16-005237BID Bridges Of America, Inc. vs. Department Of Corrections Status: Closed Recommended Order on Wednesday, November 23, 2016.

Summary: Petitioner did not demonstrate that the proposed RFP specifications were clearly erroneous contrary to competitive, or arbitrary and capricious.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIDGES OF AMERICA, INC.,

Petitioner,

vs. Case No. 16 - 5237BID

DEPARTMENT OF CORRECTIONS,

Respondent.

_______________________________/

RECOMMENDED ORDER

On October 12 and 13 , 201 6, Administrative Law Judge Lisa

Shearer Nelson of the Florida Division of Administrative Hearings

conducted a duly - noticed hearing pursuant to section 120.57(3),

Florida Statutes (2016) , in Tallahassee, Florida.

APPEARANCES

For Petitioner: Amy W. Schrad er, Esquire

Baker Donelson

Suite 925

101 North Monroe Street

Tallahassee, Florida 32301

For Respondent: Jonathan P. Sanford, Esquire

Sean W. Gellis, Esquire

Florida Department of Corrections

501 South Calhoun S treet

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue to be determined is w hether the specifications for

Request for Proposals number FDC RFP - 17 - 108, ÐCommunity Release

Center (CRC) in Orange County, Florida,Ñ are contrary to the

govern ing statutes, rules o r policies of the Florida Department

of Corrections ( the Department or DOC).

PRELIMINARY STATEMENT

On August 11, 2016, the DOC advertised a Request for

Proposal s (RFP) with advertisement number RFP - 17 - 108, entitled,

ÐCommunity Release Center (CRC) in Orange County, Florida Ñ (RFP -

17 - 108 or the RFP). On August 16, 2016, Petitioner, Bridges of

America, Inc. (Petitioner or Bridges), notified the Department

that it intended to protest the specifications of FDC RFP - 17 - 108

pursuant to section 120.57(3) and Florida Administrative Code

Rule 28 - 110.003. Bridges filed a Formal Written Protest and

Petition for Formal Administrative Hearing on August 26, 2016,

which the Department forwarded to the Division of Administrative

Hearings for assignment of an administrative law judge on

September 13, 2016.

Petitioner moved for leave to file an Amended Written

Protest and Petition for Formal Hearing, which was granted by

Order date d September 16, 2016. That same day a Notice of

Hearing was issued scheduli ng the hearing for October 12 and 13,

2016. The Department moved to dismiss the Amended Petition,

which was denied by Order dated September 30, 2016. On

October 10, 2016, the parties filed a Joint Pre - h ea ri ng

Stipulation in which it was agreed that DOC w ould revise portions

of the RFP to address BridgesÓ concerns regarding the time for

contract performance and the requirement to pay for a contract

monitor. Given this stipulation, the remaining issue for

resolution in this proceeding is whether the omissi on of

substance - abuse transition beds in Orange County as part of the

RFP is contrary to governing law, arbitrary and capricious, or

contrary to competition.

The hearing commenced on October 12, and concluded the

following day. At hearing, t he parties sub mitted Joint Exhibits

1 through 6 and 10 through 19. Petitioner presented the

testimony of Lori Constantino - Brown, PetitionerÓs President and

CEO; Abraham Uccello, DOCÓs Director of Development, Improvement

and Readiness; John Becker, Assistant Bureau Chi ef for

Classification Management; Margaret Agerton, Assistant Bureau

Chief of In - Prison Substance Abuse Management; and Mark Tallent,

Budget Director for the Department. The DepartmentÓs Exhibits

numbered 1 through 3 were also admitted.

The three - volume Transcript of the proceedings was filed

with the Division on October 19, 2016. Both parties filed their

Proposed Recommended Orders on October 31, 2016. All references

to the Florida Statutes are to the 2016 codification unless

otherwise indicated.

FIND ING S OF FACT

Based upon the oral and documentary evidence presented at

hearing, the following facts are found:

1. Petitioner is a vendor that currently holds contracts

with the Department to provide work - release beds and transitional

work - release beds th roughout the state of Florida and holds a

contract providing these services in Orange County, Florida. Its

Orange County facility is referred to in this proceeding as

Orlando Bridges and qualifies as a community release center .

Bridges is a vendor who wo uld, potentially, bid on the request

for proposal at issue in this case. Petitioner has standing to

challenge the specifications of RFP - 17 - 108 , and there is no

dispute that Petitioner timely filed its notice of intent to

protest the specifications; timely filed a formal written

protest; and timely filed the required protest bond .

