07-004610BID Eckerd Youth Alternatives, Inc. vs. Department Of Juvenile Justice Status: Closed Recommended Order on Friday, December 14, 2007.

Summary: Petitioner proved that proposed award of contract was erroneous. The evidence failed to justify Respondent`s award of points to the winning bidder for past performance. Recommend that the proposed award be rescinded.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ECKERD YOUTH ALTERNATIVES, ) )

INC., )

)

Petitioner, )

) Case No. 07-4610BID

vs. )

)

DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

RECOMMENDED ORDER

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

Administrative Law Judge T. Kent Wetherell, II, on November 9,

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

STATEMENT OF THE ISSUE

The issue is whether the proposed award of the contract for

Request for Proposals (RFP) No. P2029 to Henry and Rilla White

Youth Foundation, Inc. (White Foundation) is contrary to the

specifications of the RFP.

PRELIMINARY STATEMENT

On June 18, 2007, the Department of Juvenile Justice (DJJ)

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

P2029 to White Foundation. Eckerd Youth Alternatives, Inc.

(EYA), the second-ranked vendor, timely filed a notice of

protest and a formal written protest with DJJ challenging the

proposed award of the contract to White Foundation.

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 4, 2007.

The final hearing was scheduled for and held on November 9,

2007. No witnesses were presented at the hearing. EYA offered

the deposition testimony of Paul Hatcher, which was received as

Petitioner’s Exhibit 1. Joint Exhibits 1 through 4 were also

received into evidence.

No Transcript of the final hearing was filed. The parties

requested and were given until November 21, 2007, to file

proposed recommended orders (PROs), and thereby waived the

deadline for this Recommended Order. See Fla. Admin. Code R.

28-106.216(2). The PROs were timely filed and have been given

due consideration.

FINDINGS OF FACT

1. DJJ issued RFP No. P2029 on April 17, 2007.

2. The RFP solicited proposals for a “240-available slot

Community-based Intervention Services program for boys and girls

for Volusia, Flagler and Putnam 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 $1,504,968, and prospective providers were required to

propose a price at or below that amount.

4. EYA and White Foundation submitted timely, responsive

proposals in response to the RFP.

5. White Foundation’s proposal offered a slightly lower

price than EYA’s proposal. 1

6. On June 18, 2007, DJJ posted notice of its intent to

award the contract to White Foundation. Thereafter, EYA timely

filed a notice of intent to protest and a formal written protest

challenging the proposed award of the contract to White

Foundation.

7. The RFP provided 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 White Foundation, the

prospective provider operated DJJ-contracted non-residential

programs in Florida. The proposal could receive up to 240

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

III.

11. The RFP states that the proposal that receives the

highest overall score will be awarded the contract.

12. White Foundation’s proposal received a total of 785.98

points, which was the highest overall score. White Foundation’s

score included 40 points for Part III of Attachment C.

13. EYA’s proposal received a total of 752.03 points,

which was the second-highest overall score. EYA received zero

points for Part III of Attachment C.

14. EYA contends that White Foundation should not have

received any points for Part III, which would have resulted in

White Foundation’s overall score being 745.98 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 Rehabilitation Accreditation

Commission (CARF). 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

the Council on Accreditation (COA), but its non-residential

juvenile justice programs are not accredited by COA , CARF, or

any other organization.

20. White Foundation listed four programs in its response

to Part III of Attachment C: a conditional release program in

Nassau County; a conditional release program in Duval County; a

conditional release program in Clay County; and an Intensive

Delinquency Diversion Services program in Circuit 2.

21. The documentation provided by White Foundation to show

that the listed programs are accredited was an undated

certificate from CARF and a one-page “Survey Accreditation

Detail” dated June 28, 2006.

22. The CARF certificate states that “a three-year

accreditation is awarded to the [White Foundation] for the

following identified services: case management/services

coordination: family services (children and adolescents)" and

for “out-of-home treatment: family services (children and

adolescents).” The seal on the certificate includes an

expiration date of August 2007.

23. The CARF certificate does not mention any of the

programs listed by White Foundation in response to Part III of

Attachment C. It only certifies that that White Foundation is

accredited as an organization for certain services.

24. The Survey Accreditation Detail document makes

reference to survey number 32190; company number 200190; an

accreditation decision of “three-year accreditation”; an

accreditation expiration date of August 31, 2007; and Correction

Services of Florida, LLC as the “company submitting intent.”

The document lists six “companies with programs,” including the

four programs listed by White Foundation in its response to Part

III of Attachment C.

25. The bottom of the Survey Accreditation Document

includes the notation “page 1 of 2.” The second page of the

document is not included in the portion of White Foundation’s

response to the RFP that was received into evidence, nor is it

included in the exhibit attached to the deposition of Paul

Hatcher, the DJJ employee who evaluated the responses to the RFP

with respect to Attachment C.

