10-006279BID Psychotherapeutic Services Of Florida, Inc. vs. Department Of Juvenile Justice Status: Closed Recommended Order on Monday, March 14, 2011.

Summary: Petitioner did not meet its burden of proving that evaluators were unqualified to evaluate responses to RFP; recommend dismissal of petition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PSYCHOTHERAPEUTIC SERVICES OF )

FLORIDA, INC. , )

)

Petitioner , )

)

vs. ) Case No. 10 - 6279BID

)

DEPARTMENT OF JUVENILE JUSTICE , )

)

Respondent , )

)

and )

)

THE HENRY AND RILLA WHITE )

YOUTH FOUNDATION, INC., )

)

Intervenor .

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on December 14, 2010, in Tallahassee, Florida, before

Administrative Law Judge Elizabeth W. McArth ur of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Andrea V. Nelson, Esquire

Walter Kelly, Esquire

The Nelson Law Firm, PLC

1020 East Lafayette Street, Suite 214

Tallahassee, Florida 32301

For Responden t: Tonja W. Mathews, Esquire

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

For Intervenor: Maureen McCarthy Daughton, Esquire

Anna Small, Esquire

Broad and Cass el

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 3230 2

STATEMENT OF THE ISSUE

The issue in this case is whether the evaluators of the

subject request for proposals (RFP) were qualified under the

appl icable law and RFP criteria to evaluate the proposals.

PRELIMINARY STATEMENT

On November 23, 2009, Respondent, Department of Juvenile

Justice (Department or Respondent), issued RFP #P2602 to select

providers to operate Intensive Delinquency Diversion Se rvices

(IDDS) programs for youths in 16 different judicial circuits

around the state. Respondent evaluated and ranked, by circuit

proposals submitted to operate IDDS programs in each circuit,

and issued its notices of intent to award contracts based on it s

evaluations.

For Judicial Circuit 17, Broward County, Respondent

evaluated four competing proposals , and on March 2, 2010,

Respondent issued its notice of intent to award a contract to

The Henry and Rilla White Youth Foundation (White Foundation or

Inte rvenor), which submitted the highest - ranked proposal to

operate an IDDS program in Circuit 17. Petitioner,

Psychotherapeutic Services of Florida, Inc. (Petitioner),

submitted a competing proposal to operate an IDDS Program in

Circuit 17. Petitioner's pro posal was ranked third, behind both

White Foundation's proposal and a proposal submitted by Juvenile

Services Program, Inc. Petitioner timely filed a notice of

intent to protest, followed by a formal written protest and

petition for administrative hearing pursuant to section

120.57(3), Florida Statutes (2009), 1 / to protest Respondent's

intended award for Circuit 17.

On July 27, 2010, the petition was forwarded to the

Division of Administrative Hearings for the assignment of an

Administrative Law Judge. T he case was initially assigned to

Administrative Law Judge J.D. Parrish, who set the matter for

final hearing. Petitioner and Respondent jointly moved for a

continuance and waived the statutory hearing timeframe. The

motion was granted , and the final hea ring was rescheduled for

December 14, 2010, in accordance with the parties' request.

White Foundation filed its Petition to Intervene on

November 10, 2010, which was granted by Order dated November 15,

2010. No separate protests were filed by the second - ranked

proposer or by the fourth - ranked proposer, and those competing

proposers did not seek to participate as parties in this

proceeding.

The parties filed a Joint Pre - hearing Stipulation on

December 10, 2010, and stipulated to certain findings of fact.

To the extent relevant, those stipulated facts are incorporated

into the Findings of Fact in this Recommended Order.

On November 30, 2010, Intervenor filed a Motion to

Relinquish Jurisdiction asserting that Petitioner, as the

third - ranked bidder, lacked standing to challenge the contract

award to Intervenor because Petitioner did not also challenge

the second - ranked bidder and that Petitioner did not timely

challenge the bid specifications. Petitioner responded in

opposition to the motion, and a telepho nic motion hearing was

held on December 13, 2010. Judge Parrish entered an O rder

denying the motion, while limiting the scope of Petitioner's

challenge as necessary because of Petitioner's status as

third - ranked proposer, Petitioner's failure to challenge the

responsiveness of the second - ranked proposal, and Petitioner's

failure to challenge the bid specifications. As stated in Judge

Parrish's Order:

The only claim Petitioner alleged that

requires a resolution of material fact, is

whether the Department's evaluators were

qualified under the applicable law and bid

criteria to perform their duty in evaluating

the submittals. If qualified, as the third

bidder, Petitioner would not have standing

to challenge the results of their

computations since all three b idders were

responsive. [ 2 / ]

The case was transferred to the undersigned, who conducted

the final hearing as scheduled on December 14, 2010.

