STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YOUNG ROBINSON ASSOCIATES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 85-3525BID

)

DEPARTMENT OF TRANSPORTATION, )

STATE OF FLORIDA, )

)

Respondent, )

and )

) BOONE, YOUNG & ASSOCIATES, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on October 24, 1985, at Tallahassee Florida.

APPEARANCES

For Petitioner: Cynthia S. Tunnicliff, Esquire

Carlton, Fields, Ward, Emmanuel, Smith & Cutler P.A.

Suite 410, First Florida Bank Building Tallahassee Florida 32301

For Respondent: Larry D. Scott, Esquire

Mel Wilson, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee Florida 32301

For Intervenor, Gary R. Rutledge, Esquire Boone, Young & Sparber, Shevin, Shapo, Associates, Heilbronner and Brook P.A.

Inc.: Barnett Bank Building, Suite 348 Tallahassee Florida 32301

For Intervenor, Contractors Planning Group,

Inc.: No appearance.

PRELIMINARY STATEMENT

These proceedings arose as a result of a Request for Proposal (RFP) issued by Respondent, Department of Transportation (DOT), for a demonstration bonding assistance program. The Department recommended that Intervenor, Boone, Young and Associates, Inc. (Boone), be awarded the contract. Petitioner, Young Robinson Associates, Inc., protested the award alleging that the Department acted arbitrarily and capriciously by failing to have a selection team of at least three employees, knowledgeable in the program area and service requirements of the RFP, as mandated by Section 287.057(16), Florida Statutes.

At final hearing Petitioner called Sunie B. Nath, Kenneth L. Sweet, and Bruce L. Gordon, as witnesses. Petitioner offered Exhibits 1, 2, 3a-f; and 4, and they were received into evidence. Intervenor, Boone offered Exhibit 1, and it was received into evidence. No witnesses were called on behalf of the Department or Boone.

Petitioner, the Department, and Boone have submitted proposed findings of fact, and they have been reviewed and considered. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. In August 1985, the Department issued a Request for Proposal (RFP), State Project Number RFP-DOT-85-06, for a demonstration bonding assistance program. The program was authorized in 1985 by Congress, using Federal Highway Administration funds, to assist economically and socially disadvantaged business enterprises (DBEs) to meet the bonding requirements mandated on public works projects, and thereby increase their participation in the bid process.

   
   

2. Consistent with existent agency policy, and Section 287.057(16), Florida Statutes, the RFP provided:

   
   

   A selection committee of at least three members will be established

   to review and evaluate each proposer's response to this Request for Pro- posal and subsequently decide the preference order of the proposers.

   
   

3. In response to the RFP, the Department received six proposals. The evidence established that it is Department policy to submit the proposals to a "technical review committee," comprised of three members for evaluation of the technical responsiveness of the proposals, and to an employee of the Department's Bureau of Contractual Services to evaluate the cost responsiveness of the proposals.

   
   

4. In this case, the proposals were submitted to a "technical review committee" consisting of two members and to an employee of the Department's Bureau of Contractual Services. The "technical review committee" separately evaluated and scored the technical responsiveness of each proposal, and reported their scores to an Operations and Management Consultant, with the Department's Bureau of Minority Programs. 1/

   
   

5. The Consultant did not evaluate the proposals. He merely averaged the scores of the two members of the "technical review committee," added the cost responsiveness of the proposals received from the Department's Bureau of

   Contractual Services, and prepared a summary evaluation package for the "Selection Committee." The evaluation package ranked the proposals by score.

   
   

6. The "Selection Committee" consisted of the Department's Secretary (Thomas E. Drawdy), Deputy Assistant Secretary (Mel Hilliard), and Director of the Division of Administration (Bruce Gordon). Mr. Gordon, based on the scores set forth in the evaluation package, recommended, and the Committee concurred, that Boone's proposal be accepted. Mr. Gordon did not review any of the proposals submitted in response to the RFP.

   
   

7. Kenneth L. Sweet, one of the evaluators on the "technical review committee," is an engineer for the Department's Bureau of Construction. While steeped with a broad range of technical and engineering experience, Mr. Sweet lacked knowledge of the requisites to successfully secure a bonding commitment.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

9. At issue is whether the Department acted arbitrarily and capriciously in its evaluation of the proposals to its RFP-DOT-85-06. Pertinent to this case is Section 287.057(16), Florida Statutes, which provides:

   
   

   A selection team of at least

   three employees who have experience and knowledge in the program areas and service requirements for which contractual services are sought shall be appointed by the agency head to aid in the selection of contractors for contracts of more than $50,000.

