The Legal Side to Feeding South Florida’s TEFAP Perspective

Dear editors,

I am reaching out to you on behalf of my client, Feeding South Florida, in response to the recent story “Nasty Broward food fight gets splatter on everyone” on Florida Politics.

We appreciate you covering this important issue. However, we would like to request equal space, as we believe there is some information in the story that warrants clarification.

As with all food banks in our state, Feeding South Florida cares deeply about the people they serve, the farmers whose crops they help distribute, the families and the veterans they feed, and those who need assistance for a period of time in their lives.

It is what drives them and what keeps them up at night.

However, we believe the process of awarding the grant was seriously flawed and were Feeding South Florida allowed the opportunity to test that process through the normal bid protest procedure, Feeding South Florida would be the clear choice for ensuring those in South Florida continue to be appropriately served through The Emergency Food Assistance Program (TEFAP).

Below, please find our reasoning behind this.

We respectfully disagree with the statement: “There’s no reason to think the FDACS award of the Broward contract, and others like it around the state, was anything but fair and transparent.”

There are numerous reasons to believe the process, and specifically, the review and scoring of the proposals was flawed, unfair, and indefensible.

For example, Feeding South Florida received all “excellent” marks (the highest designation possible) from one reviewer for the 10 criteria relating to Outreach Training and Monitoring, while the competitor received “excellent” marks in only seven of the 10 criteria from the same reviewer, with the other three criteria receiving sub-excellent marks.

Yet, the final score tally gave Feeding South Florida a seven out of 10 and gave the competitor a 10 out of 10.  How did Feeding South Florida score a perfect score in every single category and barely receive an overall passing grade, while the awardee scored consistently lower than Feeding South Florida and was given an overall perfect grade?

There are several other discrepancies that depict the egregious errors in the scoring, including some scorers commended Feeding South Florida’s extensive network of partner agencies (they were provided as part of the application), yet others said Feeding South Florida didn’t provide them.

Elsewhere, one scorer said Feeding South Florida didn’t identify its number of vehicles (they did), others gave Feeding South Florida all “excellent” on that criteria; two scorers said Feeding South Florida didn’t identify the sources of food other than USDA (they did), the other three scorers gave Feeding South Florida “excellent” on that criteria; two scorers dinged Feeding South Florida for not providing proof of insurance (they did), while the other three scorers gave Feeding South Florida an “excellent;” and one scorer said Feeding South Florida failed to confirm no employees with felonies (they did), while the other four scorers gave Feeding South Florida “excellent” on that category.

The story goes on to state: “And if there are complaints by the losing provider — FSF — they surely can and should pursue the official protest path built into the procurement process.”

We agree, and Feeding South Florida did exactly that.

When Feeding South Florida went through the official protest path, the legal team at the Florida Department of Agriculture and Consumer Services (FDACS), as well as the intended awardee who intervened, said this bid could not be protested or appealed.

They filed Motions to Dismiss, claiming this was not a “competitive procurement” process and the decision should be left solely up to FDACS, even stating it should not be available for “an official protest.”

Simply put, they claim this wasn’t a procurement process at all and FDACS had the ability to unilaterally make this decision without any potential recourse for review of errors like those that occurred.  So why was it treated in the same manner as a procurement process and score proposals if it was never intended to be a competitive procurement?

Further, we agree agencies serving hungry Floridians should work together for the betterment of the people they serve. Feeding South Florida works with hundreds of community partners and is sincerely and genuinely concerned.

Feeding South Florida is committed to ensuring there will be no disruption in providing food to children, seniors, veterans, and families who need it most.  That is why protesting the award is so important to Feeding South Florida.

According to the administrative law judge who agreed with FDACS, the Commissioner has sole jurisdiction in this matter; and as of last week, news reports indicate the Commissioner will personally review the results.

Feeding South Florida remains hopeful the Commissioner will see there were clear errors made in the procurement process and will correct the scores of those who made the errors.

The affected counties deserve a fair and transparent process for identifying the most capable bidder to feed those in need in South Florida.

Thank you,

___

Ty Jackson is a shareholder at GrayRobinson in Tallahassee.

By: Ty Jackson
Originally published on Florida Politics on June 14, 2021. View original article, here.

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