07-004609BID Eckerd Youth Alternatives, Inc. vs. Department Of Juvenile Justice Status: Closed Recommended Order on Friday, December 14, 2007.

Summary: Petitioner failed to prove that proposed contract award was erroneous. Recommend dismissal of petition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ECKERD YOUTH ALTERNATIVES, )

INC., )

)

Petitioner, )

)

vs. ) Case No. 07-4609BID

)

DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent, )

)

and )

)

DANIEL MEMORIAL, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

A duly-noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on November 8,

2007, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Martha Harrell Chumbler, Esquire

Daniel Hernandez, Esquire

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

Tallahassee, Florida 32302-0190

For Respondent: Tonja V. White, Esquire

Department of Juvenile Justice

Knight Building, Room 312L

2737 Centerview Drive

Tallahassee, Florida 32399-3100

For Intervenor: Cynthia S. Tunnicliff, Esquire

Brian A. Newman, Esquire

Pennington, Moore, Wilkinson, Bell &

Dunbar, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302-2095

STATEMENT OF THE ISSUE

The issue is whether the proposed award of the contract for

Request for Proposals (RFP) No. P2032 to Daniel Memorial, Inc.

(Daniel), is contrary to the specifications of the RFP.

PRELIMINARY STATEMENT

On June 11, 2007, the Department of Juvenile Justice (DJJ)

posted notice of its intent to award the contract for RFP No.

P2032 to Daniel. Eckerd Youth Alternatives, Inc. (EYA), the

second-ranked vendor, timely filed a notice of protest and

formal written protest with DJJ challenging the proposed award

of the contract to Daniel.

By letter dated September 28, 2007, DJJ referred the

protest to the Division of Administrative Hearings (DOAH) for

the assignment of an Administrative Law Judge to conduct a

formal hearing on the protest. The referral was received by

DOAH on October 3, 2007.

Daniel filed a petition to intervene, which was granted

through an Order entered on October 18, 2007. The petition to

intervene filed by the third-ranked vendor, Boley Centers, Inc.,

was denied through an Order entered on October 24, 2007.

The final hearing was held on November 8, 2007. At the

hearing, EYA presented the testimony of Ellyn Evans, Paul

Hatcher, and Jim Sartain; and Daniel presented the testimony of

Jim Clark and the deposition testimony of Vicki Waytowich and

Dr. Hilda Shirk. The following exhibits were received into

evidence: Joint Exhibits 1 through 7; Petitioner’s Exhibits 1

through 3; and Intervenor’s Exhibits 1 and 2.

The Transcript of the final hearing was filed on

November 26, 2007. The parties were given 10 days from that

date to file proposed recommended orders (PROs). The PROs were

timely filed and have been given due consideration.

FINDINGS OF FACT

1. DJJ issued RFP No. P2032 on April 2, 2007.

2. The RFP solicited proposals for a “20-slot day

treatment program for youth placed on Probation, being released

from a residential program, transitioning back into the

community or classified as minimum risk, and a 100-slot service-

oriented Intervention program with comprehensive case management

services for youth which the programs are currently located in

Pinellas and Pasco Counties . . . .”

3. The contract resulting from the RFP will be for a

three-year term -- July 1, 2007 through June 30, 2010 -- with a

renewal option for up to an additional three years at DJJ’s sole

discretion. The RFP states that the maximum annual contract

amount is $948,308, and prospective providers were required to

propose a price at or below that amount

4. EYA and Daniel submitted timely, responsive proposals

in response to the RFP.

5. Daniel’s proposal offered a slightly lower price than

EYA’s proposal. 1

6. On June 11, 2007, DJJ posted notice of its intent to

award the contract to Daniel. Thereafter, EYA timely filed a

notice of intent to protest and a formal written protest

challenging the proposed award of the contract to Daniel.

7. The RFP provides that the proposals were to be

evaluated and scored in three categories: technical proposal,

financial proposal, and past performance.

8. The past performance category focuses on the

prospective provider’s knowledge and experience in operating

non-residential juvenile justice programs. The criteria related

to the past performance category are contained in Attachment C

to the RFP.

9. Attachment C consists of three parts: Part I - Past

Performance of Non-Residential Programs; Part II - Evaluation

for Past Performance in the United States Outside of Florida;

and Part III - Evaluation for Professional Accreditation in the

United States. The focus of the dispute in this case is on Part

III.

10. A proposal could receive a total of 1,000 points if,

as is the case with both EYA and Daniel, the prospective

provider operated other DJJ-contracted non-residential programs

in Florida. The proposals could receive up to 240 points for

Attachment C, with a maximum of 40 points for Part III.

11. The RFP provides that the proposal that receives the

highest total points will be awarded the contract.

12. Daniel’s proposal received a total of 600.13 points,

which was the highest overall score. Daniel received 176 points

for Attachment C, including 30 points for Part III.

13. EYA’s proposal received a total of 573.46 points,

which was the second highest overall score. EYA received 143.7

points for Attachment C, including zero points for Part III.

14. EYA contends that Daniel should not have received any

points for Part III, which would have resulted in Daniel’s

overall score being 30 points lower, or 570.13, and would have

given EYA the highest overall score.

