14-004743BID Bridges Of America, Inc. vs. Department Of Corrections Status: Closed Recommended Order on Wednesday, December 31, 2014.

Summary: There is no legal basis for withdrawing or re-issuing the Department's intended award of the contract.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIDGES OF AMERICA, INC.,

Petitioner,

vs. Cas e No. 14 - 4743BID

DEPARTMENT OF CORRECTIONS,

Respondent,

and

UNLIMITED PATH OF CENTRAL

FLORIDA, INC.,

Intervenor.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice to all parties, the final hearing was

conducted in this case on November 5 - 6, 2014, in Tallahassee,

Florida, before Administrative Law Judge R. Bruce McKibben of the

Division of Administrative Hear ings.

APPEARANCES

For Petitioner: Amy W. Schrader, Esquire

Daniel Kuhn, Esquire

GrayRobinson, P.A.

301 S outh Bronough Street, Suite 600

Tallahassee, Florida 32301

For Respondent: Jonath a n P. Sanford, Esquire

Departmen t of Corrections

501 S outh Calhoun Street

Tallahassee, Florida 32399 - 2500

For Intervenor: Jodi N icole Cohen, Esquire

Panza, Maurer and Maynard, P.A.

3600 North Federal Highway , Third Floor

Fort Lauderdale, Florida 33308

STATEMENT OF THE ISSUE

The issue in this case is whether, in deciding to award a

contract for comprehensive re - entry services to be provided at

the Baker Re - Entry Center (ÑBakerÑ), Respondent, Department of

Corrections (the ÐDepartmentÑ or ÐDOCÑ), acted c ontrary to one or

more governing statutes, rules, policies, or procurement

specifications, or any combination thereof; and if so, for each

such instance, whether the misstep was clearly erroneous,

arbitrary, capricious, or contrary to competition.

PRELI MINARY STATEMENT

This case commenced with the posting on September 16, 2014,

of the DepartmentÓs intent to award the contract for Baker to

Intervenor, Unlimited Path of Central Florida, Inc. ( " UPI " ).

Petitioner, Bridges of America, Inc. ("Bridges") , a ven dor who

was not approved, timely filed a formal bid protest to challenge

the award. The bid protest contends that DOC acted contrary to

law and to the specifications set forth in Invitation to

Negotiate DC ITN 13 - 038 (the ÐITNÑ).

At the final hearing, B ridges presented the testimony of

five witnesses: Lori Consta n tino - Brown, president and CEO of

Bridges; Kelly Wright, purchasing analyst for DOC;

Patrick Mahoney, the C hief of B ureau of T ransition and S ubstance

A buse S ervices for DOC; James Freeman, warde n at Baker; and

Dan Eberlein, region 2 re - entry coordinator for DOC. BridgesÓ

E xhibit 1 was accepted into evidence. The Department called two

witnesses: Debbie Miller, re - entry office liaison for DOC; and

Kim Riley, director of re - entry for DOC. The De partmentÓs

E xhibits 1 and 2 were admitted into evidence. UPI did not call

any additional witnesses. Its E xhibit 1 was accepted into

evidence. Joint E xhibits 1 through 49 were also admitted into

evidence.

The parties advised that a transcript of the fi nal hearing

would be ordered. By rule the parties have ten days from the

date the t ranscript is filed to file proposed recommended orders.

The Transcript was filed on December 1, 2014. The parties each

timely filed a P roposed R ecommended O rder. Each pa rty's P roposed

R ecommended O rder was duly considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. In 2014, the Florida Legislature authorized DOC to open

two 432 - bed substance abuse treatment, transition and vocational

training center s (ÐRe - Entry CentersÑ) by way of the 2014 - 2015

General Appropriations Act. The Department was also authorized,

pursuant thereto, to issue a competitive solicitation for

comprehensive program services for the inmates at the Re - Entry

Centers.

2. O n June 10, 2014, the Department issued the ITN

entitled, ÐComprehensive Re - Entry Services at Everglades and

Baker Re - Entry Centers.Ñ The stated purpose of the ITN was to

select Ðqualified vendors to provide comprehensive criminal

justice re - entry services which include substance abuse services,

academic programs, vocational programs, case management,

chaplaincy and other program services to a medium to high - risk

inmate populationÑ at the Baker and Everglades Re - Entry Centers.

3. On July 10, 2014, DOC issued Add endum #1 to the ITN

which made changes to the original specifications in the ITN in

response to some vendor inquiries. For example, in response to a

vendor inquiry about the mental health classifications of

inmates, the following information was contained in the Addendum:

Question #77: Will there be any inmates

placed at the Everglades or Baker Re - Entry

Centers with mental health psych grades? If

so, is there going to be any mental health

personnel on - site at either facility?

