STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ICF KAISER ENGINEERING, INC. ) d/b/a/ K. E. REALTY SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1105BID

)

)

TAMPA HILLSBOROUGH COUNTY )

EXPRESSWAY AUTHORITY, )

)

Respondent. )

)

and )

)

1. COLAN ASSOCIATES, INC. )

   )

   Intervenor. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on March 5, 1991 at Tampa, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Martha Harrell Hall, Esquire

   P.O. Drawer 190 Tallahassee, Florida 3302

   
   

   For Respondent: William C. McLean Jr. Esquire

   707 Florida Avenue

   Tampa, Florida 33602

   
   

   For Intervenor: James K. Pedley, Esquire

   723 N.E. 3 Avenue S-301

   Fort Lauderdale, Florida 33304 STATEMENT OF THE ISSUES

   Whether Tampa Hillsborough County Expressway Authority's decision to award a contract for right-of-way services to O.R. Colan Associates, Inc. (Colan) is arbitrary and capricious or if Colan's proposal is nonresponsive

   
   

   PRELIMINARY STATEMENT

   
   

   By Formal Written Protest and Petition For Formal Administrative Hearing dated February 11, 1991, ICF Kaiser Engineers, Inc. (Kaiser), Petitioner, challenges the notice of intent by the Tampa Hillsborough County Expressway

   Authority (Authority), Respondent, to issue a contract to provide right-of- way acquisition services to O.R. Colan Associates (Colan), Intervenor. As grounds therefore it is alleged that the Colan proposal contains material misrepresentation; it is not responsive to the Request for Proposal (RFP); that defects in the Colan proposal give Colan a price advantage; that the decision to award the contract to Colan violates Section 287.057, Florida Statutes and the memorandum of agreement between the Authority and the Florida Department of Transportation; and the decision to award the contract to Colan is arbitrary and capricious and an invalid delegation of legislative authority.

   
   

   At the commencement of the hearing the parties submitted a Prehearing Stipulation containing stipulated facts comprising findings 1-7 below.

   Thereafter Petitioner called nine witnesses and ten exhibits were admitted into evidence.

   
   

   Proposed findings have been submitted by the parties. Treatment accorded those proposed findings is contained in the Appendix attached hereto and made a part hereof.

   
   

   FINDINGS OF FACT

   
   

   1. The Authority is an agency of the State of Florida which, pursuant to memorandum of agreement with the State of Florida, DOT, has the authority to acquire right-of-way services and other contractual services relating to the development of that part of the Florida Turnpike known as Northwest Hillsborough Expressway (the Expressway).

      
      

   2. Kaiser is an Ohio corporation authorized to do business in Florida and has its principal place of business in Oakland, California. Colan is a Florida corporation which has its principal place of business in Fort Lauderdale, Florida.

      
      

   3. On December 4, 1990, the Authority issued a Request for Proposals (RFP) for the provision of right-of-way acquisition services for development of the Expressway. The request for proposals is titled "Request For Proposal, RFP- THCEA-R/W-90-001, Right-of-Way Negotiation, Relocation Assistance, Property Management and Asbestos Related Activities" (the RFP). Responses to the RFP were due on January 8, 1991.

      
      

   4. Timely responses to the RFP were filed by both Kaiser and Colan. Proposals were also submitted by Moreland Altobella, ROW Consultants, TransAmerica Energy, and Universal Field Services.

      
      

   5. The RFP stated that the proposals would be evaluated both on technical merit and on price, with the final ranking of the proposals to be determined based on the separate scoring of eleven separate technical and substantive areas added to a single score for price.

      
      

   6. On January 29, 1991, Kaiser received notice of the Authority's decision to award to Colan the contract for right-of- way acquisition services for the Expressway.

      
      

   7. Kaiser's proposal was ranked second by the Authority's evaluation committee, which consisted of William McLean, Dale Patten, Norris Smith, David May, and Ray Speer.

   8. The Expressway will come under the Turnpike Authority of the Florida Department of Transportation who is funding the project with state issued bonds. The Respondent is acting as the agent for the Florida Department of Transportation in carrying out this project.