At the final hearing, Petitioner presented the testimony of

Department employees Karen McNeal, Jeffrey Balliet, Elaine

Atwood, Paul Hatcher, and Amy Johnson. Petitioner's Exhibits 1

through 3, 4 (pages 1 through 6 only), 5 (pages 1 through 6

only), and 8 were received into evidence. Respondent did not

present the testimony of any witnesses; Respondent's Exhibit 1

was received into evidence. Intervenor did not present the

testimony of any witnesses and did not offer any exhibits into

evidence.

At the conclusion of the final hearing, the parties

requested 20 days from the filing of the transcript in which to

file their proposed recommended orders, and the undersigned

agreed. The Transcript of the final hearing was filed on

January 19, 2011. Each of the parties filed Proposed

Recommended Orders, 3 / which have been considered in the

preparation of this Recommended O rder.

FINDINGS OF FACT

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

the procuring agency in this proceeding.

2. On November 23, 2009, the Department issued RFP #P2062

(the RFP), requesting proposals from prospective providers to

operate 16 IDDS programs in 16 different judicial circuits in

Florida: Circuits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 15,

17, 18, and 20.

3. The RFP's Statement of Services provided that proposers

would be responsible for designing, implementing, and operating

an IDDS program in each of the 16 listed judicial circuits. The

RFP described an IDDS program as a diversion program targeting a

specific population of juvenile offenders determined to be at

risk of becoming serious and chronic offenders. The goal of

ID DS is to facilitate a positive change in youth behavior and

criminal thinking and provide the youth with the tools necessary

to avoid recidivism or future criminal involvement. Prospective

providers were instructed to propose services that included

specif ied minimum components, including scheduling, supervision,

and monitoring of compliance with court - ordered sanctions , such

as community service, curfew, and restitution; random urinalysis

monitoring; provision of counseling, anger management education,

edu cational training, and vocation services to age - appropriate

youth; and substance abuse prevention and treatment services.

4. The RFP provided that proposers were to submit a single

response to address one or more circuits in which they intended

to prop ose operating an IDDS program. However, if a prospective

provider proposed to operate IDDS programs in more than one

circuit, its response had to include separate sections on

staffing, prices, and budgets for each circuit/program proposed.

5. The deadli ne to file challenges to the specifications

of the RFP was within 72 hours of its posting. No challenges to

the RFP's specifications were filed within the required 72 - hour

window.

6. Petitioner, Intervenor, and two other proposers' timely

submitted prop osals to operate an IDDS program in Circuit 17, in

response to the RFP.

7. Following its evaluation of proposals, on March 2,

2009, Respondent posted its notice of agency action, indicating

its intent to award the contract in Circuit 17 to Intervenor,

wh ose proposal received the highest score of 1549.78 points.

Juvenile Services Program, Inc., was ranked second, with 1454.01

points. Petitioner was ranked third, with 1327.57 points.

Lutheran Services of Florida, Inc., was ranked fourth, with

986.43 poin ts.

8. Petitioner's timely challenge to Respondent's intended

agency action in Circuit 17 is limited to the issue of whether

the evaluators were qualified under the applicable law and RFP

criteria to evaluate the proposals.

9. The standard established by "the applicable law,"

section 287.057(17 ) , Florida Statutes, is that the agency must

appoint " [ a ] t least three persons to evaluate proposals and

replies who collectively have experience and knowledge in the

program areas and service requirements for wh ich commodities or

contractual services are sought."

10. The RFP criteria contain the following in the RFP

Addendum, in the form of a question from a prospective provider

and Respondent's answer:

Q: Who will be evaluating the proposals[?]

Will they be fu lly knowledgeable about

IDDS programs and how they are run[?]

A: The proposal will be evaluated by a

team of DJJ staff who are fully

knowledgeable about IDDS programs and

how they are run. These people are

chosen for their particular skills,

knowledge an d experience. They have

also been chosen because of the

Department's confidence in their

ability to score proposals both

independently and fairly.

11. Amy Johnson, Respondent's c hief of c ontracts, has the

responsibility for supervising the Department's cont racting and

procurement process and ensuring compliance with section

287.057.

