STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDERSON COLUMBIA ENVIRONMENTAL ) INC., and G. WARREN LEVE, INC., )

a joint venture, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4316BID

)

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

) ATLANTA TESTING & ENGINEERING, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4317BID

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

)

METCALF & EDDY, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 91-4318BID

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on July 24-25, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Carolyn S. Raepple, Esquire Metcalf & Eddy, Inc.: Carlos Alvarez, Esq.

123 South Calhoun Street Tallahassee, Florida 32301

For Respondent Department E. Gary Early, Esquire

of Environmental Regulation: Office of General Counsel

2600 Blairstone Road

Tallahassee, Florida 32399

For Intervenor ERM-South: M. Christopher Bryant, Esquire

2700 Blairstone Road, Suite C Tallahassee, Florida 32314

For Intervenors EBASCO, George N. Meros, Esquire ABB, OHM, Cherokee, 101 North Monroe Street

and Westinghouse: Tallahassee, Florida 32301

For Intervenor E&E: Barrett G. Johnson, Esquire

315 South Calhoun Street, Suite 750

Tallahassee, Florida 32301

For Intervenor ITC: Rex D. Ware, Esquire

106 East College Avenue Highpoint Center, Suite 900 Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The Department of Environmental Regulation issued a Reguest for Statement of Qualification for Petroleum Site Cleanup Services, Solicitation #9111C. Attachment F to the solicitation sought information related to utilization of minority business enterprises as subcontractors. Points were available for said utilization. The Department awarded zero points to parties which failed to include the three pages of the attachment in the responses to the solicitation. The issue in this case is whether the Department acted in accordance with law in awarding zero points for failure to submit all three pages of Attachment F.

PRELIMINARY STATEMENT

The Department of Environmental Regulation issued a Reguest for Statement of Qualification for Petroleum Site Cleanup Services, Solicitation #9111C, seeking to determine qualifications of parties responding to the solicitation to participate in the Department's petroleum site cleanup program. The Department reviewed the submissions received and posted a list of parties which would be allowed to make oral presentations and proceed through the Department's evaluation process. Subsequent to the posting of the list, protests were filed by Anderson Columbia Environmental, Inc. and G. Warren Leve, Inc., a joint venture, (DOAH Case No. 91-4316B1D), Atlanta Testing & Engineering (DOAH Case No. 91-43I7BID), and Metcalf & Eddy, Inc. (DOAH Case No. 91-4318B1D).

On July 17, 1991, Atlanta Testing & Engineering filed a Notice of Voluntary Dismissal in Case No. 90-4317B1D. Accordingly, jurisdiction is hereby relinquished to the Department of Environmental Regulation for entry of a Final Order dismissing the case.

On July 22, 1991, Anderson Columbia Environmental, Inc. and G. Warren Leve, Inc. and the Department of Environmental Regulation filed a Joint Motion to Dismiss and Remand to Agency in Case No. 90-4316B1D. Accordingly, jurisdiction

is hereby relinquished to the Department of Environmental Regulation for entry of a Final Order dismissing the case.

Subsequent to the filing of the petitions for hearing, a number of parties sought leave to intervene in the cases. ERM- South, Inc. (ERM) and International Technology Corporation (ITC) intervened in support of the Petitioner. Ecology & Environment, Inc. (E&E), EBASCO Services, Inc. (EBASCO), ABB Environmental Services, Inc. (ABB), OHM Remediation Services Corporation (OHM), Cherokee Groundwater Consultants (Cherokee) and Westinghouse Environmental & Geotechnical Services, Inc. (Westinghouse) intervened in support of the Department. The petition to intervene of Service Station Aid, Inc., filed after the hearing had convened, was denied as untimely.

At hearing, the Petitioner and several intervenors sought to challenge the Department's establishment of a "short list" of contractors who would be permitted to make oral presentations and proceed through the remaining bid process. However, the issue of the Department's establishment of the "short list" was not timely challenged in the petition for hearing filed by the Petitioner in this case. Evidence related to the methodology utilized in establishing the "short list" was excluded and the issue of the Department's determination of contractors on the "short list" is not addressed in this Recommended Order.

