
4144Florida Statutes; State Contracting and Engineering Corp. v.
4152D epartment of Transportation , 709 So. 2d 607 (Fla. 1st DCA
41631998). The administrative law judge may receive evidence, as
4172with any hearing held pursuant to Section 120.57(1), but the
4182purpose of the proceeding is to evaluate the action taken by the
4194agency bas ed on the information available to the agency at the
4206time it took the action. Id .
42134 3 . Agencies enjoy wide discretion when it comes to
4224soliciting and accepting proposals, and an agency's decision,
4232when based upon an honest exercise of such discretion, wi ll not
4244be set aside even where it may appear erroneous or if reasonable
4256persons may disagree. Baxter's Asphalt and Concrete, Inc. v.
4265Department of Transportation , 475 So. 2d 1284, 1287 (Fla. 1st
4275DCA 1985); Capeletti Brothers, Inc. v. State, Department of
4284General Services , 432 So. 2d 1359, 1363 (Fla. 1st DCA 1983).
4295Section 120.57(3)(f) establishes the standard of proof as
4303whether the proposed action was clearly erroneous, contrary to
4312competition, arbitrary or capricious.
43164 4 . A decision is considered to be clearly erroneous when
4328although there is evidence to support it, after review of the
4339entire record the tribunal is left with the definite and firm
4350conviction that a mistake has been committed. United States v.
4360U.S. Gypsum Co. , 333 U.S. 354, 395 (1948). An agency action is
4372capricious if the agency takes the action without thought or
4382reason or irrationally. Agency action is arbitrary if is not
4392supported by facts or logic. See Agrico Chemical Co. v. State
4403Department of Environmental Regulation , 365 So. 2d 759, 763
4412(Fla. 1st DCA 1978). An agency decision is contrary to
4422competition if it unreasonably interferes with the objectives of
4431competitive bidding. See Wester v. Belote , 103 Fla. 976, 138
4441So. 721, 723 - 24 (1931).
44474 5 . To the extent that Petitioner is challenging the
4458policies of Respondent, and the procedures for evaluating the
4467proposals, Petitioner's argument must fail. In order to
4475challenge the adequacy of the selection procedures, Petitioner
4483must have filed a challenge to the RFP specifications. Having
4493failed to do so, it cannot challenge the adequacy of those
4504procedures in this proceeding. Capeletti Brothers, Inc. v.
4512Department of Transportation , 499 So. 2d 855 (Fla. 1st DCA
45221986).
45234 6 . Much of Petitioner's challenge is not, in reality, a
4535chal lenge to the actions of the agency in evaluating the
4546proposals . It is a challenge to the constru ction of the RFP
4559itself, and whether Evaluators were to consider whether a
4568proposal was to be considered responsive once the Part 1,
4578Technical Response Mandato ry Criteria. The RFP, however, makes
4587it clear that if a respondent does not include a response to a
4600particular section of the RFP, it will be given a 0 score for
4613that component.
46154 7 . Petitioner takes issue with Magellan's proposal
4624because it fails to p rovide letters of intent with the CMHCs and
4637because it references existing commercial relationships with
4644several providers in its proposed network. However, there is no
4654requirement in the RFP that letters of intent be submitted. To
4665do so is simply one me thod of demonstrating the ability to form
4678a network contemplated by the RFP. Similarly, reference to
4687commercial contracts simply indicates that Magellan has a
4695previous relationship with the providers in question and
4703believes that relationship can be exten ded to cover the services
4714contemplated by the RFP.
471848. Petitioner's challenge is not a challenge to the
4727responsiveness of Magellan's proposal , but to the manner and
4736quality of response submitted. For the undersigned to examine
4745the quality of the re sponses would be to invade the province of
4758the Agency in its consideration of the proposals before it. As
4769previously stated, the purpose of this proceeding is to evaluate
4779the action taken by the Agency based on the information
4789available to the Agency when it took action. Based on the
4800evidence presented, no impropriety has been demonstrated.