      
      

   9. In submitting its Technical Proposal (exhibit 2) Colan listed Byron Cherkas as a CPA subcontrator to do Business Damage Reports. Colan also listed two additional CPAs from the firm of Dwight Darby & Co. in Tampa, one listed to do Business Damage Reports and one to do Business Damage Reviews. Although Colan had used Cherkas on previous right-of-way acquisitions to do Business Damage Reports, Colan had no agreement with Cherkas to perform this service when this proposal was submitted. Although Petitioner contends this made Colan's proposal nonresponsive, the Authority took the position that Cherkas was only a backup CPA and the proposal was responsive. There was no need to list additional CPAs and listing Cherkas did not make the proposal nonresponsive any more than it would have been nonresponsive had Cherkas' name had not been added.

      
      

   10. Petitioner further contends that Colan's proposal was nonresponsive because Colan would not be able to complete this contract in the fifteen months allotted based upon the scheduled contained in the proposal. The schedule [exhibit 2 (D.2)] showing the time for submission of the condemnation packages to the Authority in the tenth month of the project is clearly too late for the land acquisitions involved to be completed by the contract expiration date. This, however, does not make the bid nonresponsive. Colan, upon receiving the contract and agreeing to complete the project in the time allotted, is required to do so under the terms of the contract.

       
       

   11. The RFP provides for frequent meetings and reports from the successful bidder regarding the progress of the acquisition and modifications of schedules as needed. Furthermore, the Authority is not bound by the schedule contained in exhibit 2 and has no intention of allowing Colan to wait until the tenth month of the contract period to commence the preparation of the litigation documents.

       
       

   12. Colan acknowledges that waiting until the tenth month to commence suit preparation is unreasonable if the project is to be completed on time, and contends that a clerical error was made in preparing this schedule. Colan's president testified that Colan will comply with any reasonable schedule1 suggested by the Authority, and suit preparation will commence much earlier than the tenth month into the contract period.

       
       

   13. Petitioner's witness opined that the other companies submitting proposals did not fully understand the scope of the work involved, nor did the persons preparing the RFP. Petitioner's bid of nearly $5 million for this project is nearly $3 million higher than the lowest bid, and approximately $2.4 million higher than Colan's bid, and $1.5 million above the second highest bid. A more reasonable interpretation of the six proposals submitted would be that Petitioner grossly overestimated the scope of the work or overpriced its proposal.

       
       

   14. The RFP clearly established the scoring system to be used in evaluating the proposals. Five evaluators scored each proposal and the scores awarded are contained in exhibit 7. It is significant that Kaiser's average score in every category except price is higher than Colan's score. Colan received a total averaged score of 83.1 while Kaiser received an average score of 82.

   15. All five of the members of the Technical Review Committee who were involved in this RFP testified in these proceedings. All read the pleadings filed in this case and heard most of the testimony presented by Kaiser's witnesses. All testified that, after having heard the testimony and read the pleadings, if they rescored all of the proposals as of the date of the hearing their scores would be substantially tie same as the scores originally given to these proposals. Some of these scorers reduced the score given to Colan in the categories of production control, property management and/or past performance because of the schedule in Colan's proposal which indicated suit preparation would begin in the tenth or eleventh month of the project.

       
       

   16. The man hours required to accomplish the suit preparation aspects of this RFP are basically the same regardless of when this task is commenced. Accordingly, scheduling these tasks in the latter part of the contract period gave Colan no price advantage in the proposal submission.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   18. In these proceedings Petitioner has the burden to prove, by a preponderance of the evidence, that the Authority acted fraudulently, arbitrarily, illegally or dishonestly in awarding the contract to Colan. Balino

       v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Department of Transportation v. Groves-Watkin's Constructors, 530 So.2d 912 (Fla. 1988).

       
       

   19. A capricious action is one in which is taken without thought or reason or irrationally. An arbitrary decision is one not supported by fact or logic, or despotic. Administrative discretion must be reasoned and based upon competent substantial evidence. Competent substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion. Agrico-Chemical Co. v. State, etc., 365 So.2d 759 (Fla. 1st DCA 1978).