ITC, which intervened immediately prior to the commencement of the hearing, additionally sought to challenge it's exclusion from the "short list" based upon a clerical error of the DER. However, ITC failed to timely file a written notice of protest following the bid tabulation posting, as required by Section 120.53(5)(b), Florida Statutes, and ITC's intervention was limited to the above identified issue relating to Attachment F. Accordingly, due to ITC's failure to timely file a written notice of protest, this Recommended Order does not set forth Findings of Fact related to the alleged clerical error. Further, ITC's Motion to Require DER to Repost Bid Tabulation is denied. Petitioner Metcalf & Eddy presented the testimony of Gwenn Godfrey, Douglas Jones and Joseph Del Nuovo and offered into evidence exhibits numbered 1-10. Respondent presented the testimony of Douglas Jones and offered into evidence exhibits numbered 2-3. Intervenor ERM-South presented the testimony of Paul Gruber. Intervenor ITC presented the testimony of Gwenn Godfrey and Brad Tanzer and offered into evidence exhibits numbered 1-2. Intervenor E&E presented the testimony of Jack Wilcox. Intervenor EBASCO presented the testimony of Cortland Hill. Intervenor ABB presented the testimony of Kay Ste. Marie. Intervenor OHM presented the testimony of Geoffrey M. Burke. Intervenor Cherokee presented the testimony of William Gordon Dean. Intervenor Westinghouse presented the testimony of Suzanne Schomer. All exhibits were admitted into evidence.

A transcript of the hearing was filed. Proposed recommended orders were filed by all participants in the hearing. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order. On September 9, 1991, the Department of Environmental Regulation filed a Notice of Supplemental Authority. By Order of September 10, 1991, the parties were allowed ten days to file responses to the Department's notice.

FINDINGS OF FACT

1. On March 1, 1991, The Department of Environmental Regulation (DER) issued a Request for Statement of Qualifications (RFSOQ) for Petroleum Contamination Site Cleanup Services, Solicitation #9111C.

2. As stated in the RFSOQ, the DER's objective is to enter into approximately ten contracts for petroleum cleanup services with contractors most qualified to perform the services. It is in the best interests of the state and the DER to enter into such contracts with the most qualified contractors available. Selected firms will be placed under contract with the DER to respond to task assignments. There is no work guaranteed to any contractor as a result of being selected and placed under contract.

   
   

3. The cover sheet to the DER Solicitation #9111C identifies Attachment B as "General Instructions", Attachment C as "Instructions for Preparation of an SOQ", Attachment F as "Minority Business Certificate" and Attachment N as an "SOQ Checklist."

   
   

4. In the RFSOQ, the DER specifically reserved the right to waive minor irregularities. The general instructions set forth at Attachment B provide, that the DER "may waive minor informalities or irregularities in the SOQs received where such are merely a matter of form and not substance, and the corrections of which are not prejudicial to other contractors."

   
   

5. The DER is not required to waive all minor irregularities. The ability to waive such defects is within the jurisdiction of the agency. The evidence establishes that the DER applied such discretion consistently. There is no evidence that, at any time prior to the SOQ opening, did the Petitioner or Intervenors seek additional information from the DER regarding the agency's discretion to waive minor irregularities.

   
   

6. Attachment C provides that "ANY AND ALL INFORMATION SUBMITTED BY A CONTRACTOR IN VARIANCE WITH THESE INSTRUCTIONS WILL NOT BE REVIEWED OR EVALUATED (e.g. pages beyond the 20-page SOQ limit will not be reviewed) or may result in the response being deemed non-responsive and rejected as noted." The purpose of the statement was to discourage responders from submitting information beyond that required by the RFSOQ, in order to provide a common basis for the evaluation of all SOQs submitted. The provision also provided the DER with the ability to reject an SOQ which failed to substantially comply with the agency's solicitation.

   
   

7. Attachment C states that an SOQ shall consist of three parts, a one- page transmittal letter, a 20-page SOQ, and "other required information".

   
   

8. According to Attachment C, the SOQ was to contain an introduction, a section on the company's background, a statement of experience and knowledge related to the qualifications required by the RFSOQ, a description of project organization and management appropriate to the tasks assigned, a list of personnel responsible for completion of assigned task, a list of "a minimum of ten separate and verifiable former clients other than the FDER" and related information. Work performed for the DER was to be set forth separately in addition to the ten non-DER clients.

