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.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKEVIEW CENTER, INC., d/b/a )

ACCESS BEHAVIORAL HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 06 - 3412BID

)

AGENCY FOR HEALTH )

CARE ADMINISTRATION, )

)

Respondent, )

)

and )

)

MAGELLAN BEHAVIORAL )

HEALTH OF FLORIDA, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

On October 25 and 26, 2006, a hearing was held in

Tallahassee, Florida, pursuant to the authority provided in

Sectio ns 120.569 and 120.57(1), Florida Statutes. The case was

considered by Lisa Shearer Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Seann Frazier, Esquire

Greenberg Traurig, P.A.

101 East College Avenue

Tallaha ssee, Florida 32301

For Respondent: Anthony Conticello, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

For Intervenor: George Meros, Esquire

Gray Robinson, P.A.

301 South Bronough Street , Suite 600

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether the Agency for Health Care Administration's ( the

Agency's or AHCA's) decision to award the contract contemplated

in RFP No. 0610, Area 9, is contrar y to the A gency's governing

statutes , the A gency's rules or policies, or the proposal

specifications.

PRELIMINARY STATEMENT

On July 26, 2006, AHCA posted its notice of intent to award

RFP No. 0610, Area 9, to Magellan Behavioral Health of Flor ida,

Inc. (Magellan). On July 27, 2006, Lakeview Center, Inc., d/b/a

Access Behav i oral Health (Lakeview) filed a Notice of Protest

signifying its intent to challenge the award. On August 4,

2006, a Formal Written Protest was filed with AHCA.

On Septembe r 11, 2006, AHCA forwarded the Formal Written

Protest to the Division of Administrative Hearings (DOAH). On

September 12, 2006, M a gellan filed a Petition to Intervene.

That same day, the Petition to Intervene was granted and the

case was noticed for hear ing October 10, 2006. By agreement of

all parties, the case was continued and hearing was rescheduled

for October 25 and 26, 2006. At hearing, Joint Exhibits

numbered 1 - 4 were admitted. Petitioner presented the testimony

of five witnesses and Petitioner 's Exhibits numbered 1 - 8 were

admitted. AHCA and Magellan presented one witness, and

Magellan's Exhibits numbered 3 and 5 were admitted into

evidence. The parties stipulated at hearing to certain facts

which are incorporated into the findings of fact bel ow.

A three - volume hearing transcript was filed with the

Division on November 7, 2006. AHCA and Magellan filed their

Joint Proposed Recommended Order November 20, 2006 , as well as a

Renewed Joint Motion for Relinquishment of Jurisdiction .

Petitioner req uested a one - day extension to file a proposed

recommended order, which was unopposed , and filed its Proposed

Recommended Order November 21, 2006. Both Proposed Recommended

Orders are considered to be timely filed and have been

considered in the preparatio n of this Recommended Order. The

Renewed Joint Motion for Relinquishment of Jurisdiction is

denied.

FINDINGS OF FACT

1. On April 3, 2006, AHCA issued solicitation number AHCA

RFP 0610, titled Prepaid Mental Health Plan, AHCA Areas 8 and 9.

2. The RFP sought a Prepaid Mental Health Plan vendor for

certain Medicaid recipients in the Agency's Area 9, defined as

Indian River, Martin, Okeechobee, Palm Beach and St. Lucie

Counties. 1/

3. Lakeview did not challenge the RFP specifications.

4 . Lakeview, Mage llan and Mental Health Network submitted

responses to the RFP.

5 . The Agency rejected the response filed by Mental Health

Network because it failed to meet a mandatory requirement of the

RFP.

6 . The Agency accepted Lakeview and Magellan's proposals

a s responsive to the RFP.

7 . The Agency employed three evaluators to review part s of

the bids submitted . Those reviewers were Erica Carpenter,

George Woodley and Jill Sorenson. 2/

8 . After calculation of the average ranking of the

scores, Magellan was ranked as the highest scored bidder and

Lakeview was ranked second.

