14-001641BID Catapult Learning, Llc vs. Orange County School Board Status: Closed Recommended Order on Thursday, June 5, 2014.

Summary: Petitioner failed to show that the OCSB's action was contrary to its governing rules, policies or solicition specification or that the OCSB actions were clearly erroneous contrary to competition or capricious.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CATAPULT LEARNING, LLC,

Petitioner,

vs. Case No. 14 - 1641BID

ORANGE COUNTY SCHOOL BOARD,

Respondent,

and

OMBUDSMAN EDUCATIONAL SERVICES,

LTD,

Intervenor.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a f inal hearing was held in this case

via video teleconferencing between Orlando and Tallahassee

Florida, before Lynne A. Quimby - Pennock, a duly - designated

Administrative Law Judge of the Division of Administrative

Hearings (D OAH ).

APPEARANCES

For Petitioner: Paul Settle Figg, Esquire

Berger Singerman, LLP

Suite 1000

350 East Las Olas Boulevard

Fort Lauderdale, Florida 33301

Daniel Hays Thompson, Esquire

Berger Singerman

315 South Calhoun Street , Suite 712

Tallahassee, Florida 32301

For Respondent: Kimberly Doud, Esquire

Broad & Cassel

Suite 1400

390 North Orange Avenue

Orlando, Florida 32801

For Intervenor : Charles Thomas Huddleston, Esquire

Nelson Mullins Riley & Scarb orough, LLP

Suite 1700

201 17th Street, Northwest

Atlanta, Georgia 30363

STATEMENT OF THE ISSUE

The issue in this case, a bid protest, is whether

Respondent, Orange County School Board (t he School Board), acted

contrary to its governing statutes, rules or policies when it

awarded the alternative education drop - out prevention services

request for proposal number 1401017 (the RFP) to Ombudsman

Educational Services, LTD. (Ombudsman) instead o f Catapult

Learning, LLC (Catapult).

PRELIMINARY STATEMENT

On January 31, 2014, the School Board issued the RFP seeking

written proposals for a " comprehensive alternative education

program for students in grades nine through twelve who need to

earn and/or recoup credits due to risk factors such as: truancy

and nonattendance, academic failure in core and elective subject

areas, behavioral problems, circumstances that have led to

suspension or expulsion from school, and other social, personal,

health, or ec onomic conditions which have impeded their

progress. " On March 13, the School Board ' s proposal evaluation

committee (PEC) met and heard the presentations from the three

short - listed bidders. On March 17, the School Board posted the

PEC ' s presentation ran king and presentation evaluation form.

On March 28, 2014, Catapult filed its Petition. Ca tapult ' s

Petition and notice of protest (submitted March 19) were filed at

DOAH on April 11. Following a case status conference call, the

hearing was scheduled fo r May 9, via video teleconference in

Orlando and Tallahassee, Florida.

On April 18, 2014, Ombudsman filed a Petition to I ntervene

in the DOAH proceeding. Ombudsman ' s petition was granted by

Order dated April 22. On April 24, Marquetta Bryan, Esquire, an d

Charles Huddleston, Esquire, each filed a notice of appearance

for Ombudsman.

Catapult filed an Amended Petition with exhibits on

April 18, 2014, and the School Board filed a Motion to Dismiss

Amended Petition or Alternatively, Motion to Strike Request ed

Relief on April 23. On May 1, an Order was issued that denied

the School Board ' s motion to dismiss but set forth the parameters

of the relief that the undersigned would utilize, i.e., " the

undersigned shall conduct a de novo proceeding to determine

whe ther the agency ' s proposed action is contrary to the agency ' s

governing statutes, the agency ' s rules or policies, or the

solicitation specifications. Further . . . the standard of proof

shall be whether the proposed agency action was clearly

erroneous, co ntrary to competition, arbitrary, or capricious . "

Following Catapult ' s unopposed motion for a new hearing

date, the hearing was re - scheduled and heard on May 14, 2014. As

required by the Order of Pre - hearing Instructions, the parties

filed a Joint Pre - he aring Stipulation on May 12.

At the final hearing, Catapult called Myrnellie Nido, 1/ the

School Board ' s director of purchasing and contracting; Nicolas

Bates, Catapult ' s chief financial officer; and Shannon Folsom,

Catapult ' s regional director, as its wit nesses. In addition to

Ms. Nido, the School Board called Dolly Morales, a School Board

business opportunity specialist, and Chris Bernier, an associate

superintendent of the School Board, as witness es . Ombudsman

called Allison O ' Neill, the chief operatin g officer for

Educational Services of America, the parent organization for

Ombudsman. 2/ The parties stipulated to the introduction of

Exhibits A through MM, which were received into evidence at the

beginning of the hearing. A transcript of the final hear ing was

ordered by the parties.

