10-006280BID Juvenile Services Program, Inc. vs. Department Of Juvenile Justice Status: Closed Recommended Order on Monday, March 14, 2011.

Summary: BID protester failed to establish Department incorrectly scored or abitrarily awarded bid at issue. Department's decision is supported by the record.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUVENILE SERVICES PROGRAM, )

INC. , )

)

Petitioner , )

)

vs. ) Case No. 10 - 6280BID

)

DEPARTMENT OF JUVENILE JUSTICE , )

)

Respondent . )

)

RECOMMENDED ORDER

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

on January 11, 2011, in Tallahassee, Florida, before J. D.

Parrish, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Andrea V. N elson, Esquire

Walter Kelly, Esquire

Nelson Law Firm, PLC

1020 East Lafayette Street

Suite 214

Tallahassee, Florida 32301

For Respondent: Tonja White Mathews, Esqu ire

Department of Juvenile Justice

The Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

For Intervenor: Maureen McCarthy Daughton, Esquire

Anna Small, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE S

The is sue s are whether the intended contract award ed to

Intervenor, The Henry and Rilla White Foundation, Inc.

(Intervenor or White), pursuant to Request for Proposals #P2062

(RFP) for an Intensive Delinquency Diversion Services (IDDS)

program in Palm Beach Coun ty, Florida (Circuit 15), is contrary

to RespondentÓs governing statutes, policies and rules, and the

RFP. Petitioner, Juvenile Services Program, Inc. (Petitioner or

JSP), timely challenged the intended award , and alleged that the

award to Intervenor was clearly erroneous, contrary to

competition, arbitrary, or capricious.

PRELIMINARY STATEMENT

O n November 23, 2009, Respondent , Department of Juvenile

Justice (Respondent or Department), issued the RFP to solicit

responses for multiple circuits within the s tate. An applicant

could propose on one or more of the circuits with a timely

response to the RFP. In this case , Petitioner and Intervenor

timely submitted proposals for RFP #P2062 for Circuit 15.

On March 2, 2010, Respondent posted a Notice of Agency Action

(NOAA) , which indicated that the Department intended to award

the contract for the subject IDDS program to Intervenor. The

scoring for the award put Petitioner second , and the instant bid

protest timely followed.

The case was forwarded to the Di vision of Administrative

Hearings (DOAH) for formal proceedings on July 27, 2010.

The final hearing was scheduled , but the parties jointly

requested a continuance in the cause and agreed to waive

statutory time guidelines for bid protests. Accordingly, t he

matter was rescheduled in accordance with the dates proposed by

the parties. White was granted permission to intervene in the

case on November 15, 2010.

On January 10, 2011, in accordance with the P re - H earing

O rder entered in this matter, the parties filed a Pre - Hearing

Stipulation. Findings of fact addressed in the stipulation are

incorporated within the findings below.

As a preliminary matter, a Motion in Limine filed by

Intervenor was granted. The motion sought to exclude any

testimony or evide nce submitted that constituted a challenge to

the RFP specifications. Consistent throughout this case has

been the determination that Petitioner failed to timely

challenge the specifications of the RFP and thereby waived any

challenge to its terms or cond itions. Whether Respondent

followed the terms and conditions of the RFP remained at issue

in the proceeding.

Petitioner presented testimony from Amy Johnson, Paul

Hatcher, Elaine Atwood, Jeffrey Balliet, Cheryl Surls, Karen

McNeal, and Isabella Cox. Peti tionerÓs Exhibits 1 through 10 ,

12, and 14 through 18 were admitted into evidence. IntervenorÓs

Exhibit 1 was also admitted in to evidence. The T ranscript was

filed with DOAH on January 25, 2011. The parties were granted

until February 4, 2011, to file p roposed recommended orders.

All parties timely filed P roposed R ecommended O rders that have

been considered in the preparation of this O rder.

FINDINGS OF FACT

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

the procuring agency for this procee ding.

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

organized under the laws of the State of Florida.

3. Intervenor is a not - for - profit corporation duly

organized under the laws of the State of Florida.

4. On November 23, 2009, Respondent issue d the RFP to

select a provider to operate IDDS programs in multiple counties,

multiple circuits , within Florida. Petitioner did not protest

the specifications of the RFP within 72 hours of the issuance of

the RFP.

5. Petitioner and White submitted timely responses to the

RFP. Both sought the award for Circuit 15.

6. On or about March 5, 2010, the Department posted its

NOAA and informed all parties of its intent to award the

contract at issue to Intervenor. The NOAA ranked White , first ,

with 1549.78 poi nts ; JSP , second , with 1451.34 points ; and Urban

League of Palm Beach, Inc. , third , with 862.58 points.