   
   

9. "Other required information" included minority business utilization information. Attachment C provides as follows:

   
   

   Contractors submitting SOQs under this solicitation must identify intended minority subcontractors and estimated percentage of total contract amount to be awarded to minority firms on

   Attachment F of this Request for Statement of Qualifications. Use of any document other that Attachment F shall result in disallowance of any credit for use of minority subcontractors. (emphasis supplied.)

   
   

10. Evaluation points were available on a scaled basis to contractors based upon their commitment to utilization of minority businesses enterprises in their SOQs. Attachment B provides that "Minority Business Utilization will be evaluated. provided that the responder complies with the reporting requirements contained in Attachment F...." (emphasis supplied.)

    
    

11. Attachment F, page 1 of 3, provides as follows:

    
    

    Directions: Each contractor and/or subcontractor which meets the definition of a certified small minority business, as described below, shall submit an originally signed copy of page 1 of this Attachment in the response package to this solicitation. If more than one minority business is to be used, the prime contractor shall copy this page and have each minority business complete that copy as though it were an original. A prime contractor which intends to utilize subcontractors meeting the definition of small minority business is responsible for completing page 2 of this Attachment. A prime contractor which meets the definition of a small minority business is responsible for completing page 3 of this Attachment.

    If a particular page of this Attachment is not applicable, the prime contractor shall so indicate on that page and include the page as part of the response package. At a minimum, the entire three page Attachment F shall be submitted in

    the response package. Failure to submit-- this Attachment in the response package shall result in the responder receiving

    a score of zero (0) for minority business utilization. (emphasis supplied.)

    
    

12. Attachment N, the "SOQ checklist," provides a list of items which are to be "properly completed, signed and enclosed" in order to "ensure that your SOQ is responsive to FDER Solicitation No. 9111C...." Item 3.b. of Attachment N reads: "Minority Business Utilization Form - if applicable (Attachment F)".

    
    

13. As stated in Attachment B to the RFSOQ, on March 13, 1991, a mandatory pre-bid meeting was held in Tallahassee, Florida, at the DER's offices for all contractors wishing to submit a Statement of Qualifications (SOQ). Failure to attend the meeting would have resulted in rejection of SOQs submitted by non- attending contractors. The Petitioner and Intervenors were represented at the

    pre-bid meeting. The meeting provided an opportunity during the solicitation process to have technical, legal or administrative questions answered.

    Accordingly, potential responders are expected to have read the complete RFSOQ prior to the meeting.

    
    

14. At the pre-bid meeting, the DER did not review every part of the solicitation, but invited questions from participants. The DER official conducting the meeting stated that "any and all information submitted by a contractor in variance with these instructions will not be reviewed or evaluated," however, the other directions provided in the RFSOQ were otherwise reviewed only upon request. Although there was a specific discussion of the requirements for reporting proposed minority business utilization, there were no questions asked with regard to the requirements for completion of Attachment F. There were no questions asked regarding the DER's right to waive irregularities, or whether the failure to submit Attachment F in accordance with the directions would be regarded by the agency as a minor irregularity.

    
    

15. Potential responders also had an opportunity to submit written questions prior to a time certain. There is no evidence that questions were raised related to the requirements of Attachment F or to the DER's application of it's discretionary authority to waive minor irregularities.

    
    

16. On March 22, 1991, the DER issued an addendum, not material to this case, to the Request for SOQs. The addendum was sent by certified mail to each contractor represented at the March 13, 1991 meeting. On March 27, 1991, a second addendum was sent to each contractor. The addendum, among other things, changed the date for submission of an SOQ from April 1, 1991 to April 15, 1991 at 2:00 P.M.

    
    

17. On April 15, 1991, SOQs were submitted by the Petitioner and Intervenors in this case. The bids were opened at 2:00 P.M. or shortly thereafter, and subsequently evaluated and scored by DER personnel. In some categories, points were awarded on a weighted basis, which provided a relative ranking of responders. For example, the prime contractor with the highest minority business enterprise subcontractor utilization received 13 points, with lesser ranked contractors receiving fewer points.

