07-001975BID Juvenile Services Program, Inc. vs. Department Of Juvenile Justice
 Status: Closed
Recommended Order on Wednesday, October 31, 2007.


View Dockets  
Summary: Petitioner did not prove the selected proposal was non-responsive to the Request for Proposal. Respondent`s decision to award the contract to the proposer with the highest point total was not erroneous, contrary to competition, arbitrary or capricious.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8JUVENILE SERVICES PROGRAM, )

12INC. , )

14)

15Petitioner , )

17)

18vs. ) Case No. 07 - 1975BID

25)

26DEPARTMENT OF JUVENILE JUSTICE , )

31)

32Respondent . )

35)

36RECOMMENDED ORDER

38Pursuant to notice, a formal hearing was held in this case

49on July 18, 2007, in Tallahassee, Florida, before Administrative

58Law Judge Carolyn S. Holifield of the Division of Administrative

68Hearings.

69APPEARANCES

70For Petitioner: Andrea V. Nelson, Esquire

76The Nelson Law Firm, P .A.

82Post Office Box 6677

86Tallahassee, Florida 32314

89For Respondent: Tonja V. White, Esquire

95Department of Juvenile Justice

99Knight Building, Room 312L

1032737 Centerview Drive

106Tallahassee , Florida 32399 - 3100

111STATEMENT OF THE ISSUE

115Whether the proposed award of Request for Proposal

123No. P2021 to Psychotherapeutic Services of Florida, Inc.

131(hereinafter " Psychotherapeutic Services " ) , is contrary to

138Respondent, Department of Juvenile Justic e ' s (hereinafter

" 147Department " ) , governing statutes, rules or policies, or the

156proposal specifications.

158PRELIMINARY STATEMENT

160On January 22, 2007, the Department issued Request for

169Proposal No. P2021 (hereinafter " RFP P2021 " or " the RFP " ) to

180solicit bids for a Detention Screening Unit for the Circuit 17

191Juvenile Assessment Center. On April 3, 2007, the Department

200posted its Notice of Agency Decision, identifying

207Psychotherapeutic Services as the provider to whom it intended

216to award the contract. Petiti o ner, Juvenile Services Program,

226Inc. (hereinafter " Petitioner " or " Juvenile Services Program " ),

234timely filed a Notice of Intent to Protest on April 4, 2007,

246indicating its intent to challenge the award. Petitioner filed

255a Petition for Formal Administrativ e Hearing (Petition) with the

265Department on April 13, 2007.

270The Petition alleged that Psychotherapeutic Services ' bid

278proposal was non - responsive to the RFP specifications, omitted

288information requested by the RFP, and failed to submit

297documentation and in formation mandated by the RFP. The Petition

307also alleged that the scoring of Psychotherapeutic Services '

316proposal by Department employees was arbitrary and capricious.

324On May 8, 2007, the Department forwarded the Petition to

334the Division of Administrat ive Hearings. On May 10, 2007, the

345case was noticed for hearing June 4, 2007. By agreement of the

357parties, the case was continued , and the hearing was rescheduled

367for July 18, 2007.

371At hearing, Petitioner presented the testimony of Isabella

379Cox, executiv e director of Juvenile Services Program ; Paul

388Hatcher ; Sarah Smith ; Loretta Bright ; Lucille Rapale ; and Terria

397Flakes, all employees of the Department. The Department

405presented no additional witnesses. Joint Exhibits 1, 2 and 3 ;

415Petitioner ' s Exhibits 1 t hrough 5, 7, 8, and 11 ; and

428Respondent ' s Exhibits 3 and 4 were received into evidence.

439At the conclusion of the hearing, the parties agreed to

449file their p roposed r ecommended o rders within ten working days

461from the filing of the transcript. The hearing Tr anscript was

472filed on July 27, 2007. T he parties timely filed P roposed

484R ecommended O rders, which have been considered in preparation of

495this Recommended Order.

498FINDINGS OF FACT

5011. On January 22, 2007, the Department issued RFP P2021 to

512solicit proposals for a Department Detention Screening Unit in

521the Circuit 17 Juvenile Assessment Center. The contract for RFP

531P2021 was for an initial three - year period, with the possibility

543of renewal for an additional three - year period.

5522. Two prospective providers, Pe titioner, Juvenile

559Services Program, and Psychotherapeutic Services submitted

565responses to RFP P2021.

5693. Sarah Smith (hereinafter " Ms. Smith " ) , acting as the

579Department ' s contract administrator, evaluated the proposals for

588compliance with the mandatory re quirements of RFP P2021. Based

598on Ms. Smith ' s review of the proposals and her determination

610that the proposals m e t the mandatory requirements of the RFP,

622the Department accepted both Petitioner ' s proposal and

631Psychotherapeutic Services ' proposal as respon sive to the RFP.

6414. The RFP consisted of the following three proposals, all

651of which were evaluated and scored by the appropriate

660evaluators: (1) the Technical Proposal, which comprise s two

669sub - parts, Management Capabilities and Program Services; (2) the

679Financial Proposal, which comprise s two sub - parts, Price and

690Financial Capabilities; and (3) the Past Performance Proposal.

6985. The maximum allotted points for each of the proposals

708were as follows:

7111. Technical Proposal

714a. Management Capabilities 160

718b. Program Services 400

7222. Financial Proposal

725a . Price 100

729b. Financial Capabilities 100

7333. Past Performance (Part I) 200

7396. The Technical Proposals were reviewed, evaluat ed , and

748scored by three evaluators, Loretta Bright, Lucille Rapale and

757Terria Flakes. Each evaluator scored each proposal separately

765and independently without consulting and conferring with the

773other evaluators. All three evaluators were Department

780emplo yees who were trained and randomly selected to evaluate the

791proposals.

7927. The scores of the three evaluators who evaluated the

802Technical Proposal were averaged. Based on those averages,

810Petitioner was awarded 117.33 points for the M anagement

819C apabilities sub - part and 278.33 points for the P rogram S ervices

833sub - part. Psychotherapeutic Services was awarded 108.80 for the

843M anagement C apabilities subpart and 276.67 for the P rogram

854Se rvices subpart of the Technical Proposal.