12. The Department goes beyond the statutory requirements

by specifically training potential evaluators in the competitive

procurement process with a focus on the process it self,

including evaluation and scoring of proposals. Ms. Johnson has

in the past conducted this training and remains responsible for

ensuring that evaluators are trained.

13. A number of years ago, Ms. Johnson developed an

internal means of identifying p otential evaluators who were

considered qualified to evaluate specific program areas and

services that might be the subject of competitive procurements.

This process involved identification by persons in charge of the

various program areas of individuals they believed had

sufficient experience and knowledge to evaluate certain types of

programs and services. The program area representatives would

submit names of individuals considered qualified to evaluate the

various programs and services within their pr ogram area, along

with a brief biographical statement describing the individuals'

background and experience. Added to this substantive or

programmatic categorization of potential evaluators was the

qualification of having been trained in the competitive

p rocurement process. Ms. Johnson developed a spreadsheet to

maintain the results of the two - step qualification process. The

spreadsheet lists individuals with a summary of the information

obtained from the program area representatives, including the

categ orization of the types of programs and services the

individuals are considered qualified to evaluate based on their

background and experience. The spreadsheet also identifies the

most recent date on which each individual completed training in

the competit ive procurement process. The spreadsheet document

has been maintained over time to keep the running results of the

pool of evaluators identified through the two - step qualification

process.

14. Elaine Atwood is the Department's contract

administrator. She has assumed responsibility for conducting

the training sessions for potential evaluators in the

competitive procurement process, as well as the responsibility

for maintaining the spreadsheet of the evaluator pool.

Ms. Atwood served as the p rocurement o fficer for RFP #P2062.

Her duties included working with the program area to put the RFP

together, posting the RFP on the Department's website, receiving

the proposals , and conducting all other activities that were

part of the procurement process.

15. Th e "program area" for RFP #P2062 is the Office of

Probation and Community Intervention, and Paul Hatcher was the

designated program area representative. IDDS s are one category

of services within the Probation and Community Intervention

program area. Ms. A twood worked with Mr. Hatcher to address

programmatic issues for this RFP.

16. Mr. Hatcher identif ies individuals who are considered

qualified to conduct evaluations for RFPs involving programs or

services falling under the umbrella of his program area. For

the current pool of potential evaluators, Mr. Hatcher submitted

names of individuals who were substantively qualified for

programs and services falling under his program area and who

could be placed on the evaluator pool spreadsheet for those

categorie s of programs and services. However, Mr. Hatcher does

not select the individual evaluators for a particular RFP. That

is because selection of evaluators for a particular RFP is, by

design, a random process, using the information about evaluator

qualifica tions that is maintained on the spreadsheet. 4 /

17. Responses to RFP #P2062 were submitted in three

volumes: Volume One was the "technical" proposal setting forth

the prospective provider's organizational structure and

management capability, the proposed program services, and

proposed staffing; Volume Two was the "financial" proposal,

including the proposed price sheet and budget and the provider's

Supplier Qualifier Report prepared by Dun & Bradstreet; and

Volume Three was the "past performance" section to demonstrate

the provider's knowledge and experience in operating similar

programs.

18. Ms. Atwood conducted the review and scoring of the

financial proposals in a fairly mechanical process of pulling

out numbers from each cost proposal and , also , pulli ng

Dun & Bradstreet numbers for the prospective providers and

putting them on a spreadsheet. No evidence was presented that

Ms. Atwood was not sufficiently qualified to conduct this

review.

19. Mr. Hatcher conducted the evaluation of prospective

provid ers' past performance. No evidence was presented that

Mr. Hatcher was not sufficiently qualified to conduct this

review.

20. Three evaluators were randomly selected from the pool

of potential evaluators designated for IDDS reviews to evaluate

and score t he "technical" component of responses to RFP #P2062:

Karen McNeal, Jeffrey Balliet, and Cheryl Surls. Of these three

evaluators, Petitioner presented the testimony of only the first

two, and Petitioner directed its qualification challenge to only

one, Ms . McNeal.

21. Ms. McNeal is employed in the Department's P robation

program area. She is responsible for the oversight of the Duval

Assessment Center that screens youth to determine their

detention or release. She has held that position since July 1,

2009. Before that position, she was detention superintendent

for the St. John's Juvenile Detention Center. She has been with

the Department since October 2001. Before joining the

Department, Ms. McNeal was a program analyst for ten years with

the Depart ment of Health and Rehabilitative Services.