    
    

18. On June 3, 1991, at 10:05 A.M. bid tabulation results were posted in the DER's contract office. The Petitioner and Intervenors in this case submitted responsive SOQ's to DER solicitation #9111C. The result of the DER's evaluation was the development of a short list of contractors permitted to make oral presentations to agency officials after which the DER will initiate contract discussions with approximately ten contractors.

    
    

19. The SOQs were reviewed by DER officials who initially identified information submitted which did not comply with the requirements of the RFSOQ. Irregularities were identified and discussed with DER legal counsel to determine the materiality of the irregularity and to ascertain the appropriate treatment of the defects. The DER officials did not disclose the identity of the responder during the discussions, although the person identifying the defect was aware of the related responder. However, there is no evidence that the three DER officials were aware of an individual non-complying contractor's identity, or that the decision to waive such irregularities was based upon the identity of the participants.

    
    

20. The DER determined that, in order to be equitable to all participants, it would not waive irregularities where the directions were clear and the

    consequences for noncompliance were specifically set forth. If the solicitation were less clear, or the consequence of noncompliance with the requirement was not specifically identified, the Department attempted to be more lenient regarding the waiver of such irregularities. Where the DER waived irregularities, such waivers were awarded on a consistent basis without regard to the individual responders involved. Information which was not to be reviewed or evaluated was concealed by either covering the information with white paper, or stapling excess pages together.

    
    

21. The DER waived several types of minor irregularities in the SOQs received for Solicitation #9111C.

    
    

22. Some contractors submitted transmittal letters consisting of multiple pages rather than the one page letter specified in the RFSOQ. The transmittal letter received no evaluation points. The DER stapled multiple page letters together and considered only information contained on the first page. Therefore, information submitted at variance with the one- page limit was not reviewed or evaluated. The DER did not waive the failure to attach a transmittal letter.

    
    

23. DER waived some irregularities related to subcontractor letters. Multiple page letters were stapled together and only page one information was reviewed. The DER decision to waive such defects was based upon the fact that such subcontractors were less familiar with the DER's submission requirements than were the prime contractors, that such letters were submitted by the subcontractors, that it was unfair to penalize the prime contractors for the minor irregularities of the subcontractor letters, and that the tasks to be performed by subcontractors were generally not critical to the successful completion of the prime contractor's assigned responsibilities. There was sufficient information to permit the DER to conclude that the subcontractor and prime contractor were committed to the project. There is no evidence that the identities of the subcontractors was considered in determining whether such defects should be waived.

    
    

24. The DER waived other irregularities related to subcontractor letters, including the failure of a subcontractor to sign the letter. There was no specific requirement that the subcontractor sign the letter. However, the DER did not waive the failure to submit subcontractor letters. In instances where no letters were submitted, the DER awarded zero points and references to the subcontractor in the SOQ were deleted. The DER's actions related to subcontractor letters was reasonable and appropriate.

    
    

25. Another irregularity waived by the DER was the failure to supply a minimum of ten separate and verifiable former clients other than the DER, with work performed for the DER set forth separately. The DER did not waive the failure to submit ten references, however, in some cases, not all ten references were acceptable. Attachment C does not state that the failure to submit ten acceptable references shall result in an award of zero points. In such instances, the DER reduced the number of points available to reflect the percentage of acceptable references provided. Therefore, information submitted at variance with the requirements, such as unacceptable references, was not evaluated. The DER acted reasonably and consistently with the provisions set forth in the RFSOQ.

    
    

26. The DER requested that responders identify three "deliverables" required through an ongoing contract which had been effective within the past year. The DER did not consider deliverables related to contracts which had not

    been effective within the past year. The DER checked the references and awarded no points for unacceptable references.

    
    

27. Several SOQ's did not appropriately identify key personnel as required. The DER did not consider information which was not reported as required by the RFSOQ.

    
    

28. Where minor irregularities were waived, the waiver was applied consistently to all responders.

    
    

29. The DER did not waive the failure of any responder to submit the three pages of Attachment F, as clearly required by the directions to the attachment. All parties which failed to submit all three pages of the attachment received a score of zero. There is no evidence that the DER, at any time, indicated that the directions set forth on Attachment F were optional.

