17-004349BID Variety Children&Apos;S Hospital, D/B/A Nicklaus Children&Apos;S Hospital vs. Department Of Health Status: Closed Recommended Order on Tuesday, October 31, 2017.

Summary: The Petitioner did not prove that the Department's intended award to the Intervenor of the Department's Local Early Step program was clearly erroneous, contrary to competition, arbitrary or capricious.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VARIETY CHILDREN ' S HOSPITAL,

d/b/a NICKLAUS CHILDREN ' S

HOSPITAL,

Petitioner,

vs. Case No. 17 - 4349BID

DEPARTMENT OF HEALTH,

Respondent,

and

A.W. HOLDINGS, LLC, d/b/a

BENCHMARK HUMAN SERVICES,

Interve nor.

_______________________________/

RECOMMENDED ORDER

On August 30 and 31, 2017, a final hearing was held in

Tallahassee , Florida, before Robert L. Kilbride, Administrative

Law Judge of the Division of Administrative Hearin gs.

APPEARANCES

For Petitioner: Stephen B. Burch, Esq uire

Smith & Associates

Suite 202

1499 South Harbor City Boulevard

Melbourne, Florida 32901

Timothy B. Elliott, Esq uire

Smith & Associates

3301 Thomasville Road, Suite 201

Tallahassee, Florida 32308

For Respondent: Susan P. Stephens, Esq uire

Ja milynn M. Pettiway, Esq uire

Florida Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399

For Intervenor: Erik M . Figlio, Esq uire

Euge ne D . Rivers, Esq uire

Ausley & McMullen, P.A.

123 South Calhoun Street

Post Office Box 391

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether the Department of Health ' s ( " Department " ) intended

award of the contract under Request for Proposals DOH16 - 028,

Local Early Step ( " LES " ) Program o ffices ( " the RFP " ) , to

Intervenor A.W. Holdings, LLC, d/b/a Benchmark Human Services

( " Benchmark " ), is contrary to the Departme nt ' s governing

statutes, rules, policies or the specifications of the RFP, and

is clearly erroneous, contrary to competition, arbitrary or

capricious.

PRELIMINARY STATEMENT

The Department issued the RFP to obtain proposals from

organizations to offer servi ces as LES Program offices for the

Department ' s Division of Children ' s Medical Services covering

15 geographical regions throughout the state of Florida.

Proposals were received by the Department from 16 respondents.

Petitioner, Variety Children ' s Hospit al, d/b/a Nicklaus

Children ' s Hospital ( " NCH " ), the incumbent provider, and

Benchmark filed proposals for the Southernmost Coast region.

Benchmark ' s proposal was scored the highest for the Southernmost

Coast. The Department posted its intent to award con tracts for

all statewide regions on July 10, 2017. This included the intent

to award the Southernmost Coast region to Benchmark.

NCH filed a timely notice of intent to protest on July 13,

2017, and followed with a timely formal protest on July 24, 2017,

c hallenging the award. Benchmark subsequently filed a notice of

intervention and joined these administrative proceedings.

On August 30 and 31, 2017, a final evidentiary hearing was

held, attended by all parties. NCH called four witnesses:

Nancy T. Humber t, e xecutive v ice p resident of Ambulatory Services

and External Affiliations for NCH; Josepha Diaz, r egional

director of Ambulatory Services for NCH; Brittany Jada - Layne

Padilla of NCH ' s Office of Sponsored Programs ; and Janet

Dagnesses, i nterim d irector o f NCH ' s LES program.

The Department called five witnesses . The Department called

Dawn Lynch of the Department ' s Bureau of Early Steps and Newborn

Screening , and Diana Trahan, from the Office of Purchasing for

the Department. The Department also called th e three RFP

evaluators, (1) Stephanie McMillon, the l egislative and

c ommunications c oordinator for the Department ' s Bureau of Early

Steps; (2) Reneeka Rogers, a c ontract m anager with the

Department ' s Division of Disease Control and Health Protection;

and ( 3) Claudia Kassack, a contract manager with the Department ' s

Division of Children ' s Medical Services.

Benchmark, as Intervenor, called one witness, Angie Heller,

a regional director of C hildren ' s S ervices for Benchmark.

Prior to the hearing the parties fil ed a Joint Prehearing

Stipulation listing agreed - upon facts, issues of law, and

exhibits. Pursuant to the parties ' stipulation, 14 j oint e xhibits

were admitted at the start of the hearing. NCH Exhibits 1

through 1 0 , 14 through 53, and 55, and Benchmark E xhibits 1 and 2 ,

were received into evidence. NCH Exhibit s 11 and 12 w ere admitted

into evidence but only portions of each document were considered

by the undersigned . NCH Exhibits 54 and 56 through 59 were

received into evidence but later withdrawn.

The Department used the original proposals to the RFP

submitted by NCH and Benchmark as demonstrative aids during the

hearing. They were not offered or received into evidence.

Facts stipulated to in the Joint Prehearing Stipulation are

cited as " Stip. " follo wed by the designated paragraph in the

Joint Prehearing Stipulation. Joint Exhibits will be referred to

as " Jt. Ex. " followed by assigned exhibit number, and page number

when necessary. For Joint Exhibit 4, NCH ' s Proposal, page

numbers referenced are " Pa ge (number) " in the bottom right hand

side of each page. NCH ' s and Benchmark ' s Exhibits will be

referred to as " NCH Ex . " and " Benchmark Ex . , " respectively,

followed by the assigned exhibit number , and page number when

necessary.

FINDING S OF FACT

Based on the evidence presented at the hearing, and the

record as a whole, the undersigned makes the following findings

of material and relevant facts:

I. Background to T his RFP

1. On or about April 21, 2017, the Department issued the

RFP for organizations to ser ve as LES Program offices for the

Department ' s Division of Children ' s Medical Services. Stip. 1

and 4.

2. The LES Program offices around the state implement the

early intervention system of care for families of infants and

toddlers, birth to 36 months, w ith a developmental disability

that are determined to have a developmental delay, or who are at

risk of developmental delay based on a physical, medical or

mental condition. The LES program , and provider chosen, provides

developmental evaluation and early intervention services in the

LES service areas . Jt. 1:3.