8618. The Financial Proposal was eval uated by Ms. Smith, an

872operations and management consultant in the Department ' s

881Contract Administration Office, Bureau of Contracts. Based on

889her evaluation of the Financial Proposals, Ms. Smith awarded 200

899points each to Petitioner and Psychotherapeutic Services.

9069. The Past Performance Proposals of the RFP were

915evaluated and scored by Paul Hatcher, a senior management

924analyst with the Department. Based on Mr. Hatcher ' s review and

936evaluation of this section, he awarded 173.75 points to

945Petitioner and 192.50 points to Psychotherapeutic Services.

95210. After calculating the total points awarded for the

961three proposals/ sections of the RFP, Psychotherapeutic Services,

969with a total score of 777.97, was ranked as the highest scored

981proposal. Petitioner, with a total score of 769.42, was ranked

991second.

99211. On April 3, 2007, the Department posted the notice of

1003its intended decision to award the contract for RFP P2021 to

1014Psychotherapeutic Services. This decision was based on

1021Psychotherapeutic Services ' proposal having a higher point total

1030than Petitioner ' s proposal.

1035General Instructions for Completing RFP P2021

104112. RFP P2021 is comprised of a one - page transmittal

1052letter and several attachments and exhibits, some of which are

1062in the 47 - page printed RFP P2021, and others which, according to

1075the RFP, are available electronically.

108013. Relevant to this proceeding are terms contained in the

1090transmittal letter and in Attachments A, B, C, D , G and J.

110214. Several provisions in RFP P2021, including the

1110transmittal letter and Attachments A and B , give general

1119instructions for preparation of the proposal.

112515. The transmittal letter provides that " prospective

1132providers shall fully comply with the instructions on how to

1142respond to the RFP. "

114616. Attachment A , General Instructi ons to Respondents ,

1154provides that " respondents to the solicitation are encouraged to

1163carefully review all the materials contained herein and prepare

1172responses accordingly. "

117417. Attachment B, Section XVIII, " General Instructions for

1182the Preparation and Sub mission of Proposals , " provides in

1191relevant part the following:

1195The instructions for this RFP have been

1202designed to help ensure that all proposals

1209are reviewed and evaluated in a consistent

1216manner, as well as to minimize costs and

1224response time. INFORMATI ON SUBMITTED IN

1230VARIANCE WITH THESE INSTRUCTIONS MAY NOT BE

1237REVIEWED OR EVALUATED.

1240* * *

1243Failure of the prospective Provider to

1249provide any of the information required in

1256either Volume 1 (the Technical Proposal),

1262Volume 2 (the Financial Proposal) , or

1268Volume 3 (Past Performance) portions of the

1275RFP proposal shall result in no points being

1283awarded for that element of the evaluation.

129018. Attachment B also provides the general instructions

1298for the Technical Proposal, the Financial Proposal and the Pa st

1309Performance Proposal of RFP P2021. Those instructions are

1317described and discussed below.

132119. Notwithstanding the general instructions for

1327completing the RFP, Attachment A, paragraph 15, gives the

1336Department the right to waive any minor irregularities.

1344According to that provision, " [t]he Department reserves the

1352right to accept or reject any and all bids, or separable

1363portions thereof, and to waive any minor irregularity,

1371technicality, or omission if the Department determines that

1379doing so will serve the State ' s best interests. "

138920. T he RFP deems certain requirements as mandatory.

1398Attachment B, Section V, sets forth those requirements and the

1408consequences for a prospective provider ' s failing to comply with

1419those requirements.

142121. Attachment B, Section V, provides in pertinent part

1430the following:

1432Mandatory Requirements

1434The following requirements must be met by

1441the prospective Provider to be considered

1447responsive to this RFP. Although there are

1454other criteria set forth in this RFP, these

1462are the only requ irements deemed by the

1470Department to be mandatory. Failure to meet

1477these requirements will result in a proposal

1484not being evaluated and [being] rejected as

1491non - responsive. [ Emphasis supplied. ]

1498A. It is MANDATORY that the prospective

1505Provider submit its p roposal within the

1512time frame specified in the Calendar of

1519Events (Attachment B, Section IV.)

1524B. It is MANDATORY that the prospective

1531Provider draft and submit a fully

1537completed, originally signed Transmittal

1541Letter that contains all the information

1547requi red by Section XVIII. A.

1553C. It is MANDATORY that the prospective

1560Provider submit a complete and signed

1566Attachment J that proposes an annual

1572contract dollar amount at or below the

1579annual maximum contract dollar amount

1584stated in the RFP. Any proposal withou t a

1593completed and signed Attachment J or with

1600a proposed annual contract dollar amount

1606exceeding the annual maximum contract

1611dollar amount will be rejected.

161622. Attachment D , " Evaluation Criteria, " sets forth the

1624evaluation criteria and the scoring method s for proposal.

1633Attachment D also provides that failure to meet the mandatory

1643requirements " that are specified in Attachment B, Section V , "

1652will result in the proposal not being evaluated and being

1662rejected as non - responsive.

1667The Financial Proposal

167023. At tachment B, Section XVIII, D.1., provides in

1679pertinent part the following:

1683a. The prospective Provider shall provide a

1690price for the program by returning a

1697completed and signed Attachment J - Price

1704Sheet. The price evaluated is the

" 1710proposed Annual Contrac t Amount. " The

1716price must include all services, material

1722and labor necessary to complete the Scope

1729of Services (Exhibit 1) as described in

1736this RFP and the prospective Provider ' s

1744proposal. A renewal price shall also be

1751entered on Attachment J.

1755b. It is MANDATORY that the prospective

1762Provider submit a completed and signed

1768Attachment J that proposes an annual

1774contract amount at or below the annual

1781maximum contract dollar amount stated in

1787the RFP. Any proposal without a

1793completed and signed Attachment J o r with

1801a proposed dollar amount exceeding the

1807annual maximum contract dollar amount

1812will be rejected.

181524. RFP P2021 established the " annual maximum contract

1823dollar amount " as $473,594.16 and the " maximum contract dollar

1833amount " as $1,420,782.48 (three tim es the annual maximum

1844contract amount).