    
    

30. Approximately 20 of 45 of contractors submitting SOQs failed to include all three pages of the MBE utilization form, Attachment F to the Request for SOQs. Most failed to include page three of the attachment. The Petitioner, as well as Intervenors ERM-South, ITC and Westinghouse, were included in the 20 responders which failed to submit all three pages of Attachment F. As provided in the directions to Attachment F, failure to include all three pages of the attachment resulted in a score of zero points for MBE utilization.

    
    

31. The DER could have made certain assumptions about the applicability of Attachment F to specific responders to the solicitation. However, given that the directions were clear and the penalty for not complying with the directions was equally clear, the DER did not waive the failure to submit all three pages of the attachment as part of the SOQs. The evidence is insufficient to establish that the DER's action was outside the agency's discretion or the requirements of law.

    
    

32. Extensive testimony was offered in support of the assertion that the directions related to reporting of minority business utilization were confusing and ambiguous. However, the directions to Attachment F are clear and provide that, "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." There is no credible evidence to establish that such directions are confusing or ambiguous. The instructions to the RFSOQ consistently refer to Attachment F as being the only acceptable means of reporting minority business utilization information. Attachment F consists of three pages, with the "Directions" for completing and submitting the attachment set forth at page one, paragraph one.

    
    

33. The Petitioner and Intervenors timely filed SOQ's and are substantially affected by the DER's determination that responders failing to submit all three pages of Attachment F were awarded zero points for minority business utilization. There is no evidence that the Petitioner or Intervenors are unable to perform the tasks identified in the RFSOQ.

    
    

    CONCLUSIONS OF LAW

    
    

34. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Sections 120.53(5) and 120.57(1), Florida Statutes.

35. The Petitioner has the burden of establishing, by a preponderance of the evidence, that the Department's actions were contrary to the requirements of law. Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). In this case, the burden has not been met.

    
    

36. An agency has wide discretion in soliciting and accepting bids and is accorded substantial deference in competitive bidding activities. The agency decision, when based on an honest exercise of discretion, should not be overturned even if it may appear erroneous and even if reasonable persons may disagree. Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505, at 507 (Fla. 1982). In an administrative challenge to an agency's decision to award a contract or to reject all bids, the scope of the inquiry is limited to whether the purpose of competitive bidding has been subverted. The hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally or dishonestly. Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912, at 914 (Fla. 1988). An arbitrary act is one not supported by facts or logic, or despotic. Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759, at 763 (Fla. 1st DCA, 1979). The Petitioner and Intervenors ERM-South and ITC suggest that the standard announced in the Groves-Watkins case is inapplicable in this case, based upon the distinguishable facts and for other reasons cited at hearing and in the proposed recommended orders submitted, and that the Hearing Officer's responsibility is to conduct a de novo review of the solicitation and responses. The arguments presented have received due consideration, but are not persuasive. The evidence fails to establish that the Department of Environmental Regulation acted fraudulently, arbitrarily, illegally or dishonestly in reviewing SOQs submitted in response to the Department's solicitation.

    
    

37. However, even upon a de novo review, it must be concluded that the DER acted reasonably and appropriately in the solicitation, review and evaluation of the SOQ's. The agency developed a rational policy for the review of SOQs and the waiver of minor non-material irregularities. Material information submitted in variance with instructions was not reviewed or evaluated.

    
    

38. It is suggested that the RFSOQ language providing that information submitted at variance with instructions would not be reviewed or evaluated requires the complete rejection of the non-complying information. However, such a result disregards the DER's ability to waive minor irregularities. The agency has the discretion to waive such irregularities and the evidence establishes that where the DER exercised the authority to do so, the action was taken consistently and reasonably. The requirement for submission of all three pages of Attachment F and penalty for noncompliance are clearly set forth in the specific instructions to the attachment. Given the agency's reasonable and consistently applied refusal to waive irregularities where the requirement and penalty were clearly stated, failure to comply with the Attachment F directions is a material variation. To have waived the failure of responders to submit all three pages of Attachment F would substantially alter the scoring of responses and would provide non-complying responders with a substantial advantage or benefit not enjoyed by the other responders who followed the directions.

