08-003969BID The Henry And Rilla White Youth Foundation, Inc. vs. Department Of Juvenile Justice Status: Closed Recommended Order on Monday, October 27, 2008.

Summary: The decision of Respondent Department of Juvenile Justice to reject all bids was not illegal, arbitrary, dishonest, or fraudulent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE HENRY AND RILLA WHITE YOUTH )

FOUNDATION, INC., )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent, ) Case No. 08-3969BID

and )

)

ECKERD YOUTH ALTERNATIVES, )

INC., )

)

Intervenor. )

)

)

RECOMMENDED ORDER

This cause came on for final hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on September 15, 2008, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Donna Holshouser Stinson, Esquire

M. Stephen Turner, Esquire

Broad and Cassel 215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302-1300

For Respondent: Tonja V. White, Esquire

Department of Juvenile Justice

Knight Building, Room 312L

2737 Centerview Drive

Tallahassee, Florida 32399-3100

For Intervenor: Martha Harrell Chumbler, Esquire

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

Tallahassee, Florida 32302-0190

STATEMENT OF THE ISSUE

The issue is whether Respondent's decision to reject all

bids in DJJ Solicitation Number: RFP# P2043 was illegal,

arbitrary, dishonest, or fraudulent.

PRELIMINARY STATEMENT

Respondent Department of Juvenile Justice (DJJ) issued a

request for proposals, DJJ Solicitation Number: RFP# R2043

(RFP), on April 30, 2008. The RFP was entitled, "120-Slot

Community-Based Intervention Services Program in Circuit 5."

The Henry and Rilla White Youth Foundation, Inc. (White

Foundation), Eckerd Youth Alternatives, Inc. (EYA), and others,

responded. On or about June 20, 2008, DJJ announced its intent

to award the contract for the program to EYA.

White Foundation timely protested. On June 25, 2008, DJJ

issued a "Notice to Withdraw the Notice of Agency Decision for

RFP #P2043." (The discrepancy in the letter preceding the RFP

number appearing on the first page subject line of the RFP

document, an "R," is deemed to be a scrivener's error.) On

June 26, 2008, the White Foundation timely filed a notice of

intent to protest DJJ's intended decision. On July 9, 2008, it

filed a formal bid protest petition. DJJ referred the matter to

the Division of Administrative Hearings, and the petition was

filed August 15, 2008.

On August 18, 2008, EYA filed an Amended Petition to

Intervene, which was granted on August 19, 2008. During a

telephone hearing on August 27, 2008, all parties agreed to a

hearing date of September 15, 2008. This date conformed to the

time constraints provided in Subsection 120.57(3)(e), Florida

Statutes (2007).

At the hearing, the White Foundation presented the

testimony of Ashley Nevels, and offered 19 exhibits. All White

Foundation exhibits, except White Foundation Exhibit 12 for

identification, were accepted into evidence. DJJ presented the

testimony of Amy Johnson and Paul Hatcher and offered two

exhibits that were accepted as evidence. EYA presented no

witnesses and offered a single composite exhibit that was

accepted into evidence. Two joint exhibits were accepted into

evidence.

A transcript was filed on September 29, 2008. After the

hearing, all parties timely filed Proposed Recommended Orders.

The Proposed Recommended Orders were considered in the

preparation of the Recommended Order. On October 10, 2008, DJJ

filed an Amended Proposed Recommended Order. Although this

filing was late, the only change was to correct an apparent

transposition of names in paragraphs 62-70, and therefore it was

considered.

References to statutes are to Florida Statutes (2007)

unless otherwise noted.

FINDINGS OF FACT

Parties

1. DJJ is a state agency whose mission is to reduce

juvenile delinquency. One of the methods used to attempt to

attain this goal is through the provision of community-based

intervention services programs for boys and girls.

2. EYA and the White Foundation, both of whom are not-for-

profit foundations, are contractors who are in the business of

providing community-based intervention services for boys and

girls. There are about 320 to 360 contracts between DJJ and

private contractors. Both EYA and the White Foundation, at all

times pertinent, had contracts with DJJ. The White Foundation

operates only non-residential programs. EYA operates both non-

residential and residential programs.