184625. Attachment J had three lines on which the prospective

1856provider was to list : (1) the " proposed annual dollar amount " ;

1867(2) the " proposed annual dollar amount for each renewal year " ;

1877and (3) the " renewal dollar am ount proposed. " 1/ Attachment J

1888also included directions for completing the form and a line for

1899the prospective provider ' s signature. A pre - printed statement

1910above the signature line indicated that " [b]y submission and

1919signature of this form, the prospect ive provider agrees to all

1930the terms and conditions of this RFP and commits to the prices

1942stated. "

19432 6 . In lieu of submitting the Amendment J form that was

1956attached to the RFP, Psychotherapeutic Services submitted its

1964re - created version of Attachment J.

19712 7 . The Department recognized that the page titled

1981Attachment J in Psychotherapeutic Services ' proposal was

1989re - created by Psychotherapeutic Services. However, the

1997re - created version of Attachment J and submission of that

2008document does not in itself con stitute a non - responsive

2019response. In the Department ' s view, the significant factor is

2030whether the relevant and required information indicated as

2038mandatory in the RFP is provided on the re - created version of

2051the form.

20532 8 . By consistent practice, the Depar tment routinely

2063accepts re - created forms and/or attachments in responses from

2073prospective providers for the convenience of respondents. In

2081accordance with this practice, the Department accepted the

2089re - created Attachment J submitted by Psychotherapeutic Se rvices.

209929 . O n the re - created version of Attachment J,

2111Psychotherapeutic Services did not include : (1) the

2119instructions for completion of the form ; and (2) the language

2129that by signing and submitting the form , Psychotherapeutic

2137Services agrees to all the terms and conditions of the RFP and

2149commits to the prices stated. However, Psychotherapeutic

2156Services included on the re - created Attachment J all the

2167relevant and required information as indicated by the mandatory

2176requirements in the RFP.

218030 . The mandat ory requirements related to the Financial

2190Proposal are that the provider " submit a completed and signed

2200Attachment J that propose s an annual contract dollar amount that

2211is at or below the maximum contract dollar amount stated in the

2223RFP . See paragraph s 21 and 23 above.

223231 . The mandatory requirements for the Financial Proposal

2241do not require the " renewal terms " to be included in the

2252re - created version of Attachment J , but require that the

2263proposed annual contract amount be at or below the annual

2273maximum con tract amount . Similarly, there is no mandatory

2283requirement that omission of the " renewal terms " must result in

2293a finding that the proposal is non - responsive. At most, if such

2306language were required and not provided, no points should be

2316awarded for that s ection. Here, the evaluation criteria for the

2327Financial Proposal do es not include or require consideration of

2337the " renewal terms " on Attachment J. 2/ See Attachment A,

2347paragraph 9(i) and (j); Attachment B, Section XIV; and

2356Attachment G, Part IV , C.

236132. T he re - created version of Attachment J, as completed

2373by Psychotherapeutic Services, is as follows:

2379ATTACHMENT J - PRICE SHEET

2384JUVENILE ASSESSMENT CENTER SERVICES

2388PROPOSED ANNUAL DOLLAR AMOUNT:

2392$473,593.47

2394PROPOSED ANNUAL DOLLAR AMOUNT FOR

2399EACH RENEWAL YEAR: $473,593.47

2404*PROPOSED ANNUAL MAXIMUM CONTRACT $1,420,780.41 [3 / ]

2414DOLLAR AMOUNT for all Services in

2420thie [sic] RFP multimplied [sic] by

2426the number of initial years (3) of

2433the contract [sic] $1,420,782.48

2439*THE ANNUAL MAXIMUM CONTRACT DOLL AR AMOUNT WILL BE

2448MULTIPLIED BY THE NUMBER O FYEARS [sic] IN THE INITIAL

2458TERM OF THE CONTRACT FOR THE PURPOSES OF SCORING THE

2468PRICE SECTION OF THIS PROPOSAL. THE PRICE STATED ON

2477THIS SHEET (ATTACHMENT J) WILL BE USED FOR

2485DETERMINIATION [sic] OF POINTS AWA RDED TO EACH

2493PROSPECTIVE PROVIDER. TERMS OF LESS THAN ONE YEAR

2501SHALL BE PRO - RATED.

2506RENEWAL TERM DOLLAR AMOUNT PROPOSED: $473,594.16 [4 / ]

25163 3 . Psychotherapeutic Services ' proposed annual contract

2525dollar amount of $473,593.47 is below the annual maximum

2535con tract dollar amount stated in the RFP, $473,594.16.

2545Therefore, it met the mandatory requirement for the price

2554category of the Financial Proposal.

25593 4 . Ms. Smith testified credibly that the Department ' s

2571focus, as reflected in the evaluation criteria, is to ensure

2581that the proposed annual contract dollar amount does not exceed

2591the annual maximum contract dollar amount stated in the RFP.

260135 . Ms. Smith evaluated and scored that Psychotherapeutic

2610Services ' proposal in accordance with the provisions of the RFP.

2621Based on her evaluation, Ms. Smith properly awarded

2629Psychotherapeutic Services the maximum 200 points for its

2637Financial Proposal. Of those points, 100 points were for the

" 2647price " category.

264936 . Ms. Smith also awarded Petitioner ' s Financial Proposal

2660the m aximum 200 points for its Financial Proposal , including 100

2671points for the " price " category. Petitioner was awarded 100

2680points for the " price " category , even though its proposed annual

2690contract amount was higher than that of Psychotherapeutic

2698Services. M s. Smith determined that this was appropriate

2707because the difference in the price proposed by Petitioner and

2717Psychotherapeutic Services was less than ten percent.

272437 . Psychotherapeutic Services submitted a signed and

2732completed Attachment J that included a proposed annual contract

2741dollar amount, $ 473,593.47, which was below the annual maximum

2752contract dollar amount stated in the RFP, $4 73,594.16 . Having

2764met the mandatory provisions of the RFP, related to

2773Attachment J, the Department appropriately did not r eject the

2783Psychotherapeutic Services, but instead properly evaluated that

2790proposal.

2791The Technical Proposal

279438 . The Technical Proposal required prospective p roviders

2803to prove that they were registered to do business in Florida.

281439 . The general instructions for preparation of the

2823Technical Proposal of the RFP are set forth in Attachment B,

2834Section XVIII, C.2., which provides in relevant part:

2842a. Management Capability

2845* * *

28483) This section shall provide proof that the

2856prospective Provider is reg istered to do

2863business in Florida evidenced by Articles

2869of Incorporation or Fictitious Name

2874Registration or Business License and, if

2880applicable, a copy of the most recent

2887Certification of Good Standing. (This

2892information may be obtained from the

2898Secretary of State ' s Office) . . . .

