Judge ‘Appalled’ at Process, But Can’t Block Contract
A Leon County Circuit Judge on Thursday gave a blistering order that rips apart the contracting process used by the Florida Department of Corrections, contending the way the agency handled out a $6 million contract was “unconscionable” and maybe even illegal.
But despite saying he was “appalled” at the department’s actions, Judge Frank Sheffield said he could not block a deal between the agency and Correctional Medical Services that is set to take effect on July 1.
“The court is also mindful of its jurisdictional limits and requirements of the law even in the face of conduct that is at best, offensive, and at worst, illegal,’’ wrote Sheffield.
Sheffield said that scuttling the 4-month contract to provide mental health services to South Florida prison inmates would create “confusion” and “disorder.” He also said the request to block the contract from rival vendor MHM Correctional Services was premature since MHM is already battling the agency in a separate case over a longer contract for the same work.
“The people lost today due to the worst abuse of power imaginable,’’ said Chris Kise, a Foley & Lardner attorney who was representing Virginia-based MHM. “The department engaged in secret negotiations, blatant violations of the public trust and unconscionable practices, then hid behind the very laws designed to protect the people.’’
A spokeswoman for DOC said the agency was still reviewing the ruling. Sandi Copes, a spokeswoman for Attorney General Bill McCollum whose office defended the agency, noted that the judge had agreed with McCollum’s office that the “bid protest is the appropriate remedy.”
In a statement released by CMS, Spokesman Ken Fields said the negotiation process was allowed by Florida law and would save the state $1.7 million in the first year.
“While MHM's ongoing protest of the contract continues, today's decision allows CMS and the state to work together to ensure a smooth transition in the next few days,” Fields said. “Our team has tremendous experience helping states manage such transitions smoothly and efficiently.”
The ruling, however, is another slap at the department, which previously had a judge order it to release documents related to the bid dispute. The judge’s severe criticism of the contracting process used by DOC comes less than a month after Gov. Charlie Crist vetoed a bill designed to give the Legislature more control over contracts. Sen. J.D. Alexander, R-Lake Wales, had pushed the bill to stop what he called “contracts run amok” but Crist contended the law went too far and that there weren’t widespread problems with how contracts are handed out.
MHM has the current contract for South Florida mental health services that is set to expire next week. After seeking bidders for a new contract, the department rejected all bids for the work as “non-responsive.”
But in April the agency announced it was awarding CMS a five-year deal worth roughly $80 million. MHM has challenged the contract in an administrative hearing, saying the department negotiated in secret in violation of bidding laws. But lawyers for the agency disagree and say Florida law gives them the right to reach the deal outside of normal bidding procedures.
The department in May – because of the ongoing bid dispute – then negotiated a 4-month contract for the same services with CMS. MHM asked Judge Sheffield to block the deal, saying it was willing to extend its current contract at the lower price that CMS had negotiated.
In his ruling, Sheffield noted the department had raised questions about the financial viability of MHM “without a shred of evidence” but at the same time the agency awarded MHM a separate $11 million contract. He also noted that the purchase order used to give CMS the four-month deal was signed in June, but then backdated to May; a move the judge said “blatantly violates the public trust.”
He said all the moves leading up to the award of the purchase order were “unconscionable and unacceptable practices.”
But Sheffield also said he could not allow MHM to “forum shop in one court, while another court has the same matter under consideration.”