By Dan Christensen, BrowardBulldog.org
An appeals court has pulled the rug out from under a bid protest alleging that a $44 million a year state management contract was illegally steered to a nonprofit led by former Florida Attorney General Bob Butterworth.
The court tossed the case last week without looking at the underlying corruption allegations.
If the decision stands, no official review will be made of the Florida Department of Children and Families’ controversial decision last March to award the lucrative contract to Butterworth’s Broward Behavioral Health Coalition (BBHC).
Butterworth, who turns 70 next week, is among Broward’s best-known politicians, with a varied career that includes stints as Broward sheriff and head of the Department of Children and Families under Gov. Charlie Crist in 2007-2008.
The 22-page bid protest was filed in April in Tallahassee by the Partnership for Community Health, BBHC’s competitor to become Broward’s new “managing entity for substance abuse and mental health services.” Those duties include oversight of a range of government-funded services, including crisis intervention, detoxification and mental health services for emotionally disturbed kids.
The Partnership is a group of established Broward healthcare providers led by Dr. Steven Ronik of Fort Lauderdale’s Henderson Behavioral Health.
Among other things, the protest alleges the state’s bid process was “manipulated” by unnamed state officials to “ensure” that Broward Behavioral would win, and to insulate the award from both administrative and judicial review.
It contends, too, that Butterworth’s group is fronting for its for-profit “partner,” Miami’s Concordia Behavioral Health. Managing entities, which hold considerable power to decide which local care providers will receive future state funds, are required by law to be federally approved nonprofits.
In 2010-2011, more than 118,000 Broward children and adults received state and federal subsidized substance abuse or mental health services, according to DCF.
HARDBALL POLITICS OR HURT FEELINGS
Butterworth, a lawyer at Fort Lauderdale’s Fowler White, did not respond to requests for comment by phone and email. In June, he told Sun-Sentinel columnist Michael Mayo that Concordia – led by Miami banker Carlos Saladrigas – was paying him for his services as both a lawyer and lobbyist.
Court records show that earlier this year Butterworth corresponded with the DCF’s chief negotiator, Tom Lewis, about the terms of what he referred to as the “BBHC/Concordia team’s” proposal.
Butterworth, however, is not registered to lobby in Tallahassee, Broward or Miami-Dade for either Concordia or Broward Behavioral. Concordia was incorporated in May 2011.
DCF officials deny any impropriety.
“Simply put, any insinuations that this particular bid process was illegal, tainted, or had any goal other than enhancing the quality of substance abuse and mental health treatment in Broward County is false,” department spokesman Joe Follick said this week.
DCF General Counsel Marion Drew Parker ascribed the Partnership for Community’s Health’s bid protest to “hurt feelings” because of the state’s decision to change the way it does business.
“They don’t like it. If they wanted to negotiate with us in the negotiation process and had been on board with the changes we desired to make they probably would have been chosen,” said Parker. “But they didn’t want to, and as a result now they have hurt feelings.”
Parker said DCF intends to resume negotiations with Butterworth’s group toward the end of the month and hopes to have the new regime in place by the end of the year.
Ronik did not respond to requests for comment. Daniel Thompson, a Tallahassee-based attorney for the Partnership for Community Health, declined comment.
The decision to privatize what is today DCF’s oversight of Broward’s state-funded substance abuse and mental health services is intended to further cut millions of dollars in spending in an area where Florida has long lagged the rest of the nation.
According to DCF’s website, Florida, the nation’s fourth most populous state, ranks 49th in the nation in per capita funding for mental health services. Florida is 37th in spending targeting substance abuse.
DCF issued its invitation to negotiate for the Broward managing entity job last October. At the time, Secretary David Wilkins said he expected “a significant number” of nonprofit bidders for a multi-year contact involving as much as $176 million between now and 2016.
“WRINKLE” IN RULES
Only two companies – the Partnership for Community Health and Butterworth’s newly minted Broward Behavioral Health Coalition – submitted sealed proposals as to how they would spend the state’s millions.
Six of eight state evaluators ranked the Partnership higher than Broward Behavioral. The Partnership also received the highest total score.
Under other circumstances, Broward Behavioral would likely have been out of the running. But the combination of its own inadequate bid proposal, and a quirk in state bid rules, created what Parker called a “wrinkle” in the process that ultimately allowed Butterworth’s side to prevail.
Broward Behavioral’s proposal was deemed to be “nonresponsive” because it did not include paperwork required to demonstrate financial stability. Normally, that would have disqualified Butterworth’s company, Parker said.
Instead, because there was only a single responsive reply, DCF was allowed to employ a provision in state procurement law that Parker said allowed it to bypass the sealed bid process.
“The agency gets a pass and can negotiate with whomever it wants,” Parker said. “We left the ITN (invitation to negotiate) process, for lack of a better way to describe it.”
With the idea of sealed bids scrapped, and the previous scoring out the window, DCF began open negotiations with both nonprofits last winter.
STACKED DECK
According to the Partnership’s bid protest, those negotiations were stacked in favor of Butterworth’s side.
Court papers say the Partnership was “consistently required” to go first in the negotiations over pricing and other contract terms, and Broward Behavioral was allowed to undercut it “immediately before the department decided to post the award.”
The complaint also alleges that DCF negotiated privately with BBHC and Concordia, and provided them with details about their competitor’s proposal. “Similar information was not given” to the Partnership, the court papers say.
“The department’s actions…were illegal, arbitrary, dishonest or fraudulent rule policies,” the complaint says.
Under the sealed proposal process, the state was required to retain and publicly identify a panel of seven negotiators. When the ITN process was dropped, however, that requirement ended and only a single negotiator, DCF employee Tom E. Lewis Jr., was used. Lewis, a lawyer, is the department’s director of performance and support services.
According to Parker and Follick, Lewis recommended to Secretary Wilkins – a former sales executive who also serves as Florida’s chief operating officer – that the contract go to Broward Behavioral “because it provided a better service at a better price.”
The Partnership sued after DCF rejected its administrative protest. The case was fast-tracked.
Ultimately, a three-judge panel of the First District Court of Appeal in Tallahassee rejected the challenge because the Partnership failed to post a required protest bond.
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