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.


View Dockets  
Summary: Petitioner did not demonstrate that Intervenor`s proposal was not responsive to the Request for Proposals (RFP). Respondent`s actions were consistent with the governing statutes, rules, and the terms of the RFP.

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.

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Date
Proceedings
PDF:
Date: 12/29/2006
Proceedings: Final Order filed.
PDF:
Date: 12/28/2006
Proceedings: Agency Final Order
PDF:
Date: 12/06/2006
Proceedings: Recommended Order
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: 11/21/2006
Proceedings: Lakeview Center, Inc.`s Proposed Recommended Order filed.
PDF:
Date: 11/20/2006
Proceedings: Renewed Joint Motion to Relinquish Jurisdiction filed.
PDF:
Date: 11/20/2006
Proceedings: Joint Proposed Recommended Order 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: Joint Pre-hearing Stipulation filed.
PDF:
Date: 10/24/2006
Proceedings: Order (Joint Motion to Relinquish Jurisdiction is denied).
PDF:
Date: 10/24/2006
Proceedings: Lakeview Center, Inc.`s Response in Opposition to Joint Motion to Relinquish Jurisdiction filed.
PDF:
Date: 10/23/2006
Proceedings: Notice of Taking Deposition filed.
PDF:
Date: 10/16/2006
Proceedings: Joint Motion to Relinquish Jurisdiction filed.
PDF:
Date: 10/11/2006
Proceedings: Notice of Taking Telephonic Deposition 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: 10/05/2006
Proceedings: Notice of Taking Telephone Deposition 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: 09/27/2006
Proceedings: Notice of Filing Responses to Lakeview`s Interrogatories.
PDF:
Date: 09/22/2006
Proceedings: Notice of Taking Deposition Duces Tecum (J. Sorenson) filed.
PDF:
Date: 09/22/2006
Proceedings: Notice of Taking Deposition Duces Tecum (G. Woodley) filed.
PDF:
Date: 09/21/2006
Proceedings: Notice of Taking Deposition Duces Tecum 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: Agreed Motion for Continuance filed.
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: Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 09/13/2006
Proceedings: Order of Pre-hearing Instructions.
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).
PDF:
Date: 09/12/2006
Proceedings: Magellan`s Motion to Intervene filed.
PDF:
Date: 09/12/2006
Proceedings: Notice of Appearance (filed by G. Meros, Jr.).
PDF:
Date: 09/11/2006
Proceedings: Notice of Protest filed.
PDF:
Date: 09/11/2006
Proceedings: Bid/Proposal Tabulation filed.
PDF:
Date: 09/11/2006
Proceedings: Formal Written Protest and Petition for Formal Administrative Proceedings filed.
PDF:
Date: 09/11/2006
Proceedings: Notice (of Agency referral) filed.

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

Related Florida Statute(s) (3):