The Transcript was filed at DOAH on May 21, 2014. By rule ,

the parties were allowed ten days from the submission of the

Transcript to submit proposed recommended orders. The School

Board and Ombudsman , jointly, and Catapu lt each timely submitted

a Proposed Recommended Order, and each was duly considered in the

preparation of this Recommended Order. 3/

FINDING S OF FACT

1. Catapult is a limited liability company organized in

Delaware. Catapult currently holds the contract in Orange County

for the Alternative Education Drop - out Prevention program.

2. The School Board is a public entity responsible for

procuring services for the Orange County public school system.

3. Ombudsman is a for - profit corporation duly organized in

Illinois.

4. On or about January 31, 2014, the School Board issued

the RFP , " requesting solicitations from experienced respondents

with a proven track record in providing alternative education

services to students at risk of dropping out or [who] have

d ropped out from school and seek to return to continue their

education. " Originally, the solicitations were to be filed " no

later than 2:00 p.m. EST, on February 24, 2014. "

5. The RFP included the following admonition and time

schedule :

The District will attempt to use the time

schedule as indicated below. Note:

References to Ronald Blocker Education

Leadership Center (RB - ELC) address is: 445

West Amelia Street, Orlando, FL 32801. The

below dates and times are subject to change.

All changes will be post ed to the Procurement

website as they become available.

January 31, 2014 Solicitation Date

February 10, 2014 Re - submittal conference

at 1:00 p.m. RB - ELC,

February 11, 2014 Request for Information

(RFI) cut - off

February 24, 2014 Proposal opening at

2: 00 p.m., RB - ELC,

Lobby Conference Room

Proposal will be opened

and only the company

names will be announced

March 6, 2014 Evaluation Meeting Date

(Tentative Date)

(8:30 a.m.)

March 7, 2014 Notice of Intended

Decision (Tentative

Date)(8:00 a.m.)

March 1 3, 2014 Presentations by

Respondents (Tentative

Date)

March 14, 2014 Notice of Intended

Decision Date (Tentative

Date)

April 8, 2014 Board Recommendation

(Tentative Date)

6. On February 19, the School Board issued Addendum No. 1

( the Addendum) which p rovided the new solicitation deadline ,

highlighted in red ink, of " 11:00 A.M., EST on February 26,

2014. " Additionally, the A ddendum advised the p otential bidders

(or vendors) of " changes/clarifications " to the RFP: " REVISED

PROPOSAL PRICE SHEET, APPENDI X A " with the sentence , " Please

ensure you submit your proposal using this REVISED PROPOSAL PRICE

SHEET , " and a paragraph addition to the " Scope of Services. "

These announced changes were also highlighted in red ink.

7. The evaluation criteria for the R FP were provided in

section 5, " Evaluation of Proposals. " Potential bidders were

advised that the PEC would receive, publicly open, review , and

evaluate the proposals. Additionally, the PEC reserved the right

to " interview any, all or none of the Respon dents . . . and to

require formal presentations with the key personnel . . . before

recommendation of award. " Section 5.5 , " EVALUATION CRITERIA, "

provided:

Only proposals that meet the compliance

requirements will be evaluated based on the

following crite ria.

Shortlist Possible Points Maximum Weight

Evaluation Criteria Value

I. Experience and Qualifications 100 30%

II. Scope of Services 100 40%

III. MWBE/ LDB 4 / Participation 100 10%

IV. Proposal Price 100 20%

400 100%

The Procurement Representative shall

calculate all scoring and determine a ranking

of all respondents. The PEC shall determine

if presentations/interviews are necessary.

Note: The District will post an intended

decision recommending Respondents to move to

the next phase to b e review [ sic ] by

interested parties on the SBOC website at

www.procurement.ocps.net. Failure to file a

protest within the time prescribed in Section

120.57(3)b, Florida Statutes, shall

constitute a waiver of proceedings under

Chapter 1 20, Florida Statutes. Once the

allowed time period has passed this phase of

the process will be completed.

Presentations/Interviews: Should the PEC

members request presentation or interview

from shortlisted respondents the following

evaluation criteria will apply:

Presentation/Interview Possible Points Maximum

Evaluation Criteria Weight Value

I. Planning/Delivery of Service 100 40%

II. Firm Experience 100 20%

III. Evidence of Student Achievement 100 40%

300 100%

The Procurement Services r epresentative shall

calculate all scoring and determine a ranking

of the shortlisted firms based on the

presentation/interview evaluation criteria .

The highest ranked firms will be recommended

for negotiation and award.

8. Timely responses to the RFP were submitted by six

vendors : Catapult, Ombudsman, Atlantic Education Partners,

Advanced Path, Excel Alternative Schools , and Driven Academy .