7. Petitioner filed a formal protest of the intended award

to White on March 15, 2010. Thereafter, representatives from

Petitioner and Respondent met to attempt resolution of the

protest , but were unsuccessful. As the case moved forward to

trial, White petitioned to intervene as the first ranked

proposer. It is uncontested that White and JSP have standing in

this matter.

8. Throughout these proceedi ngs , Petitioner maintained

that Respondent scored the proposals contrary to the

specifications of the RFP. Additionally, Petitioner claimed

that the persons appointed to evaluate the proposals for the

award did not have the requisite experience and knowle dge in the

program areas , and service requirements sufficient to score the

proposals.

9. Under the RFP, three components were to be scored by

the evaluators: a technical section; a financial section; and a

past performance section. A team of three evalua tors

independently scored the proposals submitted.

10. Department program area managers selected the

evaluators , who were then approved by the DepartmentÓs Deputy

Secretary. All evaluators were trained in the evaluation

process.

11. In order to assure that appropriate employees are

selected to serve as evaluators, Amy Johnson, RespondentÓs c hief

of c ontracts, created a spreadsheet to identify those employees

who are qualified to evaluate different types of procurements.

The spreadsheet notes which pro gram service area each employee

is approved to serve. All of the evaluators in this case were

chosen and deemed credentialed by Respondent to evaluate the

subject RFP.

12. In this case Karen McNeal, Jeffrey Balliet, and Cheryl

Surls were selected and app roved to evaluate the responses to

the RFP.

13. Ms. Johnson insured that the evaluators were trained

to perform their duties. In this regard, Ms. Johnson reviewed

the rules of the evaluation process and a generic evaluation

with each of the evaluators. Training for the evaluators

included how to score , along with sample scoring sheets.

Although Ms. McNeal had not served as an evaluator prior to this

case, she was appropriately trained and instructed in the

methodology and guidelines for scoring proposal s. Further, her

job training and experience assured that she was familiar with

IDDS program services. Mr. Balliet has served as an evaluator

for proposals for approximately ten years. Mr. Balliet was

appropriately trained and instructed in the scoring p rocess.

Additionally, Mr. BallietÓs work experience also qualified him

to evaluate the IDDS proposals encompassed within the RFP

responses. Finally, Ms. Surls has been familiar with the

programs and services of IDDS for several years. She also

completed RFP evaluation training prior to being placed on the

spreadsheet list of potential evaluators.

14. On January 11, 2010, Elaine Atwood, the procurement

officer for the instant RFP, conducted a conference call with

the evaluators for this case. All of t he evaluators were

familiar with the IDDS program and were provided an opportunity

to ask Paul Hatcher, the author of the scope of services for

this RFP, any program question regarding IDDS and/or the RFP.

15. The Evaluation Team Ground Rules and Instru ction

specified that the evaluators were to read, evaluate, and score

the proposals based upon the scoring sheet matrix. The

evaluators were directed not to speak to other evaluators , nor

to consider any information from any source other than the

informat ion provided within the proposal itself. If any

evaluators were to require assistance, he or she was instructed

to contact Ms. Atwood. All scoring was to be done based upon

the solicitation document and the proposal submitted.

16. The matrix for scoring assign ed a score from 0 to 5

depending upon how well the proposal addressed the specification

requirement. A score of 5 constituted the highest rating , and

only those proposals that exceeded all technical specifications

and requirements for the service c omponent specified , with

innovative, comprehensive, and complete detail were to receive

that score. A score of 0 would be assigned when the proposal

did not address the service component specified, or the

evaluator could not locate the information in the proposal

necessary to use another rating number.

17. Petitioner maintained that one evaluator, Ms. McNeal,

failed to follow the directions related to changes to scoring.

It is concluded that Ms. McNeal adequately marked the score

sheet , such that there was no confusion as to the score awarded ,

or the time of its entry. Contemporaneous with an initial score

of Ð5Ñ for the category ÐManagement Capability,Ñ Ms. McNeal

re - marked the JSP score to a Ð4.Ñ Similarly, Ms. McNeal

re - marked the JSP score for t he category ÐConsideration 1 "

from Ð5Ñ to Ð4.Ñ Any ÐchangeÑ occurred in the matter of moments

that it took for Ms. McNeal to re - mark the score sheet , and did

not indicate a reflection or after - thought of Ðchange.Ñ If

anything, the ÐchangeÑ was to correc t an error of marking.

Ms. McNealÓs testimony as to the marking of the score sheet and

her rationale for re - marking it has been deemed credible. Any

deviation from the instructions as to a requirement that

ÐchangeÑ must be document ed is deemed minor or insignificant.