Background

3. In RFP#R2043 dated April 30, 2008, DJJ solicited

requests for proposals for a contract to provide, "A 120-slot

community based intervention program for boys and girls in

Circuit 5 (Marion, Citrus, Hernando, Sumter, and Lake Counties,

as described in the Scope of Services (Exhibit 1)." EYA is the

current operator of the program and continues to operate the

program pursuant to an extension of their current contract.

That extension is set to expire December 31, 2008.

4. The program sought can be further described as a

nonresidential, service-oriented intervention program with

comprehensive case management services for department-served

youth through the development of a provider designed, developed,

implemented, and operated intervention program for youth. The

program is to serve youth on probation, conditional release, or

post-commitment probation, and is to include supervision of

youth transitioning from a residential commitment program,

released from residential commitment program for post-commitment

services, or placed on probation.

5. The RFP provided that "The Department reserves the

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

portions thereof, . . . if the Department determines that doing

so will serve the State's best interests."

6. EYA and the White Foundation submitted timely,

responsive proposals. Proposals were also submitted by Gulf

Coast Treatment Center, Psychotherapeutic Services of Florida,

Silver River Mentoring & Instruction, Community Action

Foundation of Citrus County, and Taylor Human Services. No

responder availed themselves of the opportunity to ask questions

about the RFP.

7. On June 20, 2008, DJJ published its notice of intent to

award the contract to EYA.

8. On June 25, 2008, DJJ published a notice of its

withdrawal of its previous decision on the RFP and its intended

decision to re-issue the solicitation for the program.

9. On June 26, 2008, the White Foundation timely filed a

notice of intent to protest DJJ's intended decision.

10. On July 9, 2008, the White Foundation timely filed a

formal bid protest challenging DJJ's intended decision.

Evaluation generally

11. The language contained in the RFP is boilerplate

language that is repeated with little change in all

solicitations for both non-residential and residential programs,

with the exception of the scope of services portion.

12. Attachment D of the RFP is entitled, "Evaluation

Criteria." It provides that the proposals are to be evaluated

and scored in three categories: technical proposal (referred to

as "Volume 1"), financial proposal (referred to as "Volume 2"),

and past performance (referred to as "Volume 3").

13. Generally, at DJJ, an evaluation panel of three to

five evaluators reviews Volume 1, the programmatic elements, or

the technical proposal. In this case, three evaluators scored

Volume I. The financial proposal, or Volume 2, was a

mathematical formula that essentially required no subjective

analysis. A single evaluator simply determined the lowest price

that was under the maximum amount the RFP permitted. The

evaluation of the third part or Volume 3, past performance, was

accomplished by Senior Management Analyst II, Paul Hatcher,

acting alone.

14. Mr. Hatcher has been an employee of DJJ for 23 years

and has been an evaluator of RFPs for seven years. His role in

evaluating the RFP was intended to be objective. In other

words, he was tasked with reviewing the information provided and

ensuring that it met the requirements of the RFP. His

evaluation was not supposed to be subjective or judgmental.

15. Typically, and in this case, subsequent to the

evaluation of the parts, the DJJ Contract Administrator enters

the various scores into a bid tabulation sheet to determine the

high scorer. It is DJJ's intention in all cases to award the

contact to the prospective provider whose proposal receives the

most points. In this case, on June 19, 2008, the contract

administrator determined that EYA received 817.22 points and the

White Foundation received 785 points. Other responders scored

lower.

16. To the extent the controversy is concerned with which

party should have been awarded the most points, the focus is on

the past performance evaluation. The past performance category

addresses the prospective provider's knowledge and experience in

operating non-residential juvenile justice programs. The

criteria related to the past performance category, Volume 3, are

contained in Attachment C to the RFP.

17. 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.

18. Attachment C further states that if the prospective

provider has received DJJ Quality Assurance (QA) reviews and

recidivism rate results for its non-residential programs, the

provider should complete only Parts I and III. Both the White

Foundation and EYA had QA reviews and thus were required to

address only Parts I and III. This information was available to

all parties through access to DJJ databases.

Part I of Attachment C - Past Performance of Non-Residential

Programs

19. Part I of Attachment C permitted the assignment of 100

points for "Average QA." For programs receiving a quality

assurance review prior to 2007, responders could receive up to

75 points for performance scores and up to 25 points for

compliance scores.