The se responses were reviewed by the PEC which was composed of

School Board personnel with var ious educ ational based

backgrounds.

9. On March 6, the PEC evaluated all six proposals

according to the RFP stated evaluation criteria: experience a nd

qualifications; scope of services; proposal price; and MWBE/LDB.

Four of the six bidders did not provide the p ricing proposal as a

percentage of full time equivalent.

10. All six vendors were awarded zero points for the

proposal price, and each received zero value for the proposal

price. The justification for each bidder receiving a zero score

was based on the School Board ' s procurement representative ' s

inability to provide an " apples to apples " comparison of the six

pricing proposals. Ms. Nido, the School Board ' s procurement

representative , affirmed the School Board ' s position that when a

proposal is non - respo nsive it is not scored. Here, all six

proposals were scored.

1 1 . The PEC evaluated and ranked all six vendors . The PEC

then posted its short list evaluation ranking s , which included

the short list evaluation form. Both Catapult and Ombudsman

scored th e same ranking: 64.2. Below the ranking, the following

sentence appeared: " Committee agreed by consensus to invite

Catapult Learning, Ombudsman, and Atlantic Education Partners for

interviews/presentations. " Additionally, below this sentence the

follow ing language appeared:

" Failure to file a protest within the time

prescribed in section 120.57(3), Florida

Statutes, or failure to post the bond or

other security required by law within the

time allowed for filing a bond shall

constitute a waiver of procee dings under

chapter 120, Florida Statutes. "

The 72 hour posting requirement will elapse

on March 11, 2014 at 2:30 p.m. E.S.T.

" The Orange County Public School Board is an

equal opportunity agency . "

1 2 . Catapult did not have a representative present du ring

the March 6 meeting as Ms. Folsom, the local director , arrived

late. It is t he School Board ' s practice that i f a member of the

public appears late for an evaluation meeting , the staff will

bring the public to the meeting room, knock on the meeting do or

and allow the public into the meeting. If the meeting is over,

the public is not brought to the meeting room.

1 3 . No vendor filed a written notice of protest wi thin 72

hours after the School B oard posted the short list evaluation

ranking.

1 4 . On Ma rch 6, the School Board posted a meeting notice

that the PEC would meet on March 13 at 8:30 a.m. EST to hear the

three bidders ' presentations. Atlantic Educational was to make

its presentation first, followed by Catapult and lastly,

Ombudsman. The meetin g notice also provided that the PEC would

evaluate the three bidders ' presentations immediately following

the conclusion of the presentations. Later on March 6 , C atapult

made a public records request for all proposals submitted

pursuant t o the RFP . Catap ult asked that the documents be sent

via email or Catapult would have a staff member come to the

" proper office " at the School Board. Catapult received th e

requested public records at its New Jersey office sometime after

March 12, 2014.

1 5 . As scheduled , on March 13, the PEC met and heard the

presentations of Atlantic Educational , Catapult , and Ombudsman ,

the three short list bidders . As set forth in the RFP , section

5.5., the criteria for the presentation evaluation included the

following criteria: p l anning/ d elivery of s ervice ; firm

experience; and evidence of student achievement.

1 6 . Four days later, the School Board posted the

presentation ranking and presentation evaluation form. Out of a

possible 100 points in each category, Catapult received 81 points

for planning/delivery of service , 86 points for firm experience ,

and 83 points for evidence of student achievement, for a total of

250 points. Ombudsman received 88 points for planning/delivery of

service , 8 7 points for firm experience , and 83 poi nts for

evidence of student achievement, for a total of 25 8 points.

Below the presentation ranking, the following sentence appeared:

" Committee agreed by consensus to enter into negotiation and

contract award to the following vendor(s): Ombudsman. "

Add itionally, below this sentence the following language

appeared:

" Failure to file a protest within the time

prescribed in section 120.57(3), Florida

Statutes, or failure to post the bond or

other security required by law within the

time allowed for filing a bond shall

constitute a waiver of proceedings under

chapter 120, Florida Statutes. "

The 72 hour posting requirement will elapse

on March 20 , 2014 at 9 : 0 0 a .m. E.S.T.

" The Orange County Public School Board is an

equal opportunity agency . "

1 7 . On Mar ch 19 , Catapult filed its notice of protest and

posted the requisite bond. On March 28, Catapult filed its

formal written protest, the Petition, and thereafter on April 18,

filed an Amended Petition.

CONCLUSIONS OF LAW

1 8 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 & 120.57, Fla. Stat. (201 3 ). 5 /

1 9 . Section 120.57(3)(f) provides that , in a protest to a

proposed contract award pursuant to a request for proposal

procu rement (RFP):

[ 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 for

such proceedings s hall be whether the

proposed agency action was clearly erroneous,

contrary to competition, arbitrary, or

capricious.

