14-004744BID 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. Case No. 14 - 4744BID

DEPARTMENT OF CORRECTIONS,

Respondent,

and

COMMUNITY EDUCATION CENTERS,

INC.,

Intervenor.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice to all parties, the final hearing was

conducted in this case on November 12, 2014, in Tallahassee,

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

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Amy W. Schrader, Esquire

Daniel Kuhn, Esquire

GrayRobinson, P.A.

301 South Bronough Street, Suite 600

Tallahassee, Florida 32301

For R espondent: Jonathon P. Sanford, Esquire

Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

For Intervenor: David C. Ashburn, Esquire

Fred F. Harris, Esquire

Greenberg Traurig, P.A.

Post Office Drawer 1838

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

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

co ntract for comprehensive re - entry services to be provided at

the Everglades Re - Entry Center (ÑEvergladesÑ), Respondent,

Department of Corrections (the ÐDepartmentÑ or ÐDOCÑ), acted

contrary 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.

PRELIMINARY STATEMENT

This case commenced with the posting, on September 16, 20 14,

of the DepartmentÓs intent to award the contract for Everglades

to Intervenor, Community Education Centers, Inc. (ÐCECÑ).

Petitioner, Bridges of America, Inc. (ÐBridgesÑ), a vendor who

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

t he 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, Bridges presented the testimony of

five witnesses: Kelly Wright, purchasin g 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, warden at Baker

Correctional Facility; and Dan Eberlein, region 2 re - entry

coordinator for DOC. BridgesÓ Exhibit 2 was accepted into

evidence. CEC called one witness: Lori Consta n tino - Brown.

DOCÓs Exhibits 1 and 2 were admitted. Joint Exhibits 1 through

53 were also admitted into evidence. The parties stipulated that

all testimony given in a companion case (DOAH Case No. 14 -

4743BI D) could be relied upon in the instant matter. Official

recognition of the transcript of testimony from that case is

hereby made.

The parties advised that a transcript of the final hearing

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

da te the transcript 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 party's P roposed

R ecommended O rder was duly considered in the preparation of t his

Recommended Order.

FINDING S OF FACT

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

two 432 - bed substance abuse treatment, transition and vocational

training centers (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. On June 10, 2014, the Department issued the ITN

entitled, ÐComprehensive Re - Entry Se rvices 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, ca se management,

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

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

Under the ITN, prospective vendors could submit proposals for one

or both Re - Entry Centers; however , separate re plies would be

required for each.

3. On July 10, 2014, DOC issued Addendum #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 hea lth 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 h ealth

personnel on - site at either facility?

Answer #77: The Department 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 Service s will

be provided by Corizon, Inc. at Baker Re -

Entry Center and [by] Wexford 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 mental illness an inmate is demonstrating to determine

what kind of personnel is required 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. The rationale behind DOCÓs response to question #77 was

explained by Kim Riley, DOC Director of Re - Entry, who said,

Because Everglades CI, which is the parent

facility for Everglades Re - Entry Center,

there had been some discussion about the

possibility of allowing S3 inmates, those

inmates who take psychotropic medication, to

participate in the Re - Ent ry programming

rather than denying them admission at the

Everglades Re - Entry Center. So because of

that discussion, we noticed in this ITN that

they could possibly be placed on a limited

basis at Everglades Re - Entry Center.

6. Bridges is a Florida corp oration, established in 1980.

Over the past 34 years, Bridges has managed over 125 contracts

with the Department.

7. CEC is a Florida corporation that has been providing

correctional treatment and re - entry services for over 18 years to

criminal justice p opulations, employs more than 3,500

individuals, and has serviced more than 210,000 incarcerated

persons.

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

by Bridges ; CEC ; Geo Re - Entry Services, LLC ; Bridge for Hope ; The

Transition House ; and th e Village South, Inc., for the Everglades

contract. Bridges and Geo also submitted Replies to the Baker

ITN.