20. Part I provided a grid entitled, "Attachment C-1

Part I, Data Sheet: Past Performance of Non-Residential

Programs." (past performance data sheet). The past performance

data sheet has columns labeled "Contract Number," "Program

Type," "Contract Begin Date," "Contract End Date," "Most Recent

QA Performance Percentage Score," "Most Recent QA Compliance

Percentage Score (if evaluated prior to 2007)," and "Failure to

Report." There is also a column entitled "Number of Completions

during FY 2005-2006" in which is recorded the number of youths

who complete the programs. A final column is labeled, "2005-

2006 Recidivism Rate."

21. The "Most Recent QA Performance Percentage Score,"

"Most Recent QA Compliance Percentage Score (if evaluated prior

to 2007)," "Failure to Report," "Number of Completions during FY

2005-2006," and "2005-2006 Recidivism Rate," are found in

databases available from DJJ. This form is quite similar to the

forms in RFPs for the residential programs.

22. Ashley Nevels, an accountant, and vice-president of

administration for the White Foundation, reviewed all of the

records pertaining to the responses to the RFP. Mr. Nevels

found Volumes 1 and 2 to be essentially correct. He found

errors in Volume 3. Though not qualified or considered as an

expert witness, his testimony was helpful in illuminating the

forms and procedures used in evaluating the responses.

23. Mr. Nevels carefully reviewed responses in Volume 3

submitted by the White Foundation and EYA. With regard to the

past performance data sheet, he found that there was information

provided by EYA that was erroneous and information that was

omitted. He found that Mr. Hatcher had corrected the erroneous

information supplied by EYA, but did not consider whether or not

it was complete.

24. Mr. Nevels concluded that the White Foundation was

correct in its report as presented on the past performance data

sheet. Laura Moneyham, an employee of DJJ, working in its

purchasing section, also reviewed the past performance data

sheet. She found that EYA should have been awarded only 813.04

total points instead of the 817.22 that Mr. Hatcher awarded. In

other words, EYA received 4.18 more points than it should have

received. Her findings generally comported with Mr. Nevels,

except he believed EYA received slightly more underserved points

than reported by Ms. Moneyham.

25. Based on the testimony of Mr. Nevels, the figures

derived by Ms. Moneyham, and a review of the data contained in

the exhibit, it is found as a fact that EYA should have received

at least 4.18 fewer points on the Attachment C-1 Part I, Data

Sheet, than was awarded by Mr. Hatcher. It is further found

that the White Foundation's data was correct.

26. The errors found on the past performance data sheet

would have not affected the outcome of the award. After

corrections, EYA would still have enough points to prevail.

However, there was also an error in scoring the Part III

accreditation portion of Attachment C. As Ms. Moneyham found on

her re-scoring, and as Mr. Nevels had found, the White

Foundation was entitled to 30 more points than it received in

that category.

Part III of Attachment C - Evaluation for Accreditation

27. It was DJJ's policy, through the accreditation section

that was denominated in Part III, to reward providers with

points in the procurement process for achieving accreditation

status. This was DJJ's policy because accreditation is a

qualified endorsement by an outside, objective party that

confirms that an organization conforms to recognized service

standards.

28. Ten points were to be awarded for each accredited

program submitted in the response to the RFP. Both EYA and the

White Foundation submitted information on three accreditations.

Both responders were eligible to receive 30 points in this

category.

29. Attachment C provides, with regard to Part III -

Evaluation for Professional Accreditation in the United States,

found at page 16 of 63 of the RFP, as follows:

All documentation provided . . . must

include the start and end dates, be current

dated and valid at least through the start

date of the Contract that results from this

RFP. The documentation shall also state

that the program cited is a non-residential

juvenile program and that it is run by the

prospective Provider. The Department will

verify all information received but is not

responsible for research to provide

information not submitted and documented by

the prospective Provider. Failure to

provide the required supporting information

for Parts II or III of the attachment shall

result in a score of zero (0) for that

section.

30. EYA responded to Part III by providing a copy of page

24 of the RFP and providing copies of three certificates from

the Council on Accreditation (COA) indicating that EYA was

accredited in Circuits 6, 7, and 11; a letter from the copies of

Bureau of Quality Assurance Performance Rating Profiles; and an

explanation that the three programs are operated in the United

States under DJJ contract, are non-residential programs, and are

operated under the CBIS program model. The EYA certificates did

not indicate start dates. Nevertheless, Mr. Hatcher awarded 30

points to EYA.

