STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SYSTEMS/SOFTWARE/SOLUTIONS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0339BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on January 31, 1992, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Donald F. Louser - Qualified

Representative Systems/Software/Solutions 657 Sabal Lake Dr., #101

Longwood, Florida 32770

For Respondent: Susan P. Stephens

Assistant General Counsel Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUES

Whether Department of Transportation acted fraudulently, arbitrarily, capriciously, illegally, or dishonestly in issuing its intent to award RFP-DOT- 91/92-9012 bid to Trauner Consulting Services.

PRELIMINARY STATEMENT

By formal protest filed on December 30, 1991, Petitioner, Systems/Software/Solutions (hereinafter "Systems"), challenged Respondent's, Department of Transportations's (hereinafter "DOT") intent to award RFP-DOT- 91/92-9012 to Trauner Consulting Services. This matter was referred to the Division of Administrative Hearings on January 16, 1992. Thereafter, the Prehearing Order was issued January 21, 1992, and by Amended Order, the formal hearing was held on January 31, 1992. At the hearing, Joint Exhibits 1 through

5 were admitted in evidence. Donald F. Louser, testified as an expert witness in the area of critical path method scheduling and training on behalf of Petitioner. Three exhibits were admitted in evidence. Two exhibits were offered, but objections were sustained. The depositions of Keith Davis and Gordon Burleson were taken on January 29, 1992, and filed for record as part of

the Petitioner's case in chief on February 11, 1992. Respondent offered the testimony of Charles E. Johnson and the deposition testimony of Gordon Burleson.

No transcript of the proceedings was ordered in this case. Each party filed proposed findings of fact and conclusion of law on February 28, 1992. Each party's proposed findings of fact have been carefully considered and incorporated where appropriate. My specific rulings on each party's proposals are contained in the Appendix to this Recommended Order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Public notice that DOT was seeking competitive bids was given, and DOT prepared a document entitled: Request for Proposal, which set forth in detail all of DOT's requirements. The purpose of the RFP was to inform all potential bidders of the minimum requirements for submitting a responsive bid, and the specific criteria by which the bids would be evaluated. Specific areas of importance to Respondent were as follows:

   
   

   All proposals were to be submitted in two parts; the Technical Proposal and the Cost Proposal. The Technical Proposal was to be divided into an Executive Summary, Proposer's Management Plan and Proposer's Technical Plan. The price proposal was to be filed separately.

   
   

2. The RFP requested written proposals from qualified firms to develop and provide training on highway and bridge construction scheduling use as it pertains to Department of Transportation Construction Engineers.

   
   

3. Proposals for RFP-DOT-91/92-9012 (hereinafter "RFP"), were received and opened by FDOT on or about December 14, 1992. Eleven companies submitted proposals.

   
   

4. The technical portions of the proposals were evaluated by a three (3) person committee comprised of Gordon Burleson, Keith Davis and John Shriner, all FDOT employees.

   
   

5. Gordon Burleson is the Engineer of Construction Training for FDOT. He administers the training for FDOT engineers and engineer technicians who work in FDOT's Construction Bureau.

   
   

6. John Shriner is the State Construction Scheduling Engineer for FDOT.

   
   

7. Keith Davis is the District 7, Construction Scheduling Engineer and Construction Training Engineer for FDOT.

   
   

8. The Committee members evaluated the proposals individually then met as a group. The Committee established no formal, uniform evaluation criteria to be used by all committee members.

   
   

9. The price proposals were not revealed to the Committee members until after the proposals were technically evaluated and scored.

10. The price proposals were reviewed separately by Charles Johnson of the Contractual Services Office, Department of Transportation.

    
    

11. The Committee evaluated the proposals based on the general criteria contained in the RFP.

    
    

12. The RFP listed the criteria for evaluation to include: Technical Proposal

    Technical evaluation is the process of reviewing the Proposer's Executive Summary, Management Plan and Technical Plan for understanding of project qualifications, technical approach and capabilities, to assure a quality project.

    
    

    Price Proposal

    
    

    Price analysis is conducted by comparison of price quotations submitted.

    
    

13. The RFP established a point system for scoring proposals. Proposer's management and technical plans were allotted up to 40 points each, 80 percent of the total score. The price proposed was worth up to 20 points, or 20 percent of the total score.

    
    

14. Petitioner's proposal was given a total score of 90 points out of a possible 100.

    
    

15. Trauner's proposal was given a total score of 92.04 points out of a possible 100.

    
    

16. Petitioner's was ranked highest for price proposal, and received a total of 20 points for its proposed price of $18,060.