29084 0. Psychotherapeutic Services did not submit as part of

2918its proposal Articles of Incorporation , Fictitious Name

2925Registration , or Business License to prove that it is licensed

2935to do business in the State of Florida. However ,

2944Psychotherapeutic Services submitted an untitled document that

2951appeared to be a certificate from the State of Florida,

2961Department of State, which had the electronic signature of the

2971Secretary of State and was dated May 13, 2006.

298041 . Petitioner submitted its Articles of Incorporation, as

2989well as the untitled document from the Department of State.

2999(The latter document was the same type of certificate

3008Psychotherapeutic Services submitted with its proposal.)

301442 . That referenced untitled document stated in re levant

3024part the following:

3027I [Secretary of State] certify from the

3034records of this office that

3039PSYCHOTHERAPEUTIC SERVICES OF FLORIDA, INC.

3044is a corporation organized under the laws of

3052Delaware, authorized to transact business in

3058the State of Florida, quali fied on

3065December 4, 1996.

3068* * *

3071I further certify that said corporation has

3078paid all fees due this office through

3085December 31, 2006, that its most recent

3092annual report was filed on May 10, 2006, and

3101its status is active.

3105I further certify that said corporation has

3112not filed a Certificate of Withdrawal.

311843 . The document was identified at hearing by Petitioner ' s

3130executive director as a Certificate of Good Standing. However,

3139there was nothing on the document to indicate what the document

3150was.

315144 . The Technical Proposals were rated on a scale of zero

3163to five, based on criteria established in the RFP. The rating

3174system for the Technical Proposal was as follows:

3182Score Evaluation Description

31855 The proposal exceeds all technical

3191specifications and re quirements for

3196the component specified. The

3200approach is innovative,

3203comprehensive, and complete in

3207every detail.

32094 The proposal meets all technical

3215specifications and requirements for

3219the component specified. The

3223approach is comprehensive and

3227complete i n every detail. The

3233proposal approach contains some

3237innovative details for some of the

3243components specified.

32453 The proposal meets all technical

3251specifications and requirement for

3255the component specified.

32582 The proposal does not meet all

3265technical Specif ications and

3269requirements for the component

3273specified, or it does not provide

3279essential information to

3282substantiate the provider ' s ability

3288to provide the service.

32921 The proposal contains errors and/or

3298o missions in the area of the

3305component s pecified.

33080 Th e provider ' s proposal fails to

3317d emonstrate the ability to provide

3323the service.

332545 . The e valuation criteria for Criterion No. 2, which

3336relates in part to prospective providers being registered to do

3346business in the State of Florida, required the evaluators to

3356rate the proposal on the following:

3362Does the proposal reasonably, logically, and

3368clearly identify an organizational structure

3373with the capability to perform the services

3380specified and required by the RFP?

338646 . Petitioner contends that Psychotherapeu tic Services

3394failed to respond fully to the Technical Proposal by not

3404submitting the Articles of Incorporation, Fictitious Name

3411Registration, or Business License, whichever was applicable. By

3419failing to submit any of the other named documents, Petitioner

3429contends that Psychotherapeutic Services ' Technical Proposal was

3437no n - responsive.

344147 . The untitled documents submitted by both Petitioner

3450and Psychotherapeutic Services, d escribed in paragraph 42 ,

3458appeared to be issued by the State of Florida. T he evaluato rs '

3472credible testimony was that they interpreted and considered the

3481certificate from the Department of State as the B usiness

3491L icense, and/or one of the other acceptable means of proof that

3503the prospective providers were registered to do business in

3512Fl orida , as required in the RFP.

351948 . In light of their review and interpretation of the

3530document from the Department of State, the evaluators awa rded

3540Psychotherapeutic Services ' proposal and Petitioner ' s proposal

3549the following scores for Evaluation Criterion No. 2:

3557Juvenile

3558Psychotherapeutic Service

3560Services Program

3562Evaluator Bright 4 4

3566Evaluator Flakes 3 4

3570Evaluator Rapa l e 3 3

357649 . Petitioner contends that because Psychotherapeutic

3583Services did no t submit its Articles of Incorporation,

3592F ictitious N ame R egistration, or B usiness L icense as required by

3606the RFP, 5/ it should not have received scores of three or above

3619for Criterion No. 2.

362350 . The RFP required the prospective providers ' proposals :

3634(1) to include a work plan for the collaboration and

3644coordination of operations with other agencies providing

3651services at the Circuit 17 Juvenile Assessment Center; and

3660(2) to specify procedures for collaboration and coordination

3668with the local Department office in certain cases.

367651 . Evaluation Criterion No. 3 provides as follows:

3685Does the proposal reasonably, logically, and

3691clearly identify the providers ' intended

3697interaction with local service resources as

3703specified and required by the RFP?

370952 . There is no d ispute that both Psychotherapeutic

3719Services ' and Petitioner ' s proposals addressed the issues noted

3730in paragraph 50 above. I n addition to complying with th ose

3742requirements, Petitioner submitted three letters of support to

3750supplement its response to the req uirement regarding the

3759involvement of local agencies .

376453 . As to Evaluation Criterion No. 3, Psychotherapeutic

3773Services ' proposal was awarded two scores of three and one score

3785of four. Petitioner ' s proposal was awarded scores identical to

3796those of Psychoth erapeutic Services ' scores.

380354 . Petitioner argues that it should have been awarded

3813more points and/or Psychotherapeutic Services should have been

3821awarded fewer points for Evaluation Criterion No. 3, because it

3831submitted three letters to indicate community support and no

3840such letters were provided by Psychotherapeutic Services to

3848support its bid proposal.

385255 . The RFP neither prohibited , nor required , prospective

3861providers from s ubmitting letters to supplement their response s

3871related to collaborating and c oo rdinating with local agencies .

3882Accordingly, no points were awarded or required to be awarded

3892based on the submission of letters of support.

390056 . The three evaluators ' scores were based on their

3911individual review and evaluation of the proposals submitted b y

3921Petitioner and by Psychotherapeutic Services. No proposal was

3929scored against each other , but rather each proposal was scored

3939separately and not compared to each other.