3. Proposals were sought by the Department for 15

geographical regions or " service areas " around the state of

Florida identified in the RFP . Stip. 4; Jt. Ex. 1:5. The region

in dispute in this b id protest case is the Southernmost Coast

region, which includes Monroe County and a southern part of

Miami - Dade County . Jt. Ex. 1.

4. Two Addendums to the RFP were issued : Addendum I on

May 9, 2017, and Addendum II on May 11, 2017.

5. Addendum I answe red written questions submitted by

potential respondents and revised certain sections of the RFP .

Jt. Ex. 2. One section revised was Section 6.2 of the RFP,

entitled " Evaluation Criteria, " which was modified to delete

repetitive language, but made no cha nges to the allotted points

for each evaluation criteria . Jt. Ex. 2:5.

6. Addendum II made a change to Section 7 ,

" Subcontractors , " of the RFP . Jt. Ex. 3.

7. NCH did not challenge the specifications set forth in

the RFP or the two A ddendums . Stip. 3.

II. Responses to the RFP

8. The Department received proposals to the RFP from 16

respondents in early June 2017 . Jt. Ex. 14.

9. NCH submitted a response for the Southernmost Region,

where it is currently the incumbent LES provider for the

Department. NCH had previously been awarded the contract for the

same region through at least two competitive processes since

2011.

10. The former d irector of NCH ' s LES P rogram, Marc Welsh,

who had prepared the responses to the previous solicitations,

departed from N CH in May 2017. He did not prepare NCH ' s propo sal

to this RFP . NCH Ex. 45:13; NCH Ex. 47:9. There was evidence

indicating that Welsh considered NCH ' s response to this new RFP

as only " a formality , " based on his past experience.

11. The original proposa l from NCH totaling 287 pages , and

used as a demonstrative exhibit at the hearing, was submitted to

the Department unbound. The first 22 pages of NCH ' s proposal

were consecutively numbered. The remaining 265 pages of

attachments did not have consistent n umbering.

12. All of the Department ' s technical evaluators commented

that they found NCH ' s proposal difficult or hard to follow and

compare and cross - reference with corresponding portions of the

RFP.

13. It was clear to the undersigned that the three

eva luators felt that NCH ' s general formatting and presentation of

its proposal was lacking in quality and structure. This

complicated and affected their review.

14. The more persuasive evidence indicated that NCH ' s

proposal did not always track the numberin g system found in the

RFP as well as Benchmark ' s proposal did. For example, in

Section 3.0 of the RFP is the " Scope of Services . " However, in

NCH ' s proposal, S ection 3.0 is entitled " Description of

Staffing . " Jt. Ex. 1:2 ; Jt. Ex. 4:12.

15. The evidence also indicated that the tasks outlined in

NCH ' s proposal were not addressed satisfactorily or consistently

in the same order they appeared in the RFP. For example , Task G.

is listed in the NCH proposal ' s Cross Reference as being in

S ection 4.9 of the NCH proposal (no page number provided) , and

Task H is listed as being in S ection 4.2 of the NCH proposal (no

page number provided) . Jt. Ex. 4, .3.

16. Benchmark submitted a proposal to the RFP that covered

all 15 service areas, including the Southernmost Re gion .

Stip. 5.

17. In contrast to the NCH proposal, the Department found

that Benchmark ' s proposal was professionally bound , and the pages

were consecutively numbered. It also tracked the section numbers

from the RFP in a better fashion and quoted and h ighlighted the

sections from the RFP above the relevant response. Jt. Ex. 5.

18. The Benchmark proposal included a " Staffing Plan

Template (Exhibit 4) " and an " Expenditure Allocation Form

(Exhibit 2) " for each of the 15 service areas. Benchmark stated

i n the " Executive Summary " portion of its proposal that it is

" responding to all 15 Early Steps Program regions . " Jt. Ex. 5,

c ombined pp . 7 - 8.

19. This formatting and content met the requirement of the

RFP found in Section 4.2.4, under the proposal format section,

which stated:

4.2.4 Proposals must clearly indicate the

Early Steps service area (or areas) of the

state that the respondent is applying to

operate. A proposal may be submitted for

multiple service areas; however, a separate

Expenditure Allocat ion form (Exhibit 2) and

Staffing Plan form (Exhibit 4) must be

submitted for each service area being applied

for.

Jt. Ex. 1:18.

III. The RFP Drafting Process

20. The RFP was drafted by personnel from the Bureau of

Early Steps and Newborn Screening ( " Bu reau of Early Steps " ) with

assistance from the Office of Purchasing.

21. Dawn Lynch, a 17 - year employee with the Department

(15 years of which have been spent in the Bureau of Early Steps),

was primarily responsible for drafting the RFP on behalf of the

B ureau of Early Steps and the Department.

22. Lynch took over the job of drafting the RFP in

December 2016 after an initial rough draft was created by another

employee who left the Department. Lynch had been a contract

manager for LES contracts and is cur rently a program consultant

and technical assistant for five LES providers.

23. Lynch worked with Diana Trahan, the p urchasing m anager

assigned to the RFPahan provided technical knowledge on the

RFP process and monitored the RFP through to its conclu sion and

award.

24. Lynch also developed the evaluation criteria found in

S ection 6.2 of the RFP and the corresponding Evaluation Scoring

Sheets that were used by the technical evaluators when they did

their evaluations.

25. The e valuation c riteria in S e ction 6.2 of the RFP were

broken down into eight sections, each of which cross - referenced

the applicable section of the RFP. Each section was assigned a

maximum number of awardable points ranging from 50 points to

300 points. The total maximum points tha t could be awarded for

the Evaluation Criteria section was 1,200.

26. The final version of Section 6.2, as revised in

Addendum I to the RFP, appeared as follows:

A. Evaluation Criteria Maximum Points

Executive Summary and Corporate Capability:

Organization & Experience, Section 3.1

Background and Organization, Section 4.3.3 100

Experience operating programs providing

developmental, educational, or mental

health services or programs targeting

children, families or special needs

populations of any age. Se ction 3.2.7 100

developmental, educational, or mental

health services or programs targeting

children, families or special needs

populations of any age.