31. The White Foundation responded to this section by

providing copies of pages 20-23 of the RFP and three

certificates from the Commission on Accreditation of

Rehabilitation Facilities (CARF) that indicated that the White

Foundation was accredited. Mr. Hatcher awarded no points to the

White Foundation in the accreditation category.

32. Mr. Hatcher arrived at the White Foundation's score,

or non-score, by referring to Part III of Attachment C of the

RFP. In that section there appears a list of four accreditation

organizations. Accreditation by one or more of these

organizations can result in a responder receiving points for the

section. Following the list of acceptable accreditation

organizations, the form inquires, "Does the prospective provider

currently operate or perform a non-residential juvenile justice

organization/program/facility/service ('accredited entity') in

the United States which is being offered as a part of its RFP

proposal, and is that accredited entity in good standing and

without restrictions by: . . . " and lists four accreditation

agencies. The evaluator is to check "yes" or "no."

33. Immediately following this language, the form recites

12 standards to be addressed if the responder answers "yes."

These standards serve as the base requirements for a responder

to have an acceptable "yes."

34. Mr. Hatcher found that the White Foundation had not

complied with standard eight of the 12 standards, which states,

"Must provide documentation that establishes the accredited

entity is offered as part of the prospective provider's proposal

(i.e. RFP) proposal page and/or section reference)."

35. Mr. Hatcher believed standard eight required

documentation of the specific page and section of the RFP to

which the accreditation would apply, and that was not provided

by the White Foundation in Part III. He believed the White

Foundation was required to provide a reference to a specific

portion of Volume 1. Because the accreditations supplied did

not provide a reference to a proposal page or section,

Mr. Hatcher, using a strict interpretation of the requirement,

found it to be noncompliant.

36. Mr. Hatcher could have looked at Volume 1 of the White

Foundation's response and found the information that was

required. He did not look at Volume 1 because he believed that

would be "research" of the type prohibited by the guidance found

at page 16 of 63 of the RFP.

37. Subsequent to the announcement of the agency decision

revealing that EYA had prevailed, as noted, Mr. Nevels and

Ms. Moneyham reviewed the evaluations for past performance.

Lisa J. Eaton, a Senior Management Analyst II, who is employed

by DJJ, also reviewed the evaluations for past performance.

Interpreting the same language Mr. Hatcher used for guidance,

they all arrived at the opposite conclusion with regard to

accreditation and determined that the White Foundation should

have been awarded 30 points.

38. It is found as a fact that standard eight of the 12

standards, when read in conjunction with the guidance provided

in the first paragraph of Attachment C, Evaluation of Past

Performance for Non-Residential Programs, at page 16 of 63,

provided guidance that could confuse an evaluator and could

result in a decision with regard to accreditation that was

contrary to DJJ policy that DJJ attempted to express in the RFP.

Agency deliberations with regard to the decision to reject all

bids

39. It was brought to the attention of DJJ in December of

2007, by the Recommended Order in Eckerd Youth Alternatives,

Inc. v. Department of Juvenile Justice , Case No. 07-4610BID

(DOAH December 14, 2007), that the past performance portion of

their RFP was infused with ambiguity. As a result, an attempt

was made to clarify the type of information that was desired to

satisfy the accreditation portion of the past performance part

of the RFP.

40. After the responses to RFP# P2043 were received and

scored, the contract section of DJJ determined that

Mr. Hatcher's scoring was inconsistent with the scoring that had

been done on residential RFPs even though the two were 99

percent congruent. The evaluators of the residential programs

would provide information omitted by a response, and correct

information that was incorrect when submitted. Then they would

score the response.

41. Unlike the residential scorers, Mr. Hatcher did not

count QA programs that were missing, but did correct information

that was incorrect when submitted, if the contract numbers were

correct. This meant that a potential vendor could choose to

include their well-performing programs and not report programs

that were performing poorly, and thereby gain an advantage.

This did not comport with the desires of DJJ.

42. DJJ staff also determined that Mr. Hatcher failed to

score the accreditation portion in accordance with their policy

objectives. Amy Johnson, Chief of the Bureau of Contracts,

believed that Mr. Hatcher was confused by the language of the

RFP and that accounted for his incorrect scoring.