4807RECOMMENDATION
4808Upon consideration of the foregoing findings of fact and
4817conclusions of law, it is
4822RECOMMENDED:
4823That a final order be entered dismissing Petitione r's
4832Formal Written Protest.
4835DONE AND ENTERED this 6 th day of December, 2006, in
4846Tallahassee, Leon County, Florida.
4850S
4851LISA SHEARER NELSON
4854Administrative Law Judge
4857Division of Administrative Hearings
4861The DeSoto Building
4864123 0 Apalachee Parkway
4868Tallahassee, Florida 32399 - 3060
4873(850) 488 - 9675 SUNCOM 278 - 9675
4881Fax Filing (850) 921 - 6847
4887www.doah.state.fl.us
4888Filed with the Clerk of the
4894Division of Administrative Hearings
4898thi s 6 th day of December, 2006.
4906ENDNOTES
49071/ The award for Area 8 is not at issue in this proceeding.
49202/ The Agency also used separate Evaluators to examine and score
4931the Financial and Clinical Portions of the submissions. While
4940the Petition alleged that the Agency erred in having these
4950sections reviewed by only one or two "specialized" evaluators,
4959no evidence was presented at hearing regarding this claim and no
4970argument with respect to it is made in the Petitioner's Propose d
4982Recommended Order. Accordingly, the Findings of Fact deal only
4991with those portions of the RFP responses that were evaluated by
5002Carpenter, Woodley and Sorenson.
5006COPIES FURNISHED:
5008Seann Frazier, Esquire
5011Greenberg Traurig, P.A.
5014101 East College Avenue
5018Post Office Drawer 1838
5022Tallahassee, Florida 32301
5025Anthony L. Conticello, Esquire
5029Agency for Health Care Administration
50342727 Mahan Drive, Mail Station 3
5040Tallahassee, Florida 32308
5043George N. Meros, Jr., Esquire
5048Gray Robinson, P.A.
5051Post Office Box 11189
5055Tallahassee, Florida 32302 - 3189
5060Richard J. Shoop, Agency Clerk
5065Agency for Health Care Administration
50702727 Mahan Drive, Mail Station 3
5076Tallahassee, Florida 32308
5079William Roberts, Acting General Counsel
5084Agency for Health Care Administration
5089Fort Knox Bu ilding, Suite 3431
50952727 Mahan Drive, Mail Station 3
5101Tallahassee, Florida 32308
5104Christa Calamas, Secretary
5107Agency for Health Care Administration
5112Fort Knox Building, Suite 3116
51172727 Mahan Drive, Mail Station 3
5123Tallahassee, Florida 32308
5126NOTICE OF RIGH T TO SUBMIT EXCEPTIONS
5133All parties have a right to submit written exceptions within 1 0
5145days from the date of this recommended order. Any exceptions to
5156this recommended order should be filed with the agency that will
5167issue the final order in this case.
- Date
- Proceedings
- PDF:
- Date: 12/06/2006
- Proceedings: Recommended Order (hearing held October 25 and 26, 2006). CASE CLOSED.
- PDF:
- Date: 12/06/2006
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 11/28/2006
- Proceedings: Lakeview Center, Inc.`s Response in Opposition to Renewed Joint Motion to Relinquish Jurisdiction filed.
- PDF:
- Date: 11/20/2006
- Proceedings: Unopposed Motion to Extend Filing Deadline for Proposed Recommended Orders by One Day filed.
- Date: 11/07/2006
- Proceedings: Transcript (Volumes I-III) filed.
- Date: 10/25/2006
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 10/24/2006
- Proceedings: Lakeview Center, Inc.`s Response in Opposition to Joint Motion to Relinquish Jurisdiction filed.
- PDF:
- Date: 10/11/2006
- Proceedings: Notice of Service of Original Signature Page to Answers to First Set of Interrogatories filed.
- PDF:
- Date: 10/10/2006
- Proceedings: Order on Joint Motion to Dismiss or, in the Alternative, Motion for Summary Recommended Order (motion denied).