2. On August 11, 2016, the Department issued FDC RFP - 17 -

108, ÐCommunity Release Center (CRC) in Orange County, Florida. Ñ

A c ommunity r elease c enter is defined by Florida Adminis trative

Code Rule 33 - 601.602(1)(n) as Ða correctional or contracted

facility that houses community custody inmates participating in a

community release program.Ñ

3. The RFP seeks pr oposals from vendors to provide:

A facility located in Orange County,

Flor ida, with qualified staff to deliver a

Community Release Center (CRC) for male

inmates. Services will include operation of

each facility, security, supervision,

housing, care, meals, employability skills,

licensed substance abuse outpatient and

after care services, cognitive - behavioral

interventions, parenting, family

reunification, anger management, mentoring,

budgeting, victim awareness and related

transition services to enhance the inmateÓs

successful reintegration back into society.

The Department int ends to award one contract

in Orange County for up to seventy - five (75)

male beds. The number of awarded beds will

be determined by the Department based on the

VendorÓs response to this RFP. The

Department reserves the right to increase or

decrease the b ed allocation based on the

DepartmentÓs need, and the appropriation of

funds.

4. The contract currently held by Bridges for its Orlando

Bridges facility , Contract #C2489, was executed in 2008, and has

been renewed and extended a number of times. It is scheduled to

expire December 31, 2016. Under the current contract, Bridges

provides up to 54 work release beds and up to 84 substance - abuse

treatment transition beds (transition beds) . The Department

currently pays, on average, $21 per day, per inmate, f or work -

release beds. It pays an average of $52 per day for transition

beds. Orlando Bridges also holds other contracts with the

Department: according to Petitioner, it has slightly under 400

inmates currently , with 134 beds under Contract # C2489; 100 b eds

under a probation diversion program; and the remainder under other

work - release programs .

5. The difference in cost between transition beds and work -

release beds reflects the difference in services currently

provided. For transition beds, inmates ar e placed at a facility,

such as the Orlando Bridges campus , which operates as a modified

therapeutic community . Depending on the terms of the governing

contract, t he facility can either be provided by the vendor, as is

the case with Orlando Bridges, or ca n be a Department - owned

facility operated by a private vendor. The inmates assigned to

transition beds receive intensive therapeutic services, including

education, substance - abuse treatment, vocational training,

employment and re - entry assistance, dependi ng on the individual

inmateÓs needs. The inmate focuses on treatment during this

p ortion of the program. Once the treatment portion of the program

is completed, inmates are transferred to work - release beds, where

the goal is obtaining and maintaining wor k - release employment.

Inmates receive some additional treatment while in work - release

beds, but the focus is on employment.

6 . Orlando Bridges is a 15 - acre campus that could house up

to 400 inmates. It is not a secure facility: it does not have a

secu red perimeter and does not have armed guards.

7 . Under Contract #C2489, Orlando Bridges is assigned a

Ðparent institution , Ñ which is located in the same geographic area

and provides oversight and limited classification services to

Orlando Bridges. The contract also provides for the

transportation of inmates in the event that medical care is

needed, because medical services are not included within the scope

of the contract.

8 . Contract #C2489 also delineates the process to be used

should an inmate be terminated from the program or released from

custody . Specifically, Contract #C2489 provides:

T. Termination from the Work

Release/Program Center

All behavior problems, escapes, disciplinary

problems, unusual incidents, special medical

issues and reques ts for inmates to be

removed from the program shall be reported

to the OIC of the parent institution. The

Department is responsible for terminating

inmates from the Substance Abuse

Transitional/Work Release (Re - entry) Program

Center. An inmate may be ter minated and

returned to the physical custody of the

Department from the Substance Abuse

Transitional/Work Release Program Center

when it has been determined that to do so is

in the best interests of the Department, the

Substance Abuse Transitional/Work Rel ease

(Re - entry) Program Center, and/or the inmate

or for any other compelling reason related

to public safety. Pursuant to this Contract

and Department Policy, the Warden of the

parent institution or other Department staff

is authorized to approve an inma teÓs

termination from the Transitional Work

Release/Program Center. If it becomes

necessary to terminate an inmate from the

program, Department staff or other law

enforcement staff shall assume physical

custody of the inmate and transport the

inmate to an appropriate facility. . . .