Answer #77: The Departmen t will house Psych

Grade 1*, 2*, at the Baker Re - Entry Center

and 1*, 2*, and 3* at the Everglades Re - Entry

Center, however 3*s will be housed on a

limited basis. Mental Health Services will

be provided by Corizon, Inc. at Baker Re -

Entry Center and [by] W exford Health Sources

at Everglades Re - Entry Center. These

services, which will be under the direction

of a licensed psychologist, may be provided

on site, or at the parent institution.

4. The Department utilizes a 1 - to - 5 scale to measure the

level of me ntal illness an inmate is demonstrating to determine

what kind of personnel is necessary to manage the inmate. Psych

grade 3 (called ÐS3Ñ) is the highest grade of mental illness

where the inmate does not have to be separated from the general

population. S3 inmates are generally those who have been

prescribed psychotropic medications.

5. On or about July 23 , Replies to the ITN were submitted

by Bridges ; UPI ; Geo Re - Entry Services, LLC ; The Transition

House ; and Westcare Gulfcoast F lorida , Inc., for the B aker

contract. Bridges and Geo also submitted Replies to the

Everglades ITN.

6. The Department designated Kelly Wright as the

procurement manager for this ITN. Ms. Wright opened all the

timely - filed Replies to the ITN. She determined whether each

Rep ly contained the ÐMandatory DocumentationsÑ identified in

section 4.22.2 of the ITN, e.g., the information cost sheet,

price sheet, and attestations. She then forwarded the Replies to

a group of five ÐevaluatorsÑ for further review. Each of the

evaluator s was experienced in the review process. They were

provided a manual and training by Ms. Wright to help focus their

reviews of the Replies.

7. The evaluators individually scored each Reply using the

scoring criteria set forth in revised Attachment 7 of t he ITN.

As they reviewed the Replies, some of the evaluators also

prepared negotiation topic sheets for use during the upcoming

negotiation phase. Upon completion of their review, the

evaluators scored the Replies as follows:

UPI Î 940.06

Bridges Î 846.0 0

Geo Î 805.80

Westcare Î 710.38

Transition Î 700.83

8. The scores were presented to Ms. Wright, who forwarded

them to Patrick Mahoney, DOCÓs bureau chief of Transition and

Substance Abuse Treatment Services. Mr. Mahoney served as the

lead negotiator in this ITN process as well. He reviewed the

scores and decided the Department would only negotiate with UPI

due to that vendorÓs substantially higher score than its

competitors.

9. The Department then scheduled a negotiation session with

UPI. In addit ion to Mahoney, two other negotiators

(James Freeman and Dan Eberlein, both of whom had served as

evaluators) took part in the process. The negotiation session

with UPI was held on August 15. Thereafter, DOC was satisfied

that UPIÓs proposal met the Depa rtmentÓs needs and decided to

close the negotiation process. The Department was ready to award

a contract to UPI for the Baker Re - Entry Center.

10. Meanwhile , on or about August 20, a newspaper article

was published in the Miami Herald which discussed p ossible inmate

populations at Baker and Everglades. The article seemed to infer

that all inmates at the Re - Entry Centers would be inmates with

significant mental health issues.

11. When DOC personnel reviewed the Miami Herald article,

the DepartmentÓs initial perception was that the mental health

issue may substantially affect the ITN as posted. The Department

decided to reopen the negotiation process for both Baker and

Everglades to address any possible changes to the ITN caused by

the change in inmat e population. This time, the Department also

invited Bridges and Geo to negotiate regarding the Baker

contract.

12. A telephonic negotiation session was noticed and then

held on September 4 between the Department and each of three

vendors: Bridges, UPI, and Geo. The negotiation session for

Bridges was opened by Kelly Wright who stated, ÐThis is . . . a

negotiation meeting for comprehensive re - entry services at

Everglades and Baker Re - Entry Centers.Ñ Bridges (represented at

the session by its CEO, Lori Constantino - Brown), was asked if it

had a plan to handle S3 inmates and Bridges replied in the

affirmative. BridgesÓ representative was specifically asked

whether her responses would be any different for Baker than for

Everglades (because Everglades alrea dy contemplated the presence

of S3 inmates). She replied in the negative, saying ÐThe

approaches would be the same on both facilities in terms of the

types of programs we would be using. The way that we would staff

pretty much is exactly the same, I thin k, maybe give or take one

position. I mean, there are I would say about 95, 99 percent

similar, you know, except, you know, where the RFP kind of

dictated something different.Ñ When the Department further

inquired whether Bridges had anything to add sepa rately for

Baker, the representative replied, ÐNo.Ñ And once again when the

Department asked Bridges if there were any Ðadditional issues or

anything you would like to tell us,Ñ Bridges replied, ÐNo.Ñ

Bridges had every opportunity at the negotiation sess ion to

provide information or ask questions about the Baker Re - Entry

Center proposal.