15. Part III of Attachment C asks whether the prospective

provider currently operates non-residential juvenile justice

programs that are accredited and in good standing with certain

accrediting agencies, including the Council on Accreditation

(COA). If so, the RFP requires the prospective provider to

include supporting documentation.

16. The prospective provider receives 10 points for each

accredited program listed in Part III of Attachment C.

17. The RFP states multiple times that the supporting

documentation “must include the start and end dates [of the

programs], be current dated and valid at least through the start

date of the Contract that results from this RFP,” and that it

must state that “the program cited is a non-residential juvenile

program and that is run by the prospective Provider.”

18. The RFP also states multiple times that a prospective

provider’s failure to provide the required supporting

documentation “shall” result in zero points being awarded for

Part III of Attachment C, and that DJJ “is not responsible for

research to clarify the prospective Provider's documentation.”

19. EYA did not list any programs in its response to Part

III of Attachment C. Its wilderness programs are accredited by

COA, but its non-residential juvenile justice programs are not

accredited. EYA is currently seeking COA accreditation for the

services provided in its non-residential programs based, in

part, on DJJ’s scoring of Daniel’s proposal in this proceeding.

20. Daniel listed three programs in its response to Part

III: a behavioral management program in Circuit 4; a

conditional release program in Circuits 6 and 13; and a

behavioral management program in Circuit 7.

21. The documentation provided by Daniel to show that the

listed programs are accredited was a letter from COA dated

August 18, 2006. The letter confirms that Daniel is accredited

by COA; that the accreditation runs through September 30, 2010;

and that the accreditation includes “the following programs:”

- Mental Health Services

- Psychosocial and Psychiatric

Rehabilitation Services

- Employee Assistance Program (EAP) Services

- Case Management Services

- Foster and Kinship Care Services

- Supported Community Living Services

- Residential Treatment Services

22. The letter does not on its face refer to the three

programs listed by Daniel in its response to Part III.

23. The letter does not on its face reflect whether the

listed services were accredited in non-residential programs (as

compared to residential programs) or in juvenile justice

programs (as compared to adult programs or juvenile programs

that do not involve the juvenile justice system).

24. Each of the three programs listed by Daniel in its

response to Part III is a non-residential program operated under

contract with DJJ. Those programs were also listed by DJJ

contract number in Daniel’s response to Part I of Attachment C.

25. Paul Hatcher, the DJJ employee who evaluated the

responses to the RFP with respect to Attachment C, was familiar

with the three programs listed in Daniel’s response to Part III.

He knew from his experience and his review of Part I of

Attachment C that the programs were non-residential juvenile

justice programs and he knew that the programs provided case

management services and mental health services.

26. Mr. Hatcher acknowledged that the COA letter does not

specifically mention the three listed programs. He nevertheless

considered the letter to be sufficient documentation of

accreditation for the three programs because the letter

indicated that Daniel, as an organization, was accredited and

that it had specific accreditation for the services provided at

the three listed programs.

27. COA accredits organizations and services, not specific

programs. 2 On this issue, Dr. Hilda Shirk, a member of the COA

Board of Trustees and an experienced COA peer reviewer,

testified that “COA accreditation applies to the entire

organization and the services that it provides” and that

Daniel’s accreditation includes all of its programs that fall

under the service areas listed in the COA letter, which is

consistent with Mr. Hatcher’s interpretation of the letter.

28. COA does not separately accredit services provided in

residential and non-residential settings, nor does it separately

accredit services provided to adults or juveniles. The

standards used to evaluate case management services and mental

health services, for example, are the same notwithstanding the

setting or the type of client being served.

29. COA performed its on-site accreditation review of

Daniel in April 2006. It is unlikely that two of the three

programs listed by Daniel in response to Part III -- the

conditional release program in Circuits 6 and 13 (DJJ Contract

No. P2013 and the behavior management program in Circuit 7 (DJJ

Contract No. G8101 -- were evaluated by COA as part of that

review because those programs had just started.

30. That does not mean, however, that those programs are

not accredited. Indeed, Dr. Shirk testified that an

organization is not required to submit each new program to COA

for review if the services offered in the program fit within a

service area for which the organization has been accredited.

CONCLUSIONS OF LAW

31. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569,

120.57(1), and 120.57(3), Florida Statutes. 3

32. EYA has standing to protest the proposed award of the

contract to Daniel because its proposal received the second-

highest overall score. See Preston Carroll Company, Inc. v.

Florida Keys Aqueduct Authority , 400 So. 2d 524, 525 (Fla. 3d

DCA 1981).

33. EYA has the burden of proof in this proceeding. See

§ 120.57(3)(f), Fla. Stat.; State Contracting & Engineering

Corp. v. Dept. of Transportation , 709 So. 2d 607, 609 (Fla. 1st

DCA 1998)

34. The scope of this proceeding and the nature of EYA’s

burden of proof are as follows:

In a competitive-procurement protest, other

than a rejection of all bids . . ., the

administrative law judge shall conduct a de

novo proceeding to determine whether the

agency's proposed action is contrary to the

agency's governing statutes, the agency's

rules or policies, or the solicitation

specifications. The standard of proof for

such proceedings shall be whether the

proposed agency action was clearly

erroneous, contrary to competition,

arbitrary, or capricious.