20 . The court in Colbert v. Department of Health , 890 So.

2d 1165, 1166 (Fla. 1st DCA 2004), defined the clearly erroneous

standard to m ean " the interpretation will be upheld if the

agency ' s construction falls within the permissible range of

interpretations. If however, the agency ' s interpretation

conflicts with the plain and ordinary intent of the law, judicial

deference need not be give n to it. " (citations omitted).

2 1 . An agency action is " contrary to competition " if it

unreasonably interferes w ith the purpose of competitive

procurement, as described in Wester v. Belote , 138 So. 721, 722

(Fla. 1931), as follows:

The object and purpose . . . 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

gain at public expense; to close all avenues

to favoritis m 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 . . . , by affording an opportunity for an

exact comparison of bids .

2 2 . A capricio us action has been defined as an action

" which is taken without thought or reason or irrationally. "

Agrico Chem. Co. v. Dep ' t of Envtl. Reg. , 365 So. 2d 759, 763

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

" An arbitrary decision is one t hat is not supported by facts or

logic. " Id. The inquiry to be made in determining whether an

agency has acted in an arbitrary or capricious manner involves

consideration of " whether the agency: (1) has considered all

relevant factors; (2) 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. " Adam

Smith Enter. v. Dep ' t of Envtl. 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 ar t ment of

Transp orta t ion , 602 So. 2d 632, 632 n.3 (Fla. 2d DCA 1992), as

follows: " If 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. "

2 3 . Catapult has the burden to establish the allegations in

the protest by a preponderance of the evidence. Dep ' t of Transp.

v. Groves - Watk ins , 530 So. 2d 912, 913 - 914 (Fla. 1988) . Catapult

has alleged that the School Board ' s failure to consider price in

the initial evaluation invalidated the PEC ' s evaluation. Such is

not the case. The PEC considered price, but determined to award

zero poi nts to all the vendors, thus no perspective bidder was

put at an advantage or disadvantage over the others. Each

proposal was given a complete and honest evaluation.

2 4 . According to the RFP , the PEC evaluated the top three

short list vendors using the same evaluation criteria . It was

neither arbitrary nor capricious, but rather through the

evaluation criteria that Ombudsman was chosen by the PEC.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a f inal order be entered finding that

the presentation ranking that found Ombudsman to be the highest

ranking bidder was not contrary to the School Board ' s governing

statutes or the School Board ' s policies or rules, nor was it

clearly erroneous, arbitrary, ca pricious or contrary to

competition.

DONE AND ENTERED this 5th day of June , 2014 , in Tallahassee,

Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bui lding

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 5th day of June , 2014 .

ENDNOTE S

1/ Catapult and the School Board each listed Ms. Nido as a

witness. Although Catapult excused Ms. Nido following her direct

testimony, the School Board recalled her in its case in chief.

2/ Ombudsman and Catapult each listed Ms. O ' Neill as a witness.

Ms. O ' Neill was called out of order to facilitate an efficient

use of hearing time.

3/ Respondent and Intervenor inserted an endnote No. 2 in their

Proposed Recommended Order, providing additional information that

was not provided during the hearing, and thus not subject to

cross - ex amination. This information is being treated as late -

filed testimony and has not been considered in the preparation of

this Recommended Order. See § 120.57(1)(b), Fla. Stat .

4 / MWBE/LDB means: minorities or women - owned business

enterprises/local devel oping businesses.

5 / All statutory references are to Florida Statutes (2013),

unless otherwise indicated.

COPIES FURNISHED:

Kimberly Doud, Esquire

Broad & Cassel

Suite 1400

390 North Orange Avenue

Orlando, Florida 32801

Laurie M. Weinstein, Esquire

Berger Singerman, LLP

Suite 1000

350 East Las Olas Boulevard

Fort Lauderdale, Florida 33301

Charles Thomas Huddleston, Esquire

Nelson Mullins Riley & Scarborough, LLP

Suite 1700

201 17th Street, Northwest

Atlanta, Georgia 30363

Daniel Hays Thompson, Es quire

Berger Singerman

Suite 712

315 South Calhoun Street

Tallahassee, Florida 32301

Samantha Patrice Smith, Esquire

Nelson Mullins Riley & Scarborough LLP

Suite 1700

201 17th Street, Northwest

Atlanta, Georgia 30363

Paul Settle Figg, Esquire

Berger S ingerman, LLP

Suite 1000

350 East Las Olas Boulevard

Fort Lauderdale, Florida 33301

Dr. Barbara Jenkins, Superintendent

Orange County School District

445 West Amelia Street

Orlando, Florida 32801 - 0271

Matthew Carson, General Counsel

Department of Educ ation

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE O F 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.