13. On September 5, the Department issued its Requests for

Best and Final Offer (RBAFO) to UPI and Bridges concerning their

interest in offering contracts for the Baker center. A RBAFO is

only sent to vendors the Department believes can adequately and

efficiently meet the requirements of the ITN. Bridges would not

have been part of the RBAFO process but for the negotiation

having been reopened. Each vendor submitted t heir Best and Final

Offer (BAFO) on September 11.

14. After review of the BAFOs from the vendors, the

Department chose to award the contract to UPI. Bridges timely

filed a formal written protest and petition for formal

administrative hearing, resulting i n the instant proceeding.

15. The BAFOs were independently reviewed by each of the

negotiators. They used the selection criteria set forth in the

ITN, specifically:

a. Experience in similar delivery of

criminal justice services;

b. Staffing quality and schedules;

c. Quality and flexibility of Programming; a nd

d. Cost.

16. The negotiators unanimously decided that UPIÓs proposal

best satisfied the selection criteria. During their reviews, the

negotiators did not specifically refer back to the ven dorsÓ

Replies to the ITN. However, the two negotiators who had also

been evaluators were already familiar with the information in the

Replies and considered that information as part of their

evaluation review. Mahoney, who had not initially evaluated the

Replies, reviewed the ITN Replies during the negotiation process.

Although Bridges did not specifically direct the negotiators to

review its ITN Reply, the ITN Reply had nonetheless been

reviewed. By way of example, the negotiators found that BridgesÓ

v alue - added services were the same in its Reply and its BAFO, a

clear indication that both were considered.

17. The process for this particular ITN admittedly had some

unusual but unforeseeable issues. Normally , once the Department

has decided which vend ors to negotiate with, it will close the

process from further review. And that did in fact occur in this

case. However, the publication of the article in the Miami

Herald caused an anomalous blip in procedures. Personnel within

the Department at first b elieved that the article was correct,

i.e., that all inmates to be processed through the Baker and

Everglades Re - Entry Centers would be suffering from significant

mental illness. If so, that would be considered a Ðgame changerÑ

for the ITN, requiring amen dment or rescission of the ITN.

18. The article was not entirely correct. In fact, while

there would be inmates at each of the centers with some level of

mental illness, those would be limited to no more than 50 of the

432 inmates at Baker .

19. The Ev erglades contract already presupposed some level

S3 inmates, those with psychiatric levels which might require

psychotropic medications. The only change to the ITN after the

newspaper article was that Baker might also house some level S3

inmates.

20. At any rate, the Department decided to reopen

negotiations in order to allow the interested vendors to address

the S3 inmate issue. Bridges was included in the reopened

negotiations although it had been excluded from the prior

negotiations. The Department h ad already deemed UPI the most

qualified vendor, but decided that if Bridges could address the

S3 situation better, it might warrant further review.

21. The Department also had further negotiation sessions

with UPI for Baker and Everglades on Septembe r 4. The same

question -- almost verbatim -- was asked of UPI that had been asked

of Bridges, i.e., how do you intend to handle the S3 inmates?

UPIÓs response was more in depth than Bridges response, even

though both vendors essentially said their proposals as submitted

would cover the S3 inmates.

22. BridgesÓ claim that it was not aware the Baker contract

would be discussed at the September 4 negotiation meeting is not

credible; the email sent to Ms. Consta n tino - Brown is entitled,

ÐBridges of America, Inc . Negotiations for Comprehensive Re -

Entry Services at Everglades and Baker Re - Entry Centers.Ñ While

Ms. Consta n tino - Brown may have interpreted the email to address

only the Everglades contract and that a session for Baker would

follow, her interpretation was mistaken. That is borne out by

the statements made during the session by Department

representatives as set forth above.

2 3 . As a result of the negotiation session, the Department

requested BAFOs from both UPI and Bridges for the Baker facility

contr act. Both vendors timely submitted their BAFO for

consideration by the Department. As stated previously, the

Department selected UPIÓs proposal to the exclusion of Bridges.

2 4 . Bridges asserts it was not given the same opportunity

as the other vendor to discuss core issues within its Reply and

BAFO, e.g., unit management. Again, the evidence does not

support BridgesÓ contention.