9. 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 that each Reply

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 re view. Each of the evaluators was

experienced in the review process. They were provided a manual

and training by Ms. Wright to help focus their reviews of the

Replies.

10. The manual directed evaluators to develop negotiation

points and prepare negotiati on topic sheets for each vendorÓs

Reply as a guide for the negotiation team. Evaluators who were

also going to serve as negotiators were instructed to retain

their copies of the vendorsÓ Replies for use in negotiations.

11. The evaluators individually s cored each Reply using the

scoring criteria set forth in revised Attachment 7 of the 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:

Bridges 845.55

Geo Re - Entry Services 803.60

CEC 767.00

The Village South 714.38

Transition House 695.38

Bridge for Hope 68.57

12. The scores were presented to Ms. Wright, who fo rwarded

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 negotiate with Bridge s,

Geo , and CEC as the three proposals with the highest scores.

13. The Department then scheduled negotiation sessions with

each of those vendors. In addition to Mahoney, two other

negotiators (James Freeman and Dan Eberlein, both of whom had

served as evaluators) took part in the process. The negotiation

sessions were held on August 14 - 15. Rosalyn Ingram, the DOC

Bureau Chief over Procurement, acted as the Department of

Management Services certified negotiator facilitating the

negotiation process.

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

was published in the Miami Herald which discussed possible inmate

populations at Baker and Everglades. The article seemed to infer

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

sign ificant mental health issues.

15. 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. If the entire

Everglades facility had been changed to a mental health facility,

that fact could change the ITN specifications. Exactly how it

would change was not certain, as no re - entry center with all

mental health inmates exists. The Department decided to reopen

the negotiation process for both Baker an d Everglades to address

any possible changes to the ITN caused by the change in inmate

population.

16. A telephonic negotiation session was noticed and then

held on September 4 between the Department and each of three

vendors: Bridges, CEC, 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 - Br own), was asked if it

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

affirmative.

17. On September 5, after conclusion of all negotiation

sessions, the Department issued Requests for Best and Final Offer

(RBAFO) to Bridges, Geo , and CEC conc erning their interest in

offering contracts for the Everglades Re - Entry Center. An RBAFO

is sent only to vendors which the Department believes can

adequately and efficiently meet the requirements of the ITN.

Each of the vendors submitted their Best and F inal Offer (BAFO)

on September 11.

18. After review of the BAFOs from all vendors, the

Department chose to award the contract to CEC despite Bridges

having a slightly lower per diem rate than CEC ($14.65 versus

$14.58). Upon review of all proposed servic es, the Department

felt like CEC was providing significantly more for the proposed

budget than Bridges could provide. Bridges timely filed a formal

written protest and petition for formal administrative hearing,

resulting in the instant proceeding.

19. 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 f lexibility of Programming; and

d. Cost.

20. The negotiators ultimately decided that the proposal by

CEC should be approved. Mr. Mahoney preferred CECÓs description

of Unit Management over its competitorÓs descriptions.

Mr. Freeman concurred, finding t hat CECÓs proposal provided the

best value to the State, especially in light of CECÓs value - added

services, i.e., those services which would be provided outside

the stated contract price. Mr. Eberlein saw CECÓs proposal as

being more flexible in its progr amming. Each of the evaluatorsÓ

preferences is warranted based on the evidence presented.

21. Despite being directed to retain their copies of the

vendorsÓ Replies for use in the negotiations, neither Freeman nor

Eberlein did so. However, each of them h ad familiarized

themselves with the Replies and applied the elements of the

Replies to their final review during negotiations.

22. The process for this particular ITN admittedly had some

unusual but unforeseeable issues. Generally, once the Department

has decided which vendors 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

th e Department at first believed 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 amendment or rescission of the ITN.

23. 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

inmates. The Everg lades contract already presupposed some level

S3 inmates, those who were taking psychotropic drugs, so there

was little change to the ITN specifications for that facility.