    
    

17. Trauner's proposed price was $24,500, the next lowest after Petitioner and received 14.74 points.

    
    

18. The technical portion of Trauner's proposal was given a total of 77.3 points, 38 for its Management Plan and 39.3 for its Technical Plan.

    
    

19. The technical portion of Petitioner's proposal was given a total of 70 points, 36.7 for its Management Plan and 33.3 for its Technical Plan.

    
    

20. Each plan was reviewed separately by the three Committee members, The individual, pre-averaged scores vary with committee member, Keith Davis' score varying the most from the others.

    
    

21. The Committee members did not discuss the proposals until after they had individually reviewed and scored them.

    
    

22. The Committee members had discussed the criteria prior to receiving and evaluating the proposals.

    
    

23. There was insufficient evidence to show that Committee members scores were determined by fraud, or were arbitrary, capricious, illegal, or dishonest.

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes (1991).

    
    

25. The law of Florida has established that a strong deference be accorded an agency's decision in competitive bidding situations:

    
    

    1. public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when based on an honest exercise of this discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree.

       
       

       Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982).

       
       

26. In deciding Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988), the Supreme Court of Florida ruled that the Liberty County decision established the standard by which an agency's decision on competitive bids for a public contract should be measured when it further held that the agency's discretion, as stated above, cannot be overturned absent a finding of "illegality, fraud, oppression or misconduct." Groves- Watkins, 530 So.2d at 913.

    
    

27. The Groves-Watkins standard was recently reiterated in Scientific Games, Inc. v. Dittler Brothers, Inc., 586 So.2d 1131 (Fla. 1st DCA 1991). In Scientific Games, Inc., the Court was determining the scope of discovery to be permitted in an administrative proceeding concerning the evaluation of an RFP. The Court concluded that the scope of discovery must be viewed in light of the proper standard of review to be employed by the Hearing Officer in these types of proceeding and stated:

    
    

    The Hearing Officer need not, in effect, second guess the members of the evaluation committee to determine whether he and/or other reasonable and well-informed persons might have reached a contrary result . . . "[T]he Hearing Officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly." Groves-Watkins, 530 So.2d at 914.

    
    

    Scientific Games, Inc., 586 So.2d at 1131. See, also, C. J. Courtenay v. Department of Health and Rehabilitative Services, 581 So.2d 621 (Fla. 5th DCA 1991) (It is not the Hearing Officer's function to reweigh award factors and award to protestor).

    
    

28. In the case before the tribunal, the Petitioner has not established that Respondent acted fraudulently, arbitrarily, illegally or dishonestly. The Committee members followed standard FDOT procedures and evaluated the proposals

    in light of criteria set forth in the RFP. The fact that one Committee member scored Petitioner's proposal lower than the other two Committee members did, does not invalidate the review process.

    
    

29. The burden is on the Petitioner to show that FDOT's evaluation and selection of Trauner's proposal was beyond the bounds of its discretion as a state agency. Petitioner has simply failed to meet that burden. Requests for proposals necessarily require some subjectivity in the review process. That is why the committee process is used to evaluate the bids, and variations in scoring can be expected among its members.

    
    

30. The Respondent's evaluation of the proposals was neither arbitrary nor capricious. The testimony and evidence demonstrated that the Committee reviewed all of the proposals using the criteria set forth in the RFP. Its determination that the Trauner proposal was the best overall, was made by review of the proposal in light of the criteria set forth in the RFP.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that Respondent, Department of Transportation enter a Final Order dismissing the protest filed herein by Petitioner, Systems/Software/Solutions and awarding RFP-DOT-91/92-9012 to Trauner Consulting Services.

DONE and ENTERED this 12th day of March, 1992, in Tallahassee, Florida.

DANIEL M. KILBRIDE

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 12th day of March, 1992.

APPENDIX

Respondent's Proposed Findings of Fact:

Accepted in substance: paragraphs - 1,2,3,4,5,6,7,8,

9,10,11,12,13,14,15,16,17,18,19,20,21

Petitioner's Proposed Findings of Fact:

Accepted in substance: paragraphs - 1,5,11(in part)

Rejected as not supported by the greater weight of evidence or irrelevant: paragraphs 2,3,4,6,7,8,9,10,11(in part),12

COPIES FURNISHED:

Donald F. Louser, Qualified Representative

Systems/Software/Solutions 657 Sabal Lake Dr, #101

Longwood, Florida 32779

Susan P. Stephens, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary Department of Transportation Attn: Eleanor F. Turner, MS-58 Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire General Counsel

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-000339BID

Orders for Case No: 92-000339BID