3946Past Performance

394857 . The general instructions for preparation of the Past

3958Performa nce section of the RFP are provided in Attachment B,

3969Section XVIII, E., which states in relevant part the following:

39791. The purpose of this section is for the

3988prospective provider to demonstrate i ts

3994knowledge and experience in operating

3999similar program s by providing information

4005requested on the enclosed Attachment C,

4011P art I, II, and/or III and all required

4020supporting documentation.

4022a. On the forms provided (Attachment C,

4029Part I, II and/or III), the prospective

4036Provider shall provide, if applicable,

4041inf ormation regarding its past

4046performance in the State of Florida,

4052information regarding programs operated

4056by the prospective Provider that have

4062attained professional accreditation, and

4066information regarding past performance in

4071the United States outside of t he State of

4080Florida.

4081b. The prospective Provider shall complete

4087Attachment C and attach dated supporting

4093documentation for Part II and/or III, if

4100applicable.

4101c. Failure to complete and return

4107Attachment C for this RFP or supporting

4114documentation, if appl icable, shall

4119result in a zero (0) score for Past

4127Performance.

4128d. All documentation provided for Parts II

4135or III of Attachment C must include the

4143start and end dates, be current dated and

4151valid at least through the start date of

4159the Contract that results from this RFP.

4166The documentation must state that the

4172program is a non - residential juvenile

4179[program] and that is run by the

4186prospective Provider. The Department is

4191not responsible for research to clarify

4197the prospective Provider ' s documentation.

4203e. Pros pective providers shall include the

4210Attachment C, Part I, II and/or III for

4218this RFP and the required supporting

4224documents in Volume III. Failure to

4230include these documents in Volume III

4236shall result in zero (0) points being

4243awarded for Past Performance. Further

4248instructions on how to complete this

4254section may be found in Attachment C.

426158 . Attachment C provides in relevant part the following:

4271If the prospective Provider has received

4277Florida Department of Juvenile Justice

4282Quality Assurance (QA) Reviews fo r its

4289Non - Residential programs, that prospective

4295Provider shall complete Parts I and III.

4302Only scores from Parts I and III shall be

4311considered for these prospective Providers.

4316A prospective Provider who is operating or

4323has operated Non - Residential progra m(s) in

4331Florida must complete Part I of

4337Attachment C. To complete Part I of

4344A ttachment C, the prospective Provider shall

4351list all non - residential program information

4358requested for each category. Failure to

4364submit the attached Part I shall result in a

4373sco re of zero (0) for this section. Part I

4383of other RFP ' s will not be considered.

4392All other prospective Providers shall

4397complete Parts II and III. . . .

440559 . The RFP required prospective providers to provide

4414information regarding their past performance of j uvenile justice

4423non - residential programs on Attachment C , which consists of the

4434following three parts:

4437a. Part I, " Data Sheet: Past Performance on

4445Non - Residential JAC [Juvenile Assessment

4451Center ] Programs;

4454b. Part II, " Evaluation Questionnaire for

4460Pas t Performance in the United States

4467Outside of Florida " ; and

4471c. Part III, titled " Evaluation

4476Questionnaire for Professional

4479Accreditation in the United States. "

44846 0 . Psychotherapeutic Services was required to complete

4493Attachment C, Part I, because it h ad experience operating a

4504non - r esidential juvenile justice program in the State of

4515Florida. H owever, because the programs Psychotherapeutic

4522Services operated in Florida did not have professional

4530accred itation, it was not required to complete Attachment C,

4540Part III.

45426 1 . Attachment C , Part I, required each respondent to

4553provide the following information about non - residential programs

4562it operates, or has operated , in the State of Florida:

4572a. the program(s) that it had contracts to

4580administer;

4581b. the contract number(s);

4585c. the program type;

4589d. t he beginning date of the contract;

4597e. the ending date of the contract;

4604f. the most recent quality assurance

4610performance score of the program; and

4616g. the most recent quality assurance

4622compliance score of the program.

46276 2 . For each categor y on Attachment C , Part I, there was a

4642corresponding footnote, which provided the rationale and/or

4649explanation regarding the requested information.

46546 3 . Relevant to this proceeding are the categories

4664contract number, the most recent quali ty assurance (QA)

4673pe rformance score, the most recent QA compliance score , and the

4684footnotes related thereto .

46886 4 . The footnote that corresponds to the category

" 4698contract number " provides the following: " This information is

4706only to aid the Department in i dentifying the program named. "

47176 5 . The footnote that corresponds to the category " most

4728recent quality assurance performance score, " provides the

4735following: " Quality Assurance Performance score for current

4742year. If not evaluated yet and the program was reviewed last

4753year, use last year ' s score. "

47606 6 . The footnote that corresponds to the " most recent

4771Q uality A ssurance compliance score " provides the following:

" 4780Quality Assurance compliance score. If not evaluated yet and

4789the program was reviewed last yea r, use last year ' s score. "

48026 7 . Psychotherapeutic Services did not submit the

4811Attachment C, Part I , form that was included in the RFP.

4822Instead, Psychotherapeutic Services prepared a re - cr e ated

4832version of that form which was completed and submitted as part

4843of its proposal. Except for a notation explain ing its responses

4854to the c ategories related to QA performance and compliance

4864scores, Psychotherapeutic Services ' re - created version of

4873Attachment C, Part I, was almost identical to the Department ' s

4885Attachment C.

48876 8 . On the re - created Attachment C, Part I,

4899Psychotherapeutic Services listed the one non - residential

4907program it was operating in Florida and provided responses to

4917the specified categories as follows:

4922Category Response

4924a. Program Name Intensive D elinquency

4930Diversion Services

4932(IDDS)

4933b. Contract Number R601

4937c. Program Type Probation/Community

4941Service

4942d. Contract Begin Date 9/15/2003

4947e. Contract End Date 9/14/2009

4952f. Most Recent QA

4956Performance Score 90 percent or Above

4962g. Most Recent QA

4966Compliance Score 90 percent or Above

497269 . Psychotherapeutic Services included a n otation on the

4982re - created Attachment C, Part I, to explain the responses of

" 499490% or above " that were listed as the most recent QA

5005performance score and the most recent co mpliance score. The

5015n otation stated, " To maintain ' deemed status ' all scores must be

502890 percent or above. We do not have an exact number score. "

50407 0 . P etitioner contends that Psychotherapeutic Services '

5050Past Performance Proposal is no n - responsive to the R FP. First,

5063Petitioner contends that Psychotherapeutic Services failed to

5070submit the required information on the Attachment C form that

5080was attached to the RFP, but submitted its information on the

5091re - created version of Attachment C.