       
       

   20. Awarding a contract to one submitting a nonresponsive bid would constitute an arbitrary and capricious act and could result in the agency's decision being overturned.

   21. Section 287.012(13) Florida Statutes (1989) provides: "Responsive bidder" or "responsive offerer"

       means a person who has submitted a bid which

       conforms in all material aspects to the invitation to bid or request for proposals.

       
       

   22. Colan submitted a proposal to perform the services required by the RFP in fifteen months. A fact that the schedule Colan submitted in its proposal would not, almost under any circumstances, allow the contract to be completed within the time frame required by the RFP, does not automatically render the proposal nonresponsive. Other provisions of the RFP give the Authority the right to amend proposed schedules if necessary to timely complete the project. When the proposal of Colan was selected as the highest scorer among the proposals, the Authority was well aware, as were the evaluators, that the project could not be completed within the fifteen months allotted if the suit preparation did not commence until the tenth month. However, the Authority and

       the evaluators also realized that the Authority had the right to amend this proposed schedule by requiring the suit preparation phases to commence sooner and would do so. Although Colan lost some points for showing the commencement of the suit preparation portion of the RFP during the tenth month this did not render the proposal nonresponsive.

       
       

   23. Placing the suit preparation of the proposal later on the schedule did not result in any pricing advantage to Colan or give Colan an advantage over others submitting proposals. Even if Colan's proposal showed insufficient man hours on a particular phase of the project than would be required, and thereby induced Colan to submit a lower bid than Colan's costs would be, this is a factor that would reduce Colan's profit but does not render the proposal nonresponsive. Colan will still have to perform the work at the unit price proposed if Colan erred in this regard. Likewise, the addition of Cherkas as a second CPA on the proposal when Cherkas had not submitted a proposed subcontract for this work to Colan did not render the proposal submitted by Colan nonresponsive. Nothing in the IFP required different CPA firms to do the Business Damage Reports and the Business Damage Reviews. Colan submitted the names of reputable CPAs other than Cherkas for each of these tasks.

       
       

   24. The holding of the court in Tropabest Foods v. State Department of General Services, 493 So.2d 50, 52 (Fla. 1st DCA 1986) is particularly appropriate here where the court stated:

However, although a bid containing a material variance is unacceptable, not every deviation from the invitation to bid is matrial. It

is only material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition. Robinson Electric Co. Inc. v. Dade County, 417 So.2d 1032, 1034 (Fla. 3rd DCA 1982).

See also Rule 13A-1.02(9) Florida Administrative Code, which reserved to the agency the right to waive any minor irregularities in an otherwise valid bid, a minor irregularity being a variation which "does not affect the price of the bid, or give the bidder an advantage or benefit not enjoyed by other bidders or does not adversely impact the interest of the agency."

From the foregoing it is concluded that Kaiser has failed to prove, by a preponderance of the evidence, that the action of the Authority in deciding to accept the proposal submitted by Colan was fraudulent, arbitrary, or dishonest. It is therefore

RECOMMENDED:

That the challenge to the award by ICF KS, Inc. to O.R. Colan Associates, Inc. be dismissed and the proposal submitted by Colan to Request For Proposal RFP-THCEA-R/W-90-0001, Right-of-Way Negotiation Relocation Assistance, Property Management and Asbestos Related Activities, be accepted.

DONE and ENTERED this 4th day of April, 1991, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1991.

ENDNOTES

1/ While not an issue in this proceedings it is notable that Intervenor's base bid of $5,897,000 was less than Petitioner's

$5,909,046. However, after adjustments for alternatives, Petitioner's total bid amount was $6,441,527 as compared to Intervenor's $6,496,735.

