10-000536BID Troy Foundation, Inc. vs. Department Of Juvenile Justice Status: Closed Recommended Order on Wednesday, December 1, 2010.

Summary: Challenge to bid specification was untimely and should be dismissed. No violation of the Sunshine Law.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TROY FOUNDATION, INC., )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF JUVENILE ) Case No. 10 - 0536BID

JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pur suant to notice, a final hearing was conducted on

October 5, 2010, at Tallahassee, Florida, before Claude B.

Arrington, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: James M cGuirk, Esquire

The McGuirk Law Firm, P.L.

2655 Le Jeune Road Suite 700

Coral Gables, Florida 33134

Norman Davis, Esquire

Squire, Sanders & Demp sey LLP

200 South Biscayne Boulevard, Suite 4100

Miami, Florida 33131 - 2398

For Respondent: Tonja Mathews, Esquire

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

STATEMENT OF THE ISSUES

Whether, in making a preliminary decision to award a

contract for the subject services, Respondent acted contrary to

a governing statute, rule, policy, or project spe cification;

and, if so, whether such misstep(s) was/were clearly erroneous,

arbitrary or capricious, or contrary to competition.

Specifically, Petitioner challenges the evaluation of the p ast

p erformance section of the responses to the procurement

documen t. Also at issue is whether Respondent violated the

Sunshine Law in deciding to reject PetitionerÓs bid protest.

PRELIMINARY STATEMENT

On September 21, 2009, Respondent, the Department of

Juvenile Justice (the Respondent or DJJ) issued Request for

Propos als #P2059 (the RFP). Following appropriate publication

of the RFP and a vendorsÓ conference, Petitioner, and another

vendor, Psychotherapeutic Services of Florida, Inc. (PSF),

responded. Following an evaluation of the responses, Respondent

determined to award the subject contract to PSF. Petitioner

thereafter timely filed this challenge to the proposed award,

the matter was referred to DOAH, and this proceeding followed.

PSF did not participate in this proceeding.

Prior to the formal hearing the partie s submitted a

Prehearing Stipulation, which contained certain stipulated

facts. Those facts have been incorporated as findings of fact

(after minor editing) in paragraphs 1 - 18 of this Recommended

Order.

At the formal hearing, the parties submitted one Joi nt

Exhibit (Joint Exhibit 1). In addition, Petitioner presented

eight sequentially - numbered exhibits, each of which was admitted

into evidence. Petitioner presented the testimony of Jennifer

Fiorenza (the former executive director of Petitioner who, at

t he time of the formal hearing , was employed by Petitioner as a

consultant ), Thomas Petersen (the Chairman of the Board of

Petitioner), Tonja Mathews (counsel for Respondent who was

called as a fact witness), Shahin Iranpour (Respondent's

Contract Administe r for the subject procurement), Amy Johnson

(Respondent's Chief of Contracts), and Rex Uberman (Respondent's

Assistant Secretary). In addition, Petitioner recalled

Mr. Petersen as a rebuttal witness.

Respondent offered seven sequentially - numbered exhibits ,

each of which was admitted into evidence , and presented the

testimony of Paul Hatcher (Respondent's Senior Management

Analyst who scored the vendors' past performance section of the

responses to the RFP).

A Transcript of the proceedings, consisting of on e volume,

was filed October 20, 2010. Each party filed a Proposed

Recommended Order, which has been duly - considered by the

undersigned in the preparation of this Recommended Order. All

statutory references are to Florida Statutes (2010).

FINDINGS OF FA CT

S tipulated Facts

1. Respondent is an agency of the State of Florida and is

the procuring agency in this proceeding.

2. Petitioner is a not - for - profit corporation duly

organized under the laws of the State of Florida.

3. On September 21, 2009, the Dep artment issued the

subject RFP. The RFP sets forth the purpose of the procurement

(on Page 1 of the RFP) as follows:

Request for Proposals (RFP): A 36 - slot

Facility - Based Day Treatment Program as

described in the Services to be Provided

(Attachment I) in a Provider owner/leased

facility in Circuit 11, Miami - Dade County.

The provider shall provide the day treatment

program for youth placed on probation, and

youth transitioning back into the community

who are referred for conditional release or

post - commit ment probation services. The

provider shall design, develop, implement

and operate an evidence - based, facility -

based day treatment program with the

capability to provide an after -

school/evening component.