50987 1 . The Department ac knowledged that P sychotherapeutic

5108Services re - created Attachment C , Part I . However, a s

5120previously indicated, the Department does not penalize

5127respondents for re - creating required forms for their

5136convenience. Rather, t he information required by the forms must

5146be provided in the response to obtain the proper score or

5157evaluation.

51587 2 . In response to the category related to the contract

5170number of the program it was currently operating,

5178P sychotherapeutic Services incorrectly listed the contract

5185number as R601. The correct contract number of the

5194non - residential program Psychotherapeutic Services was currently

5202administering i s RK601 .

52077 3 . The Department acknowledged that there was a

5217typographical erro r or mistake on the re - created Attachment C,

5229Part I, in listing the contract number of the program operated

5240by P sychotherapeutic S ervices . However, the Department

5249determined that this error was not critical with regard to the

5260information that was to be provide d . 6/

52697 4 . Attachment C requires a respondent to provide

5279pe rformance and compliance scores for its most recent QA review

5290of any programs currently run by the prospective provider.

5299Instead of providing an exact score for the QA reviews,

5309Psychotherapeutic Services provided and inserted a score of " 90%

5318or above " as their most recent QA performance and c ompliance

5329scores on its Attachment C , Part I form. By way of explanation,

5341Psychotherapeutic Services included a notation that the score

5349was based on its " special deemed status. "

53567 5 . In accordance with the RFP, Psychot herapeutic Services

5367submitted a report from the Department ' s Bureau of Quality

5378Assurance as supporting documentation for information regarding

5385its QA performance and compliance scores. The report confirmed

5394Psychotherapeutic Services ' responses regarding i ts most recent

5403perf ormance and compliance scores.

54087 6 . The report from the Department ' s Bureau of Quality

5421Assurance reflected that Psychotherapeutic Services ' program

5428received QA score s in 2003, but had not received any scores

5440since then. As a result of it s QA scores in 2003,

5452Psychotherapeutic Services r eceived " d eemed s tatus " by the

5462Department . Psychotherapeutic Services had not received QA

5470scores during the current year or the year prior to responding

5481to the RFP. Therefore, Psychotherapeutic Services re tained its

5490special " deemed status " every year since 2003. T he supporting

5500documentation explained that to retain " d eemed s tatus, " a

5510provider must obtain a score of 90 percent or above each year at

5523program review.

55257 7 . The Department will no longer be using " deemed status "

5537in the future , but that decision does not affect a

5547provider/program currently holding this status. Th us , the

5555status and scores as reported by Psychotherapeutic Services on

5564the re - created version of Attachment C were properly reported at

5576th e time the proposal was submi tted , verified , and scored.

55877 8 . It is the Department ' s practice to verify the scores

5601provided by the prospective providers who complete Attachment C,

5610Part I, by accessing the information on the Department ' s Bureau

5622of Quality As surance website. This website is not limited to

5633use by the Department, but is also available for use by the

5645general public.

564779 . Prior to scoring Past Performance proposals, the

5656evaluator, Mr. Hatcher always verifies the QA information

5664provided by any pr ospective provider using the official

5673Department QA reports on the Department ' s Bureau of Quality

5684Assurance website. He does not and has never viewed this

5694practice as research , but as verification. The QA scores listed

5704on the Department ' s official report s are the scores used by

5717Mr. Hatcher in scoring t he Past Performance P roposals.

57278 0 . Consistent with his usual practice, Mr. Hatcher

5737verified the responses given in Psychotherapeutic Services '

5745proposal by accessing the Department ' s Bureau of Quality

5755Assuran ce website . Mr. Hatcher used th e scores on the official

5768report posted on that website to evaluate the P ast P erformance

5780P roposals .

57838 1 . The information on the Department ' s Bureau of Quality

5796Assurance website confirmed that Psychotherapeutic Services '

5803perfor mance and compliance scores were 90 percent or above.

5813Psychotherapeutic Services ' performance score was 95 percent ,

5821and its compliance score was 100 percent.

58288 2 . Mr. Hatcher also utilized the Department ' s Bureau of

5841Quality Assurance to verify the informat ion provided by

5850Petitioner and confirmed that Petitioner ' s most recent average

5860QA performance and compliance scores were 82.5 percent and

5869100 percent, respectively. These were the QA scores Petitioner

5878provided on Attachment C, Part I, of its proposal for the

5889average of its most recent QA performance and compliance scores.

58998 3 . The " 90% or above " figure provided by

5909Psychotherapeutic Services , while accurate, is not a specific

5917numbered percent score that could be used in calculating

5926Psychotherapeutic Service s ' overall score for its Past

5935Performance P roposal. The refore, the evaluator appropriately

5943did not use th ose figures. Instead, he used Psychotherapeutic

5953Services ' QA performance and compliance figures , 95 percent and

5963100 percent, that were on the Departm ent ' s Bureau of Quality

5976Assurance website.

59788 4 . To determine the score for the Past Performance

5989Proposal, the evaluator had to apply the required formula. The

5999formula required that the most recent average performance score

6008be multiplied by 1.5 and the mos t recent average compliance

6019score be multiplied by 0.5. The score for the Past Performance

6030Proposal is the sum of those numbers.

60378 5 . By applying the required formula, Psychotherapeutic

6046Services was awarded 142.5 points for its performance score and

605650 poi nts for its compliance score . This resulted in

6067Psychotherapeutic Services being appropriately awarded a total

6074score of 192.50 points for its Past Performance Proposal.

60838 6 . By applying the required formula , Petitioner was

6093awarded 123.75 points for its perf ormance score and 50 points

6104for its c ompliance scores. This resulted in Petitioner ' s being

6116appropriately awarded a total score of 173.75 points in the Past

6127Performance Proposal.

61298 7 . The evaluators for the Technical Proposal, the

6139Financial Proposal and th e Past Performance P roposal of RFP

6150P2021 properly and adequately evaluate d those proposals.