Position Summary of key administrative 50

positions

Approach and Methodology, Sections 3.2

and 3.2.2

Proposed Program Design and Description as 200

based on Scope of Services, Section 3.2

Ability to provide program services per

task list Section 3.2.2 , Public Awareness

Plan, Business Continuation Response Plan, 300

Funding Response Plan and Provider

Recrui tment Plan, Section 3.2.2, s - u

Staffing Plan (Exhibit 4) 200

Financial Statements, Section 4.8.3 150

Expenditure Allocation, per Attachment A, 100

(Exhibit 2)

TOTAL MAXIMUM POINTS POSSIBLE 1,200

27. The fifth section, entitled " Ability to provid e program

services per task list Section 3.2.2, Public Awareness Plan,

Business Continuation Response Plan, Funding Resource Plan and

Provider Recruitment Plan, Section 3.2.2, s - u , " was allotted a

total of 300 awardable points.

28. Section 3.2 of the RFP is the " Scope of Services "

section , and Section 3.2.2 is a detailed list of tasks that a

respondent would be required to perform under any resulting

contract . Jt. Ex. 1:10 - 11. This 300 - point section awarded a

respondent for how well it described and woul d provide program

services as specified in the task list of the RFP.

29. The RFP was first advertised on the vendor bidding

system on April 21, 2017.

30. Normally, the Department gives 30 days for respondents

to submit proposals in response to an RFP. F or this RFP, the

respondents had until June 2, 2017, which was just over six weeks

to submit their proposals. This extended timeframe was provided

to allow vendors adequate time to prepare and submit their

proposals.

31. Proposals for the RFP were receiv ed by the Department

on various dates before June 2, 2017. They were opened on

June 2, 2017 . Stip. 6.

32. After the proposals were opened , the Department ' s

Purchasing Office first went through an evaluation checklist to

determine the general responsiven ess of the proposals received

with the mandatory requirements found in Section 4.10 of the RFP.

33. The Department determined that both NCH and Benchmark ' s

proposals met the responsiveness requirements.

34. After the proposals were determined to meet man datory

responsiveness requirements, the evaluators at the Department

were provided a list of the respondents ' names to review and were

asked to review and sign conflict of interest forms, if

appropriate. None of the three evaluators in this matter listed

any conflict of interest with any of the respondents, including

NCH and Benchmark.

35. After completing the conflict of interest forms, the

proposals were reviewed between June 7 and June 27, 2017 , by the

three technical evaluators selected and one financ ial evaluator.

The evaluators were given additional review time, approximately

three weeks, because there were several state regions to review.

IV. The Evaluators Selected

36. The evaluators chosen for the technical review of the

RFP were Claudia Kassac k, Stephanie McMillon, and Reneeka Rogers,

all employees of the Department. 1/ Stip. 8 .

37. The evaluators were selected by the Bureau of Early

Steps and approved by the b ureau c hief for the Office of

Purchasing, Roger Twitchell.

38. The Bureau of Early Steps based its selection of the

technical evaluators on whether the evaluator had some knowledge

of the Early Steps Program, balanced against a need to e nsure

that there were no conflicts of interest. They were required to

understand programmatically wha t LES providers do.

39. More specifically, the Bureau of Early Steps was

concerned that the chosen evaluators did not have a conflict of

interest, such as working with a LES provider or having a child

in the Early Steps P rogram.

40. Each evaluator receiv ed a PowerPoint training package ,

entitled " Competitive Procurement Evaluation Training " . 2/

Evaluators were instructed to contact the Purchasing Manager if

they had any questions related to the training.

41. The PowerPoint, provided to the evaluators in advance

of reviewing the proposals, related generally to competitive

procurements. It did not include any specific information

relating to the Early Steps P rogram.

42. Based on the more persuasive evidence and reasonable

inferences from the evidence, the undersigned concludes that

prior to reviewing the NCH and Benchmark proposals in June 2017,

each of the technical evaluators was familiar with, had knowledge

of , or understood the LES P rogram sufficient to effectively score

the proposals.

V. The Three Ev aluators

43. Stephanie McMillon had been with the Department in the

Bureau of Early Steps since January 13, 2017. She has a b achelor

of s cience degree. Prior to coming to work for the Department ,

she had worked for the Florida Legislature and Florida A& M

University. McMillon is the Bureau of Early Steps ' l egislative

and c ommunications d irector. This entails working with

communications and legislative implementation and strategic

plans, and project management for the Bureau of Early Steps.

44. Beginnin g in January 2017, and continuing through the

date she began her evaluation of the proposals, she received

Early Steps training - - online and in - person. Her job at the

Department requires that she understand the Early Steps Program

to effectively communicat e with the public.

45. McMillon was selected as an evaluator in February 2017.

She candidly indicated on her Evaluation Team Acknowledgment Form

that her knowledge of the Early Steps P rogram, at that point, was

" very limited . " NCH . Ex. 18.

46. However, by the time she actually conducted the

evaluations in June 2017, her knowledge of the Early Steps

P rogram had progressed and developed to the point where she had

" quite a bit of program knowledge . " 3/

47. Although McMillon had not served as an evaluator o n a

competitive solicitation, she did perform a comparable review

function using a rubric and criteria to score essays for a

quality enhancement program when she was employed by Florida A&M

University. 4/

48. Reneeka Rogers had been employed by the Departm ent for

approximately 19 years. She has a b achelor ' s degree in public

management and a m aster ' s degree in business administration. She

is currently a contract manager with the Department ' s Division of

Disease Control. She manages several contracts, assi sts in

drafting the contracts, monitors the contracts, and processes

contract invoices.

49. Rogers went through a three - day contract manager

training that the Department provided in 2001, and has gone

through one - day recertification training for contract managers

every two years since then. She is also a Florida Certified

Contract Manager, which requires in - depth state training for

contract managers that manage contracts valued at $100,000 or

more.

50. During her 19 years with the Department, Rogers was in

the Division of Children ' s Medical Services for 11 years.