22. Ms. McNeal went through a four - week juvenile probation

officer certification course before assuming her current

position in P robation. That P robation training course included

a review of the various prevent ion programs falling under the

probation program area umbrella, including IDDS. However,

Ms. McNeal does not have specific programmatic experience

with IDDS.

23. Ms. McNeal had not previously served as an evaluator

on an RFP, before this experience. In accordance with the

Department's internal procedure, Ms. McNeal underwent training

by Ms. Atwood in the competitive procurement process on

November 17, 2009.

24. Mr. Balliet, the other member of the technical

component evaluation team who testified, has h eld the position

of contract manager for the Department since 2006. Before that

time, he supervised a contract management unit at the district

level and , also , served as assistant chief probation officer for

Circuit 5, where he monitored compliance of IDD S programs in

that circuit. Mr. Balliet has undergone training in the

competitive procurement process multiple times.

25. Although Mr. Balliet has had specific experience with

IDDS programs, he did not think that such specific experience

was necessary to evaluate an RFP dealing with IDDS programs , if

one had a background that would otherwise allow for an

understanding of the process.

26. As noted above, the third evaluator on the

three - person evaluation team for the technical component was

Ms. Surls, who did not testify. Petitioner did not present any

evidence to establish that Ms. Surls was not qualified to serve

as an evaluator.

27. Beyond the sheer difference in name of the particular

services addressed by this RFP -- IDDS v ersus other programs and

ser vices falling under the umbrella of the Probation and

Community Intervention program area, Petitioner failed to

establish that the experience and training Ms. McNeal has

obtained over the years and , particularly , since assuming the

oversight position for D uval Assessment Center, is not

appropriate or sufficient to qualify her to evaluate proposals

for IDDS. Petitioner presented no evidence that the components

of an IDDS program are substantively dissimilar from the

components of the services and programs i n which Ms. McNeal has

attained direct experience and training or that staffing

considerations are dissimilar.

28. Petitioner's case began and ended with the fact that

Ms. McNeal has no direct experience , specifically with IDDS

programs, and that Ms. Mc Neal had not previously evaluated

proposals submitted in response to an RFP. The record does not

reveal whether there would be any other Department employees ,

besides Mr. Balliet , who ha d direct experience specifically with

IDDS programs and who , also , ha d evaluated proposals for an RFP

before. Imposing either or both of these requirements for

potential evaluators could serve as an impossibly restrictive

hindrance to an agency trying to follow the competitive

procurement process while also carrying out th e agency's

functions.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(3), Fla. Stat. (2010).

30. Section 120.57(3)(f) provides that in a pr otest to a

proposed contract award pursuant to a request for proposals:

[U]nless 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 rejecti on 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 spe cifications. The standard

of proof for such proceedings shall be

whether the proposed agency action was

clearly erroneous, contrary to competition,

arbitrary, or capricious.

31. The court in Colbert v. Dep't of Health , 890 So. 2d

1165, 1166 (Fla. 1st D CA 2004), defined the clearly erroneous

standard to mean that Ðthe interpretation will be upheld if the

agencyÓs construction falls within the permissible range of

interpretations. If , however, the agencyÓs interpretation

conflicts with the plain and ordi nary intent of the law,

judicial deference need not be given to it.Ñ (Citations

omitted.)

32. An agency action is Ðcontrary to competition , Ñ if it

unreasonably interferes with the purposes of competitive

procurement, which has been described in Wester v. Belote , 138

So. 721, 723 - 724 (Fla. 1931) as follows:

[T]he object and purpose of [competitive

bidding] is to protect the public against

collusive contracts; to secure fair

competition upon equal terms to all bidders;

to remove not only collusion but tempt ation

for collusion and opportunity for gain at

public expense; to close all avenues to

favoritism and fraud in its various forms;

to secure the best values . . . at the

lowest possible expense; and to afford an

equal advantage to all desiring to do

busine ss [with the public authorities], by

providing an opportunity for an exact

comparison of bids.