U. Release of Inmates from the Custody of

the Department of Corrections

All inmates placed by the Department into

the ContractorÓs Substance Abuse

Transitional/Work Release (Re - entry) Center

shall remain in the Substance Abu se

Transitional/Work Release (Re - entry) Program

Center program until their sentence of

incarceration is completed, or until

returned to the DepartmentÓs custody by

reason of termination from the Substance

Abuse Transitional/Work Release (Re - entry)

Program Center program. . . . (emphasis

added).

9 . The Department currently has contracts for five

facilities providing transition beds like those provided under

Contract #C2489. The Department also has contracts that provide

only for work - release beds, and has contracts of this type with

Petitioner. For example, Turning Point in Broward County is a

contract for 99 work - release beds and is a Bridges - owned facility.

10 . RFP - 17 - 108 seeks proposals for work - release beds only ,

although 21 more than are currently p rovided through Contract

#C2489. The Department is not seeking transition beds , with their

more intensive treatment component, as a part of this RFP. As a

result, should Bridges choose to bid on this RFP, it would provide

services for 63 fewer beds than it provides under the current

contract , at an intensity level that is higher than the current

work - release beds and lower than the current transition beds .

11 . While the RFP seeks proposals for work - release beds as

opposed to transition beds, there are some similarities between

the RFP and the current contract because both deal with services

provided at a community release center. For example, the RFP

specifies that there will be a correctional institution that will

be designated as a parent institutio n to provide oversight and

limited classification services , and has many of the same

provisions with respect to licensure, facilities, staffing and

oversight.

12. The RFP requires the vendor to provide job development,

placement, and retention services , as did previously issued

contracts providing for work - release beds . However, t he RFP also

requires bidders to provide readiness programs and services to

address individual criminogenic needs of the inmate , such as

development of independent living skills and economic self -

sufficiency ; mentoring ; budgeting ; anger management ; cognitive -

behavioral interventions ; educational and literacy skills

development ; parenting ; family reunification ; life skills ; victim

awareness ; and outpatient and aftercare substance - abuse services.

1 3 . Similar to Contract #C2489 , there are provisions within

the RFP that refer to inmates being Ðreturned to the physical

custody of the Department.Ñ See , for example, se ctions 2.8.1

(Facility Intake) and 2.11.1.14 (Inmate Termination from the CRC).

1 4 . RFP - 1 7 - 108 is an initial step in a change of focus for

the Department when it comes to providing substance - abuse

treatment and work - release services to inmates. The overall

vision is identified in Joint Exhibit 3, a document entitled

ÐTiming of Effective Intervention .Ñ Joint Exhibit 3 is a document

prepared by Maggie Agerton at the request of her supervisor,

Abraham Uccello, to address how best to use the DepartmentÓs

existing resources to provide the greatest amount of treatment to

t he most inmates. It is an internal document that has not b een

formalized. Mr. Uccello, who requested that the document be

prepared, described Joint Exhibit 3 as a work product document and

did not know what the final version would look like.

15. Depart ment staff testified that the Department is

looking at a new approach to providing work - release and substance -

abuse services, because as a result of inmate classifications

based upon the nature of the offenses committed, only nine percent

of the inmate pop ulation qualifies for placement in the

community . 1/ The Department has a budget of approximately $27

million devoted to contracted substance - abuse treatment. Of that

$27 million, approximately $15,489,548 ( 57% ) of the budget is

currently allocated for 68 8 transition beds statewide. Work -

release slots with related treatment represent $789,927 of the

budget. The remainder of the budget ($10,933,333) is used to

serve the needs of the remaining 91% of the inmate population.

16. The DepartmentÓs concern is that more resources should

be used to treat moderate to high - risk inmates, because best

practices studies show that these inmates are the one that most

need the services to reduce recidivism. The DepartmentÓs data

indicates that approximately 62% of the inmate popu lation have an

identified need for substance - abuse treatment, and under the

current model, a significant percentage of the inmates with an

identified need is being untreated.

17. In light of these concerns, the Department intend s to

move some, but not all, of its substance - abuse treatment Ðbehind

the fenceÑ (i.e., in secured institutions) in order to reach a

greater number of inmates. It also seeks to expand the number of

work - release slots, with a Ðsubstance - abuse treatment overlayÑ for

those expanded slots. As described in Joint Exhibit 3, the

proposed approach is to provide as much intervention as possible

while the inmate is housed in a secure facility; to require

inmates mandated for substance - abuse treatment to receive it prior

to being placed in work release; to use work release as a

Ðprivilege and incentive for hard work in core programming a nd

readying oneself for releaseÑ; and to consider work release as the

final transitional step between readiness and community

transition. The prim ary focus of work release would be to obtain

and maintain paid employment. Participants, however, would be

given the opportunity to complete any domain programming that was

not completed at the secure facility.