    
    

39. Objections to the standing of certain intervenors to participate in the proceeding were raised at hearing. The DER intends to award "approximately ten" contracts to contractors included on the short list. It is unclear whether the DER would recalculate the "short list" were additional points to be awarded to some responders and not others, either as a result of this proceeding or as a result of settlement negotiations between the DER and the Petitioner. Were the

    agency to assign additional points, the potential addition of contractors to the "short list" from which the contracts will be awarded impacts contractors on the existing list. Accordingly it is determined that the substantial interests of the Petitioner and Intervenors are affected by this proceeding.

    
    

40. It should be noted that settlement negotiations between the DER and the Petitioner, which have resulted in an award of additional points to the Petitioner, appear to have occurred during the pendency of the proceeding, notwithstanding Section 120.53(5)(c), Florida Statutes, which states that "[u]pon receipt of the formal written protest which has been timely filed, the agency shall stop the bid solicitation process or the contract award process until the subject of the protest is resolved by final agency action..." except under certain conditions not here present.

    
    

41. ITC asserts in it's proposed recommended order, that the agency did not provide a clear point of entry into administrative proceedings at the time of the bid tabulation posting. The evidence does not support the assertion. The fact that ITC was so low on the "short list" as to discourage ITC from filing a notice of protest, as stated in proposed conclusion of law #5, indicates, not that a clear point of entry was unavailable, but that ITC chose not to protest because the possibility of moving up the short list was apparently insufficient to warrant the effort.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Environmental Regulation enter a Final Order dismissing the petition of Metcalf & Eddy, Inc., (Case No. 91-4318B1D), as well as Cases No. 91- 43I6BID and 91-4317B1D, as set forth in the preliminary statement to this Recommended Order.

DONE and RECOMMENDED this 26th day of September, 1991, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1991.

APPENDIX CASE NO. 90-4316B1D, 90-4317B1D, and 90-4318B1D

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner Metcalf & Eddy, Inc.

The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

4. Rejected as to the implication that DER had no right to waive minor irregularities, contrary to the evidence.

12, 16, 19. Rejected, unnecessary.

20. Rejected. Such additional points appear to have been awarded to M&E in violation of Section 120.53(5)(c), Florida Statutes.

24-25. Rejected. Although the specific waivers are factually correct, the implication of the proposed finding is contrary to the weight of the evidence which establishes that the DER waives such irregularities, even though the instructions were clear, where the consequences for failing to comply with each specific instruction were unclear. There was no penalty set forth at the requirement that a document be signed or not exceed one page in length. The evidence establishes that the DER's actions were reasonable, logical, and within the authority of the agency.

29-32. Rejected. Contrary to the clear "Directions" of Attachment F, which state that "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." Responders were referred to Attachment F by the instructions cited in the proposed finding.

33-34, 36-38, Rejected, irrelevant.

39. Rejected, immaterial. The fact the DER could have examined the information submitted by M&E and ascertained the information which would have been set forth in the complete attachment is irrelevant. The agency is under no obligation to review the information submitted for the purpose of determining a responders' minority business status. Such information is to be provided in the three pages of the completed attachment.

40-41 Rejected. A logical reading of the checklist reference to Attachment F would be that, if the attachment were applicable, the attachment should be included. The clear and specific directions to Attachment F require the submission of the three page package to receive points.

42-43. Rejected, irrelevant.

44. Rejected. The failure to submit all three pages of Attachment F resulted in zero points, as provided in the directions to the attachment. The DER policy related to waiver of irregularities does not include the waiver of irregularities where the instructions are clear, the penalty for noncompliance is specific, and a responder fails to comply. The policy is reasonable and was applied consistently.

47. Rejected, contrary to the evidence. It appears that M&E's assertion that it would be included in the "short list" requires addition of points awarded by the DER in violation of Section 120.53(5)(c), Florida Statutes.

49-50. Rejected. While "instructions in a competitive bidding solicitation can be rendered ambiguous by their location," in this case, the instructions contained in the RFSOQ referred readers to Attachment F for the reporting of minority business utilization information. Attachment F's directions are not ambiguous or confusing.

51-53. Rejected, immaterial. This proposed finding is also contrary to the suggestion that the instructions were unclear, and indicates, not that the instructions were unclear, but that the M&E representative did not read the RFSOQ. It is not possible to find that a careful and intelligent reader of the directions to Attachment F could misunderstand the meaning of "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization."