43. Upon reviewing the situation, Deputy Secretary Rod

Love and Assistant Secretary Darryl Olson determined that all

bids should be rejected and the process begun anew. It cannot

be determined from the evidence whether that decision was made

before the White Foundation protested, or after.

44. As a result of the difficulties experienced in RFP#

P2043, DJJ staff have attempted to further clarify that

information that is omitted or inaccurate will be corrected and

used. They have removed standard eight of the 12 standards that

referred to the need to cross-reference.

45. It was DJJ's intent to have consistent interpretations

and scoring of proposals throughout the Department, and in

particular, between bids for residential and non-residential

programs. In order to carry out that intent, DJJ decided to

reject the bids and initiate a new RFP for the desired project.

46. There was no evidence that the actions of DJJ were

illegal, dishonest, or fraudulent. For reasons that will be

addressed below, the decision to reject all bids also was not

arbitrary.

CONCLUSIONS OF LAW

47. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1) and (3), Fla. Stat.

48. The White Foundation has the burden of proof in this

proceeding. See § 120.57(3)(f), Fla. Stat., and State

Contracting and Engineering Corp. v. Dep't of Transp. , 709 So.

2d 607, 609 (Fla. 1998).

49. The underlying findings of fact in this case are

determined using the preponderance of the evidence standard.

See § 120.57(1)(l), Fla. Stat.

50. The recommendation in this case is to be made pursuant

to Subsection 120.57(3)(f), Florida Statutes, which provides:

(3) ADDITIONAL PROCEDURES APPLICABLE

TO PROTESTS TO CONTRACT SOLICITATION OR

AWARD. --Agencies subject to this chapter

shall use the uniform rules of procedure,

which provide procedures for the resolution

of protests arising from the contract

solicitation or award process.

* * *

(f) In a protest to an invitation to

bid or request for proposals procurement, no

submissions made after the bid or proposal

opening which amend or supplement the bid or

proposal shall be considered. In a protest

to an invitation to negotiate procurement,

no submissions made after the agency

announces its intent to award a contract,

reject all replies, or withdraw the

solicitation which amend or supplement the

reply shall be considered. Unless otherwise

provided by statute, the burden of proof

shall rest with the party protesting the

proposed agency action. In a competitive-

procurement protest, other than a rejection

of all bids, proposals, or replies, 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. In any bid-

protest proceeding contesting an intended

agency action to reject all bids, proposals,

or replies, the standard of review by an

administrative law judge shall be whether

the agency's intended action is illegal,

arbitrary, dishonest, or fraudulent.

51. The operative sentence in the foregoing paragraph is:

"In any bid-protest proceeding contesting an intended agency

action to reject all bids, proposals, or replies, the standard

of review by an administrative law judge shall be whether the

agency's intended action is illegal, arbitrary, dishonest, or

fraudulent."

52. As noted previously, there was no evidence adduced

indicating that DJJ's action was illegal, dishonest, or

fraudulent. Consequently, there remains only the question of

whether the action was arbitrary.

53. As noted in Couch Constr. Co. v. Dep't of Transp. , 361

So. 2d 172 (Fla. 1st DCA 1978), an agency ". . . has wide

discretion to reject all bids and to call for new bids for

public contracts. Subsection 337.11(3), Florida Statutes

(1977); Willis v. Hathaway , 95 Fla. 608, 117 So. 89 (Fla. 1928);

Berry v. Okaloosa County , 334 So. 2d 349 (Fla. 1st DCA 1976);

Wood-Hopkins Contracting Co. v. Roger J. Au & Son, Inc. , 354 So.

2d 446 (Fla. 1st DCA 1978). In making such a determination, the

Department cannot act arbitrarily." In order to prevail, an

agency must provide visible proof that it was proceeding

rationally within the bounds of its discretion and not

arbitrarily.

54. In Scientific Games, Inc. v. Dittler Brothers, Inc. ,

586 So. 2d 1128, 1131 (Fla. 1st DCA 1991), the Court described

the deference to be accorded an agency in connection with a

competitive procurement:

The Hearing Officer need not, in effect,

second guess the members of the evaluation

committee to determine whether he and/or

other reasonable and well-informed persons

might have reached a contrary result.