51. Rogers did not work in the Bureau of Early Steps, but

was familiar with the Early Steps P rogram since her work at the

Department required her to collaborate with the Bureau of Early

Steps on payment issues. She had some understanding of the Early

Steps Program.

52. Notably, Rogers had experience as an evaluator of

competitive contracts. She had previously evaluated two other

Department competitive solicitations or RFAs. She had also been

a negotiator on a Department Invitation to Negotiate in 2013.

53. Claudia Kassack had been employed by the Department in

the Division of Children ' s Medical Services for ten years, two

years of which were in the Bureau of Early Steps. She is

currently a c ontract manager program liaison for Child Protection

Teams and Sexual Abuse Programs around the state.

54. Kassack has a b achelor ' s degree in special education

and a master ' s degree in education administration. She is also a

Florida Certified Contract Ma nager. She currently manages

14 contracts for the Department. She previously worked on

several competitive solicitations.

55. The Department outlined the primary reasons for

selecting these three evaluators. Kassack was selected, in part,

based on her number of years of experience with the Early Steps

state office, and because she had not worked directly or closely

with a LES provider.

56. McMillon was selected, in part, because she was an

employee of the Bureau of Early Steps, and not a program manage r.

Further, she was relatively new to the Department and had no day -

to - day dealings with any particular LES provider that might

adversely influence her evaluations.

57. Rogers was selected because she had been a long - time

employee of the Division of Chil dren ' s Medical Services and

because of her years of contract management experience.

58. A ll three evaluators were qualified to be evaluators

and, " collectively " as a team, had an adequate level of

experience and knowledge in the E arly L earning P rogram are as and

services areas for which the services under the RFP were sought.

59. From the evidence and facts presented, a fair and

reasonable finding is made that these three evaluators together

had adequate collective experience and knowledge concerning the

E arly Steps P rogram at the time they performed their evaluations.

VI. The Scoring of the NCH and Benchmark Proposals

60. The evaluators were each given an " Evaluation Criteria

Scoring Sheet " ( " Scoring Sheet " ) , which was utilized for the

proposal submitted by NCH and Benchmark. The Scoring Sheet

sections match and track the evaluation criteria in S ection 6.2

of the RFP. Jt. Ex. 6.

61. The Scoring Sheet divided the 300 points in the RFP for

Section 3.2.2 by the specific tasks they represent on the Scoring

Sheet. The actual points assigned to each task were based on the

importance of the tasks to the LES P rogram.

62. The Bureau of Early Steps, specifically its

r epresentative , Lynch, determined the point allocation, with

input from others in the Bureau of Early Steps, including her

supervisor.

63. The Scoring Sheet was also reviewed by the p urchasing

m anager assigned to the RFP to verify that each specified

criteria on the Scoring Sheet matched and tracked the RFP.

64. The Scoring Sheet included a total o f 1,200 maximum

points, matching the points reflected in Section 6.2 of the RFP .

Jt. Ex. 1 ; Jt. Ex. 8.

65. Number 36 on the Scoring Sheet related to

Section 3.2.2 . ff of the RFP and had a stated value of five

points. This criterion was determined only to apply to proposals

for the North Dade, Northeastern, or North Central regions.

66. As a result, the evaluators were advised when they

began their evaluations to give no points in this section for any

region, except the three " north " regions. This result ed in the

other 12 remaining regions, including the Southernmost Coast

R egion, being able to score a maximum amount of 1 , 195 points.

67. This " not - applicable " or resulting zero score for

Scoring Sheet criteria number 36 was applied across the board to

all regions but the three " north " regions. As a consequence,

there was no adverse impact on any respondents in the remaining

12 regions. Jt. Ex. 8.

68. Padilla, who drafted NCH ' s proposal with Dagnesses,

testified that had the " sub - criteria " and values out lined in the

Scoring Sheet been disclosed in advance, she would have provided

more detail in the subsections the Department assigned a greater

weight.

69. Regardless, NCH did not offer any specific examples of

additional information that would have been p rovided, nor did NCH

offer any persuasive evidence or testimony showing that any such

additional information would have materially increased NCH ' s

score or resulted in NCH receiving a higher tot a l score than

Benchmark.

70. Pointedly, and in fact, all resp onders were affected

equally by the Department ' s use of the sub - criteria and points

allotted to each sub - criteria, and neither party gained any sort

of advantage or edge over the other.

71. The proposals were made available to the evaluators on

June 7, 20 17, and were returned by the evaluators to the

p urchasing m anager on approximately June 27, 2017 , with scoring

completed.

72. The t echnical e valuators did not collaborate in any way

during the evaluation period and were not aware of each other ' s

identity. 5 /

VI I . Evaluation Process Used by the Evaluators

73. Each evaluator testified about the general process they

used to evaluate the proposals by NCH and Benchmark.

74. McMillon read each proposal through twice and used the

entire evaluation time period t o read and score the evaluations.

She felt that NCH ' s proposal formatting was a bit different and

hard to follow, in that it made up its own cross - reference

numbering.

75. Rogers read through each proposal and then scored them

by referring back to the pr oposals, the RFP section being scored,

and the Scoring Sheet. It took her three to four hours to review

each proposal, depending on how well they were organized. Rogers

also found the NCH proposal harder to evaluate because of its

format.

76. Kassack re ad through each proposal, and then went back

through for each scoring criteria, also referring to the RFP.

She spent an hour to an hour and a half reviewing each proposal.

77. As previously mentioned, all three technical evaluators

found the NCH proposal to be more difficult or hard to follow

than Benchmark ' s. 6 /

78. In several respects, the information in the crosswalk

prepared by NCH and used at the hearing differs from the " Cross

Reference " that was in the NCH proposal, specifically the

information in " Location in Proposal " column of the crosswalk .

Jt. Ex. 4 ; NCH Ex. 8. The " Location in Proposal " column of the

crosswalk generally contains more detail than the Cross -

Reference, and additional details that were not provided in the

NCH proposal.

79. Eval uators McMillon and Rogers scored NCH a zero on

criterion 33 because they could not find the information . Jt.