54-61. Rejected, immaterial. The fact that a substantial number of responders failed to comply with the clear directions of Attachment F does not establish that the directions are confusing. The instructions to the RFSOQ referred readers to Attachment F for the reporting of minority business utilization information. The first paragraph of Attachment F is entitled and contains "Directions" which are clearly set forth. There is nothing at all ambiguous about the requirement that "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero

(0) for minority business utilization."

62-65. Rejected, irrelevant. There is no requirement that the DER waive all irregularities. Such irregularities may be waived at the Department's discretion. The DER chose not to waive irregularities where the requirements, and the penalties for failure to comply with said requirements, were clear. The DER applied this policy appropriately and consistently. There was no appearance of favoritism when the agency's policy is fairly and consistently applied.

1. Rejected, irrelevant. The DER expects potential responders to have read the RFSOQ prior to the pre-bid meeting. The purpose of the meeting is to answer questions and provide clarifying information. The fact that no questions were asked regarding the requirement to submit all three pages of Attachment F indicates that participants either clearly understood the requirement or had not read the RFSOQ prior to the only mandatory opportunity to obtain clarification. In any event, the DER is not obligated to read every sentence of the RFSOQ aloud at a pre-bid meeting in order to make certain that responders who fail to read the document will submit responsive SOQs.

2. Rejected, cumulative.

68-69. Rejected, immaterial, unnecessary. Respondent Department of Environmental Regulation

The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

2. Rejected, unnecessary.

6. Rejected, unnecessary.

20. Rejected, unnecessary.

23. Rejected as to the implication that Attachment C, Page 1, indicated the DER could not waive any irregularities. Cited language states that information submitted in variance with instructions would not be reviewed or evaluated. The evidence establishes that information submitted in variance with the instructions was not reviewed or evaluated, but was disregarded.

28. Rejected. It is not clear what is meant by this proposed finding.

37-39. Rejected, irrelevant, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded.

41. Rejected, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded. Testimony as to the ambiguity of such directions is not credible.

42-43. Rejected, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded.

Testimony as to the ambiguity of such directions is not credible, especially given M&E/PIECO's correct submission in response to similar requirements of RFSOQ #9003C.

1. Rejected, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded. Testimony as to the ambiguity of such directions is not credible. The fact that the cited

   witness understood the directive and failed to comply due to oversight does not suggest that the directive was unclear.

2. Rejected, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded. The reason for the cited witnesses failure to comply is unclear.

3. Rejected, cumulative.

48. Rejected, unnecessary.

50-51. Rejected, immaterial. The issue in this case is not whether to goals of the minority business utilization program are met, but whether the DER acted inappropriately in reviewing SOQs submitted in response to the DER RFSOQ #9111C. 52-53. Rejected, unnecessary.

54-56. Rejected, unnecessary, cumulative. Intervenor ERM-South

The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

2. Rejected, cumulative.

14-19. Rejected, irrelevant, unnecessary. See preliminary statement.

21. Last sentence rejected, contrary to the greater weight of the evidence which establishes that the DER applied the language of the RFSOQ in a reasonable way, and that material information submitted in variance with the instructions was not reviewed or evaluated.

32-39, 41. Rejected, immaterial. The issue is whether the failure to follow the clear directions of Attachment F should result, as the directions provide, in zero points being awarded. The fact the DER could have examined the information submitted by ERM-South and ascertained the information which would have been set forth in the complete attachment is irrelevant. The agency is under no obligation to review the information submitted for the purpose of determining a responders' minority business status. Such information is to be provided in the three pages of the completed attachment.

40. Rejected, contrary to the evidence. There is no evidence that the omission of Attachment F, page three, is the sole basis for exclusion of a contractor from the short list. The short list was determined by ranking scores awarded. As stated in the directions to Attachment F, the result of noncompliance with said directions was an award of zero points for minority business utilization. 42-46. Rejected, cumulative, contrary to the greater weight of the evidence which establishes that the DER's action in reviewing the submitted Attachment F was reasonable, logical, and was applied in a consistent manner. As to whether the DER should have contacted other agencies to determine MBE status, the agency is under no obligation to do so.