Rather, a “public body has wide discretion ”

in the bidding process and “its discretion,

when based on an honest exercise” of the

discretion, should not be overturned “even

if it may appear erroneous and even if

reasonable persons may disagree.”

(Citations omitted; emphasis in original).

55. In U.S. Foodservice, Inc. v. The School Board of

Hillsborough County , Case No. 98-3415BID (DOAH Nov. 17, 1998),

Administrative Law Judge Robert Meale analyzed the review

criteria applicable to the rejection of all bids subsequent to

the 1997 legislative revision of the Administrative Procedures

Act:

[T]he . . . provisions of Section

120.57(3)(f) represent a Legislative

reshaping of bid law, at least in cases in

which an agency proposes to award a bid, as

opposed to cases in which an agency proposes

to reject all bids. When an agency rejects

all bids, Section 120.57(3)(f) enacts the

deferential standard of review previously

stated in Department of Transportation v.

Groves-Watkins Constructors , 530 So. 2d 912

(Fla. 1988).

179. By negative implication, the

third sentence of Section 120.57(3)(f) also

legislatively endorses the language in

Groves-Watkins limiting the administrative

law judge’s “review” of the agency decision

to reject all bids to something less than

the typical de novo administrative hearing.

In the typical de novo hearing, the

administrative law judge does not merely

review the agency decision.

180. . . . Logically, once the

Legislature chose to distinguish, as it

clearly has, between agency decisions to

award a bid and agency decisions to reject

all bids, the latter decision should receive

greater deference. A decision to reject all

bids does not directly favor one bidder, and

overturning such a decision is compelling

the agency to spend money for goods,

services, or property when it no longer

wishes to do so. The use in Section

120.57(3)(f) of “standard of proof” in award

cases and “standard of review” in rejection

cases is also consistent with the lesser

deference required in award cases, which

entitle the protester to a de novo hearing.

* * *

182. The real question is exactly how

much less deference is the Legislature

mandating in award cases. The valid answer

must lie somewhere between the unchanged

level of relatively great deference for

agency rejection decisions and the

relatively little deference for agency

action in the typical, nonbid de novo

hearing.

56. This does not mean that the agency must prevail in all

cases when a protest is made of a decision to reject all bids.

For instance, all bids cannot be rejected simply to avoid

litigation. See Couch , 361 So. 2d at 175.

57. The reason for rejecting all bids may not be

pretextual. Lauderdale Market Place Investments v. Dep't of

Juvenile Justice , Case No. 00-3520BID (DOAH July 27, 2001).

58. The rejection of all bids will not be sustained when

an agency claims ambiguity in the bid specifications, when no

ambiguity actually exists. See School Food Service Systems,

Inc. v. Broward County School Board , Case No. 01-0612BID (DOAH

May 31, 2001).

59. If an agency's invitation to bid is seriously flawed,

its decision to reject all bids will be sustained. See Caber

Systems, Inc. v. Dep't of General Services , 530 So. 2d 325 (Fla.

1st DCA 1988).

60. A definition of arbitrary, which is widely cited and

has applicability generally, is found in a case involving a

challenge to the validity of a rule, Agrico Chemical Co. v.

Dep't. of Environmental Reg. , 365 So. 2d 759 (Fla. 1st DCA

1978). There it was said that "an arbitrary decision is one

that is not supported by facts or logic, or is despotic."

Therefore, in order to prevail, the White Foundation must

demonstrate that the decision of DJJ to reject all bids was not

supported by facts or logic, or was despotic.

61. DJJ rejected all bids because certain evaluation

instructions were sufficiently vague that more than one

interpretation resulted and because DJJ desired consistency in

evaluations, especially between RFP evaluations for residential

and non-residential programs.

62. Whether rejecting all bids was the best course of

action, or a bad decision, the preponderance of the evidence

demonstrated that it was a decision made in an effort to provide

a clear, consistent, and fair procurement process. The decision

to reject all bids was made after contemplation and rational

thought. Therefore, it was not arbitrary.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Department of Juvenile Justice issue a

final order dismissing the Petition and Formal Protest filed by

Petitioner.

DONE AND ENTERED this 27th day of October, 2008, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 27th day of October, 2008.

COPIES FURNISHED :

Donna Holshouser Stinson, Esquire

M. Stephen Turner, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302-1300

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

Frank Peterman, Jr., 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 32399-3100

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.