Ex. 8 and 10. 7 /

80. McMillon and Rogers both testified that after reviewing

the scores again, specifically any " zero " they scored on NCH ' s

propo sal, they would not change their scores. This was due to

the fact that they either could not find the information or the

criterion was not adequately addressed in NCH ' s proposal.

81. There was no persuasive evidence presented that any of

the technical ev aluators did not understand the criteria of the

RFP when they performed their evaluations or that their

evaluations were contrary to the RFP specifications.

82. Nor was any evidence presented to show that any of the

evaluators were biased for or against e ither NCH or Benchmark.

To the contrary, the facts show that the evaluators were chosen,

in part, for their lack of bias , and each evaluator completed

conflict of interest forms confirming this fact.

83. The total average scores given by the evaluators f or

the technical review of NCH ' s proposal for the Southernmost

Region were Kassack -- 910 points; McMi llon -- 974 points; and

Rogers -- 632 points . Stip. 9.

84. The total average scores given by the evaluators for

the technical review of Benchmark ' s proposal f or the Southernmost

Region were Kassack - - 967 points; McMillon - - 969 points; and

Rogers - - 795 points . Stip. 10.

85. The evaluation of the financial portion of the

proposals was performed by Tuan Le, an employee of the

Department. Le scored the financial po rtion of NCH ' s proposal a

total of 150 points . Le scored a total of 90 points for the

financial portion of Benchmark ' s proposal for the Southernmost

Region . Stip. 11. His scores were added to the technical

proposal scores and then averaged for a final s core.

8 6. The final total average score given to NCH was 989 .

T he final total average score given to Benchmark was 1,000 for

the Southernmost Coast r egion . Jt. Ex. 14.

87. The Department posted a notice of intent to award for

the RFP on July 10, 2017. The intent to award covered all

15 regions. Based on the total average scores , it listed

Benchmark as the intended awardee for the Southernmost Region .

Jt. Ex. 13 ; Stip. 12.

CONCLUSIONS OF LAW

I. General Law Applicable in Bid Protest Cases

88. The Divisio n of Administrative Hearings has

jurisdiction pursuant to s ections 120.569, 120.57(1), and

120.57(3), Florida Statutes (2017) . 8/

89. This bid protest is a " de novo " proceeding to determine

whether the Department ' s notice of intent to award the contract

to Benchmark is contrary to the Department ' s governing statutes,

rules, or the RFP specifications.

90. In a bid protest involving a request for proposals,

section 120.57(3)(f) provides:

[T]he burden of proof shall rest with the

party protesting the proposed agency action.

In a competitive - procurement protest, the

administrative law judge shall conduct a de

novo proceeding to determine whether the

agency ' s proposed action is contrary to the

agency ' s governing statutes, the agency ' s

rules or policies, or the solicitation

specifications. The standard of proof for

such proceedings shall be whether the

proposed agency action was clearly erroneous,

contrary to competition, arbitrary, or

capricious.

91. The nature of a " de novo " review in a bid protest

proceedin g has been explained as follows: t he phrase ' de novo

hearing ' is used to describe a form of ' inter - agency review, ' the

object of which is to evaluate the action taken by the agency .

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. State Contracting &

Eng ' g v. Dep ' t of Transp. , 709 So. 2d 607, 609 (Fla. 1st DCA

1998).

92. The burden of proof rests with Petitioner, NCH, to

prove a violation o f the statute by a preponderance of the

evidence since it is the party opposing the proposed agency

action. § 120.57(3)(f), Fla . Stat . See State Contracting &

Eng ' g v. Dep ' t of Transp. , 709 So. 2d at 609.

93. The method of review of the agency ' s propose d action in

a bid protest proceeding by the A dministrative Law Judge has been

succinctly summed up as follows:

The Hearing Officer need not, in effect,

second guess the members of evaluation

committee to determine whether he and/or

other reasonable and wel l - informed persons

might have reached a contrary result. [A]

public body has wide discretion in the

bidding process and its decision, when based

on an honest exercise of the discretion,

should not be overturned even if it may

appear erroneous and even if reasonable

persons may disagree. The hearing officer ' s

sole responsibility is to ascertain whether

the agency acted fraudulently, arbitrarily,

illegally, or dishonestly.

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

1131 (Fla. 1st DCA 1 991)(per curiam)(citations and quotation

marks omitted).

94. The legal terms and standards found in section

120.57(3)(f) , and generally related to competitive procurement ,

have been explained and interpreted by the courts over the years.

A brief review o f those cases is helpful.

95. A decision is " clearly erroneous " when , although there

is evidence to support it , after review of the entire record , the

tribunal is left with the definite and firm conviction that a

mistake has been committed. U.S. v. U.S. Gypsum Co . , 333 U.S.

354, 395 (1948).

96. An agency ' s action may also be found " clearly

erroneous " if the agency ' s interpretation conflicts with the

plain and ordinary intent of the law. See Colbert v. Dep ' t of

Health , 890 So. 2d 1165, 1166 (Fla. 1st DCA 2004). Conversely,

an award or agency decision is not clearly erroneous if its

construction falls within the permissible range of

interpretations. Id.

97. " An action is arbitrary if it is not supported by logic

or the necessary facts, and capricious if it is adopted without

thought or reason or is irrational. " Hadi v. Liberty Behavioral

Health Corp. , 927 So. 2d 34, 38 - 39 (Fla. 1st DCA 2006); Agrico

Chem. Co. v. Dep ' t of Envtl. Reg. , 365 So. 2d 759, 763 (Fla. 1st

DCA 1978).

98. If agency action is just ifiable under any analysis that

a reasonable person would use to reach a decision of similar

importance, the decision is neither arbitrary nor capricious.

Further, " [w]hether [an agency] acted arbitrarily is generally

controlled by a determination of whet her [the agency] complied

with its own proposal criteria as outlined in the [procurement

document]. " Emerald Corr. Mgmt. v. Bay Cnty. Bd. of Cnty.

Comm ' rs , 955 So. 2d 647, 653 (Fla. 1st DCA 2007).