4. Petitioner submitted a timely response to the RFP.

5. On December 18, 2009, Respondent posted its Notice of

Agency Action which indicated its intent to award the contract

to PSF.

6. On December 28, 2009, Petitioner filed a Formal Written

Protest and Petition for Administrative Hearing (Petition)

pu rsuant to Section 120.57(3), Florida Statutes (2009) , and

Florida Administrative Code Rule 28 - 110.004.

7. Pursuant to the provisions of Section 120.57(3)(d),

Florida Statutes ( 2009), representatives from Petitioner and

Respondent met in an attempt to sett le or to resolve the formal

bid protest filed by Petitioner.

8. Respondent's representatives at the January 13, 2010,

meeting included Tonja W. Matthews, Amy Johnson, Paul Hatcher,

and Shahin Iranpour.

9. Petitioner's representatives at the January 13, 2 010,

meeting were Thomas Petersen and Jennifer Fiorenza.

10. No public notice was given ahead of, and no minutes

were taken at, the meeting between Petitioner 's representatives

and Respondent 's representatives on January 13, 2010.

11. Respondent's repres entatives briefly met separately

after hearing from Petitioner to determine whether or not any

further questions or information was n eeded from Petitioner. 1

12 . After January 13, 2010, and before January 21, 2010,

Respondent 's representatives Amy Johnson, Rex Uberman, and Paul

Hatcher individually or collectively discussed Petitioner's Bid

Award Protest with some or all of the Respondent's personnel

present at the January 13, 2010, meeting with Mr. Petersen and

Ms. Fiorenza. They ultimately decided to uph old Respondent's

Notice of Agency Action (issued December 18, 2009) as to the

subject RFP.

1 3 . No public notice was given of the proposed agency

action , i.e., Respondent 's intended decision to uphold its

Notice of Agency Action as to the subject RFP , nor were minutes

taken which recorded this intended action .

14 . In a letter dated January 21, 2010, Respondent

notified Petitioner of its decision to uphold its decision to

award to PSF and inqu ired as to whether Petitioner wished to

proceed with a formal hea ring before DOAH.

15 . Petitioner responded in the affirmative, Respondent

forwarded the Petition to DOAH, and this proceeding followed.

Past Performance

16 . Section XIX of Attachment B sets forth "General

Instructions for Preparation of the Proposal . " S ubparagraph F

of Section XIX (found at page 17 of 73 of Joint Exhibit 1)

provides, in part, as follows:

F. Past Performance - (Volume 3)

1. The purpose of this section is for the

prospective Provider to demonstrate its

knowledge and experience in operat ing

similar programs by providing information

requested on Attachment C, part I, II,

and/or III.

2. Each prospective Provider shall limit

the Past Performance section to no more than

15 pages. These pages shall include the

information requested on Attach ment C, Parts

I, II, and/or III and all required

supporting documentation. . . .

17 . Attachment C , Part 1 , is a form styled "Data Sheet:

Past Performance of Non - Residential Programs" (page 21 of 73 of

Joint Exhibit 1). That form has column headings f or the vendor

to insert the required information as follows: "Program Name , "

"Contract Number , " "Program Type , " "Contract Begin Date , "

"Contract End Date , " "Most Recent QA Performance Percentage

Score , " "Most Recent QA Compliance Percentage Score (if

eval uated prior to 2007) , " "Failure to Report , " "Number of

Completions during FY 2006 - 2007 , " "2006 - 2007 Recidivism Rate , "

QA Deemed Status . " Each column heading has a footnote that

clarifies the type information required. For example, a

footnote explains tha t QA is a reference to Quality Assurance.

18 . The column headed "Prog ram Type" contains a footnote

(f ootnote 3) which sets forth the non - residential programs that

qualify for evaluation under the category "Past Performance of

Non - Residential Programs" as follows:

3. During the past year from the date of

the RFP issuance, the program type

(Supervision, Day Treatment, Conditional

Release, Respite, Independent Living,

Diversion, Juvenile Assessment Centers) for

the majority of the time the Vendor operated

th e program.

19 . Footnote 3 explicitly sets forth Diversion Programs

and Juvenile Assessment Centers (JAC) as programs that will

qualify for evaluation under the category "Past Performance of

Non - Residential Programs . "

2 0 . Petitioner did not file a challe nge to the

specifications of the procurement document within 72 hours of

its posting as required by Section 120.57(3)(b), Florida

Statutes.