Terms of the RFP

9 . The RFP is made up of an initial two - page transmittal

letter and 30 attachments. Relevant to this inquiry are terms

contained in the transmittal letter and Attachme nts A, C, D and

E.

10 . Attachment A specifies the following with regard to

submitting a proposal:

9. Respondent's Representation and

Authorization. In submitting a response,

e ach respondent understands, represents and

acknowledges the following (if th e

respondent cannot so certify to any of the

following, the respondent shall submit with

its response a written explanation of why it

cannot do so)

* * *

The product offered by the respondent

will conform to the specifications

without exception.

· The respondent has read and understands

the Contract terms and conditions and

the submission is made in conformance

with those terms and submissions.

· If an award is made to the respondent,

the respondent agrees that it intends

to be legally bound to th e Contract

that is formed with the State.

· The respondent has made a diligent

inquiry of its employees and agents

responsible for preparing, approving,

or submitting the response, and has

been advised by each of them that he or

she has not participated in any

communication, consultation,

discussion, agreement, collusion, act

or other conduct inconsistent with any

of the statements and representations

made in the response.

· The respondent shall indemnify, defend

and hold harmless the Buyer and its

employee s against any cost, damage or

expense which may be incurred or may be

caused by any error in the respondent's

preparation of its bid.

· All information provided by, and

representations made by, the respondent

are material and important and will be

relied u pon by the Buyer in awarding

the contract. Any misstatement shall

be treated as fraudulent concealment

from the Buyer of the true facts

relating to submission of the bid. A

misrepresentation shall be punishable

under law, including but not limited

to, Ch apter 817 of the Florida

Statutes.

1 1 . T his provision is understood to indicate that the

Agency will take all representations at face value, a conclusion

that is consistent with the provisions in the following

paragraph:

10. Performance qualifications . The Buyer

reserves the right to investigate or inspect

at any time whether the product,

qualifications, or facilities offered by

respondent meet the Contract requirements.

Respondent shall at all times during the

Contract term rema in responsive and

res ponsible. . . . If the Buyer determines

that the conditions of the solicitation

documents are not complied with, or that the

product proposed to be furnished does not

meet the specified requirements, or that the

qualifications, financial standing, or

faci lities are not satisfactory, or that

performance is untimely, the Buyer may

reject the response or terminate the

Contract. . . . This paragraph shall not

mean or imply that it is obligatory upon the

Buyer to make an investigation either before

or after th e award of the Contract, but

should the Buyer elect to do so, respondent

is not relieved from fulfilling all Contract

requirements.

12. Attachment C of the RFP contains the special

conditions relevant to this procurement, including the timeline

for the solicitation, a description of mandatory requirements,

provision for vendor questions and a vendor's conference, and

required certifications to be included with any proposals. In

terms of mandatory requirements, Section C.7 of Attachment C

states:

C.7 Ma ndatory Requirements. The State has

established certain requirements with

respect to responses submitted to

competitive solicitations. The use of

"shall", "must", or "will" (except to

indicate futurity) in this solicitation,

indicates a requirement or c ondition from

which a material deviation may not be waived

by the State. A deviation is material i f ,

in the State's sole discretion, the

deficient response is not in substantial

accord with the solicitation requirements,

provides an advantage to one respo ndent over

another, or has a potentially significant

effect on the quality of the response or

cost to the state. Material deviations

cannot be waived. The words "should" or

"may" in this solicitation indicate

desirable attributes or conditions but are

pe rmissive in nature. Deviation from, or

omission of, such desirable features will

not in itself cause rejection of a response.