47-49. Rejected, contrary to the clear directions of Attachment F, which state that "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." It is simply not possible to find, as suggested in the proposed finding, that such language cannot be relied upon to put contractors on notice that the failure to submit the three pages would result in zero points.

1. Rejected, contrary to the evidence and to the clear directions set forth at Attachment F.

2. Rejected, irrelevant.

52-54. Rejected, contrary to the evidence and to the clear directions set forth at Attachment F.

55-57. Rejected, irrelevant.

59-64. Rejected, irrelevant, unnecessary. See preliminary statement.

Intervenor ITC

The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

Proposed findings of fact #7, #10 and #14-16 relate to evidence introduced at hearing by ITC to support it's position that it had been excluded from the "short list" due to DER's clerical error. As stated in the preliminary statement, ITC failed to timely file a notice of protest subsequent to the posting of the bid tabulation results challenging the DER's clerical error.

Accordingly, this Recommended Order does not set forth Findings of Fact related to the clerical error due to ITC's failure to timely file a written notice of protest as required by Section 120.53(5)(b), Florida Statutes.

12. Rejected. The M&E formal written protest does not allege that the DER had improperly drawn the line for the "short list."

18-20. Rejected. Although likely correct, the proposed findings are irrelevant to the issue in this case.

1. Rejected. Such additional points awarded to M&E by the DER appear to have been awarded contrary to Section 120.53(5)(c), Florida Statutes.

2. Rejected, cumulative. ITC had an opportunity to timely file a written notice of protest subsequent to the bid tabulation posting, but failed to do so. An intervenor takes the case as it is found.

3. Rejected, cumulative.

25. Rejected, contrary to the evidence. The evidence does not establish that the failure to complete all of Attachment F was based on it's inapplicability. Attachment F clearly states that inapplicable pages should be so marked and submitted with the response package. If such pages were not returned, as suggested, because there did not apply, then it is reasonable to conclude that the responder failed to read the clearly stated directions to Attachment F.

26-29. Rejected, irrelevant. The DER did nothing more than apply the clearly stated direction that "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package" and imposed the clearly stated penalty, stating that "[f]ailure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization."

32-33. Rejected, contrary to the greater weight of evidence that the DER did not waive irregularities where the requirements, and the penalties for noncompliance with said requirements, were clearly stated. The DER did waive other irregularities where the instructions were ambiguous or confusing, or where there was not a specific penalty attached for the failure to follow a specific requirement. The evidence establishes that the DER actions were appropriate.

34. Rejected, immaterial. All three pages of Attachment F were clearly required to be submitted or a score of zero would be awarded.

Intervenor E&E

The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

2-3. Rejected, cumulative.

12. Rejected, contrary to the cited evidence. Although Attachment F was discussed in terms of reporting requirements, there were no questions asked related to the directions for completing or submitting the attachment.

21. Rejected, cumulative.

Intervenors EBASCO, ABB, OHM, Cherokee and Westinghouse jointly filed a proposed recommended order. The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

13, 16-17, 43-45, 47. Rejected, unnecessary.

COPIES FURNISHED:

Carol Browner, Secretary Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32399-2400

Daniel H. Thompson, Esq. General Counsel

Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32399-2400

Carolyn S. Raepple, Esq. Carlos Alvarez, Esq.

123 S. Calhoun Street Post Office Drawer 6526

Tallahassee, Florida 32314

E. Gary Early, Esq. Assistant General Counsel Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32399-2400

M. Christopher Bryant, Esq. 2700 Blairstone Road, Suite C Post Office Box 6507 Tallahassee, Florida 32301

George N. Meros, Esq.

101 North Monroe Street Tallahassee, Florida 32301

Barrett G. Johnson, Esq.

315 South Calhoun Street, Suite 750 Tallahassee, Florida 32301

Rex D. Ware, Esq.

106 East College Avenue Highpoint Center, Suite 900 Tallahassee, Florida 32301

W. Robert Venzina, III, Esq. Mary M. Piccard, Esq.

1004 DeSoto Park Drive Post Office Box 589

Tallahassee, Florida 32399-0589

Harry R. Detwiler, Jr., Esq. Post Office Drawer 810 Tallahassee, Florida 32302

Docket for Case No: 91-004316BID

Orders for Case No: 91-004316BID