18. To that end, Joint Exhibit 3 identif ied requirements

from prior requests for proposals and added some additional

requirements for the work - release beds they would be seeking. The

working document provides:

Ʊ In previous solicitations, proposers

were required to provide, at a minimum:

Ʋ A facility/site which provides

housing in a clean, safe

environment;

Ʋ Sufficient qualified staff to

operate the facility and programs;

Ʋ Three (3) nutritious, balanced meals

per day prepared on site and/or

including preparation of sack

lunches for i nmates employed away

from the CRC during scheduled meal

times (if the meal cannot be

consumed on site for these inmates);

Ʋ Job development, job placement and

job retention services;

Ʋ Access to transportation as required

by Department rules and reg ulations;

Ʋ Personal financial management

instructions; and

Ʋ Licensed outpatient substance abuse

treatment, intervention, and

aftercare.

Ʊ In the current soli ci tation, the

proposer must also provide readiness

programs and services to address indivi dual

criminogenic needs of the participants.

These s ervices are intended to facilitate

successful reintegration in the community

upon completion of incarceration through

development of independent living skills and

economic self - sufficiency gained through

meaning ful employment. These include:

Ʋ Cognitive - behavioral interventions;

Ʋ Parenting ;

Ʋ Family reunification;

Ʋ Anger management ;

Ʋ Mentoring, budgeting ;

Ʋ Victim awareness ;

Ʋ Compass 100; and

Ʋ Related transition services and

referrals .

Ʊ Readiness programming is based on

individual needs and will be provided in

instances where the participant did not

receive the required level of service prior

to placement at the CRC.

19. The terms of the RFP are consistent with the approach

outlined in Joint Exhibit 3.

20. RFP - 17 - 108 has no per diem rate specified that proposers

are required to meet. The Department has left the cost open so

that it can determine whether this approach is financially

feasible. If a vendor believes that there are extra costs to run

a facility as bi d, the vendor can include those costs in the price

it submits . If all bids come back too high, the Department will

have to determine whether they can afford this approach.

21 . The stated intention of the Department is, as current

contracts for transition beds expire over the course of the next

four years, the contracts will be allow ed to expire or will

perhaps not be renewed. No existing contract is being terminated.

The goal is to replace the 688 transition beds with expanded work -

release beds in the c ommunity. While substance abuse would then,

for the most part, be provided behind the fence, even if the

strategy is characterized as ÐmovingÑ these 688 beds, the move

would a ffect approximately .6 percent of the DepartmentÓs current

prison population.

22 . Like all state agencies, the ability for the Department

to implement programs depends upon the LegislatureÓs willingness

to fund them. Petitioner contends that the Department is not free

to pull back transition beds and move substance abuse treatment

a nd more intense therapy behind the fence, because of a proviso in

the DepartmentÓs budget. To support this contention, they point

to a section of the DepartmentÓs budget from the General

Appropriations Act ( GAA) for 2016, House Bill 5001, submitted as

Joi nt Exhibit 17. The specific line item from which the current

funding for substance abuse treatment is authorized is line item

633. Section four of the GAA for 2016 contains the following

proviso:

From the funds in Specific Appropriations

598A through 755 , the Department of

Corrections shall, before closing,

substantially reducing the use of, or

changing the purpose of any state

correctional institution as defined in

section 942.02, Florida Statutes, submit its

proposal to the GovernorÓs Office of Policy

a nd Budget, the chair of the Senate

Appropriations Committee, and the chair of

the House Appropriations Committee for

review.

23. Based upon this limitation, Petitioner contends that the

DepartmentÓs issuance of the RFP signals its intention to close,

su bstantially reduce the use of, or change the purpose of a state

correctional institution, by substantially reducing and changing

the purpose of the facility at Orlando Bridge. Notably, the

proviso contains no mention of substance abuse treatment or

transi tion beds.