99. As long as the agency acted in good faith, its judgme nt

should not be interfered with, even if reasonable persons could

differ and even if the decision may seem erroneous to some

persons. Volume Servs. Div. v. Canteen Corp. , 369 So. 2d 391,

395 (Fla. 2d DCA 1979)(citing Culpepper v. Moore , 40 So. 2d 366

(Fl a. 1949)).

100 . " An agency decision is contrary to competition if it

unreasonably interferes with the objectives of competitive

bidding. " Wester v. Belote , 103 Fla. 976, 138 So. 721 (1931).

The objectives of competitive bidding are the following:

To pro tect 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 v arious 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., Inc. v. City of Cape Coral , 352 So. 2d

1190, 1192 (Fla. 2d DCA 1977)(per curiam)). See also Wester v.

Belote , 138 So. at 982 .

101. In sum, the law is clear that overturning an agency ' s

award in a competitive procurement scenario is only permitted

unde r persuasive, clear and narrow circumstances. This is true

since judges reviewing a contract award are not permitted to

second - guess or substitute their own judgment for that of the

agency. See Generally Scientific Games, Inc . , 586 So. 2d at 1131 .

II. Selectio n of the Evaluators

10 2 . NCH contends that the Department selected technical

evaluators that did not have the " necessary knowledge, training,

and experience " required by section 287.057(16)(a), Florida

Statutes, and that they were biased or prejudiced in their

evaluations against NCH. " Petition, pp . 9 and 16.

10 3 . There is no persuasive or credible evidence in the

record to prove any bias against NCH or in favor of Benchmark in

the selection of the evaluators by the Department , or in the

performance of t he evaluations by the technical evaluators.

10 4 . The evidence presented by the Department ' s witnesses

showed that the Department placed a sufficient amount of emphasis

on selecting evaluators that were not biased. Likewise, all of

the evaluators attested to the fact that they had no conflict of

interest with any of the respondents prior to beginning the

evaluation of the proposals.

10 5 . Likewise, no persuasive evidence was offered to show

that any of the evaluators themselves harbored any bias for or

aga inst NCH or Benchmark when they performed their evaluations.

10 6 . The Department was required by statute to select

evaluators " to evaluate proposals . . . who collectively have

experience and knowledge in the program areas and service

requirements for whi ch . . . contractual services are being

sought. " § 287.057(16)(a) , Fla. Stat .

10 7 . The evidence showed that each evaluator was selected

based, in part, on their work experience , as well as their lack

of potential bias.

10 8 . All three technical evaluator s had an adequate working

knowledge of the Early Steps Program, as well as a fundamental

understanding of the RFP requirements when their evaluations were

performed. This was developed either through their work

experience and/or training prior to starting the evaluation

process.

10 9 . Significantly, even though their work experience at

the D epartment varied, they collectively met the statutory

requirements, both in experience and knowledge of the program , as

well as the day - to - day workings of contracts.

11 0 . McMillon, who gave NCH its highest score, had the

least amount of experience with the Department and arguably with

Early Steps. She was relatively new to the Bureau of Early Steps

when she was selected as an evaluator, but this was seen as an

asset si nce it eliminated any chance of bias. Notably, by the

time she performed the evaluations, she had gained the necessar y

knowledge of the Early Steps P rogram.

1 1 1 . Kassack and Rogers were selected because of their

years of contract management experience, a s well as their working

knowledge of the Early Steps P rogram.

11 2 . Kassack had worked in the Early Steps state office,

and not with LES providers, so this fulfilled the requirement of

not having day - to - day contact with any LES provider. Likewise,

Rogers had sufficient familiarity with the Early Steps Program,

having collaboratively worked with them.

113 . The evaluators each received training on how to

perform an RFP evaluation through the Competitive Procurement

Evaluation Training PowerPoint. There was no evidence presented

to show that this training was inadequate, insufficient or that

it failed to provide sufficient instruction on how to perform an

evaluation of a competitive procurement.

114 . Additionally , all of the evaluators had previously

partic ipated in either a competitive procurement review process

or had performed evaluations using a scoring rubric, similar to

an RFP process.

115 . Agencies have significant discretion in selecting

teams for the purposes of evaluating competitive proposals. S ee ,

e.g. , Capital Grp . Health Servs. of Fla., Inc. v. Dep ' t of

Admin. , Case No. 87 - 5387BID ( Fla. DOAH Mar. 9, 1988) ; and Fin .

Clearing House, Inc. v. Off . of the Comptroller, Dep ' t of Banking

& Fin . , Case No. 97 - 3150BID ( Fla. DOAH Nov. 25, 1997).

116 . The Department is entitled to exercise its discretion

and take reasonable means to balance its competing concerns of

appointing evaluators who collectively, as a team, have

experience and program knowledge, and avoiding evaluators who may

have a conflict of i nterest. See Fin . Clearing House, Inc. , Case

No. 97 - 3150BID, RO at 26 .

117 . In a competitive procurement for services under

section 287.057, the statute requires the selection of a group of

evaluators that " collectively " possess " experience and

knowledge , " without assigning a required degree of requisite

experience to any particular evaluator.

118 . The word " collective " was added to section 287.057 in

2002. See Ch . 2002 - 207, HB No. 1977 , Laws of Fla .

119 . Prior to 2002 , each team member presumably had to have

their own individual knowledge and experience in the program

area, and their qualifications were tested accordingly.

120 . The legislative changes to section 287.057 in 2002

reveal the following underlined additions and strike through

deletions wer e made:

(17) For a contract in excess of the

threshold amount provided in s.287.017 for

CATEGORY FOUR, the agency head shall appoint:

(a) At least three persons to evaluate

proposals and replies who collectively have

experience and knowledge in the progra m areas

and service requirements for which

commodities or contractual services are

sought.

(b) At least three persons to conduct

negotiations during a competitive sealed

reply procurement who collectively have

experience and knowledge in negotiating

contr acts, contract procurement, and the

program areas and service requirements for

which commodities or contractual services are

sought.

