Over the last week, Farm Share has corrected the record in regards to claims by Feeding South Florida that its TEFAP bid application was flawed or that it did not have the capability to administer the TEFAP program in Broward or Palm Beach Counties. Ultimately, Feeding South Florida claimed errors in scoring. Farm Share’s legal counsel scrutinized the scoring and found that even if the points were altered in Feeding South Florida’s favor, as they have suggested, Farm Share still would have won.
See the legal evaluation by the MEENAN LAW FIRM below provided to Farm Share by email:
Let’s correct Feeding South Florida one more time. Two things: 1) Even if one gives Feeding South Florida the points it claims it is owed, they still lose; 2) Differences in evaluator scores is to be expected when you have evaluators working independently. Feeding South Florida fails to show any basis to support its claim that it did not get a fair review.
First, Feeding South Florida states that one of the evaluators, LR, gave it a “7” out of 10 points, even though it had more “Excellent” responses, in the category of “Outreach Training and Monitoring” category. Feeding South Florida scored a “7” and Farm Share scored a “10.” Even if we give Feeding South Florida the “3” additional points, it does not change the outcome.
The “final score” which the Department of Agriculture was determined as follows. 5 evaluators conducted independent reviews of the proposal. The total number of points that each evaluator could award would have been 150 points. The evaluators’ independent scores were totaled and then divided by 5 to get an average score.
For Region 18, Broward County, the 5 evaluators total score was the following: Farm Share 701 points; Feeding South Florida 694 points. Divided by 5 the final scores are: Farm Share 140.2; Feeding South Florida 138.8.
If we give Feeding South Florida the “3” points that they claim they were erroneous denied, their total is now 697 points. Divided by 5, Feeding South Florida’s average score is 139.4, which is still less than Farm Share’s 140.2. Feeding South Florida loses
Let’s go one step further and switch the scores (and there is no legal basis to do this), Farm Share’s total number of points is 698, with an average 139.6, which is .2 of a point greater than Feeding South Florida, if Feeding South Florida gets the points it claims and we take points away from Farm Share. The outcome is the same: Feeding South Florida loses.
Bottom line is that even if you assumed the one evaluator made a mistake and you give Feeding South Florida every break in its favor, they still do not win.
Next, Feeding South Florida says that the inconsistent scoring shows that there is an error. Again, the law does not support Feeding South Florida’s claim.
The law is clear variations in scoring is expected where evaluators work independently. See Variety Children’s Hospital d/b/a Nicklaus Children’s Hospital v. State of Fla., Dep’t of Health, 2017 WL 5998882 (Fla. DOAH Sept. 29, 2017); e.g.. Hemophilia Health Servs., Inc, v. AHCA. No. 05-2804BID, 2005 WL 3733883, at *10 (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.; See also, e.g.. KMPG Consulting. Inc. v. Department of Revenue. No. 02-1719BID, 2002 WL 31440727, at *15 (DOAH Sept. 26, 2002) (“The Petitioner argued that the lack of consistent scoring methodology made the scoring process arbitrary. However, each evaluator used his same scoring methodology for evaluating every proposal. Therefore, all the proposals were evaluated by the same criteria.”).
In closing, Farm Share won a fair procurement that was evaluated by 5 independent evaluators.
Tom C.
Thomas P. Crapps
Senior Litigation Shareholder
Meenan P.A.
300 S. Duval Street, Ste. 410
P. O. Box 11247 (32302)
Tallahassee, FL 32301
850.425.4000