   
   

   The record is clear that the Department failed to have a selection team of at least three employees who had experience and knowledge in the program areas and service requirements for the subject RFP and that, therefore, the Department failed to comply with section 287.057(16), Florida Statutes, as well as its existing policy and the RFP bid documents.

   
   

10. The Department's failure to comply with the requirements of Section 287.057(16), Florida Statutes, as well as its failure to comply with the express terms of its RFP and existing policy, constitute arbitrary and capricious agency action.

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that no award of RFP-DOT-85-06 be made and that RFP-DOT-85-06

be rebid.

DONE AND ENTERED this 10th day of December, 1985, at Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 10th day of December, 1985.

ENDNOTE

1/ The only explanation offered for the use of a two-member "technical review committee," as opposed to the customary three members, was that the third member was out of town and not expected to return for several days.

APPENDIX

1. Petitioner's proposed findings of fact are ruled on as follows:

   
   

   1. Adopted in paragraph 1.

   2. Cumulative, not necessary to result reached.

   3. Cumulative, not necessary to result reached.

   4. Cumulative, not necessary to result reached.

   5. Adopted in paragraphs 3 and 4.

   6. Adopted in paragraphs 4 and 5.

   7. Not relevant.

   8. Adopted in paragraph 6.

   9. Adopted in paragraph 7.

   10. Adopted in paragraph 3.

   11. Adopted in paragraph 3.

   12. Adopted in paragraph 2.

   
   

2. Respondent's and Intervenor's proposed findings of fact are ruled on as follows:

1. Accepted.

2. Adopted in paragraph 3.

3. Adopted in paragraphs 4 and 5.

4. Adopted in paragraphs 5 and 6.

5. Second sentence adopted in paragraph 6. First sentence rejected as a conclusion of law.

6. Adopted in paragraph 6.

7. Adopted in paragraph 6.

8. Rejected as a conclusion of law.

COPIES FURNISHED TO:

LARRY D. SCOTT, ESQUIRE MEL WILSON, ESQUIRE

DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING, M.S. 58 TALLAHASSEE, FLORIDA 32301

THOMAS E. DRAWDY, SECRETARY DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301

GARY R. RUTLEDGE, ESQUIRE SPARBER, SHEVIN, SHAPO

& HEILBRONNER, P.A.

SUITE 348, BARNETT BANK BUILDING

315 SOUTH CALHOUN STREET TALLAHASSEE, FLORIDA 32301

EDWARD W. BOWEN, JR., PRESIDENT CONTRACTORS PLAN GROUP

120 RALPH MCGILL BOULEVARD, NORTHEAST ATLANTA, GA 30308

CYNTHIA S. TUNNICLIFF, ESQUIRE CARLTON, FIELDS, WARD, EMMANUEL

SMITH & CUTLER, P.A.

SUITE 410, FIRST FLORIDA BANK BUILDING TALLAHASSEE, FLORIDA 32302

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

YOUNG ROBINSON ASSOCIATES, INC.,

Petitioner,

vs. CASE NO. 85-3525BID

DEPARTMENT OF TRANSPORTATION, STATE OF FLORIDA,

Respondent,

and

BOONE, YOUNG & ASSOCIATES, INC.,

Intervenor.

/

FINAL ORDER

The record in this proceeding has been reviewed along with the Recommended Order of the Hearing Officer. The Exceptions to the Recommended Order filed by the Parties have been considered.

The introductory material and Findings of Fact made by the Hearing Officer are adopted and made a part of the Final Order with the following exceptions or additions:

1. Paragraph 4 is expanded to reflect that an employee of the Bureau of Contractual Services did a tabulation and evaluation of the cost aspects of the RFP responses. (TR: 22)

   
   

2. Though Paragraph 7 of the Findings of Fact is supported by competent, substantial evidence in finding that Kenneth L. Sweet may have lacked knowledge in the technical aspects of securing a bonding commitment from a surety company, the finding should be supplemented to show that Mr. Sweet is well versed in the department's disadvantaged business enterprise (DBE) contracting program. Mr. Sweet is responsible for assisting DBEs in the actual performance of contracts, he sits on DBE goal setting committees, he assists in DBE certification by the Department, reviews good faith effort submittals with bids, and develops specifications that deal with DBEs and WBEs. (TR: 34)