(16) For requests for proposals, a selection

team of at least three employees who have

experience and knowledge in the pro gram areas

and service requirements for which

contractual services are sought shall be

appointed by the agency head to aid in the

selection of contractors for contracts of

more than the threshold amount provided in s.

287.017 for CATEGORY FOUR.

Ch . 2002 - 2 07, HB No. 1977 , Laws of Fla.

121 . Th e Staff Analysis accompanying House Bill No. 1977

describes that the new procurement law " Provides for two kinds of

teams for procurement above category four: evaluation teams and

negotiation teams, and provides for a make up for each. " This

description and analysis behind the law supports the argument

that it is the collective knowledge of the " team " that controls --

not the experience or knowledge of individual team members.

122 . The undersigned concludes that with r espect to

competitive procurements of services , the Legislature chose to

shift the focus from individual qualifications to collective or

team qualifications for legitimate and valid reasons.

123 . Furthermore, NCH has not identified any criteria in

the pr oposals that it claims w ere improperly scored by any of the

t echnical e valuators as a direct consequence of an alleged lack

of experience in the Early Steps P rogram.

124 . Accordingly, NCH has failed to prove that the

Department ' s selection of evaluators w as clearly erroneous,

arbitrary, or capricious. To the contrary, the Department ' s

choice of evaluators reflected a reasonable effort to ensure that

evaluators, as a team, were collectively familiar with the Early

Steps P rogram and could meaningfully evalu ate the proposals, yet

be free from bias.

III. Evaluation of the Proposals

125 . NCH alleges that the Department ' s procedure for

scoring the proposals departed from the scoring criteria set

forth in the RFP in two primary ways: (1) the Department ' s use

of the Scoring Sheet that broke down the 300 - point section of the

" Evaluation Criteria , " identified above as the " Task List "

section , into 32 separately scored sub - criteria -- numbered 5

through 36 on the Scoring Sheet; and (2) the Department ' s

decision not to score criterion 36 for proposals submitted

outside of the North Dade, Northeastern, and North Central

service areas, ostensibly because the task specified in i tem 36

only applied in these service areas.

126 . The Department ' s use of a Scoring Sheet with sub -

criteria was not inconsistent with or contrary to the RFP. Nor

did the use of sub - criteria introduce new specifications into the

process.

127 . Likewise, the use of these sub - criteria did not change

the Department ' s representation in the RFP that th e items

identified in the section would be collectively worth 300 points.

The sub - criteria were all fully described and outlined in the RFP

itself.

128 . Moreover, NCH did not establish that the Department ' s

failure to disclose the scoring of each sub - cri teria on the Score

Sheet placed NCH at a competitive disadvantage. Nor did NCH

establish that NCH would have been the higher - scored proposer had

the scoring of the sub - criteria been disclosed. See Anchor

Towing, Inc. v. Dep ' t of Transp. , Case No. 04 - 1447 BID ( Fla. DOAH

Oct. 29, 2004)( " By not proving that the Department ' s scoring

methodology resulted in Petitioner ' s proposal receiving unfair

treatment or Intervenor ' s proposal having somehow received an

unfair competitive advantage due to the scoring methodo logy

employed, Petitioner has failed to meet its burden of proof on

the issue of whether the Department ' s scoring methodology was

arbitrary and capricious. " ).

129 . Accordingly, NCH has failed to prove that the

Department ' s use of the Scoring Sheet was cle arly erroneous,

contrary to competition, arbitrary, or capricious.

130 . The Department ' s decision not to score criterion 36

for proposals submitted outside of the North Dade, Northeastern,

and North Central service areas was also not inconsistent with

the RFP. The equal application and effect of the removal of this

scoring section to all competing respondents in the same regions

is self - evident and avoided any negative impact.

131 . Significantly, NCH did not offer any persuasive

examples of what changes it would have made to its proposal had

it understood that the weight of the Task List section would be

five points less, nor did NCH offer any compelling evidence or

testimony showing how any such changes to its proposal would have

increased NCH ' s score or resulted in NCH receiving a materially

higher score than Benchmark.

132 . Accordingly, there was nothing clearly erroneous,

contrary to competition, arbitrary, or capricious about the

Department ' s decision to assign separate score s to respondents '

ability to fulfill each criteria set forth in S e ction 3.2.2.ff

and criterion 36 .

133 . NCH alleges that the significant variation in the

scoring betwee n the technical evaluators indicates or suggests

that the evaluation process was deficient in some way. However ,

variation in scoring by evaluators may be expected where, as

here, the evaluators worked independently. See, e.g. , Hemophilia

Health Servs., Inc. v. A g. f or Health Care Admin. , Case No. 05 -

2804BID ( Fla. DOAH Dec. 2, 2005). In such circumstances, " [i]t

can be expected . . . that some evaluators will generally assign

lower scores than other evaluators; some evaluators will tend to

assign higher scores. " Id. Such variation is only problematic

where it is proven that an evaluator " was inconsistent in the

application of his or her own scoring approach to all proposals. "

Id. ; see also , e.g. , KMPG Consulting, Inc. v. Dep ' t of Rev . , Case

No. 02 - 1719BID ( Fla. DOAH Sept. 26, 2002). No such evidence was

presented in this case.

134 . The evidence presented at th e hearing demonstrates

variation in scoring between the technical evaluators, with

Kassack and McMillon generally scoring proposals significantly

higher than Rogers. However, NCH has not proven that any of the

t echnical e valuators were " inconsistent in th e application of

[their respective] scoring approach[es] " in their evaluation of

the proposals of NCH and Benchmark for the Southernmost Coast

region.

135 . NCH claims that the scores given to its proposal by

Rogers were so unreasonably low as to be arbitr ary and

capricious. However, consistently low scores do not ne cessarily

mean they were arbitrarily given. There was no persuasive

evidence that Rogers or any of the evaluators arbitrarily

assigned any score.

136 . In short, NCH has not demonstrated that Rogers or any

of the t echnical e valuators held NCH to a different standard than

Benchmark.