6158CONCLUSIONS OF LAW

61618 8 . The Division of Administrative Hearings has

6170jurisdiction over the parties and subject matter of this

6179proceeding. § 120.57(3)(f), Fla. Stat. (2007).

618589 . Subsection 120.57(3)(f), Florida Statutes (2006),

6192provides in relevant part the following:

6198In a protest to an invitation to bid or

6207request for proposals procurement, no

6212submissions made after the bid or proposal

6219opening which amend or supplemen t the bid or

6228proposal shall be considered. . . Unless

6235otherwise provided by statute, the burden of

6242proof shall rest with the party protesting

6249the proposed agency action. In a

6255competitive - procurement protest, other than

6261a rejection of all bids, proposals, or

6268replies, the administrative law judge shall

6274conduct a de novo proceeding to determine

6281whether the agency ' s proposed action is

6289contrary to the agency ' s governing statutes,

6297the agency ' s rules or policies, or the

6306solicitation specifications. The standard

6310of proof for such proceedings shall be

6317whether the proposed agency action was

6323clearly erroneous, contrary to competit ion,

6329arbitrary, or capricious. . . .

63359 0 . Petitioner contends that Psychotherapeutic Services '

6344proposal was non - responsive , because it fai led to do the

6356following: (1) submit certain information on the Department ' s

6366standardized forms; (2) provide information required by RFP to

6375establish that it is registered to do business in the State of

6387Florida; and (3) provide specific scores regarding it s most

6397recent QA performance and compliance scores, but submitted a

6406scoring range. Petitioner also contends that the evaluators '

6415scoring of the proposals was arbitrary and capricious in that

6425they did not adhere to the RFP specifications.

64339 1 . P etitioner ha s the burden to establish that the

6446decision to award the contract to Psychotherapeutic Services

6454must be invalidated. Moreover, as the party challenging the

6463proposed agency action, Petitioner has the burden of proof in

6473this proceeding and must show that th e agency ' s proposed action

6486is contrary to the agency ' s governing stat ut es, rules , policies,

6499or proposal specifications.

65029 2 . Under Subsection 120.57(3)(f), Florida Statutes

6510(2006), it is not enough for Petitioner to show that the

6521proposed award of the contr act is contrary to the agency ' s

6534governing statutes, rules, policies , or proposal specifications.

6541To prevail, Petitioner must also show that the proposed award is

6552clearly erroneous, contrary to comp eti tion , or arbitrary or

6562capricious.

65639 3 . A decision is con sidered to be clearly erroneous when

6576although there is evidence to support it, after review of the

6587entire record , the tribunal is left with the definite and firm

6598conviction that a mistake has been committed. U .S. v.

6608U.S. Gypsum Co. , 333 U.S. 3 6 4, 395 (194 8). An agency action is

6623capricious if the agency takes the action without thought or

6633reason or irrationally. Agency action is arbitrary if it is not

6644supported by facts or logic. See Agrico Chemical Co. v. State

6655Department of Environmental Regulation , 36 5 So. 2d 759, 763

6665(Fla. 1st DCA 1978). An agency decision is contrary to

6675competition if it unreasonably interferes with the objectives of

6684competitive bidding. See Webster v. Belote , 103 Fla. 976, 138

6694So. 721, 723 - 24 (1931).

67009 4 . Agencies have wide discre tion when it comes to

6712soliciting and accepting proposals, and an agency ' s decision,

6722when based upon an honest exercise of such discretion, will not

6733be set aside even where it may appear erroneous or if reasonable

6745persons may disagree. Baxter ' s Asphalt and Concrete, Inc. v.

6756Department of Transportation , 475 So. 2d 1284, 1287 (Fla. 1st

6766DCA 1985); Capeletti Brothers, Inc. v. State, Department of

6775General Services , 432 So. 2d 1359, 1363 (Fla. 1st DCA 1983).

678695. The purpose of a bid protest proceeding, such as t his

6798one , is to evaluate the action taken by the agency based on

6810information available to the agency at the time it took the

6821action. See § 120.57(3)(f), Fla. Stat. (2006); State

6829Contracting and Engineering Corp. v. Department of

6836Transportation , 709 So. 2d 607 (Fla. 1st DCA 1998).

68459 6 . Petitioner has failed to meet its burden of proof.

68579 7 . The evidence failed to prove that the Department ' s

6870acceptance of the Psychotherapeutic Services ' proposal was

6878contrary to the RFP specifications. Moreover, the evidence al so

6888failed to prove that the evaluation of that proposal was

6898contrary to the RFP specifications and was, therefore, arbitrary

6907and capricious.

69099 8 . In this case , the evidence failed to prove that the

6922proposed award to Psychotherapeutic Services ' proposal is

6930c ontrary to the RFP specifications. Even if it is contrary to

6942the specifications , the evidence failed to establish that the

6951award is clearly erroneous, contrary to competition, or

6959arbitrary and capricious.

6962RECOMMENDATION

6963Based upon the foregoing Findings o f Fact and Conclusions

6973of Law, it is hereby

6978RECOMMENDED that Respondent, Department of Juvenile

6984Justice, issue a final order dismissing the Juvenile Services

6993Program, Inc. ' s, Petition .

6999DONE AND ENT ERED this 31st day of October , 2007 , in

7010Tallahassee, Leon C ounty, Florida.

7015S

7016CAROLYN S. HOLIFIELD

7019Administrative Law Judge

7022Division of Administrative Hearings

7026The DeSoto Building

70291230 Apalachee Parkway

7032Tallahassee, Florida 32399 - 3060

7037(850) 488 - 9675 SUNCOM 278 - 9675

7045Fax Filing ( 850) 921 - 6847

7052www.doah.state.fl.us

7053Filed with the Clerk of the

7059Division of Administrative Hearings

7063this 31st day of October , 2007 .

7070ENDNOTES

70711/ Attachment J also included the pre - printed figure

" 7081473,594.16 " as the " proposed annual maximum contract doll ar

7091amount. " That figure was mislabeled and was , in fact, the

" 7101annual maximum contract dollar amount " as established in the

7110RFP.