33. A capricious action has been defined as an action,

Ðwhich is taken without thought or reason or irrationally.Ñ

Agrico Chemical Co. v. Dep't of Env tl. Reg . , 365 So. 2d 759, 763

(Fla. 1st DCA 1978), cert. den . 376 So. 2d 74 (Fla. 1979). ÐAn

arbitrary decision is one that is not supported by facts or

logic[.]Ñ Id. The inquiry to be made in determining whether an

agency has acted in an arbitrary or capricio us manner involves

consideration of Ðwhether the agency: (1) has considered all

relevant factors; (2) has given actual, good faith consideration

to those factors; and (3) has used reason rather than whim to

progress from consideration of these factors to its final

decision.Ñ Adam Smith Enterprises v. Dep't of Env tl . Reg . ,

553 So. 2d 1260, 1273 (Fla. 1st DCA 1989). The standard has

also been formulated by the court in Dravo Basic Materials Co.

v. Dep't of Transp. , 602 So. 2d 632, 634 n.3 (Fla. 2d DCA 1992 ) ,

as follows: ÐIf an administrative decision is justifiable under

any analysis that a reasonable person would use to reach a

decision of similar importance, it would seem that the decision

is neither arbitrary nor capricious.Ñ

34. Although competitive - procurement protest proceedings

are described in section 120.57(3)(f) as de novo, courts

acknowledge that a different kind of de novo is contemplated

than for other substantial - interest proceedings under section

120.57. Competitive - procurement protest he arings are a "form of

intra - agency review," in which the object is to evaluate the

action taken by the agency. State Contracting and Eng 'g Corp.

v. Dep't of Transp. , 709 So. 2d 607, 609 (Fla. 1st DCA 1998).

35. The scope of this proceeding is further lim ited by the

limited predicate upon which Petitioner is able to demonstrate

standing, i.e., that Petitioner's substantial interests will be

adversely affected by the agency action it seeks to challenge.

Petitioner's standing is limited by its status as thi rd - ranked

proposer and its failure to challenge both of the proposals

ranked higher than Petitioner's proposal, as previously

addressed in the Order Denying Motion to Relinquish Jurisdiction

entered before the final hearing in this case.

36. In a competit ive - procurement protest, it is generally

accepted that the second - ranked bidder has a substantial

interest that is adversely affected by an agency's decision to

award a contract to the highest - ranked bidder, because had the

award not gone to the highest - ra nked bidder, it would have gone

to the second - ranked bidder. Silver Express Co. v. Dist . Bd . of

Tr s . of Miami - Dade Cmty . Coll . , 691 So. 2d 1099 (Fla. 3d DCA

1997). Petitioner cannot demonstrate a similar substantial

interest here, because Petitioner is o nly the third - ranked

bidder, and Petitioner has not challenged both higher - ranking

proposals. Thus, Petitioner lacks standing to challenge the

merits of Respondent's actions in scoring Intervenor's proposal

higher than Petitioner's, because even if Petiti oner were

correct, Petitioner would not , thereby , be entitled to the

contract award.

37. As determined before the final hearing, Petitioner

only has standing to pursue the one challenge it raised that is

directed to the RFP process itself -- whether the eva luators

qualified under the law and the RFP criteria to evaluate the

proposals. Petitioner's contention is that one of the three

evaluators was not qualified, thus , undermining the evaluation

process and rendering the decision based on that process clearl y

erroneous, contrary to competition, arbitrary, and capricious.

38. The relief sought by Petitioner is to reject all

proposals and reinitiate the RFP process. The relief sought

would adversely affect Intervenor's substantial interests,

Intervenor has st anding.

39. Section 287.057(1 7 )(a) provides that if the value of a

contract will exceed $150,000, then the agency must appoint "at

least three persons to evaluate proposals and replies who

collectively have experience and knowledge in the program areas

an d service requirements for which commodities or contractual

services are sought."

40. Petitioner has failed to meet its burden of proving

that the team of three evaluators that reviewed and scored the

technical, programmatic proposals collectively lacked experience

and knowledge in the program areas and service requirements at

issue. The ordinary meaning of the word "collectively" would

require an aggregation or combination of the individual

experience and knowledge of the team members; Petitioner offered

no different interpretation. Petitioner's attempt to prove a

violation of this statutory requirement failed upon Petitioner's

inability to prove the experience and knowledge of Ms. Surls,

the evaluator who did not testify. Petitioner's failure of

proof was heightened by the testimony of Mr. Balliet, who

demonstrated specific experience and knowledge of IDDS programs;

Petitioner has never argued otherwise.

41. Instead, Petitioner's argument is predicated solely on

its view that Ms. McNeal lacked the re quisite experience and

knowledge to evaluate IDDS proposals. But Petitioner failed to

meet its burden to prove that Ms. McNeal's knowledge and

experience in the "program area," Probation and Community

Intervention, was insufficient to allow her to evaluat e

proposals for IDDS programs, which fall under the umbrella of

the Probation program area. Petitioner did not present evidence

establishing that the specific service requirements for IDDS

programs are beyond the scope of Ms. McNeal's knowledge and

experi ence attained within the Probation and Community

Intervention program area and before her transfer to that

program area.

