07-001975BID
Juvenile Services Program, Inc. vs.
Department Of Juvenile Justice
Status: Closed
Recommended Order on Wednesday, October 31, 2007.
Recommended Order on Wednesday, October 31, 2007.
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.
- Date
- Proceedings
- 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: 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: Petitioner`s Consent to Take Trial Testimony of Terria Flakes by Telephonic Equipment filed.
- PDF:
- Date: 07/13/2007
- Proceedings: Amended Notice of Taking Telephonic Deposition Duces Tecum (T. Flakes) 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).
- PDF:
- 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).
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
-
Andrea V. Nelson, Esquire
Address of Record -
Tonja V White, Esquire
Address of Record