APPENDIX TO RECOMMENDED ORDER CASE NO. 91-1105BID

Petitioners proposed findings are generally accepted except for:

13. Accepted only insofar as it includes the commencement of suit information as late as the tenth month.

1. Rejected as not supported by competent evidence.

2. Ultimate sentence rejected. See HO #10-12.

3. Rejected. See HO #10.

4. Rejected. See HO #16. Man hours required for almost any part of the RAP will be the same regardless of when the task is begun (except those that must be done sequentially).

22. Ultimate sentence rejected as inconsistent with Patten's testimony as noted in HO #15.

1. Colan's interpretation of the RFP was a last minute interpretation.

2. Rejected insofar as inconsistent with HO #16 which is hereby applied to all of the tasks to be performed under the RFP.

Respondents proposed findings are not numbered but are generally accepted. Those proposed findings not included in the HO findings were deemed unnecessary to the conclusions reached.

Intervenor's proposed findings are generally accepted except:

30.-34. Rejected as irrelevant and inconsistent with Colan's #24. 35.-36. Rejected as mere recitation of tee testimony of witness.

1. Rejected as irrelevant and inconsistent with Colan's #24.

2. Rejected as irrelevant.

42.-43. Rejected as irrelevant. 46.-47. Rejected as irrelevant.

COPIES FURNISHED:

Martha Harrell Hall, Esquire

P.O. Drawer 190 Tallahassee, Florida 32302

William C. McLean Jr. Esquire 707 Florida Avenue

Tampa, Florida 33602

James K. Pedley, Esquire 723 N.E. 3 Avenue 5-301

Fort Lauderdale, Florida 33304

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ICF KAISER ENGINEERING, INC. d/b/a K. E. REALTY SERVICES,

Petitioner,

vs. CASE NO. 91-1105BID

TAMPA-HILLSBOROUGH COUNTY EXPRESSWAY AUTHORITY,

Respondent.

and

O. R. COLAN ASSOCIATES, INC., Intervenor.

/

FINAL ORDER

On February 20, 1991, ICF KAISER ENGINEERS, INC. d/b/a K. E. REALTY

SERVICES, filed a bid protest with the TAMPA-HILLSBOROUGH COUNTY EXPRESSWAY AUTHORITY (hereinafter AUTHORITY) protesting the AUTHORITY's intent to award its Contract No. RFP-THCEA-R/W-90-001 for right-of-way negotiations, relocation assistance, property management and asbestos related activities to O. R. COLAN ASSOCIATES, INC. The AUTHORITY referred the matter to the Division of Administrative Hearings for an administrative hearing.

A hearing was held in this matter on March 5, 1991. The Hearing Officer entered his Recommended Order on April 4, 1991, copy attached. There were no exceptions filed to the Recommended Order by either party. The Recommended Order of the Hearing Officer is ADOPTED and incorporated herein, and it is,

ORDERED that the bid protest of ICF KAISER ENGINEERS, INC. d/b/a K. E. REALTY SERVICES, regarding Contract No. RFP-THCEA-R/W-90-001, is DISMISSED,

and said contract is AWARDED to 0. R. COLAN ASSOCIATES, INC. DONE AND ORDERED this 22nd day of APRIL, 1991.

LAURA C. BLAIN, Chairman TAMPA-HILLS BOROUGH COUNTY

EXPRESSWAY AUTHORITY

412 E. Madison Street, Suite 802 Tampa, Florida 33602

RIGHT TO APPEAL

This Order constitutes final agency action and may be appealed by the Petitioner pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure, by filing a Notice of Appeal conforming to the requirements of the appropriate district court of appeal, accompanied by the appropriate filing fee, and with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, M.S. 58, Tallahassee, Florida, 32399-0458, within thirty (3Q) days of rendition of this Order.

Copies furnished to:

Mr. K. N. Ayers, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Martha Harrell Hall, Esquire Post Office Drawer 190 Tallahassee, Florida 32302

William C. McLean, Jr., P.A. 707 Florida Avenue

Tampa, Florida 33602

James K. Pedley, Esquire 723 N. E. 3rd Avenue, 5-301

Fort Lauderdale, Florida 33304

Docket for Case No: 91-001105BID

Orders for Case No: 91-001105BID