24. Mr. Uccello testified that, at the request of Kim Banks,

the DepartmentÓs CFO, and Steven Fielder, DOCÓs Chie f of Staff, he

made a presentation regarding the overall developmental plan for

in - prison programs and treatment in a general meeti ng between the

Office of Policy and Budget ( OPB and House and Senate

Appropriations staff. He understood that it was an informational

meeting, and did not believe that approval of the proposal was

required. There was no testimony to indicate that the pro posal

was presented to the chairs of the House and Senate Appropriations

Committees.

2 5 . PetitionerÓs President and CEO, Lori Constantino - Brown,

state that this RFP, compared to Orlando BridgesÓ current

contract, would require changes to all of BridgesÓ policies and

operational procedures, would result in layoffs of her employees ,

and would limit the number of inmates serve d in a community

setting . She also testified that there are additional costs

needed to run the facility as proposed, and providing th e services

with the limited number of beds proposed , would not be cost -

effective for any vendor.

26 . Ms. Constantino - Brown acknowledged that Bridges does not

have a right to provide transition beds as they exist under the

current contract , and that an awa rd to a different bidder would be

lawful . She also ackno wledged that if Orlando Bridges closed on

January 1, 2017, because its contract expired, that would also

result in staff layoffs. The same result would occur should

another vendor successfully bid o n the RFP.

27. Petitioner has not demonstrated that the specifications

of the RFP are arbitrary and capricious. The specifications are

consistent with the DepartmentÓs intended restructuring of

substance - abuse treatment and work release opportunities for

inmates. Whether or not the plan is ultimately successful, the

thought process behind the specifications included in the RFP is

to address legitimate concerns for providing the most treatment to

the greatest number of inmates.

28. Petitioner stated at h earing that it was not challenging

the policy articulated in Joint Exhibit 3, but spent a significant

amount of time trying to establish that the changed strategy would

not be less costly. However, the Department staff candidly

testified that at this poin t, it is not possible to determine

whether there would be any savings, because they do not know what

vendors would identify as a price until they get responses to the

RFP.

29. Petitioner has not demonstrated that the RFP is contrary

to competition. While there was some testimony that the

requirements of the RFP may be cost - prohibitive for Bridges to

respond , there was no real evidence to indicate that it created an

advantage for any vendor over others.

30. While Petitioner claims it is not challenging the policy

change itself, it points to no term in the RFP that it finds

offensive. The challenge, instead, is to what is not included:

transition beds like the ones Bridges provides now. It contends

that this omission amounts to the closure, substantial change in

services, or substantial reduction in services provided by a state

correctional institution, and therefore violates the proviso

limitation in the General Appropriations Act.

31. No term or specification in the RFP closes a state

correctional institution.

32. No term or specification in the RFP substantially

reduces the use of a state correctional institution. While there

is some reduction in the number of beds provided for in the RFP,

there is also a proviso allowing for an increase in the n umber of

beds, depending on need and funding. Moreover, the beds included

in Contract #C2489 do not represent all of the beds at Orlando

Bridges.

33. No term or specification in the RFP changes the purpose

of any state correctional institution. The purp ose of Orlando

Bridges, under its current contract, is to provide readiness

programs to assist inmates to prepare for re - entry in society.

RFP - 17 - 108 seeks proposals for readiness programs, albeit using a

restructured program model. While the vehicle may be different,

the purpose remains the same: preparing inmates for release with

a goal of lower recidivism.

CONCLUSIONS OF LAW

3 4 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties in this

proceeding pursuan t to sections 120.569 , 120.57(1), and

120.57(3) , Florida Statutes (2016) .

3 5 . This case purports to be a protest to the

specifications in RFP - 17 - 108. Section 120.57(3) (f) provides:

. . . Unless 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 agencyÓs p roposed action is

contrary to the agencyÓs governing statutes,

the agencyÓs rules or policies, or the

solicitation specifications. The standard

of proof for such proceedings shall be

whether the proposed agency action was

clearly erroneous, contrary to co mpetition,

arbitrary, or capricious.

3 6 . Bid protests are in the nature of de novo renew, albeit

on a somewhat modified basis. As stated in State Contracting and

EngÓg Corp. v. DepÓt of Transp. , 709 So. 2d 607, 609 (Fla. 1st DCA

1998), Ðthe phrase Òdo novo hearingÓ is used to describe a form of

intra - agency review. The judge may receive evidence, as with any

formal hearing under section 120.57(1), but the object of the

proceeding is to evaluate the action taken by the agency.Ñ

3 7 . Petitioner must dem onstrate the factual basis for its

challenge by a preponderance of the evidence. Id . ; Florida DepÓt

of Transp. v . J.W.C. Co. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

3 8 . The First District Court of Appeal has emphasized that

agencies have wide discreti on in the bidding process: an agencyÓs

decision Ðshould not be overturned Òeven if it may appear

erroneous and even if reasonable persons disagree. Ó The hearing

officerÓs sole responsibility is to ascertain whether the agency

acted fraudulently, arbitrar ily, illegally, or dishonestly.Ñ

Scientific Games, Inc. v. Dittler Bros. , 586 So. 2d 1128, 1131

(Fla. 1st DCA 1991)(citations omitted).