13. Sections C.13 and C.14 of Attachment C address several

certifications which must be included with any response to the

soli citation. At the end of each of these sections, is a

statement in bolded and capital letters stating, "FAILURE TO

SUBMIT ATTACHMENT [G , REQUIRED CERTIFICATIONS, SIGNED BY AN

AUTHORIZED OFFICIAL, or ATTACHMENT J, GENERAL VENDOR ELIGIBILITY

REQUIREMENTS , r espectively ] SHALL RESULT IN THE REJECTION OF A

PROSPECTIVE RESPONSE. Similarly, Section C.15 states that an

original technical response must be accompanied by a proposal

guarantee payable to the State of Florida in the amount of

$5,000 and made in the fo rm of a bond, cashier's check,

treasurer's check, bank draft or certified check. As with

S ections C.13 and C.14, Section C.15 ends with a statement in

bolded and capital letters, stating, "FAILURE TO INCLUDE THE

PROPOSAL GUARANTEE WITH THE SUBMISSION OF T HE ORIGINAL RESPONSE

WILL RESULT IN THE REJECTION OF A PROSPECTIVE VENDOR'S

RESPONSE."

14. Subcontracts for the project are discussed in Section

C.20 of Attachment C. This section provides in pertinent part:

The vendor shall be responsible for the

admin istration and management of all aspects

of the contract and the Prepaid Mental

Health Plan resulting from the RFP. This

includes all aspects of network management,

subcontracts, employees, agents and anyone

acting for or on behalf of the vendor. The

vend or may, with the consent of the Agency,

enter into written subcontract(s) for

performance of certain of its functions

under the contract. The vendor must have

subcontracts with all administrative and

service providers who are not salaried

employees of the plan prior to the

commencement of services under this

contract . . . .

The vendor must submit signed subcontracts,

for a complete provider network in order

obtain Agency approval for operation in an

area, within sixty (60) days of the

execution of this c ontract, for each

proposed subcontracted provider. (Emphasis

supplied.)

1 5 . Section C.38 provides the general instructions for

response preparation and submission. It specifies that the

response shall include a transmittal letter; proof of

appropriate licensure o r application for same; an accreditation

certification; the proposal guarantee; a cross - reference table

between the proposal and the RFP scope of service requirements;

and the actual technical response. With respect to the

technical response, t he RFP require s that it be prepared in the

order specified, with sections tabbed for ease of identification

and evaluation. The RFP further state s that "[s]pecific

questions to be answered within these sections can be found in

Attachment E."

1 6 . Attachm ent D describes the scope of services sought

through the solicitation. It provides a general background for

issuing the RFP, describes its purpose, and the type of services

that a successful vendor must provide. Included within this

Attachment are many o f the definitions pertaining to the

services sought, and the Attachment outlines both mandatory and

optional services to be provided by a successful vendor to

enhance the plan's covered services for enrollees. The scope of

services provides guidance conce rning what must be included for

each section of the technical response.

17. Nothing in the RFP required a respondent to submit

letters of intent with potential subcontractors as part of its

submission in response to the RFP.

1 8 . Attachment E is entit led "Evaluation Criteria." The

relevant portions of Attachment E provide the following:

E.1 Review of Mandatory Criteria.

Responses to this solicitation will be

evaluated against the mandatory criteria

found in Part I, Technical Response

Mandatory Crite ria . Responses failing to

comply with all mandatory criteria will not

be considered for further evaluation.

E.2 Evaluation of Responses.

Each response determined to be in compliance

with all mandatory criteria will be

evaluated based on the criteria and points

scale delineated in Part II, Evaluation

Criteria . Each response will be

individually scored by at least three

evaluators having expertise and knowledge of

the services required by this solicitation.

However, the Agency reserves the right to

have s pecific sections of the responses

evaluated by less than three individuals.

Responses will be evaluated on a per area

basis.

1. Evaluation points awarded will be based

on the following point structure:

Points

0 The component was not addressed.

1 The component contained

significant deficiencies.

2 The component is below average.

3 The component is average.

4 The component is above average.

5 The component is excellent.

* * *

E.3 Ranking of respo nses.

Each evaluator will calculate a total score

for each response. The Chairman will use

the total point scores to rank the responses

by evaluator (response with the highest

number = 1. second highest = 2, etc.). The

Chairman will then calculate an ave rage rank

for each response for all the evaluators.

The average rankings for each response shall

be used to determine a recommendation for

contract award for each area. . . .

(Emphasis supplied.)