§ 120.57(3)(f), Fla. Stat.

35. It is not enough under Section 120.57(3)(f), Florida

Statutes, for the protestor to show that the proposed award is

inconsistent with some provision of the RFP; the protestor must

also show that agency’s "misstep" and, hence, the proposed award

is clearly erroneous, contrary to competition, arbitrary, or

capricious. See First Communications, Inv. v. Dept. of

Corrections , Case No. 07-0630BID, 2007 Fla. Div. Adm. Hear.

LEXIS 201, at ¶ 34(DOAH Apr. 5, 2007; DOC Apr. 26, 2007) (citing

Syslogic Technology Services, Inc. v. South Florida Water

Management District , Case No. 01-4385BID, 2002 Fla. Div. Adm.

Hear. LEXIS 235, at ¶¶ 40-74 (DOAH Jan. 18, 2002)).

36. The standards of proof in Section 120.57(3)(f),

Florida Statutes, have been explained as follows:

A decision is considered to be clearly

erroneous when although there is evidence to

support it, after review of the entire

record the tribunal is left with the

definite and firm conviction that a mistake

has been committed. An agency action is

capricious if the agency takes the action

without thought or reason or irrationally.

Agency action is arbitrary if is not

supported by facts or logic. An agency

decision is contrary to competition if it

unreasonably interferes with the objectives

of competitive bidding.

Lakeview Center, Inc. v. Agency for Health Care Admin. , Case No.

06-3412BID, Fla. Div. Adm. Hear. LEXIS 571, at ¶ 44 (DOAH Dec.

6, 2006; AHCA Dec. 21, 2006) (citations omitted). Accord

Syslogic Technology Services , supra .

37. EYA failed to meet its burden of proof. Even though

the evidence establishes that COA letter provided by Daniel in

its response to Part III did not meet the literal requirements

of the RFP, the evidence fails to establish that DJJ’s decision

to award points to Daniel for those programs being accredited

was arbitrary or capricious, clearly erroneous, or contrary to

competition. It was not illogical or clearly erroneous for Mr.

Hatcher to consider the letter to be satisfactory evidence of

accreditation for those programs based upon his familiarity with

the services provided in the programs and the statement in the

letter showing that Daniel was accredited for those services,

particularly since the evidence establishes that COA generally

accredits organizations and services, not programs. Moreover,

there is no credible evidence that other prospective providers

who included similar accreditation letters in their proposals

were not afforded the same treatment as Daniel.

38. At most, the evidence calls into question whether the

accreditation letter covers two of the three programs listed by

Daniel in response to Part III because the services provided at

those programs were not reviewed by COA at the site visit that

led to the August 2006 letter submitted by Daniel as evidence of

the accreditation of its programs. However, Dr. Shirk’s

testimony supports DJJ’s decision to award points for those two

programs, and even if those programs were not considered,

Daniel’s overall score would only be reduced by 20 points, to

580.13, and Daniel would still have the highest overall score.

39. This case is distinguishable from Eckerd Youth

Alternatives, Inc. v. Department of Juvenile Justice and Daniel

Memorial, Inc. , Case No. 07-4610BID (DOAH Dec. 14, 2007), which

involved a similar scoring dispute for RFP No. P2029. Unlike

that case, sufficient evidence was presented in this case to

support DJJ’s award of points to Daniel for Part III of

Attachment C.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that DJJ issue a final order dismissing the

EYA’s protest and awarding the contract for RFP No. P2032 to

Daniel.

DONE AND ENTERED this 14th day of December, 2007, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of December, 2007.

ENDNOTES

1 / The record does not reflect the prices proposed by Daniel or

EYA. The RFP states, at page 23, that “the prospective Provider

that submits the lowest total price proposal shall receive 100

points [in the price category]. . . . . All others will

receive a score that is equal to 100 points minus the percentage

difference above the lowest proposal.” See Joint Exhibit 1, at

23 (emphasis in original). The evaluation summary for Daniel’s

proposal shows that Daniel received 100 points for cost/price,

which means that Daniel proposed the lowest total price. See

Joint Exhibit 4, at page 4. EYA received 99.83 points for

cost/price, which means that the price proposed by EYA was only

0.17 percent higher than the price proposed by Daniel. See

Joint Exhibit 3, at page 3.

2 / This finding is not inconsistent with the finding that

wilderness programs operated by EYA have been accredited by COA

because the evidence establishes that there is a specific COA

standard for wilderness programs, whereas other COA standards

relate to services. See Intervenor’s Exhibit 2, at 18, 32-33.

3 / All statutory references in this Recommended Order are to the

2007 version of the Florida Statutes.

COPIES FURNISHED :

Walt McNeil, Secretary

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Jennifer Parker, General Counsel

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-1300

Tonja V. White, Esquire

Department of Juvenile Justice

Knight Building, Room 312L

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Martha Harrell Chumbler, Esquire

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

Tallahassee, Florida 32302-0190

Cynthia S. Tunnicliff, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302-2095

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.