21 . The scoring criteria and methodology for Past

Performance are set forth in the RFP. Petitioner and PSF only

op erate programs in Florida. The scoring at issue in this

proceeding is that of "Part I - Evaluation for Past Performance

in Florida". Under that category, a vendor could receive a

maximum of 420 points.

22 . Paul Hatcher is Respondent's employee who eva luated

the responses to the Past Performance section of the RFP.

23 . Petitioner is the current provider of the services

being solicited by the subject RFP. In its response to

Attachment C, Petitioner listed that program in the appropriate

columns of Atta chment C. The program operated by Petitioner was

appropriately listed because it is categorized by Respondent as

being a non - residential program. There is no contention that

Mr. Hatcher failed to appropriately evaluate Petitioner's Past

Performance. Pet itioner was awarded a total of 268 points under

the Past Performance category, Part I - Evaluation for Past

Performance in Florida.

24 . In its response to Attachment C, PSF listed one

diversion program and two juvenile assessment centers (JAC) as

non - resi dential programs it operated in the State of Florida.

One JAC did not qualify for evaluation because it had not been

in operation for a sufficient period of time. Mr. Hatcher

evaluated PSF's Past Performance on the basis of the diversion

program and one of the two JACs. PSF was awarded a total of 312

points under the Past Performance category, Part I - Evaluation

for Past Performance in Florida. Mr. Hatcher appropriately

included the diversion program and the JAC program in his

evaluation of PSF's Past Performance for Non - Residential

Programs because Footnote 3 explicitly includes those programs

as programs non - residential programs that qualify for

evaluation. 2 There is no contention that Mr. Hatcher failed to

score PSF's Past Performance in accordance with the scoring

criteria and methodology set forth in the RFP.

25 . The RFP provides that vendors who operate DJJ

contracted non - residential programs in Florida can be awarded a

maximum of 1905 points. Respondent awarded PSF the highe r

overall score of 1422.27 points. Respondent awarded Petitioner

a score of 1327.34 points. Petitioner failed to establish that

Respondent incorrectly scored the two responses to the RFP , and

it failed to establish that Respondent incorrectly determined to

award the procu rement to PSF.

Sunshine Law

26 . Section 120.57(3)(d)1., Florida Statutes, provides the

following after a bid protest is filed:

(d)1. The agency shall provide an

opportunity to resolve the protest by mutual

agreement between the parties within 7 days,

exc luding Saturdays, Sundays, and state

holidays, after receipt of a formal written

protest.

27 . The purpose of the meeting on January 13, 2010,

between the employees of Respondent and the representatives of

Petitioner identified above, was to provide Peti tioner an

opportunity to argue why PSF should not be awarded the

procurement. The group of employees represented Respondent's

legal counsel and representatives from Respondent's Probation

Programs (headed by Mr. Uberman) and its Bureau of Contracts

(heade d by Ms . Johnson). The purpose of the meeting was to

dete rmine the factual and legal basis for Petitioner's bid

protest. The group of Respondent's employees who met with

Petitioner's representatives on January 13, 2010, did not vote

either during the mee ting or after the meeting's conclusion.

28 . A day or two before she wrote her letter of

January 21, 2010, Ms. Matthews contacted by telephone

Ms. Johnson to determine whether the Bureau of Contracts thought

some action other than the award of the procur ement to PSF

should be taken. Ms. Matthews also contacted by telephone

Mr. Hatcher, who represented the Probation Programs, with the

same inquiry. Ms. Johnson made the decision that the position

of the Contract division was to uphold the award to PSF.

M r. Hatcher, after consulting with Mr. Uberman, made the

decision that the position of the Probation Programs was to

uphold the award to PSF. In separate telephone calls the

Contract division and the Probation division advised

Ms. Matthews that the award t o PSF should be upheld.

Ms. Matthews thereafter prepared and sent the letter that

advised the vendors of the DJJ's decision.

CONCLUSIONS OF LAW

29 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to Sections 120.569, 120.57 (1), and

120.57(3), Florida Statutes, and the parties have standing.

