STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WESTINGHOUSE REMEDIATION SERVICES, ) INC., )

)

Petitioner, )

)

vs. ) CASE NO. 92-1886BID

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

and )

)

OHM REMEDIATION SERVICES, )

CORPORATION, )

)

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 April 16, 1992, at Bartow, Florida.

APPEARANCES

For Petitioner: Neal Smith, District Manager

Westinghouse Remediation Services, Inc. 675 Park North Boulevard

Building F, Suite 100 Clarkston, Georgia 30021

For Respondent: Susan P. Stephens, Esquire

605 Suwannee Street

Tallahassee, Florida 32399-0450

For Intervenor: Vasilis C. Katsafanas, Esquire

Post Office Box 1873 Orlando, Florida 32802

STATEMENT OF THE ISSUES

Whether Respondent's Notice Of Intent To Award RFP-DOT-91/92-1005 to OHM Remediation Services Corporation is fraudulent, arbitrary, illegal, or dishonest.

PRELIMINARY STATEMENT

By Formal Written Protest dated March 4, 1992, Westinghouse Remediation Services, Inc. (RMS), Petitioner, seeks a reevaluation of the bid submitted by it in response to the Invitation To Bid to provide remediation services for DOT road construction projects. As grounds therefor, it is alleged that Respondent

arbitrarily applied bid prices for an air stripper and crane to Petitioner's bid, inconsistently identified equipment to be applied where Petitioner's bid provided a range of prices for equipment, and failed to consider weekly and monthly rates submitted in Petitioner's bid.

At the hearing, Petitioner called three witnesses, Respondent called one witnesses, intervenor called one witness, and six 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. Having fully considered all evidence presented, I submit the following.

FINDINGS OF FACT

1. By RFP-DOT-91/92-1005, the Florida Department of Transportation (DOT), Respondent, sought bid responses to provide equipment and services on an as needed basis to assess and/or clean up contaminants in rights-of-way to be acquired for road construction projects. Principal contaminants envisioned were those resulting from abandoned and leaking petroleum tanks or other business whose waste disposal threatened ground water in the area with contamination.

   
   

2. The Requests For Proposals (RFP) provided for technical proposals and price proposals to be submitted for evaluation. The technical evaluation is the process of reviewing the proposer's Executive Summary Management Plan and Technical Plans for understanding the project. The price evaluation is the process of examining a prospective price without evaluation of the separate cost elements and proposed profit of the potential provider (Exhibit 3). The only issue here is the price proposal.

   
   

3. In evaluating the Price Proposals, the RFP (Exhibit 3, Section 1.16.2) provided:

   
   

   1. The Department will determine a "typical project" prior to receipt of proposals.

      
      

   2. The District Procurement Office will compute costs for the "typical project" based on fees submitted by each proposer.

      
      

   3. All responsive bid proposals will be scored in relation to the lowest computed cost for the "typical project" using the following formula: (Lowest "Typical Project" cost - by subject "Typical Project"

      cost) x 40 = Awarded points for price proposal.

      
      

   4. The "typical project" was prepared by Raymond Nottingham, District I Contamination Coordinator, prior to the proposals being received and opened. Although the exact content of the typical project was not included in the RFP, bidders were informed of the typical type of project they could expect to encounter under the contract during the prebid meeting and in the RFP.

      
      

   5. The price evaluation was done by matching up the prices offered by the bidders in their price proposals to the items and tasks listed in the DOT's typical project to come up with the bidders typical project cost.

   6. This is the first RFP for remediation services offered by DOT District

      I. In preparing this RFP, the administrative section of the statewide RFP earlier consummated by the department was utilized; however, for more specific pricing bids the price part of the RFP was largely adopted from a similar RFP prepared by DOT District VI in Miami, Florida. As a result of mixing the two RFPs, a slight possibility existed that some proposers would follow the more general descriptions allowed in the earlier statewide RFP rather than the more specific provisions of the District VI RFP. However, a careful reading of the instant RFP would have eliminated any such confusion.

      
      

   7. Section 1.17.3 of the RFP provided in pertinent part:

      
      

      The Price Proposal information is to be submitted in a separate sealed package marked "Price Proposal Number RFP-DOT- 91/92-1005.(sic) The Price Proposal information shall be submitted on the forms provided in the Request for Proposal or on Proposers' own forms provided the Department format is followed. The Department reserves the right to reject any proposal that is not submitted in this format.

      
      

   8. The format included in the RFP was broken down into the following classifications: Labor Classification, Heavy Equipment, Mobile Equipment, Water Equipment, Personal Protective Clothing and Equipment, Drilling, Field Analytical Equipment, Treatment Equipment, and Other. The format further indicated one fee for each item listed under the classification at an hourly rate and overtime hourly rate.

      
      

   9. The proposal submitted by Petitioner included prices for equipment offered under the following classifications: Trucks and Trailers, Personal Protective Equipment, On-Site Recovery and Treatment, Sampling and Testing Equipment, Construction and Excavation Equipment, Miscellaneous Equipment, Rental Equipment, and Expendables.

      
      

   10. The proposal submitted by Petitioner contained no price for an air stripper or crane. It lists three prices for three sizes of carbon cells, three prices for three sizes of submersible pumps, three prices for three sizes of pools, two prices for drums, three prices for pool liners, separate prices for hood and suit of protective clothing, and three prices for boots.

       
       

   11. Petitioner was the only proposer of the 17 submitting proposals that failed to submit a price for an air stripper and crane.