3 9 . In this case, Petitioner is challenging the

specifications of the RFP as opposed to challenging an award to a

suc cessful bidder. Therefore, as stated by the First District,

Ð[a] challenge to an RFP must be directed to specifications that

are so vague that bidders cannot formulate an accurate bid, or are

so unreasonable that they are either impossible to comply with or

too expensive to do so and remain competitive.Ñ A dvocacy Ctr. for

Pers. with Disab . , Inc. v . DepÓt of Child . & Fam . Servs. , 721 So .

2d 753, 755 (Fla. 1st DCA 1998). This burden is consistent with

the purpose for bid solicitation protests as articulate d in

Capeletti Bro thers v. Department of Transportation , 499 So. 2d

855, 857 (Fla. 1st DCA 1986), to Ðallow an agency, in order to

save expense to the bidders and to assure fair competition among

them, to correct or clarify plans and specifications prior t o

accepting bids.Ñ

40 . An act is considered to be contrary to competition if it

runs afoul of the objectives of competitive bidding, which are:

[t] o protect the public against collusive

contracts, to secure fair competition upon

equal terms to all bidde rs; 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 . . . .

West er v. Belote , 138 So. 721, 723 - 24 (Fla. 1931); s ee also Harry

Pepper & Assoc., Inc. v. City of Cape Coral , 352 So. 2d 1190, 1192

(Fla. 2d DCA 1977).

41 . As a preliminary matter, Petitioner is not actually

challenging any particular specification that is i ncluded in RFP -

17 - 108. It has stated that this challenge is not to what the

specifications require, but rather to the omission of transition

beds like those in the current contract. Yet Petitioner

acknowledges that there are currently contracts that do n ot

include transition beds and points to no statutory requirement to

include them in any solicitation for substance - abuse treatment or

work - release beds.

42 . What Petitioner is really challenging is the

DepartmentÓs intention, as outlined in its working document

admitted as Joint Exhibit 3, to expand its work - release beds at

community release centers and move more of its substance - abuse

treatment behind the fence where more inmates may be served.

While the Department is hoping that this model will result in

savings and the ultimate increase in treatment of more needy

inmates, it will also result in less lucrative contracts for

vendors. PetitionerÓs intention to challeng e the plan is evident

in its Proposed Recommended Order: indeed, paragraphs 15 throug h

22, 26 , and 27 all address the overall plan as articulated by

Joint Exhibit 3, and not any specification in the RFP itself.

Simply put, however, Joint Exhibit 3 is not the RFP, and a

challenge pursuant to section 120.57(3) is not the vehicle by

which to challenge Joint Exhibit 3.

4 3 . Petitioner relies heavily on the decision in Florida

Association of Medical Equipment Services v. Agency for Health

Care Administration , Case No. 02 - 1400BID (DOAH Oct. 18, 2002; AHCA

Jan. 16, 2003)( FAMES ). In FAMES , AHCA sought to limit the number

of durable medical goods providers through the issuance of an RF P.

FAMES challenged the specifications to the RFP, arguing

successfully that AHCA had failed to seek a waiver from a federal

requirement that Medicaid recipients be afforded a choice of

providers. Unlike the situation presented in this case, there was

an express statutory requirement in substantive federal law that

mandated AHCA to seek the waiver it had chosen not to seek. In

other words, approval by the federal g overnment served as a

condition precedent, prescribed by statute, before AHCA could

proceed with the RFP.

4 4 . No similar condition precedent exists here. There is no

statutory requirement that all community release centers contain

intensive - therapy tran sition beds such as those in the current

contract . Indeed, the definition of a community release center is

Ða correctional or contracted facility that houses community

custody inmates participating in a community release program.Ñ

Fla. Admin. Code R. 33 - 601.602( 1)(n). RFP - 17 - 108 contains

specifications that require not only job - readiness training but

also a treatment component based on the individual needs of the

inmates. See paragraph 12. There is no statutory or rule

requirement that they provide mor e.

