14-002915BID Humana, Inc. vs. Department Of Management Services
 Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Tuesday, July 15, 2014.


View Dockets  

1STATE OF FLORIDA

4DEPARTMENT OF MANAGEMENT SERVICES

8HUMANA, INC.,

10Petitioner, Final Order No. DMS -14-0054

16v. DOAH CASE NO.: 14-2915BID

21DMS CASE NO.: 14-29418

25DEPARTMENT OF MANAGEMENT

28SERVICES, DIVISION OF STATE

32GROUP INSURANCE,

34Respondent,

35and

36SUPERIOR VISION SERVICES, INC.

40Intervenor.

41_______________ 1

43FINAL ORDER

45On June 12, 2014, Petitioner, Humana, Inc. (Humana), timely filed with the Department

58of Management Services (Department)its Formal Written Protest and Petition for Administrative

69Hearing (petition) challenging the Department's intent to award a contract to Superior Vision

82Services, Inc. (Superior), based on the evaluation of proposals received in response to the

96Request for Proposals for Group Vision Benefits Insurance, RFP No. DMS 13/14-030-REBID

108(Request for Proposal). The petition also sought to award the contract to Humana as the lowest

124responsive and responsible bidder.

128On June 20, 2014, the formal protest was referred to the Division of Administrative

142Hearings for further proceedings. Prior to final hearing scheduled for July 16 and 17,2014, the

158parties moved for the entry of an order relinquishing jurisdiction back to the agency and closing

174the file with the Division of Administrative Hearings. The agreed upon basis for the Motion to

190Relinquish Jurisdiction was that the intended awardee, Superior, has not been licensed by the

204Office of Insurance Regulation for the requisite three year period. This licensure period is a

219minimum requirement in the Request for Proposals and failure to meet this requirement causes

233the Department to find that the bid proposal submitted by Superior as non-responsiveand

246therefore disqualified the bid proposal from further consideration. The parties also agreed that as

260a result of a flawed evaluation regarding the responsiveness of Superior's proposal, the

273Department's intended decision to award the contract to Superior was clearly erroneous and can

287no longer be maintained. As a result, the administrative law judge granted the Motion on July

30316,2014 and jurisdiction was relinquished back to the·Department, pursuant to section 120.57(i),

316Florida Statutes, and rule 28-106.204(2), Florida Administrative Code. This matter is before the

329undersigned for the purpose of issuing a Final Order, in accordance with section 120.57(4),

343Florida Statutes.

345STIPULATED FINDINGS OF FACT

3491. Five vendors responded to the Request for Proposal including Humana, Superior,

361MetLife, United HealthCare, and Davis Vision. (Joint Pre-Hearing Stipulation)

3702. MetLife was declared non-responsive for failure to provide requested rates for the

383optional renewal term and United HealthCare and Davis were both declared non-responsive for

396their failure to provide minimum Network Access. (Joint Pre-Hearing Stipulation)

4063. Only responsive vendors eligible to proceed to the scoring portion of the

419procurement. (Joint Pre-Hearing Stipulation)

4234. The intended awardee, Superior, has not been licensed by the Office of Insurance

437Regulation for the requisite three year period. This licensure period is a minimum requirement

451in the request for proposals and failure to meet this requirement deems the bid proposal

466submitted by Superior non-responsive and disqualifies the bid proposal from further

477consideration. (Motion to Relinquish Jurisdiction)

4825. As a result of a flawed evaluation regarding the responsiveness of Superior's

495proposal, the Department's intended decision to award the contract to Superior wasclearly

507erroneous and can no longer be maintained. (Motion to Relinquish Jurisdiction)

5186. Humana is a responsive and responsible vendor to the Request for Proposal at

532issue. (Joint Pre-Hearing Stipulation)

536CONCLUSIONS OF LAW

5397. The Department of Management Services has jurisdiction over the parties and the

552subject matter of this proceeding. Sections 120.57(1)(i) and 120.57(4), Florida Statutes.

5638. Section 120.57(1 )(i), Florida Statutes, states:

570When, in any proceeding conducted pursuant to this subsection

579a dispute of material fact no longer exists, any party may

590move the administrative law judge to relinquish jurisdiction to

599the agency. An order relinquishing jurisdiction shall be

607rendered if the administrative law judge determines from

615the pleadings, depositions, answers to interrogatories, and

622admissions on file, together with supporting and opposing

630affidavits, if any, that no genuine issue as to any material fact

642exists. If the administrative law judge enters an order relinquish­

652ing jurisdiction, the agency may promptly conduct a proceeding

661pursuant to subsection (2), if appropriate ... [emphasis added.]