       
       

   12. Several proposers omitted prices for items on which the other proposers submitted a price. In attempting to keep all bidders in the process by not declaring their bid nonresponsive while being fair to all other proposers, the Department adopted different procedures for different items. Generally, when a proposers omitted a price for a particular piece of equipment, the Department inserted the highest price received from other proposers for that piece of equipment in the proposal in calculating the total bid. On other occasions where the proposer submitted more than one price and did not select the price himself, the Department averaged the prices submitted and used that figure to calculate the price for that item. Where there was obviously a lot of confusion and a wide disparity in the proposals as in establishing well point

       systems and quality control blanks, the Department omitted those items in calculating the prices.

       
       

   13. In totaling the bids received, only the daily rate offered was used because the RFP specified only a daily rate, and all proposers did not submit weekly and monthly rates. Part of the confusion stemmed from other parts of the RFP which did indicate that weekly and monthly rates were desired. However, since the other section did not require the submission of weekly and hourly rates, the Department in evaluating the bids did not use those rates in determining the bid price.

       
       

   14. Petitioner contends that the air stripper and crane to be used on a project can vary widely, and it is not practicable to submit a proposal for a fixed price for such an item. However, it is significant that Petitioner was the only proposer that failed to submit a price for these items.

       
       

   15. Intervenor utilized the bid forms provided with the RFP and, although Intervenor in its supplementary material listed varying prices for different sizes of the same item or different materials, it entered one price, usually the lowest, on the bid form for calculating its bid.

       
       

   16. Petitioner contends that had Respondent brought forth the lowest price for items Petitioner submitted several prices on, and disallowed the prices on air strippers and cranes, then Petitioner's bid would have been lower than the Intervenor's bid. However, in the final ranking of proposers, Petitioner stood fifth. No evidence was presented that had Petitioner's contentions been granted and applied to all proposers that Petitioner's proposal would have been lower than the other bidders whose proposals were initially deemed superior to Petitioner's proposal.

       
       

   17. By failing to follow the format contained in the RFP Petitioner's proposal was not responsive.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   19. In these proceedings Petitioner has standing to challenge all bids superior to its bid but it does not have standing to challenge only the Intervenor's bid which was accepted as the lowest responsive bid. Preston Carroll Co. Inc. v. Florida Aquaduct Comm., 400 So.2d 5251 (Fla. 3rd DCA 1981). Preston Carroll held the third low bidder does not have standing to challenge the low bidder but second low bidder does have such standing. A more explicit definition of standing would allow an unsuccessful bidder to challenge all bids superior to its bid and in such a challenge it would have the burden to prove, by a preponderance of the evidence, that its bid was lower (or superior) to each and every bid challenged. Since Petitioner has here failed to submit evidence that its proposal was superior to all proposals initially rated above Petitioner's proposal, Petitioner has failed to sustain this burden.

       
       

   20. Apart from proof of standing, the Petitioner must show that in proposing to award the bid to OHM Remediation Services, the Department acted fraudulently, arbitrarily, illegally, or dishonestly. Department of Transportation v. Groves-Watkins 530 So.2d 912, 914 (Fla. 1988). Here no allegation is made other than that Respondents acted arbitrarily.

   21. An arbitrary decision is one that is not supported by facts or logic or that is despotic. The evidence here presented fails to demonstrate that the Department acted arbitrarily. First it is to be noted that Petitioner's price proposal did not follow the format specified in the RFP. Second, Respondent attempted to keep all bids responsive by inserting prices where the bidder had failed to include a price for a specific piece of equipment listed for the proposer to bid upon. The only method which is fair to the other proposers is to allocate the highest priced bid for that item. Similarly, where Petitioner submitted three bids for the same item of different sizes or capacities only one of those prices can be used in arriving at Petitioner's total price. Averaging the price submitted under those conditions is not arbitrary.

       
       

   22. From the foregoing it is concluded that Petitioner has failed to demonstrate standing to challenge the award of RFP-DOT-91/92-1005 to OHM Remediation Services Corporation and that in awarding the proposal to OHM the Respondents action was neither fraudulent, arbitrary, illegal, nor dishonest.

RECOMMENDATION

It is recommended that a Final Order be entered dismissing Westinghouse Remediation Services, Inc. protest to the award of RFP-DOT-91/92-1005 and OHM Remediation Services Corporation.

DONE and ORDERED this 12th day of May, 1992, 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 12th day of May, 1992.

APPENDIX

Proposed findings submitted by Respondent and Intervenor are accepted.

Those not included in Hearing Officer's findings were deemed to be unnecessary to the conclusions reached.

Proposed findings submitted by Petitioner are accepted except as noted below. Those not noted below or included in Hearing Officer's findings were deemed to be unnecessary to the conclusions reached.

8. Rejected that Petitioner's price proposal followed FDOT format.

22. Rejected.

28. Rejected. Additional reasons for rejection was the wide fluctuation in prices indicating the bidders did not understand the scope of the item.

37. Rejected. Although an inappropriate substitution was selected, the price for the item was below the maximum price offered for a crane.

Accordingly, Petitioner benefited from the decision to substitute an item rather than use the highest price offered.

39. While it is true that OHM and Petitioner were the only bidder submitting weekly and monthly rates the reason for FDOT using only daily rates. See HO #13.

43. Rejected.

45. Rejected. See HO #13.

47. Rejected.

Table 1. Rejected. This evidence was not submitted at the hearing.

COPIES FURNISHED:

Neal Smith, District Manager Westinghouse Remediation Services, Inc. 675 Park North Boulevard

Building F, Suite 100 Clarkston, GA 30021

Susan P. Stephens, Esquire Department of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0450

Vasilis C. Katsafanas, Esquire Post Office Box 1873

Orlando, FL 32802

Ben G. Watts Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, FL 32399-0458

Thornton J. Williams General Counsel

Department of Transportation Haydon Burns Building

562 Suwannee Street Tallahassee, FL 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 b days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency 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: 92-001886BID

Orders for Case No: 92-001886BID