4 5 . Petitioner contends that the RFP specifications run

afoul of the proviso language in GAA 2015 , which affects line item

633 of the budget. As noted in the findings of fact, the budget

proviso states:

From the funds in Specific Appropriations

598A through 755, the Department of

Corrections shall, before closing,

substantially reducing the use of, or

changing the purpose of any state

correctional institution as defined in

section 942.02, Florida Statutes, submit its

proposal to the GovernorÓs Office of Policy

and Budget, the chair of the Senate

Appropriations Committee, and the chair of

the House Appropriations Committee for

review.

46. For PetitionerÓs argument to prevail, it must

demonstrate that Orlando Bridges meets the definition of a state

co rrectional institution , and that the Department is 1) closing

the facility; 2) substantially reducing the use of the facility;

or 3) changing the purpose of the facility . If so, Petitioner

must also prove that DOC failed to submit its proposal to OPB, and

the chairs of the House and Senate Appropriations Committees.

47. Section 944.02(8) defines a stat e correctional

institution as Ðany prison, road camp, prison industry, prison

forestry camp, or any prison camp or prison farm or other

correctional faci lity, temporary or permanent, in which prisoners

are housed, worked, or maintained, under the custody and

jurisdiction of the department.Ñ

48. The Department contends that community release centers

do not meet this definition, because the agency headquar ters do

not view them in that light and, more importantly, there are

provisions within both the current contract and the RFP that

reference returning inmates to the physical custody of the

Department under certain circumstances. If inmates are ÐreturnedÑ

to the physical custody of the Department, it reasons, then

prisoners are not in the DepartmentÓs custody while at a community

release center, and therefore the community release center does

not meet the definition of a state correctional institution.

2 3

49. While the DepartmentÓs argument has some appeal, it must

be rejected. Rule 33 - 601.602(1)(c) defines a community release

program as any program that Ðallows inmates to work at paid

employment or a center work assignment or to participate in

education, tr aining, substance abuse treatment programs, or any

other transitional program to facilitate re - entry into the

community while in a community release center. Ñ There are a

number of appellate cases, albeit in a different context, that

expressly described wo rk release centers or community release

centers as state correctional institutions or facilities . See,

e.g. , Poillot v. State , No. SC15 - 1691, 2016 Fla. LEXIS 1996, 41

Fla. Law Weekly S 370 (Fla. Sept. 8, 2016) ; Thomas v. State , 741

So. 2d 1246 (Fla. 2d DC A 1999)( ÐThomas was confined in the

St. Petersburg Community Correctional Center, a state correctional

facility.Ñ). In these cases, the issue was whether defendants

were guilty of committing certain enumerated crimes Ðwithin three

years after being r eleased from a state correctional facility

operated by the Department of Corrections or a private vendor Ñ

pur suant to what is now codified at section 775.082(9)(a)1.,

Florida Statutes. If a community release center is a state

correctional facility for pur poses of a criminal conviction, it

must be within the definition of a state correctional institution

as defined in section 944.02 here.

50. Given that a community release center qualifies as a

state correctional institution, the next step in the inquiry is to

determine the extent to which the proviso language applies to the

issuance of the RFP, if at all. This question is a thorny one,

because of the constitutional prohibition against placing

substantive provisions within an appropriations bill. As stat ed

in Department of Administration v. Horne , 269 So. 2d 659 , 662

(Fla. 1972) :

Actual modifications of existing statutes or

new provisions which are plainly substantive

in nature and upon a subject other than

appropriations are in violation of

Fla.Const. a rt. III, § 12. Separate

provisions impinging upon the expenditures

set forth, which involve existing statutes

and which should have been enacted as

general legislation, are contrary to this

constitutional safeguard prohibiting

substantive law or additiona l subjects being

enacted by way of an appropriations bill.

See also Brown v. Firestone , 382 So. 2d 654, 669 (Fla. 1980) ; Fl a.

Pharmacy AssÓn v. Lindner , 645 So. 2d 1030 (Fla. 1st DCA

1994)( proviso cannot alter or amend existing law on any subjects

other t han appropriations); DepÓt of Health and Rehab ilative

Servs. v. Fla. Psychiatric So cÓy , 382 So. 2d 1280, 1283 (Fla. 1st

DCA 1980)(appropriations not statutory authority for adoption of

rules related to establishment of crisis stabilization units).