6709. Section 120.57(4), Florida Statutes, allows for an informal disposition of the case

683based upon the following:

687INFORMAL DISPOSITION. - Unless precluded by law, informal

695Disposition may be made of any proceeding by stipulation, agreed settlement, or

707consent order.

70910. Material disputes of fact in this case were resolved through stipulations in the

723Motion to Relinquish Jurisdiction and the Joint Pre-Hearing Stipulation, which allow for an

736informal disposition of the proceedings. Under the facts and circumstances, additional

747proceedings under section 120.57(2), Florida Statutes, are unnecessary and inappropriate because

758the need for a de novo proceeding no longer exists.

76811. The burden of proof in this bid protest is upon Humana. Section 120.57 (3) (t),

784Florida Statutes, provides:

787... Unless otherwise provided by statute, the burden of proof shall rest

799with the party protesting the proposed agency action. In a competitive­

810procurement protest, other than a rejection of all bids, the administrative

821law judge shall conduct a de novo proceeding to determine whether the

833agency's proposed action is contrary to the agency's governing statutes,

843the agency's rules or policies, or the bid or proposal specifications. The

855standard of proof for such proceedings shall be whether the proposed

866agency action was clearly erroneous, contrary to competition, arbitrary or

876capricious.

87712. The clearly erroneous standard of proof set forth in section 120.57(3)(t), Florida

890Statutes,govems the detennination that the Department's intended decision to award the contract

903to Superior was improper. Under the specifications set forth in the request for proposals, failure

918to meet the three year licensure requirement renders a proposal non-responsive and disqualifies

931the bid proposal from further consideration. The Department's initial review regarding the

943responsiveness of Superior's bid was incorrect, which was realized during the discovery process

956in the bid protest. Once this ultimate question of fact was established, further proceedings before

971an administrative law judge were unnecessary. As a matter of law, Humana was able to prove

987by the clearly erroneous standard that the Department's decision to select the proposal of

1001Superior was inconsistent with the request for proposal.

100913. The return of the case to the Department for a final order and a contract award to

1027Humana after the error was established is consistent with State Contracting and Engineering

1040Corporation v. Department of Transportation, 709 So. 2d 607 (Fla. 1st DCA 1998). In State

1055Contracting, the court stated that the object of the de novo proceeding in an award case is to

"1073evaluate the action taken by the agency". The evaluation was completed in this case, without

1089the need for continued proceedings.

109414. In its petition, Humana requested that the Division of Administrative Hearings

1106enter a Recommended Order recommending that the Department award the contract to Humana.

1119Because the case has been relinquished back to the Department, a contract award can be made as

1136part of this final order because it was stipulated that Humana's bid was responsive and the

1152proposals from the other four vendors were non-responsive. A final order can authorize an

1166award when two or more bids have been received and at least one bid confirms in all material

1184respects to the requestfor proposals. See Satellite Television Engineering Inc., v. Department

1196of General Services, 522 So. 2d 440 (Fla. 1st DCA 1988); Harris\M v. Office Sys. Consultants,

1212533 So.2d 833 (Fla. 1st DCA 1988).

121915. All of the vendors, who responded to the request for proposals and were declared

1234non-responsive, had clear points of entry to challenge the decision regarding their respective bids

1248in an administrative hearing. Accordingly, due process requirements for all vendors have been

1261met and further challenges to a contract award to Humana have been waived. They were

1276provided a full and fair opportunity to contest the proposed agency action on any relevant ground

1292before the proposed action of deciaring them non-responsive became final. See Gtech Corp. v.

1306Department of Lottery, 737 So.2d 615 (Fla. 1st DCA 1999), rev. dismissed 822 So.2d 1243 (Fla.

13222002).

1323Based upon the foregoing Stipulated Findings of Fact and Conclusions of Law, it is

1337ORDERED:

1338A. The Department will award to Humana, Inc., the proposed contract in accordance

1351withand subject to the requirements of the Request for Proposal No. DMS 13114-30-REBID for

1365Group Vision Benefits Insurance, and the submissions from Humana, Inc., in response to the

1379request for proposal.

1382B. The Department will return to Humana, Inc., the cashier's check in the amount of

1397$195,000.00 that accompanied the petition, as required by the request for proposal.

1410C. This Final Order shall become effective on the date offiling with the agency clerk

1425of the Department of Management Services.

1431DONE and ORDERED on this t b!L day of -f1a ,2014.

1442g J. Nic 0 ,A'gency Secretary

1448Department If Management Services

14524050 Esplanade Way, Suite 285

1457Tallahassee, Florida 32399

1460NOTICE OF RIGHT TO APPEAL

1465Unless expressly waived by a party such as in a stipulation or in other similar fOTIns of

1482settlement, any party substantially affected by this final order may seek judicial review by filing

1497an original notice of appeal with the agency clerk of the department of management services, and

1513a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate district

1529coun of appeal. The notice of appeal must be filed within thirty (30) days of rendition of this

1547order, in accordance with Rule 9.110, Florida Rules of Appellate Procedure, and Section 120.68,

1561Florida Statutes.