1 9 . Page 3 of 12 in Attachment E contains Part I,

TECHNICAL RESPONSE MANDATORY CRITERIA, referenced in Section

E.1, above. It states:

This evaluation sheet will be used by the

Agency for Health Care Administration to

de signate responses as qualified or not

qualified. If the answer to any of the

ques tions in the table below falls into the

"No" column, the response will be designated

as "not qualified" and will not be

considered for further evaluation.

QUESTIONS YES NO

1 Did the response include the signed

Attachment G, Required Certificati ons

Form required in Section C.13?

2 Did the response include the completed

Attachment J, General Vendor

Eligibility Requirements Form as

required in Section C.14?

3 Did the response include a transmittal

letter, signed by an individual having

the au thority to bind the vendor, as

outlined in Section C.38?

4 Did the response include a copy of the

vendor's certificate of authority

issued by OIR; or documentation proving

application for the certificate as

required in Section C.38?

5 Did the respons e include Attachment DD,

Prepaid Mental Health Plan Attestation

of Accreditation Status Form Required in

Section C.38?

6 Did the response include a proposal

guarantee in the original Technical

Proposal in the amount of $5,000 as

specified in Sections C .15 and C.38?

20 . Pages 4 through 12 of Attachment E identified the

evaluation criteria used to score responses meeting the

mandatory criteria identified in Part I. The general category

"Organization and Corporate Capabilities" could receive a total

of 80 points. Within that category, points would be awarded

under the subcategories labeled legal entity; network;

organizational structure; mental health care experience;

community coordination and partnerships; management information

system; administra tive reporting; financial statements; legal

actions; financial risk and insolvency protection; surplus fund

requirement; and contractor's and subcontractor's facilities and

network management.

21 . The general category "Operational Functions" could

r eceive a total of 90 points. The subcategories identified for

scoring include the service area of proposed plan; outreach

requirements; mental health care provider assignment procedures;

enrollee services; grievance procedures; quality improvemen t

require ments; care coordination; clinical records requirements;

out - of - plan services; cost sharing policies; after hours access;

and the proposed subcontractor/provider network.

22. The RFP anticipates that the winning proposer would

contract with Community M ental Health Centers (CMHCs) to provide

a portion of the services to be provided under the contract

awarded pursuant to the RFP. Three CMH S s are located in Area 9:

Oakwood Center of the Palm Beaches, New Horizons of the Treasure

Coast and South County Me ntal Health Center.

23. Oakwood Centers of the Palm Beaches and New Horizons

of the Treasure Coast both operate multiple locations throughout

Area 9. South County Mental Health Center operates from a

single office in Delray Beach, Palm Beach County. Bo th

Lakewood's and Magellan's proposals anticipated contracting with

all three CMHCs. Neither had binding agreements with any of the

CMHCs.

Review of the Proposals

24 . AHCA found that b oth Magellan's and Lakeview's

proposals met the requirements outline d in Part I, Technical

Response Mandatory Criteria. As previously stated, the proposal

submitted by Mental Health Network was rejected for not meeting

this criteria. The Agency's decision that Lakeview's and

Magellan's proposals were responsive to the RF P and would be

evaluated is consistent with the terms of the RFP as specified

in Attachment E.

25. Both Magellan's and Lakeview's proposals contained

information for each of the technical sections of the RFP

dealing with provision of a network of provide rs. Once the

submissions were provid ed to the Evaluators for scoring, no

evaluator gave a "0" for any section of either proposal. In

other words, the E valuators were satisfied that each submission

provided information for each section identified as manda tory

under the scoring criteria.

2 6 . Inst ructions for scoring proposals t h at met the

requirements of the Technical Response Mandatory Criteria were

provided by Barbara Vaughan of the Agency's procurement office,

and by Deborah McNamara , who was in part r esponsible for

preparing the RFP . Those instructions directed the E valuators

to use the evaluation criteria contained in the RFP. The

instructions specified that each evaluator was to review the

proposals separately and under no circumstance were they to

discuss their evaluations with anyone other than the Chairman or

the Procurement office. The evidence reflects that the

Evaluators followed these instructions.

