The Director of Purchasing or the County Administrator is required, pursuant to Section 21.22 of the Broward County Administrative Code, to evaluate performance of construction, architectural, and engineering services. There have been several recent instances of vendors asserting that their performance has been unfairly scored by County staff. If a vendor receives three or more scores of 2.59 or below over a five-year period, the Director of Purchasing is authorized to suspend the vendor, for three months, from participating as a prime contractor or a subcontractor on a County contract. Such suspensions might also have to be disclosed when the vendor seeks work from another entity. Thus, poor performance scores can create significant negative consequences for the affected vendor.
While the number of complaints by vendors has been small, the seriousness of the potential consequences justifies the creation of a process that would enable an affected vendor to challenge the performance evaluation. This process should include the following components:
- There should be a requirement for the scorer to provide detailed facts and documentary evidence justifying any score below a 2.6, which would ensure that an adequate record is available for any challenge. The scoring form should also contain a box that can be checked to indicate whether the vendor has submitted a response, which would alert others to a potential disagreement over the scoring.
- The challenge should only be available for scores below a 2.6, given that only such scores can ultimately lead to suspension.
- The challenge could be heard by a hearing officer from the state Division of Administrative Hearings or otherwise. This would preserve actual and optical impartiality. Because this might involve significant cost, the process should require the challenging vendor to "front" the costs, with the vendor being entitled to reimbursement if the vendor prevails. The obligation of the vendor to pay potentially significant costs if it does not prevail should discourage vendors from filing baseless challenges. Alternatively, the challenge could be heard by a member of the County Auditor's Office, which is independent of County Administration (the scores are issued by agencies within County Administration).
- The standard of review should be somewhat but not completely deferential to the County scorer. The hearing officer or Auditor's staff member should not substitute his or her judgment for that of the scorer, but rather uphold the score if it is well-founded based upon a review of the applicable record. The actual standard of review can be developed, but it should provide for more scrutiny than would be applicable under an "arbitrary and capricious" standard.
- Such other components as determined by the Board.
|