1563Certificate of Clerk:

1566Filed in the Office of the Agency

1573Clerk of the Department of Management

1579Services on this ,,;) "1-4 .... day of

1587:::Su J ,2014.

1590Mi· ae Sivilla, Agency Clerk

1595Copies furnished to:

1598Donna Blanton, Esquire Brian A. Newman, Esquire

1605Radey Law Firm Pennington, Moore, Wilkinson,

1611301 South Bronough Street, Suite 200 Bell and Dunbar, P.A.

1621Tallahassee, Florida 32301 215 South Monroe Street, Second Floor

1630Post Office Box 10095

1634Laura M. Dennis, Esquire Tallahassee, Florida 32302-2095

1641Radey Law Firm

1644301 South Bronough Street, Suite 200

1650Tallahassee, Florida 32301

1653Veronica Donnelly, Esquire

1656Assistant General Counsel

1659Department of Management Services

16634050 Esplanade Way, Suite 160

1668Tallahassee, Florida 32399-0950

1671Cynthia S. Tunnic1iff, Esquire

1675Pennington, Moore, Wilkinson,

1678Bell and Dunbar, P.A.

1682215 South Monroe Street, Second Floor

1688Post Office Box 10095

1692Tallahassee, Florida 32302

1695Howard E. Adams, Esquire

1699Pennington, Moore, Wilkinson,

1702Bell and Dunbar, P.A.

1706215 South Monroe Street, Second Floor

1712Post Office Box 10095

1716Tallahassee, Florida 32302

1719Mallory L. Harrell, Esquire

1723Pennington, Moore, Wilkinson,

1726Bell and Dunbar, P.A.

1730215 South Monroe Street, Second Floor

1736Post Office Box 10095

1740Tallahassee, Florida 32302

1743Brandice D. Dickson, Esquire

1747Pennington, Moore, Wilkinson,

1750Bell and Dunbar, P.A.