27 . There are four sections of the RFP that could be said

to address the assembling and coor dination of a network

providers: Section 3.B (Network); Section 3.E (Community

Coordination and Partnerships); Section 3.L (Contractor's and

Subcontractor's Facilities and Network Management); and Section

5.M (Subcontracts/Provider Network).

28 . With regard to provision of a network under

Organization and Corporate Capabilities (Section 3.B of the

Detailed Evaluation Criteria Components) , the Evaluators were

instructed to consider Sections D.19 through D.23 of the RFP,

titled Overview of Prepaid Menta l Health Plan; General Service

Requirements; Medicaid Service Requirements; Additional Service

Requirements and Minimum Access and Staffing Standards. The

written instructions also directed the Evaluators to consider

the following questions with respect t o the proposed network:

* Are traditional community providers

represented?

* Are rural areas sufficiently covered?

* Is there evidence that sufficient

providers are available to cover the full

range of required services?

* Are there innovatio ns or does the vendor

propose to expand the current provider

community in a positive way?

* Has the vendor identified and responded

to any gaps in the current system of

care?

29 . Magellan's proposal devoted 24 pages to explaining its

proposed network. It affirmed that a contract for inclusion in

the network would be offered to all of the providers in Section

409.912(4)(b)(7), Florida Statutes. Magellan advised that it

sent proposed letters of intent to all CMHCs in Area 9. It

disclo sed that two of the CMHCs (Oakwood Center of Palm Beaches

and New Horizons of the Treasure Coast) had infor med Magellan

that they were "owners/partners" with a competitor for the RFP,

but that it fully expected both entities to participate in the

network s hould Magellan be awarded the contract. It also noted

that it had an existing contractual relationship for commercial

patients with one of the CMHCs. Magellan's response regarding

this component was responsive to the RFP.

30 . Erica Carpenter gave bot h Lakeview and Magellan a

score of 3 for this component. George Woodley gave both vendors

a score of 4. Jill Sorenson gave Lakeview a score of 3 and

Magellan a score of 2.

31 . Under Community Coordination and Partnerships (Section

3.E), the Evaluators were given the following written

instructions:

Consider:

* RFP, D . 22

* Are there existing collaborative

agreements with community partners? If

not, what are the plans to develop

collaborative agreements?

* Will the vendor facilitate develo pment

of a community system of care?

* Are there any innovative approaches in

the vendor's plans for community

involvement?

32 . With respect to Community Coordination and

Partnerships , Magellan submitted a seven - page description of its

relati onships with community stakeholders , such as United Way;

coordination of the partnership between Magellan and its

providers; use of a database of community resources and other

aspects of its proposed community coordination. Magellan's

proposal for this c omponent was responsive to the RFP.

3 3 . Erica Carpenter awarded both Lakeview and Magellan 3

points for Community Coordination and Partnerships. George

Woodley awarded 4 points to each. Jan Sorenson awarded 4 points

to Lakeview and 3 points to Magellan .

3 4 . Under Section 3 .L (Contractor's and Subcontractor's

Facilities and Network Management), the written instructions

stated:

The adequacy, accessibility and quality of

the proposed plan facilities as indicated in

the vendor's facility standards plan.

Consider:

* RFP, D.23, B., 5.

* Is there evidence that the facilities are

accessible to the disabled?

3 5 . For this category, Magellan made assurances that its

subcontractors would meet the seven standards required by AHCA.

Magellan provided its f acility standards plan as well as its

physical security facility assessment protocol for monitoring

providers and subcontractors for compliance with these

requirements. Magellan also described its credentialing process

for providers , its custom of organiz ational site reviews and its

plan for disaster preparedness. Magellan's proposal for this

component was responsive to the RFP.

3 6 . Erica Carpenter awarded both Lakeview and Magellan 3

points for Contractor's and Subcontractor's Facilities and

Network Ma nagement. George Woodley awarded 4 points each and

Jan Sorenson awarded 3 points each.