30 . Pursuant to Section 120.57(3)(f), Florida Statutes,

the burden of proof rests with the party opposing the proposed

agency action, here Troy Foundation. See State Contracting and

Eng ineering Corp. v. Department of Transp. , 709 So. 2d 607, 609

(Fla. 1st DCA 1998)oy Foundation must sustain its burden of

proof by a preponderance of the evidence. Florida Dep't of

Transp. v. J.W.C. Co., Inc ., 396 So. 2d 778, 787 (Fla. 1st DCA

1981).

31 . Section 120.57(3)(f), Florida Statutes, spells out the

rules of decision applicable in bid protests. In pertinent

part, the statute provides:

In a competitive - procurement protest, other

than a rejection of all bids, the

administrative law judge sh all 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 bid or proposal

specifications. The standard of proof for

such proceedings shall be w hether the

proposed agency action was clearly

erroneous, contrary to competition,

arbitrary, or capricious.

32 . The foregoing requires the party protesting the

intended award to identify and prove, by the greater weight of

evidence, a specific instance o r instances where the agency's

conduct in taking its proposed action was either:

(a) contrary to the agency's governing

statutes;

(b) contrary to the agency's rules or

policies; or

(c) contrary to the bid or proposal

specifications.

F urther, the protester must establish that the agency's misstep

was:

(a) clearly erroneous;

(b) contrary to competition; or

(c) an abuse of discretion.

33 . The First District Court of Appeal has construed the

term " de novo proceeding," as used in Sec tion 120.57(3)(f),

Florida Statutes, to "describe a form of intra - agency review.

The judge may receive evidence, as with any formal hearing under

section 120.57(1), but the object of the proceeding is to

evaluate the action taken by the agency." State Co ntracting ,

709 So. 2d at 609. In deciding State Contracting , the court

followed Intercontinental Properties, Inc. v. State Dep't of

Health and Rehabilitative Services , 606 So. 2d 380, 386 (Fla.

1st DCA 1992), an earlier decision ÏÏ it predates the present

v ersion of the bid protest statute ÏÏ in which the court had

reasoned:

Although the hearing before the hearing

officer was a de novo proceeding, that

simply means that there was an evidentiary

hearing during which each party had a full

and fair opportunity t o develop an

evidentiary record for administrative review

purposes. It does not mean, as the hearing

officer apparently thought, that the hearing

officer sits as a substitute for the

Department and makes a determination whether

to award the bid de novo. Instead, the

hearing officer sits in a review capacity,

and must determine whether the bid review

criteria . . . have been satisfied.

34 . Turning to the merits of this case, it is concluded

that Petitioner has failed to meet its burden as to Respondent's

evaluation of the vendors' Past Performance. Petitioner's

challenge to the bid process should have been brought as a

challenge to Footnote 3, which designated the programs that

Respondent considered to be similar and suitable for evaluation .

Section 120 .57(3)(b) provides, in relevant part, as follows:

(b) . . . With respect to a protest of the

terms, conditions, and specifications

contained in a solicitation, including any

provisions governing the methods for ranking

bids, proposals, or replies, awardin g

contracts, reserving rights of further

negotiation, or modifying or amending any

contract, the notice of protest shall be

filed in writing within 72 hours after the

posting of the solicitation. The formal

written protest shall be filed within 10

days af ter the date the notice of protest is

filed. Failure to file a notice of protest

or failure to file a formal written protest

shall constitute a waiver of proceedings

under this chapter. . . .

35 . As reflected in the Findings of Fact section of this

Reco mmended Order, Troy Foundation did not challenge the terms,

conditions, and specifications contained in the solicitation

document . Pursuant to Section 120.57(3)(b), Florida Statutes ,

that failure constituted a waiver of such a challenge. See

Consultech o f Jacksonville, Inc. v. Dept't of Health, 710 So. 2d

731 (Fla. 1st DCA 2004), Optiplan Inc. v. School Bd. Of Broward

County, 710 So. 2d 569 (Fla. 4th DCA 1988), and Capeletti

Brothers, Inc. v. Dep't of Transportation, 499 So. 2d 855 (Fla.

1st DCA 1986). F ootnote 3 clearly provided that for the

purposes of the procurement, a diversion program qualified for

evaluation of a vendor's past performance as a program similar

to the program operated by Petitioner and as a program similar

to the other types programs listed in the footnote.

36 . Petitioner's challenge to the scoring of the vendors'

p ast p erformance should be rejected.