137 . In sum, " [i]n the absence of evidence showing fraud or

misconduct, or evidence of mistake or illogical reasoning by

evaluators, it is not the role of the Admin istrative Law Judge to

second guess the evaluators to determine whether their judgments

about competing proposals were reasonable or whether other well -

informed persons might have reached contrary results. "

Scientific Games Inc. v. Dittler Brothers Inc. , 586 So. 2d

at 1131 , and Hemophilia Health Servs., Inc. , Case No. 05 - 2804BID,

RO at 33 . NCH has not proven fraud, misconduct, mistake, or

illogical reasoning on the part of the Department ' s chosen

evaluators.

138 . Accordingly, NCH has not proven that the scoring of

the NCH and Benchmark proposals, by any of the evaluators, was

clearly erroneous, contrary to competition, arbitrary, or

capricious.

139 . NCH ' s challenge at the hearing to Benchmark ' s

responsibility as a bidder was unpersuasive. A responsible

bidder is a bidder " who has the capability in all respects to

fully perform the contract requirements and the integrity and

reliability that will assure good faith performance. "

§ 287.012(25), Fla. Stat.; American Eng ' g & Dev. Corp. v. Town of

Highland Be ach , 20 So. 3d 1000, 1001 (Fla. 4th DCA 2009).

140 . NCH did not demonstrate that Benchmark was not a

responsible bidder or that Benchmark lacks the capability to

perform the contract requirements.

141 . In closing, several principles of public bidding l aw

announced by the Florida Supreme Court in the frequently cited

case of Department of Transp ortation v. Groves - Watkins

Constructors , 530 So. 2d 912 (Fla. 1988), are worth repeating:

Initially, we note the strong judicial

deference accorded an agency ' s de cision in

competitive bidding situations. A public

body has wide discretion in soliciting and

accepting bids for public improvements and

its decision, when based on an honest

exercise of this discretion, will not be

overturned by a court even if it may ap pear

erroneous and even if reasonable persons may

disagree.

Liberty County , 421 So. 2d at 507. See also

Culpepper v. Moore , 40 So. 2d 366 (Fla.

1949); William A. Berbusse, Jr., Inc. v.

North Broward Hospital Dist ., 117 So. 2d 550

(Fla. 2d DCA 1960).

In Liberty County , we recognized the broad

discretion legislatively accorded public

agencies and held that an agency ' s decision

based upon an honest exercise of this

discretion cannot be overturned absent a

finding of " illegality, fraud, oppression or

miscond uct. " Liberty County thus established

the standard by which an agency ' s decision on

competitive bids for a public contract should

be measured.

Under the facts of this case and the applicable law, the

undersigned concludes that the contract award to Bench mark should

be upheld.

R ECOMMENDATION

Based on the Finding of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered denying the P etition of

Petitioner Variety Children ' s Hospital, d/b/a Nicklaus Children ' s

Hospital, and affirming the Department of Health ' s Notice of

Intent to Award to A.W. Holdings, LLC, d/b/a Benchmark Human

Services.

DONE AND ENTERED this 31st day of October , 2017 , in

Tallahassee, Leon County, Florida.

S

ROBERT L. KILBRIDE

Adminis trative Law Judge

Division of Administrative Hearings

The DeSoto 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 31st day of October , 2017 .

ENDNOTE S

1/ Mary Hilton was originally selected as an evaluator, but it

was determined that her day - to - day management of one of the

Department ' s current LES providers might cause or create a

perception of bias in her ev aluations. Hilton was replaced by

Reneeka Rogers.

2/ The training program was prepared by purchasing staff to avoid

the necessity of having a public meeting where evaluators would

learn each other ' s identity.

3/ She testified that she conducted extens ive research and study

of the E arly Learning P rogram beginning in February 2017 and

continuing through June 2017.

4/ As a practical matter, it is significant to note that her

scoring of NCH was not the focus of NCH ' s challenge. In fact, she

gave NCH the highest technical score out of all three evaluators.

Additionally, she scored NCH higher than Benchmark.

5/ The RFP disclosed at Timeline Section 2.4 that on June 7,

2017 , the " Evaluation Team Members to begin [ sic ] evaluations

individually . " There wa s no challenge by either party to this

specification in the RFP.

6/ A " Scoring Crosswalk " ( " crosswalk " ) was prepared and used by

NCH at the hearing. The crosswalk was helpful as a guide during

the hearing. Dagnesses, one of the prime drafters of NCH ' s

proposal, stated that the crosswalk was a guide to make things

more simple than going through 200 pages. NCH Ex . 45:27. The

crosswalk was not provided with NCH ' s original proposal, and was

created exclusively for this bid protest. It was undisputed that

the technical evaluators did not have it as a guide or pathway

through the proposal review process . NCH Ex. 47:15. However, the

need for and use of this crosswalk aide during the final hearing

underscores the fact and demonstrates that NCH ' s proposal ma y

have, as testified, been harder for the evaluators to follow,

cross - reference , and navigate.

7/ As previously mentioned, the evaluators did not have the

benefit of the crosswalk when they reviewed NCH ' s proposal.

8/ References to the Florida Statutes are to the 2017 version,

unless otherwise indicated.

COPIES FURNISHED:

Timothy B. Elliott , Esquire

Smith & Associates

3301 Thomasville Road , Suite 201

Tallahassee, Florida 32308

(eServed)

Stephen B. Burch, Esquire

Smith & Associates

Suite 202

1499 So uth Harbor City Boulevard

Melbourne, Florida 32901

(eServed)

Susan P. Stephens, Esquire

Jamilynn M. Pettiway, Esquire

Florida Department of Health

4052 Bald Cypress Way , Bin A - 02

Tallahassee, Florida 32399

(eServed)

Erik M . Figlio, Esquire

Eugene D . R ivers, Esquire

Ausley & McMullen, P.A.

123 South Calhoun Street

Post Office Box 391

Tallahass ee, Florida 32302

(eServed)

Shannon Revels, Agency Clerk

Florida Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1703

(eServed)

Nichole C. Geary, General Counsel

Florida Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

(eServed)

Celeste Philip, M.D., M.P.H. ,

State Surgeon General

Florida Department of Health

4052 Bald Cypress Way, Bin A - 00

T allahassee, Florida 32399 - 1701

(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.