3 7 . Finally, u nder Section 5. M. (Subcontracts/Provider

Network), the written instructions provided:

The quality, adequacy, acceptability and

responsiveness of the vendor's protocol,

policies and procedures for network

management, including the types of providers

selected, the selection process, and risk

determination.

Consider:

* RFP, C.20

* What are the minimum criteria providers

meet to be included in the n etwork?

* How do the minimum criteria ensure

providers are qualified to work with

Severely and Persistently Mentally Ill

and Seriously Emotionally Disturbed

enrollees?

3 8 . For this category, Magellan provided certification of

network pro vider eligibility, and samples of Magellan contracts

for facility, group and individual providers. The proposal

states in pertinent part:

Partnership. The Magellan of Florida plan

for network management is founded on our

primary partnership with consumer s, the

Agency for Health Care Administration,

(AHCA), and preferred providers Children's

Home Society and Family Preservation

Services of Florida, as well as a range of

broader collaborative relationships with

providers throughout Area 9. Our network

wil l encompass all willing current Medicaid

providers, ranging from major community

provider agencies such as Oakwood Center of

the Palm Beaches, New Horizons of the

Treasure Coast, Healthy Solutions Resource

Center, Suncoast Mental Health Center, South

Count y Mental Health and Center for Child

Development; to leading hospitals such as

Fair Oaks Pavilion of Delray Medical Center,

St. Mary's Medical Center, and Savannas

Hospital; to specialty providers like

Hibiscus Children's Center and Mutilingual

Psychothera py Centers. We will help them to

continuously improve the quality of their

efforts and to comply with State and Federal

Medicaid requirements. (Emphasis supplied.)

Magellan also provided a reference table that identified

requirements under AHCA's contra ct and where those requirements

are met in Magellan's contract and/or addendum. Again,

Magellan's proposal with respect to this component was

responsive to the RFP.

3 9 . Erica Carpenter awarded both Lakeview and Magellan 3

points for Subcontracts/Prov ider Network. George Woodley

awarded 4 points each, and Jan Sorenson awarded 4 points to

Lakeview and 3 points to Magellan.

40 . If only these four areas were to be considered,

Lakeview's scores were higher than Magellan's for these

components of the RF P. These, however, reflect only a portion

of the elements to be considered in determining the winner of

the contract award. Ultimately, Magellan's proposal received a

higher overall score than Lakeview's when all components of the

proposals were consider ed .

C ONCLUSIONS OF LAW

41 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1),

Florida Statutes.

42 . As Petitioner, Lakeview has the bur den to establish

that the decision to award the contract to Magellan must be

invalidated. A s the party challenging the proposed agency

action, Lakeview has the burden of proof in this proceeding and

must show that the agency's proposed action is contrary to the

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

proposal specifications. A de novo hearing was conducted to

evaluate the action taken by the agency. Section 120.57(3)(f),

Florida Statutes; State Contracting and Engineering Corp. v.

D epartment of Transportation , 709 So. 2d 607 (Fla. 1st DCA

1998). The administrative law judge may receive evidence, as

with any hearing held pursuant to Section 120.57(1), but the

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

agency bas ed on the information available to the agency at the

time it took the action. Id .

4 3 . Agencies enjoy wide discretion when it comes to

soliciting and accepting proposals, and an agency's decision,

when based upon an honest exercise of such discretion, wi ll not

be set aside even where it may appear erroneous or if reasonable

persons may disagree. Baxter's Asphalt and Concrete, Inc. v.

Department of Transportation , 475 So. 2d 1284, 1287 (Fla. 1st

DCA 1985); Capeletti Brothers, Inc. v. State, Department of

General Services , 432 So. 2d 1359, 1363 (Fla. 1st DCA 1983).

Section 120.57(3)(f) establishes the standard of proof as

whether the proposed action was clearly erroneous, contrary to

competition, arbitrary or capricious.

4 4 . A decision is considered to be clearly erroneous when

although there is evidence to support it, after review of the

entire record the tribunal is left with the definite and firm

conviction that a mistake has been committed. United States v.