26. Mr. Hatcher testified that he interpreted the Survey

Accreditation Detail document to be “a summary of the

prospective provider’s programs that received accreditation

based on the CARF award letter.” That interpretation, while not

implausible, is not adequately supported by the evidence of

record.

27. First, there is nothing on the Survey Accreditation

Detail document to demonstrate that it was prepared by CARF, and

Mr. Hatcher acknowledged that he did not know who prepared the

document.

28. Second, it cannot be determined from the Survey

Accreditation Detail document whether the “three-year

accreditation” referred to in the document relates to all of the

“companies with programs” listed on the document, or just to

Correction Services of Florida, LLC, which is identified as the

“company submitting intent.” Indeed, each of the listed

“companies with programs” has a different six-digit number in

parenthesis following its name and only the number following

Correction Services of Florida, LLC, matches the “company

number” referenced at the top of the Survey Accreditation Detail

document.

29. Third, the record does not reflect the relationship,

if any, between White Foundation and Correction Services of

Florida, LLC. Indeed, Mr. Hatcher testified that he did not

know anything about Correction Services of Florida, LLC, except

that it appeared to have the same address as White Foundation.

30. The CARF certificate and the Survey Accreditation

Detail document do not on their face reflect whether the listed

programs are non-residential programs (as compared to

residential programs) or whether they are juvenile justice

programs (as compared to juvenile programs that do not involve

the juvenile justice system). However, Mr. Hatcher testified

that all of the services identified on the CARF certificate

correspond to non-residential facilities and that he was

familiar with the listed programs and knew that they were

juvenile justice programs.

31. It cannot be determined from the CARF certificate and

Survey Accreditation Detail document whether the four programs

listed by White Foundation in its response to Part III of

Attachment C are accredited. Indeed, Mr. Hatcher candidly

acknowledged as much in his testimony. 2

32. If DJJ had scored White Foundation’s proposal in

accordance with the specifications of the RFP, the proposal

would have received zero points for Part III of Attachment C,

which would have resulted in EYA’s proposal receiving the

highest overall score.

CONCLUSIONS OF LAW

33. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569 and

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

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

contract to White Foundation 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).

35. 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)

36. 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.

37. 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, Inc. 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)).

38. 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, 2006 Fla. Div. Adm. Hear. LEXIS 571, at ¶ 44 (DOAH

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

Syslogic Technology Services , supra .

39. EYA met its burden to prove that the proposed award of

the contract to White foundation is contrary to the

specifications of the RFP and that the proposed award is clearly

erroneous. The supporting documentation provided by White

Foundation in Part III of Attachment C -- i.e. , the CARF

certificate and Survey Accreditation Detail document -- does not

meet the requirements of the RFP, and the evidence presented at

the final hearing does not adequately support Mr. Hatcher’s

decision to award White Foundation 40 points for Part III based

upon those documents.

40. This case is distinguishable from Eckerd Youth

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

Memorial, Inc. , Case No. 07-4609BID (DOAH Dec. 14, 2007), which

involved EYA a similar scoring dispute for RFP No. P2032,

because sufficient evidence was presented to support DJJ’s

scoring of Part III of Attachment C in that case. Moreover,

unlike that case, the accreditation documentation presented by

White Foundation in this case raises more questions than it

answers.

41. It is the responsibility of DJJ, not the undersigned,

to determine whether to award the contract to EYA or to reject

all bids and start over based upon the erroneous scoring of

White Foundation’s proposal. See Courtenay v. Dept. of Health &

Rehabilitative Servs. , 581 So. 2d 621, 623 (Fla. 5th DCA 1991)

("[I]t is not the hearing officer's function to reweigh the

award factors and award the bid to the protestor. This is the

prerogative of the department."). See also Procacci v. Dept. of

Health & Rehabilitative Servs. , 603 So. 2d 1299, 1300-01 (Fla.

1st DCA 1992); Moore v. Dept. of Health & Rehabilitative Servs. ,

596 So. 2d 759, 761 (Fla. 1st DCA 1992).

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that DJJ issue a final order rescinding the

proposed award of RFP No. P2029 to White Foundation.

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 EYA or

White Foundation. The RFP states 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

page 23 (emphasis in original). The evaluation summary for

White Foundation’s proposal shows that White Foundation received

100 points for cost/price, which means that White Foundation

proposed the lowest total price. See Joint Exhibit 4, at page

2. EYA received 99.88 points for cost/price, which means that

the cost proposed by EYA was only 0.12 percent higher than the

cost proposed by White Foundation. See Joint Exhibit 3, at page

2.

2 / See Petitioner’s Exhibit 1 (deposition of Mr. Hatcher), at

page 16:

Q Is there any way for you to determine

whether the specific programs identified by

the White Foundation obtained accreditation

by CARF?

A The specific programs, no.

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

Martha Harrell Chumbler, Esquire

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

Tallahassee, Florida 32302-0190

Tonja V. White, Esquire

Department of Juvenile Justice

Knight Building, Room 312L

2737 Centerview Drive

Tallahassee, Florida 32399-3100

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.