Documenting a ÐchangeÑ is deemed minor and insignificant in this

case , because the notation for the score of Ð4Ñ was

contemporaneous with the initial mark and not a later after -

thought.

18. Petitioner also challenged Ms. SurlsÓ award of th e

score Ð3Ñ to all of JSPÓs categories. Petitioner maintained

that such an award demonstrated a lack of understanding

regarding the subject matter addressed. To the contrary,

Ms. Surls also awarded the score of Ð3Ñ to White. The only

category that exce eded Ð3Ñ on Ms. Surls scoring of White was

" Behavioral Management, " for which Intervenor received a Ð4.Ñ

Ms. Surls was consistent and thorough in her review of the

proposals and commented appropriately as to the basis for each

score.

19. The Technical Pr oposal narrative submitted by White

did not exceed sixty pages.

20. Petitioner did not contest scoring where an evaluator

increased JSPÓs score without comment.

21. None of the alleged ÐchangesÑ to scoring gave any

proposal an unfair advantage. All prop osals were given the same

consideration and thoughtful review.

22. The Department has used RFPs to cover multiple

circuits in numerous instances. Petitioner did not timely

challenge the process of providing for proposals for multiple

circuits. Moreover, no evidence supports a finding that the

process of covering multiple circuits within one RFP is

inherently flawed or contrary to law.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matt er of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009). Unless

otherwise noted all statutory references are to 2009 statutes in

effect at the time of the bid.

24. S ection 120.57(3)(f), provides that in a protest to a

proposed contract award , pu rsuant 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 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 f or such proceedings shall be

whether the proposed agency action was

clearly erroneous, contrary to competition,

arbitrary, or capricious.

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

1165, 1166 (Fla. 1st DCA 2004), defined the clearly erroneo us

standard to mean 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 ordinary intent of the law,

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

omitted.)

26. An agency action is Ðcontrary to competitionÑ if it

unreasonably interferes with the purposes of competitive

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

138 So. 721, 72 3 - 724 (Fla. 1931) as follows:

The 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

temptation for collusion and opportunity for

ga in 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

business with the [ public authorities ] , by

providing a n opportunity for an exact

comparison of bids.

27. 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 Envtl . Reg . , 365 So. 2d 759, 763

(Fla. 1st DCA 1978), cert. denied . 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 capricious manner involves

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

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

to the 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 t l . 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, 63 5 n.3 (Fla. 2d DCA 1992) as

follows: ÐIf an administrative decision is ju stifiable 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

28. JSP has the burden to establish the allegations in the

Amended Petition by a preponderance of the evidence. Dep ' t of

Transp . v. Groves - Watkins , 530 So. 2d 912, 913 - 914 (Fla. 1988).

29. Section 120.57(3)(b), provides:

Any person who is adversely affected by the

agency decision or intended decision shall

file with the agency a notice of protest in

writing within 72 hours after the posting of

the notice of decision or intended decision.

With respect to a protest of the terms,

conditions, and specifications contained in

a solicitation, including any provisions

governing the meth ods for ranking bids,

proposals, or replies, awarding 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 for mal written protest

shall be filed within 10 days after 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.

30. In this c ase , it is concluded that Petitioner failed

to timely challenge the terms of the RFP and thereby waived any

claim that sought to challenge the specifications of the RFP.

The methodology of submitting for multiple circuits or the

scoring matrix used by Res pondent are found to be consistent

with past agency action. Moreover, the use of a spreadsheet

from which to select eligible evaluators does not favor any

party over another or demonstrate any inherent bias in the

scoring system.

3 1 . It is concluded th at the DepartmentÓs intended award

of this contract to White is based upon the information that was

available to the agency at the time the proposals were

evaluated ; that none of the evaluators intentionally (or

otherwise) incorrectly scored the proposals ; that the scoring

was clear and unambiguous ; that no party was inappropriately

favored over another ; that the process in this case supported

competitive bidding ; and that the DepartmentÓs decision in this

cause is supported by facts and logic. In short, P etitioner has

failed to meet its burden in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered dismissing

the Petition filed by J uvenile S ervice P rogram .

DONE AND ENTER E D this 14th day of March , 2011 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 306 0

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of March , 2011 .

COPIES FURNISHED :

Tonja White Mathews, Esquire

Department of Juvenile Justice

The Knight Build ing

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

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302

Secretary

Department of Juvenile Justice

The Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399 - 1300

Jennifer Parker, General Counsel

Department of Juveni le Justice

The Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399 - 1300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions

within 1 0 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.