37 . Petitioner alleged that Respondent violated Section

286.011, Florida Statutes, when the Respondent's employees met

with representa tives of the Petitioner and thereafter conducted

a series of private discussions that culminated in the decision

to affirm the award of the procurement to PSF. Section

286.011(1), Florida Statutes, provides as follows:

(1) All meetings of any board or co mmission

of any state agency or authority or of any

agency or authority of any county, municipal

corporation, or political subdivision,

except as otherwise provided in the

Constitution, at which official acts are to

be taken are declared to be public meeti ngs

open to the public at all times, and no

resolution, rule, or formal action shall be

considered binding except as taken or made

at such meeting. The board or commission

must provide reasonable notice of all such

meetings.

38 . The group of DJJ employe es who met with

representatives of Petitioner on January 13, 2010, was not a

board or commission within the meaning of Section 286.011(1),

Florida Statutes.

39 . Petitioner correctly argues that committees, even ad

hoc committees, can be subject to the Sun shine Law if the

committee is an advisory committee that is part of the decision -

making process. The Sunshine Law was enacted to prevent "closed

doors politics . " Because it was enacted for a remedial and

protective purpose, as the Florida Supreme Court e xplained in

Ward v. Marston , 442 So. 2d 934, 938 (Fla. 1983), the law must

be broadly construed.

40 . Here, the group of DJJ employees who met with

representatives of Petitioner on was there to ascertain the

factual and legal basis for Petitioner 's bid pro test. The group

did not vote during or after the meeting. A committee is not

subject to the Sunshine Law if the committee has only been

delegated information - gathering or fact - finding authority and

only conducts such activities. See Sarasota Citizens fo r

Responsible Gov't v. City of Sarasota , 2010 Fla. Lexis 1787, 35

Fla. L. Weekly S 627, at page 15 of the opinion (October 28,

2010) (A group that obtained and delivered information to a

decision - maker was not subject to the Sunshine Law). Because

th e gro up at issue in this proceeding was a fact - finding group,

as opposed to an advisory group, the meeting(s) challenged by

Petitioner was not subject to the Sunshine Law and,

consequently, no Sunshine Law violation occurred .

RECOMMENDATION

Based on the forego ing findings of fact and conclusions of

Law, it is RECOMMENDED that the Department of Juvenile Justice

enter a final order that denies Petitioner 's bid protest and

upholds the award of the procurement to PSF.

DONE AND ENTERED this 1st day of December, 201 0, in

Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Fi ling (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of December, 2010.

ENDNOTES

1 The stipulated fact in the Prehearing Order is as fol lows:

"The Respondent will agree to the likelihood that the

Respondent 's representatives briefly met separately after

hearing from the Petitioner to determine whether or not any

further questions or information was needed from the

Petitioner." The stipul ated fact has been modified to reflect

the greater weight of the credible evidence.

2 In reaching this finding, the undersigned has carefully

considered Petitioner 's argument that a Diversion program is not

a non - residential program. The undersigned has also considered

the authority cited by Petitioner in support of its argument.

The undersigned is constrained t o reject that argument because

the RFP clearly sets forth in f ootnote 3 that a d iversion

program qualifies as a non - residential program for the purposes

of the RFP. Petitioner argues that a d iversion program is not

similar to the type of program it operates within the meaning of

Subparagraph F of Section XIX (found at page 17 of 73 of Joint

Exhibit 1). Petitioner's conclusion is that Respondent erred by

including PSF's d iversion program for the evaluation of Past

Performance. (The foregoing is meant to be a succinct statement

of Petitioner's arguments.) Petitioner's arguments challenge

the specifications of the RFP, specifically the language of

Footnote 3. Those challenges should have been brought in a

challenge to the specifications of the procurement document

pursuant to Section 120.57(3)(b), Florida Statutes. As

discussed in the Conclusions of Law section of this Recommended

Order, Petition er cannot challenge the specification s of the

procureme nt document in this proceeding.

COPIES FURNISHED :

Frank Peterman, Jr., Secretary

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

Jennifer Parke r, General Counsel

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

Tonja Mathews, Esquire

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

James McGuirk, Esquire

T he McGuirk Law Firm, P. L.

2655 Le Jeune Road Suite 700

Coral Gables, Florida 33134

Norman Davis, Esquire

Squire, Sanders & Dempsey LLP

200 South Biscayne Boulevard, Suite 4100

Miami, Florida 33131 - 2398

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All partie s 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.