42. Petitioner also points to the RFP A ddendum in which

Respondent answered a question by the second - ranked proposer and

stat ing that the evaluation team members were "fully

knowledgeable about IDDS programs" and were "chosen because of

their particular skills, knowledge, and experience." Petitioner

attempts to blend these two separate statements by asserting

that Respondent committed t o select evaluators who had

particular skills, knowledge, and experience with IDDS

progra m s. That is not what Respondent stated in the RFP

A ddendum.

43. In terms of the actual RFP Addendum standard,

Petitioner failed to prove that any evaluation team mem ber was

not fully knowledgeable about IDDS progra m s. Petitioner simply

did not explore this issue, such as by delving into required

components of an IDDS program to test an evaluator's knowledge

of those components. Moreover, Petitioner failed to prove t hat

any evaluation team member was not selected because of his or

her particular skills, knowledge, and experience. The evidence

suggests to the contrary -- that this standard was met.

Respondent has in place a reasonable process for identifying

individual s qualified by their background and experience to

evaluate various types of programs and services.

44. Petitioner has not met its burden of proof. The

evidence does not establish that Respondent's selection of

Ms. McNeal, Mr. Balliet, and Ms. Surls to serve as the

evaluation team for the technical part of the proposals was

clearly erroneous, contrary to competition, arbitrary, or

capricious. Petitioner has provided no evidentiary basis for

second - guessing Respondent's judgment or the manner in which

Re spondent exercised its discretion.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is:

RECOMMENDED that a final order be entered by Respondent,

Department of Juvenile Justice, dismissing the Petition filed by

Petition er, Psychotherapeutic Services of Florida, Inc.

DONE AND ENT ERED this 1 4 th day of March , 2011 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 4 th day of March , 2011 .

ENDNOTES

1/ Unless oth erwise indicated, all references to the Florida

Statutes are to the 2009 version.

2/ At the final hearing, Petitioner objected to the Order

Denying Motion to Relinquish Jurisdiction , only insofar as it

stated that Petitioner affirmatively acknowledged th e

responsiveness of the two proposals that were ranked higher than

Petitioner's proposal. However, Petitioner conceded that it had

not raised any issue challenging the responsiveness of either of

the higher - ranked proposals in its petition and in the J oin t

P re - H earing S tipulation and that the only issue to be litigated

was whether the evaluators were qualified.

3/ The Proposed Recommended Orders (PROs) were due on

February 8, 2011. Petitioner and Intervenor timely filed their

PROs on the deadline day. Respondent's PRO was fax - filed

shortly after the close of business on February 8, 2011, and ,

thus , was docketed as filed on February 9, 2011. No party filed

a motion to strike Respondent's slightly - late PRO.

4/ Petitioner's proposed findings in its PR O confuse two

distinct steps in the evaluator qualification and selection

process: first, as part of the development of the evaluator

pool spreadsheet, program area representatives , like

Mr. Hatcher , submit names of individuals they believe are

qualified to evaluate RFPs that might be issued for programs and

services falling within their program areas; separately,

evaluators qualified for the programs and services at issue in a

particular RFP are selected randomly from the evaluator pool

spreadsheet. Peti tioner emphasized the fact that the person

with programmatic expertise, Mr. Hatcher, did not select the

actual evaluators for this RFP. But Mr. Hatcher does not select

evaluators; his role is to identify qualified individuals who

could evaluate proposals for the various services and programs

within his program area. Mr. Hatcher testified that he

performed that role with respect to the current pool of

evaluators. Mr. Hatcher was not specifically asked whether he

had identified the three individuals later selected to evaluate

RFP #P2062 or whether he had designated them as qualified to

evaluate IDDS; he was only asked whether he selected any of the

evaluators to evaluate RFP #P2062.

COPIES FURNISHED :

Secretary

Department of Juvenile Justice

Knight Buildi ng

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

Jennifer Parker, General Counsel

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

Tonja W. Mathews, Esquire

Department of Juvenile Justice

Knig ht Building

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

Andrea V. Nelson, Esquire

Walter Kelly, Esquire

The Nelson Law Firm, PLC

1020 East Lafayette Street, Suite 214

Tallahassee, Florida 32301

Maureen McCarthy Daughton, Esquire

Anna Small, E squire

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302

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.