2 5 . Bridges suggests that the addition of the S3 inmates at

the Baker Re - Entry Center substantially altered the substance of

the ITN. That contention is not supported by the evidence. In

fact, Bridges specifically stated that its proposal for

Everglades (which already had S3 inmates) was essentially the

same as its Baker proposal.

2 6 . The totality of the evidence suggests tha t Bridges may

have operated under a false assumption concerning the negotiation

session, but its mistake does not void the DepartmentÓs actions.

CONCLUSIONS OF LAW

2 7 . The Division of Administrative Hearings has

jurisdiction over the subject matter of a nd the parties to this

proceeding. §§ 120.569, 120.57(1) and (3), Fla. Stat. Unless

specifically stated otherwise herein, all references to Florida

Statutes will be to the 2014 version. The Administrative

Procedure Act provides the exclusive remedy for resolving

disputes arising from a competitive procurement by a state

agency. State, Dept. of Lottery v. Gtech Corp. , 816 So. 2d 648,

651 (Fla. 1 st DCA 1999).

2 8 . An invitation to negotiate is governed by the

provisions of s ection 287.057(1 ) (c), Florida S tatutes, which

provides in pertinent part: ÐAfter negotiations are conducted,

the agency shall award the contract to the responsible and

responsive vendor that the agency determines will provide the

best value to the state, based on the selection criteria .Ñ Best

value is defined as Ðthe highest overall value to the state based

on objective factors that include, but are not limited to, price,

quality, design and workmanship.Ñ £ 287.012(4) , Fla. Stat .

2 9 . The burden of proof in this proceeding lies with the

Petitioner who, as the party opposing the DepartmentÓs decision,

must show Ða ground for invalidating the award.Ñ State

Contracting and EngÓg Corp. v . DepÓt of Transp. , 709 So. 2d 607,

609 (Fla. 1 st DCA 1998); § 120 . 57(3)(f), Fla. Stat. The

underlyi ng findings of fact in this case are to be determined

using the preponderance of the evidence standard. See

§ 120.57(1)(j), Fla. Stat.

30 . This is a de novo proceeding, a form of intra - agency

review. The object of the proceeding is to evaluate the act ion

taken by the agency at the time it took the action. State

Contracting and EngÓg , supra , at 609. A de novo proceeding in a

procurement case means a proceeding in which evidence is

received, factual disputes are settled, legal conclusions are

made, and prior agency action is reviewed for correctness. The

Administrative Law Judge does not sit as a substitute for the

Department in determining whether the right party prevailed in

the proceeding. ÐInstead, the hearing officer sits in a review

capacity and must determine whether the bid review criteria . . .

have been satisfied.Ñ Intercontinental Properties, Inc. v. State

DepÓt of Health and Rehab. Serv. , 606 So. 2d 380, 386 (Fla. 1 st

DCA 1992).

3 1 . The standard of proof used to make such a

determinations is Ðwhether the proposed agency action was clearly

erroneous, contrary to competition, arbitrary, or capricious.Ñ £

120.57(3)(f), Fla. Stat. The definition of standard of proof for

purposes of procurement actions is considered to be akin to a

standard o f review. R.N. Expertise, Inc. v. Miami - Dade County

Sch. Bd. , Case No. 01 - 2663BID ¶ 76 (DOAH Feb. 4, 2002; Miami - Dade

Sch. Bd. Mar. 14, 2002).

3 2 . The Florida Legislature expressly recognizes that Ðfair

and open competition is a basic tenant of public pr ocurement;

that such competition reduces the appearance and opportunity for

favoritism and inspires public confidence that contracts are

awarded equitably and economically.Ñ £ 287.001, Fla. Stat.

3 3 . The objectives that the State seeks in having

compet itive procurements are the following:

[T]o 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 favoritism and fraud

in various forms; to secure the best values

for the [public] at the lowest possible

expense; and to afford an equal advantage to

all desiring to do business with the

[government], by affording an opportunity for

an exact comparison of bids.

Harry Pepper & Assoc. v. City of Cape Coral , 352 So. 2d 1190,

1192 (Fla. 2 nd DCA 1997) ( quoting Webster v. Belote , 138 So. 721,

723 - 24 (Fla. 1931) ) .

3 4 . In the instant case, in order for Bridges to prevail it

must identify and prove, by the greater weight of the evidence,

an instance or instances where the agencyÓs conduct in taking its

proposed action was either:

(a) Contrary to the DepartmentÓs statutes;

(b) Contrary to the DepartmentÓs rules or

policies; or

(c) Contrary to the ITN specifications.