Pursuant to Request for Proposal RFP-DOT-85-06, the Department of Transportation requested written proposals from qualified consultants to provide bonding assistance to economically and socially disadvantaged business enterprises (DBEs). (Pet. Exhibit 1) The objectives of the program were to provide DBEs with an assessment of their needs, technical assistance, managerial

assistance, bond application packaging assistance, and evaluation and monitoring of each DBE firm. (Pet. Exhibit 1) Bond application packaging being but one part of the consultant program. Bond readiness assessment is based upon knowledge of finance, record keeping, contract performance and business mangement. (TR: 15-17) Mr. Kenneth L. Sweet has broad experience and knowledge in these basic areas as evidenced by his varied professional background. (TR: 33-39) As apparent from the RFP in the instant case, the Department of Transportation requires the expertise of consultants for bonding application programs.

Kenneth L. Sweet admitted to being no expert in preparation and evaluation of financial statements. (TR: 38) The statute in question requires no expert level of knowledge. Section 287.057(16), Florida Statutes, provides:

A selection team of at least three employees who have experience and knowledge in the pro- gram areas and service requirements for which contractual services are sought shall be ap- pointed by the agency head to aid in the selec- tion of contractors for contracts of more than

$50,000. (Emphasis added.)

The statute specifies a selection team comprised of agency employees. That statute does not require the technical expertise in the very area that the agency is seeking consultant assistance. The statute requires knowledge and experience in the DBE program of the Department in this case, knowledge and experience in how the program works, which entities are to be served by the program, what the program is designed to accomplish, and what the intent, objective and purpose is of the new program.

Boone, Young & Associates, Inc. (Boone) and the Department in Exceptions, object that a finding was not made that three (e.a.) members of a selection committee reviewed and evaluated each proposer's response to this RFP as required by the RFP. (Pet. Exhibit 1) A review of the entire record and the RFP indicates that only two employees of the Department fully reviewed and evaluated the technical aspects of each proposal. (TR: 8-21) Cost responsiveness for each proposal was calculated by a separate employee. (TR: 20-21) Whether the technical review committee or selection committee (Gordon, Hilliard, Drawdy) is considered the actual selection committee, there was no proof that three employees actually evaluated and reviewed the proposals pursuant to the evaluation scoring system set forth in the RFP.

Intervenor's fourth Exception concerning Mr. Sweet's knowledge of the requisites to successfully secure a bonding commitment has been specifically considered and addressed by the prior discussion. The Department has concluded that Mr. Sweet is qualified to serve as a member of the technical review committee needed in this case.

Other exceptions to the Recommended Order have been specifically considered, addressed, and disposed of by the prior discussion or have been made irrelevant by the Conclusions reached in this Final Order.

The Department rejects Conclusions of Law 2 and 3 which find that the failure of the Department to have three employees review and evaluate the proposals according to the scoring system set forth in the RFP constitutes arbitrary and capricious action. There has been no showing of any bad faith, prejudice, or fraud in the review and consideration of the proposals. There has

also been no attack made on the request far proposals, nor has there been a showing that the ranking of the responses was inaccurate or improper. Young Robinson Associates, Inc., has presented no proof to show that they were improperly ranked.

However, because of the questions raised concerning the proposal review process, it is hereby Ordered that all responses to Proposal RFP-DOT-85-06 be rejected. Contrary to the intent of Section 337.105(3), Florida Statutes, that the responses not be made public records until conclusion of the consideration process, the responses have bean made exhibits in this matter and are available for inspection at the office of the Department's Clerk of Agency Proceedings,

562 Haydon Burns Building, MS 58, 605 Suwannee Street, Tallahassee, Florida 32301-8064. Copies will be furnished at a cost of ten cents per page upon written request.

DONE AND ORDERED this 20th day of January, 1986.

THOMAS E. DRAWDY

Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

The following information is required by law to be included in all Final Orders:

Judicial review of agency final orders may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, MS 58, 605 Suwannee Street, Tallahassee, Florida 32301-8064, and with the appropriate District Court of Appeal within thirty (30) days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.

Docket for Case No: 85-003525BID

Orders for Case No: 85-003525BID