- PDF:
- Date: 10/09/2006
- Proceedings: Lakeview`s Response to the Joint Motion to Dismiss or for Summary Recommended Order filed.
- PDF:
- Date: 10/05/2006
- Proceedings: Petitioner`s Notice of Filing Answers to First Set of Interrogatories filed.
- PDF:
- Date: 10/05/2006
- Proceedings: Lakeview`s Answers to the Agency`s First Set of Interrogatories filed.
- PDF:
- Date: 10/05/2006
- Proceedings: Lakeview`s Response to the Agency`s Request for Production filed.
- PDF:
- Date: 10/04/2006
- Proceedings: Notice of Serving First Set of Interrogatories to Petitioner filed.
- PDF:
- Date: 10/04/2006
- Proceedings: Notice of Serving First Request for Production to Petitioner filed.
- PDF:
- Date: 10/03/2006
- Proceedings: Joint Motion to Dismiss or, in the Alternative, Motion for Summary Recommended Order filed with Proposed Hearing Exhibits filed.
- PDF:
- Date: 10/02/2006
- Proceedings: Joint Motion to Dismiss or, in the Alternative, Motion for Summary Recommended Order filed.
- PDF:
- Date: 09/27/2006
- Proceedings: Notice of Service of Original Signature Page to Answers to First Set of Interrogatories filed.
- PDF:
- Date: 09/27/2006
- Proceedings: Agency`s Response to First Set of Interrogatories from Lakeview filed.
- PDF:
- Date: 09/27/2006
- Proceedings: Agency`s Responses to First Request for Production from Lakeview filed.
- PDF:
- Date: 09/27/2006
- Proceedings: Agency`s Response to First Request for Admissions from Lakeview filed.
- PDF:
- Date: 09/21/2006
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for October 25 and 26, 2006; 9:30 a.m.; Tallahassee, FL).
- PDF:
- Date: 09/20/2006
- Proceedings: Magellan`s Response to Lakeview Center`s First Request for Production filed.
- PDF:
- Date: 09/20/2006
- Proceedings: Magellan`s Response to Lakeview Center`s First Request for Admissions filed.
- PDF:
- Date: 09/20/2006
- Proceedings: Magellan`s Notice of Service of of Answers to Lakeview Center`s First Set of Interrogatories filed.
- PDF:
- Date: 09/14/2006
- Proceedings: Lakeview`s First Request for Admissions to Agency for Health Care Administration filed.
- PDF:
- Date: 09/14/2006
- Proceedings: Lakeview`s Notice of Service of its First Set of Interrogatories to Respondent Agency for Health Care Administration filed.
- PDF:
- Date: 09/14/2006
- Proceedings: Lakeview`s First Request for Production to Respondent Agency for Health Care Administration filed.
- PDF:
- Date: 09/14/2006
- Proceedings: Lakeview`s Notice of Service of its First Set of Interrogatories to Intervenor Magellan Behavioral Health of Florida, Inc. filed.
- PDF:
- Date: 09/14/2006
- Proceedings: Lakeview`s First Request for Admissions to Magellan Behavioral Health of Florida, Inc. filed.
- PDF:
- Date: 09/14/2006
- Proceedings: Lakeview`s First Request for Production to Respondent Magellan Behavioral Health of Florida, Inc. filed.
- PDF:
- Date: 09/13/2006
- Proceedings: Order Granting Motion to Intervene (Magellan Behavioral Health of Florida, Inc.).
- PDF:
- Date: 09/13/2006
- Proceedings: Notice of Hearing (hearing set for October 10, 2006; 9:30 a.m.; Tallahassee, FL).
Case Information
- Judge:
- LISA SHEARER NELSON
- Date Filed:
- 09/11/2006
- Date Assignment:
- 09/12/2006
- Last Docket Entry:
- 12/29/2006
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
- Suffix:
- BID
Counsels
-
Anthony L Conticello, Esquire
Address of Record -
Seann M. Frazier, Esquire
Address of Record -
George N. Meros, Jr., Esquire
Address of Record -
George N Meros, Jr., Esquire
Address of Record