71112/ Petitioner argues that the " renewal terms " on the

7120Department ' s Attachment J are material and the omission of these

7132terms f rom the re - created version of Attachment J is a basis for

7147finding the Financial Proposal non - responsive. Petitioner

7155further contends that the absence of the " renewal language "

7164means that the prospective provider need not comply with its

" 7174proposed " price s hould the contract be awarded and then

7184renewed. However, these arguments are not supported by the

7193record. Throughout the RFP, including Attachment G, the

7201c ontract, it is clear that should the contract be renewed, the

7213terms and conditions of the renewal a re the same as those in the

7227initial contract. The c ontract, which is to be executed after

7238the award of the RFP, is the document that obligates the parties

7250to comply with the " renewal terms " of the RFP.

72593/ Psychotherapeutic Services mistakenly indicated that the

7266$1,420,780.41 figure was the " proposed annual maximum contract

7276amount, " when it is clear that the figure was the " proposed

7287maximum contract dollar amount. " That error i s similar to one

7298that was on Attachment J that was attached to the RFP. On th e

7312Department ' s Attachment J, the pre - printed figure of $473,594.16

7325was mistakenly referred to as the " proposed annual maximum

7334contract dollar amount " when, in fact, that figure was the

" 7344annual maximum contract dollar amount. "

73494/ The " renewal term dollar amount proposed " listed as

7358$473,594.16 is actually the " annual maximum contract dollar

7367amount. " Despite this mistake, Psychotherapeutic Services '

" 7374renewal term dollar amount proposed " could be easily determined

7383to be $1,420,780.41. (This figure is obtaine d by multiplying the

7396renewal term (3 years) times $473,593.47, Psychotherapeutic

7404Services ' " proposed annual dollar amount for each renewal year. "

74145/ See Attachment B, Section XVIII, C.2, quoted in paragraph 21

7425of Findings of Fact.

74296/ The correct number was also on the report submitted as

7440supporting documentation for Psychotherapeutic Services ' most

7447recent performance and compliance scores. See paragraph s 75 and

745776 of Findings of Fact.

7462COPIES FURNISHED :

7465Andrea V. Nelson, Esquire

7469The Nelson Law Firm , P.A.

7474Post Office Box 6677

7478Tallahassee, Florida 32314

7481Tonja V. White, Esquire

7485Department of Juvenile Justice

7489Knight Building, Room 312L

74932737 Centerview Drive

7496Tallahassee, Florida 32399 - 3100

7501Walt McNeil, Secretary

7504Department of Juvenile Justice

7508Knight Building

75102737 Centerview Drive

7513Tallahassee, Florida 32399 - 3100

7518Jennifer Parker, General Counsel

7522Department of Juvenile Justice

7526Knight Building

75282737 Centerview Drive

7531Tallahassee, Florida 32399 - 3100

7536NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

7542All parties have the right to submit written exceptions within

755210 days from the date of this Recommended Order. Any exceptions

7563to this Recommended Order should be filed with the agency that

7574will issue the Final Order in this case.

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Date
Proceedings
PDF:
Date: 12/04/2007
Proceedings: Final Order filed.
PDF:
Date: 11/30/2007
Proceedings: Agency Final Order
PDF:
Date: 11/15/2007
Proceedings: Request for Extension of Filing of Final Order filed.
PDF:
Date: 10/31/2007
Proceedings: Recommended Order
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Date: 10/31/2007
Proceedings: Recommended Order (hearing held July 8, 2007). CASE CLOSED.
PDF:
Date: 10/31/2007
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 08/07/2007
Proceedings: Letter to Judge Holifield from A. Nelson enclosing requested exhibits filed.
PDF:
Date: 08/06/2007
Proceedings: Petitioner`s Proposed Recommended Order filed.
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Date: 08/06/2007
Proceedings: Proposed Recommended Order by Department of Juvenile Justice filed.
Date: 07/27/2007
Proceedings: Transcript filed.
Date: 07/18/2007
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 07/17/2007
Proceedings: Order Allowing Testimony by Telephone.
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Date: 07/17/2007
Proceedings: Petitioner`s Consent to Take Trial Testimony of Terria Flakes by Telephonic Equipment filed.
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Date: 07/17/2007
Proceedings: Unilateral Proposed Pre-hearing Statement filed.
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Date: 07/16/2007
Proceedings: Motion to Excuse Personal Appearance of Witness filed.
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Date: 07/13/2007
Proceedings: Amended Notice of Taking Telephonic Deposition Duces Tecum (T. Flakes) filed.
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Date: 07/11/2007
Proceedings: Subpoenas Duces Tecum for Hearing (6) filed.
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Date: 07/10/2007
Proceedings: Notice of Taking Deposition Duces Tecum (W. Pillette) filed.
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Date: 07/09/2007
Proceedings: Notice of Taking Deposition Duces Tecum, of P. Hatcher filed.
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Date: 07/09/2007
Proceedings: Notice of Taking Deposition Duces Tecum, of T. Flakes filed.
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Date: 07/09/2007
Proceedings: Notice of Taking Deposition Duces Tecum, of L. Bright filed.
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Date: 07/09/2007
Proceedings: Notice of Taking Deposition Duces Tecum, of L. Rapale filed.
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Date: 07/09/2007
Proceedings: Notice of Taking Deposition Duces Tecum, of S. Smith filed.
PDF:
Date: 06/01/2007
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for July 18, 2007; 9:30 a.m.; Tallahassee, FL).
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Date: 05/30/2007
Proceedings: Joint Stipulation for Continuance of Formal Administrative Hearing filed.
PDF:
Date: 05/15/2007
Proceedings: Amended Notice of Hearing (hearing set for June 4, 2007; 9:30 a.m.; Tallahassee, FL; amended as to location).
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Date: 05/10/2007
Proceedings: Order of Pre-hearing Instructions.
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Date: 05/10/2007
Proceedings: Notice of Hearing (hearing set for June 4, 2007; 9:30 a.m.; Clearwater, FL).
PDF:
Date: 05/08/2007
Proceedings: Notice of Intent to Protest filed.
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Date: 05/08/2007
Proceedings: Petition for Formal Administrative Hearing filed.
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Date: 05/08/2007
Proceedings: Request for Proposals filed.
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Date: 05/08/2007
Proceedings: Agency referral filed.

Case Information

Judge:
CAROLYN S. HOLIFIELD
Date Filed:
05/08/2007
Date Assignment:
05/08/2007
Last Docket Entry:
12/04/2007
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
Suffix:
BID
 

Counsels

Related Florida Statute(s) (1):