51. Th e issue has the potential to become thornier still

because administrative law judges are not empowered to declare a

statute void or otherwise unenforceable . Palm Harbor Special Fire

Control Dist. v. Kelly , 516 So. 2d 249, 250 (Fla. 1987). There is

no rea son to believe that this prohibition would not apply to

budget provisos as well as substantive statutes. In this case,

however, no determination of the constitutionality of the budget

proviso at issue is necessary, because the terms of the RFP do not

fall within the scope of the proviso in the DepartmentÓs budget.

52. RFP - 17 - 108 simply requests proposals for work release

beds with expanded services. It does not close any facility. To

the contrary, the contract the Department has with Orlando Bridge

wil l expire by its own terms on December 1, 2016. Nothing in the

RFP affects the expiration of that contract, and Ms. Constantino -

Brown acknowledged that Bridges has no right to have its contract

extended, and has no right to the existing beds. It has the

o pportunity, like any other vendor, to bid for the work - release

beds that are proposed.

5 3 . RFP - 17 - 108 does not substantially reduce the use of a

state correctional facility. It provides for 75 work - release beds

with expanded services. As noted in the f indings of fact, the

inmate beds included in Contract #C2489 do not represent all the

inmate beds occupied at Orlando Bridge . Even with the expiration

of the current contract, approximately 265 inmates would not be

affected by either the expiration of the contract or the issuance

of the RFP. Should Bridges choose to bid on the RFP and be

awarded the 75 work - release beds it proposes, the population at

Bridges would be approximately 340 inmates, which does not amount

to a substantial reduction at the instit ution . 2/

5 4 . Finally, neither the expiration of the current contract

nor the specifications of the RFP result in a change in the

purpose of a state correctional institution. The successful

vendor under the RFP, should there be one, would still be

prov iding a community release cent er. The programs sought under

the RFP continue to be programs as described for community release

centers under rule 33 - 601.602. While there are differences in the

services provided, those services are still those contemplate d by

the rule.

5 5 . Accordingly, nothing in the RFP specifications, which

are the issue in this proceeding, trigger the notification

identified in the budget proviso.

5 6 . In summary, the specifications in RFP - 17 - 108 are not

contrary to competition, a rbitrary or capricious, and do not

contravene the DepartmentÓs governing statutes, the agencyÓs rules

or policies.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Corrections amend

the RFP in a manner consistent with the stipulation of the

parties in the Joint Pre - hearing Statement , i.e., by removing the

second sentence of section 1.4 of the RFP, and by removing

section 2.5.19 of the RFP . It is also recommended that the

Department ente r a final order dismissing the Petition.

DONE AND ENTERED this 23rd day of November , 2016 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSot o Building

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 23rd day of November , 2016 .

ENDNOTE S

1/ There are fiv e levels of custody for inmates : maximum custody

is for those on death row; close custody is for inmates that are

shackled and ÐarmedÑ (presumably meaning that their arms are

restrained , as opposed to being armed in terms of handling a

weapon) when transp orted outside of a secure facility ; medium

custody requires that the inmate be shackled and can be armed

when being transported outside a secure facility; minimum custody

inmates are generally not armed but are under supervision when

transported; and commu nity custody, which refers to those inmates

that are placed in the community under community release, and can

be used on outside work squads through non - Department contracted

staff.

Some inmates can never reach community custody because of

statutory rest rictions dealing with escape, with sexual offense s ,

and certain other offenses that can never go below medium or

minimum custody. Likewise, inmates against which there are

domestic violence injunctions and those convicted of first,

second, or third - degree murder generally cannot be reduced to

community custody.

2/ Bridges focuses on the reduction of beds in the RFP over those

in the current contract, asserting that this results in a loss of

66% of its current inmate population. That is no t consistent

with Ms. Constantino - BrownÓs testimony about the total population

at Orlando Bridges.

COPIES FURNISHED:

Jonathan P. Sanford, Esquire

Florida Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399

(eServed)

Amy W. Sc hrader, Esquire

Baker Donelson

Suite 925

101 North Monroe Street

Tallahassee, Florida 32301

(eServed)

Sean W. Gellis, Esquire

Florida Department of Corrections

501 South Calhoun St reet

Tallahassee, Florida 32399

(eServed)

Julie L. Jones, Secretary

Flor ida Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399

(eServed)

Kenneth S. Steely, General Counsel

Florida Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399

(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.