U.S. Gypsum Co. , 333 U.S. 354, 395 (1948). An agency action is

capricious if the agency takes the action without thought or

reason or irrationally. Agency action is arbitrary if is not

supported by facts or logic. See Agrico Chemical Co. v. State

Department of Environmental Regulation , 365 So. 2d 759, 763

(Fla. 1st DCA 1978). An agency decision is contrary to

competition if it unreasonably interferes with the objectives of

competitive bidding. See Wester v. Belote , 103 Fla. 976, 138

So. 721, 723 - 24 (1931).

4 5 . To the extent that Petitioner is challenging the

policies of Respondent, and the procedures for evaluating the

proposals, Petitioner's argument must fail. In order to

challenge the adequacy of the selection procedures, Petitioner

must have filed a challenge to the RFP specifications. Having

failed to do so, it cannot challenge the adequacy of those

procedures in this proceeding. Capeletti Brothers, Inc. v.

Department of Transportation , 499 So. 2d 855 (Fla. 1st DCA

1986).

4 6 . Much of Petitioner's challenge is not, in reality, a

chal lenge to the actions of the agency in evaluating the

proposals . It is a challenge to the constru ction of the RFP

itself, and whether Evaluators were to consider whether a

proposal was to be considered responsive once the Part 1,

Technical Response Mandato ry Criteria. The RFP, however, makes

it clear that if a respondent does not include a response to a

particular section of the RFP, it will be given a 0 score for

that component.

4 7 . Petitioner takes issue with Magellan's proposal

because it fails to p rovide letters of intent with the CMHCs and

because it references existing commercial relationships with

several providers in its proposed network. However, there is no

requirement in the RFP that letters of intent be submitted. To

do so is simply one me thod of demonstrating the ability to form

a network contemplated by the RFP. Similarly, reference to

commercial contracts simply indicates that Magellan has a

previous relationship with the providers in question and

believes that relationship can be exten ded to cover the services

contemplated by the RFP.

48. Petitioner's challenge is not a challenge to the

responsiveness of Magellan's proposal , but to the manner and

quality of response submitted. For the undersigned to examine

the quality of the re sponses would be to invade the province of

the Agency in its consideration of the proposals before it. As

previously stated, the purpose of this proceeding is to evaluate

the action taken by the Agency based on the information

available to the Agency when it took action. Based on the

evidence presented, no impropriety has been demonstrated.

RECOMMENDATION

Upon consideration of the foregoing findings of fact and

conclusions of law, it is

RECOMMENDED:

That a final order be entered dismissing Petitione r's

Formal Written Protest.

DONE AND ENTERED this 6 th day of December, 2006, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

123 0 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

thi s 6 th day of December, 2006.

ENDNOTES

1/ The award for Area 8 is not at issue in this proceeding.

2/ The Agency also used separate Evaluators to examine and score

the Financial and Clinical Portions of the submissions. While

the Petition alleged that the Agency erred in having these

sections reviewed by only one or two "specialized" evaluators,

no evidence was presented at hearing regarding this claim and no

argument with respect to it is made in the Petitioner's Propose d

Recommended Order. Accordingly, the Findings of Fact deal only

with those portions of the RFP responses that were evaluated by

Carpenter, Woodley and Sorenson.

COPIES FURNISHED:

Seann Frazier, Esquire

Greenberg Traurig, P.A.

101 East College Avenue

Post Office Drawer 1838

Tallahassee, Florida 32301

Anthony L. Conticello, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

George N. Meros, Jr., Esquire

Gray Robinson, P.A.

Post Office Box 11189

Tallahassee, Florida 32302 - 3189

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

William Roberts, Acting General Counsel

Agency for Health Care Administration

Fort Knox Bu ilding, Suite 3431

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Christa Calamas, Secretary

Agency for Health Care Administration

Fort Knox Building, Suite 3116

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

NOTICE OF RIGH T TO SUBMIT EXCEPTIONS

All parties have a right to submit written exceptions within 1 0

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.