1754215 South Monroe Street, Second Floor

1760Post Office Box 10095

1764Tallahassee, Florida 32302

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 08/12/2014
Proceedings: Agency Final Order filed.
PDF:
Date: 07/29/2014
Proceedings: Agency Final Order
PDF:
Date: 07/15/2014
Proceedings: Order Closing File and Relinquishing Jurisdiction. CASE CLOSED.
PDF:
Date: 07/15/2014
Proceedings: Motion to Relinquish Jurisdiction filed.
PDF:
Date: 07/14/2014
Proceedings: Joint Pre-hearing Stipulation of Humana and DMS filed.
PDF:
Date: 07/14/2014
Proceedings: Notice of Appearance (Brian Newman) filed.
PDF:
Date: 07/14/2014
Proceedings: Order Granting Humana Inc.`s Motion for Leave to File Amended Formal Written Protest.
PDF:
Date: 07/11/2014
Proceedings: Humana Inc.'s Motion for Leave to File Amended Formal Written Protest filed.
PDF:
Date: 07/11/2014
Proceedings: Order Cancelling Telephonic Status Conference.
PDF:
Date: 07/10/2014
Proceedings: Order Documenting Oral Approval of Stipulated Protective Order.
PDF:
Date: 07/10/2014
Proceedings: Stipulated Protective Order Regarding Confidential Information (signed) filed.
PDF:
Date: 07/09/2014
Proceedings: Stipulated Protective Order Regarding Confidential Information (filed by Superior Vision Services, Inc.) filed.
PDF:
Date: 07/08/2014
Proceedings: Intervenor Superior Vision Services, Inc.'s Response to Petitioner's Second Request for Production filed.
PDF:
Date: 07/08/2014
Proceedings: Intervenor Superior Vision Services, Inc.'s Response to Petitioner's First Request for Admissions filed.
PDF:
Date: 07/08/2014
Proceedings: Superior Vision Services, Inc.'s Notice of Service of Unsworn Responses to Petitioner Humana, Inc.'s Second Set of Interrogatories filed.
PDF:
Date: 07/08/2014
Proceedings: Petitioner, Humana, Inc.'s Notice of Service of Verified Answers to Superior Vision Services, Inc.'s Second Set of Interrogatories filed.
PDF:
Date: 07/08/2014
Proceedings: Petitioner, Humana, Inc.'s Notice of Service of Verified Answers to Superior Vision Services, Inc.'s First Set of Interrogatories filed.
PDF:
Date: 07/07/2014
Proceedings: Petitioner, Humana Inc.'s Notice of Taking Deposition of Corporate Representative of Superior Vision Services, Inc filed.
PDF:
Date: 07/07/2014
Proceedings: Petitioner, Humana Inc.'s Notice of Taking Deposition of Department of Management Services' Agency Representative, Michael Talbot, and Jesse Covell filed.
PDF:
Date: 07/03/2014
Proceedings: Petitioner Humana Inc.'s Second Request for Production to Superior Vision Services, Inc. filed.
PDF:
Date: 07/03/2014
Proceedings: Petitioner Humana Inc.'s First Request for Admission to Superior Vision Services, Inc. filed.
PDF:
Date: 07/03/2014
Proceedings: Petitioner Humana Inc.'s Notice of Service of Second Set of Interrogatories to Intervenor Superior Vision Services, Inc. filed.
PDF:
Date: 07/02/2014
Proceedings: Petitioner, Humana, Inc.'s Notice of Service of Unverified Answers to Superior Vision Services, Inc.'s First Set of Interrogatories filed.
PDF:
Date: 07/02/2014
Proceedings: Order of Pre-hearing Instructions, Expedited Discovery, and Notice of Telephonic Status Conference to be Held July 11, 2014.
PDF:
Date: 07/02/2014
Proceedings: Superior Vision Services, Inc.'s Notice of Service of Sworn Responses to Petitioner Humana, Inc.'s First Set of Interrogatories filed.
PDF:
Date: 07/01/2014
Proceedings: Petitioner, Humana, Inc.'s Notice of Service of Unverified Answers to Superior Vision Services, Inc.'s First Set of Interrogatories filed.
PDF:
Date: 07/01/2014
Proceedings: Petitioner, Humana Inc.'s, Response to Intervenor, Superior Vision Services, Inc.'s First Request for Production filed.
PDF:
Date: 06/30/2014
Proceedings: Superior Vision Services, Inc.'s Notice of Service of Unsworn Responses to Petitioner Humana, Inc.'s First Set of Interrogatories filed.
PDF:
Date: 06/30/2014
Proceedings: Intervenor Superior Vision Services, Inc.'s Response to Petitioner's First Request for Production filed.
PDF:
Date: 06/30/2014
Proceedings: (Respondent's) Notice of Service of Response to Petitioner's First Set of Interrogatories filed.
PDF:
Date: 06/27/2014
Proceedings: Notice of Hearing (hearing set for July 16 and 17, 2014; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 06/27/2014
Proceedings: Intervenor Superior Vision Services, Inc.'s Notice of Service of Second Set of Interrogatories to Petitioner filed.
PDF:
Date: 06/26/2014
Proceedings: Intervenor Superior Vision Services, Inc.'s Notice of Service of First Set of Interrogatories to Petitioner filed.
PDF:
Date: 06/26/2014
Proceedings: Intervenor Superior Vision Services, Inc.'s First Request for Production filed.
PDF:
Date: 06/26/2014
Proceedings: Notice of Appearance (Laura Dennis) filed.
PDF:
Date: 06/25/2014
Proceedings: Notice of Appearance (Brandice Dickson) filed.
PDF:
Date: 06/25/2014
Proceedings: Humanas First Request for Production to DMS filed.
PDF:
Date: 06/25/2014
Proceedings: Petitioner Humana Inc.'s Notice of Service of First Set of Interrogatories to Department of Management Services filed.
PDF:
Date: 06/25/2014
Proceedings: Petitioner Humana Inc.'s Notice of Service of First Request for Production to Superior Vision Services, Inc. filed.
PDF:
Date: 06/25/2014
Proceedings: Petitioner Humana Inc.'s Notice of Service of First Set of Interrogatories to Intervenor Superior Vision Services, Inc. filed.
PDF:
Date: 06/23/2014
Proceedings: Respondent's Motion to Expedite Discovery and Establish Deadlines for Discovery Cut off and Amendments to Petition for Hearing filed.
PDF:
Date: 06/20/2014
Proceedings: Notice of Appearance (Veronica Donnelly).
PDF:
Date: 06/20/2014
Proceedings: Amended Notice of Appearance of Intervenor (Donna Blanton).
PDF:
Date: 06/20/2014
Proceedings: Formal Written Protest and Petition for Administrative Hearing filed.
PDF:
Date: 06/20/2014
Proceedings: Agency referral filed.

Case Information

Judge:
JAMES H. PETERSON, III
Date Filed:
06/20/2014
Date Assignment:
06/23/2014
Last Docket Entry:
08/12/2014
Location:
Tallahassee, Florida
District:
Northern
Agency:
Other
Suffix:
BID
 

Counsels

Related Florida Statute(s) (2):

Related Florida Rule(s) (1):