24. At any rate, the Department decided to reopen

negotiations in order to allow th e interested vendors to address

the S3 inmate issue. The Department had further negotiation

sessions with the vendors for Everglades on September 4. The

vendors were asked how they intended to handle the S3 inmates.

25. As a result of the negotiation sessions, the Department

requested BAFOs from the three vendors for the Everglades

facility contract. Each vendor timely submitted a BAFO for

consideration by the Department.

26. Bridges maintains that CECÓs Reply to the ITN was not

responsive because t he Reply only included staffing for

activities Monday through Friday rather than for seven days a

week. DOC saw that omission as nothing more than a clerical

error because the Reply, when considered as a whole, obviously

contemplated staffing for seven da ys per week. The omission of a

staffing schedule for Saturday and Sunday is not dispositive of

CECÓs Reply. There are numerous references in the Reply

indicating CECÓs intention to provide services seven days per

week. The omitted staffing schedule does not rise to level of

being Ðnon - responsive to the ITN.Ñ

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

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

sp ecifically 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, Dep t. of Lottery v. Gtech Corp. , 816 So. 2d 648,

651 (Fla. 1 st DCA 1999).

28. An invitation to negotiate is governed by the

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

provides in pertinent part: ÐAfter negotiations are conducted,

the agenc y 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 .

29. The burden of proof in this proceeding lies with the

Petitioner who, as the party opposing the DepartmentÓs decision,

must show Ða groun d 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

underlying findings of fact in this case are to be determined

using the preponderance of the evi dence 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 action

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

Contracting and EngÓg , su pra , 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 Intercontin ental Properties, Inc. v. State

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

DCA 1992).

31. 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 of review. R.N. Expertise, Inc. v. Miami - Dade Cnty .

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

Dade Sch. Bd. Mar. 2002) .

32. The Florida Legislature expressly recognizes that Ðfair

and open competition is a basic tenant of public procurement;

that such competition reduces the appearance and opportunity for

favoritism and i nspires public confidence that contracts are

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

33. The objectives that the State seeks in having

competitive procurements are the following:

[T]o protect the public against collusive

contracts; t o 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 th e [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) ) .

34. 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) Clearly erroneous;

(b) Contrary to competition; or

(c) Arbitrary or capricious.

R.N. Experti se , ¶ 78.

35. 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 suggest 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 exists in the present case. The

evaluatorsÓ failure to retain copies of the Replies was

erro neous, but minor in nature and overcome by the fact that the

information in the Replies was nonetheless considered.

36. I t has been generally stated that the Ðcontrary to

competitionÑ standard is equivalent to the standard set out in

Wester v. Belote , 1 38 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, at

¶ 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, taking the

extraordinary step of reopening negotiations.

37. An arbitrary decision has been desc ribed 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.

38. Bridges also alleges that ÐDO C 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 and carefully rev iewed each vendorÓs

proposal and made a decision based upon the stated criteria.

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

does not invalidate their review. It was undertaken in

accordance with all applicable policies and principles .

39. 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. Th e 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

proposal as submitt ed could accommodate the small number of S3

inmates.

40. There is, therefore, no basis for overturning the

DepartmentÓs determination that CEC is the best and appropriate

vendor in lieu of BridgesÓ proposal.

RECOMMENDATION

Based on the foregoing Find ings 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 Everglades Re - Entry Center to Community Education Centers,

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

Tallahassee, Florida 323 99 - 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 Corrections

501 South Cal houn Street

Tallahassee, Florida 32399 - 2500

(eServed)

David C. Ashburn, Esquire

Fred F. Harris, Esquire

Greenberg Traurig, P.A.

Post Office Drawer 1838

Tallahassee, Florida 32301

(eServed)

Amy W. Schrader, Esquire

GrayRobinson, P.A.

301 South Bronough Street, Suite 600

Tallahassee, Florida 32302 - 3189

(eServed)

Timothy Cannon, Interim Secretary

Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

(eServed)

Jennifer Parker, General Counsel

Department of Corrections

501 S outh 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.