This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its October 2008 decision in The Henry and Rilla White Youth Foundation, Inc. v. Department of Juvenile Justice, the Florida Division of Administrative Hearings upheld the Department of Juvenile Justice’s re-tender decision due to flaws in the evaluation criteria. The case dealt with a Request for Proposals (RFP) for community youth intervention services. As the Court summarized, after an initial announcement of a contract award, the Department discovered concerns over the consistency of the past performance evaluation. This resulted in the Department’s decision to cancel the award and re-tender the contract:
After the responses to RFP# P2043 were received and scored, the contract section of [Department of Juvenile Justice (DJJ)] determined that Mr. Hatcher’s scoring was inconsistent with the scoring that had been done on residential RFPs even though the two were 99 percent congruent. The evaluators of the residential programs would provide information omitted by a response, and correct information that was incorrect when submitted. Then they would score the response. Unlike the residential scorers, Mr. Hatcher did not count QA programs that were missing, but did correct information that was incorrect when submitted, if the contract numbers were correct. This meant that a potential vendor could choose to include their well-performing programs and not report programs that were performing poorly, and thereby gain an advantage. This did not comport with the desires of DJJ.DJJ staff also determined that Mr. Hatcher failed to score the accreditation portion in accordance with their policy objectives. Amy Johnson, Chief of the Bureau of Contracts, believed that Mr. Hatcher was confused by the language of the RFP and that accounted for his incorrect scoring. Upon reviewing the situation, Deputy Secretary Rod Love and Assistant Secretary Darryl Olson determined that all bids should be rejected and the process begun anew.
The Court noted that the intention “to have consistent interpretations and scoring of proposals throughout the Department” led to the decision to cancel the award and re-tender the contract. After finding no evidence that the actions of the Department were illegal, dishonest, or fraudulent, the Court concluded that the decision to cancel and re-tender was not arbitrary. It therefore dismissed the legal challenge.
As this case illustrates, while the legal challenge was ultimately unsuccessful, public institutions should strive to achieve consistency in their evaluation processes to better avoid cancellations and resulting bid protests.