It is not sufficient for Bridges to prove merely that the agency

violated the general standard of conduct. By virtue of the

applicable standards of review, Bridges must also establish that

the DepartmentÓs misstep was:

(a) Cle arly erroneous;

(b) Contrary to competition; or

(c) Arbitrary or capricious.

R.N. Expertise , ¶ 78.

3 5 . In order to be clearly erroneous, the decision at issue

must -- even if there is evidence to support it -- be shown by the

complete record to strongly su ggest that a mistake has been

committed. U.S. v . U.S. Gypsum Co. , 33 U.S. 364, 395 (1948); see

also Floridian Constr. & Dev. Co. v. DepÓt of EnvÓt. Reg. , Case

No. 09 - 858BID, p. 24 at ¶ 48 (Fla. DOAH May 1, 2009 ; Fla. DER

June 1, 2009 ). No such evidence e xists in the present case.

Even the evaluators' failure to retain copies of the Replies,

though erroneous, did not constitute a mistake.

3 6 . I t has been generally stated that the Ðcontrary to

competitionÑ standard is equivalent to the standard set out in

Wester v. Belote , 138 So. 721, 723 - 24 (Fla. 1931), that prohibits

interference with the objectives of competitive bidding. See

also Cushman & Wakefield of Fla., Inc. v. DepÓt of Mgt. Servs. ,

2014 WL 309246, p. 18, Case Nos. 13 - 3894BID and 13 - 3895BID, a t

¶ 93 (Fla. DOAH, Jan. 24, 2014; Fla. DMS Feb. 5, 2014). In this

case, DOC went out of its way to allow competition between all

potentially approvable vendors, including Bridges.

3 7 . An arbitrary decision has been described as one not

supported by facts or logic, or is despotic. Agric. Chem. Co. v .

State , DepÓt of EnvÓt. Reg. , 365 So. 2d 759, 763 (Fla. 1 st DCA

1978). The decision in this case was supported by the facts and

by logic.

3 8 . Bridges states as one of its issues for review that

ÐDOC arbit rarily failed to conduct negotiations with Bridges as

represented in its recommendation of award.Ñ Clearly, the

Department was not required to negotiate with Bridges. See Cubic

Transp. Sys., Inc. v. DepÓt of Transp. , 2014 WL 4410437, Case

Nos. 14 - 2322BID and 14 - 2323BID, ¶ 135 (DOAH Sept . 4, 2014 ; Fla.

DOT Oct. 6, 2014 ). Even so, the September 4, 2014 , negotiation

session was announced as a negotiation meeting for both Baker and

Everglades. The facts do not support BridgesÓ allegation.

3 9 . Bridges also alleges that ÐDOC failed to perform an

objective comparison of deliverables offered by vendors in their

replies utilizing the selection criteria.Ñ Again, the evidence

does not bear this out. It is clear the DepartmentÓs evaluators

and negotiators fully a nd carefully reviewed each vendorÓs

proposal and made a decision based upon the stated criteria.

That the negotiators did not compile an item - by - i tem comparison

does not invalidate their review. It was undertaken in

accordance with all applicable policie s and principles.

40 . Finally, Bridges alleges that DOC Ðimpermissibly

altered the specifications of the ITN by requiring vendors to

serve an additional population of inmates classified as having a

significant mental illness (S3 inmates) without issuing an

addendum. The Department clearly explained the S3 inmate issue

and provided plausible and reasonable explanations for how the

erroneously interpreted media release affected the ITN. The

effect was essentially nil. And even Bridges stated that its

pro posal as submitted could accommodate the small number of S3

inmates.

4 1 . There is, therefore, no basis for overturning the

DepartmentÓs determination that UPI is the best and appropriate

vendor in lieu of BridgesÓ proposal.

RECOMMENDATION

Based on th e foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Department

of Corrections upholding its award of the contract for services

at the Baker Re - Entry Center to Unlimited Path of Central

Florida, Inc.

DONE AND ENTERED this 31st day of December , 2014 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahas see, 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 31st day of December , 2014 .

COPIES FURNISHED:

Jonathan P. Sanford, Esquire

Department of Correct ions

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

(eServed)

Amy W. Schrader, Esquire

GrayRobinson, P.A.

301 South Bronough Street, Suite 600

Tallahassee, Florida 32302 - 3189

(eServed)

Jodi Nicole Cohen, Esquire

Panza, Maurer and Maynard, P.A.

3600 North Federal Highway , Third Floor

Fort Lauderdale, Florida 33308

(eServed)

Timothy Cannon, Interim Secretary

Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

(eServed)

Jennifer Parker, General Counsel

Depar tment of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

(eServed)

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.