STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE WACKENHUT CORPORATION, )

)

Petitioner, )

vs. )

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent, ) CASE NO. 94-3160BID and )

)

BORG-WARNER PROTECTIVE )

SERVICES CORPORATION, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on October 31 through November 2, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Paul R. Ezatoff

Katz, Kutter, Haigler, Alderman, Marks & Bryant, P.A.

Post Office Box 1877

Tallahassee, Florida 32302-1877

For Respondent: Thomas H. Duffy

Department of Transportation Haydon Burns Building, Room 562 605 Suwanee Street

Tallahassee, Florida 32399-0458

For Intervenor: Bruce Culpepper

Davisson F. Dunlap, Jr.

D. Andrew Byrne Pennington & Haben, P.A. Post Office Box 10095

Tallahassee, Florida 32302-2095 STATEMENT OF THE ISSUES

The central issue in this case is whether the Petitioner is entitled to the award of RFP-DOT-93/94-9025 instead of the Intervenor or, in the alternative, should all proposals be rejected.

PRELIMINARY STATEMENT

This case began on May 13, 1994, when the Petitioner, The Wackenhut Corporation (Wackenhut), timely filed a notice of intent to protest an intended award of RFP-DOT-93/94-9025 to Intervenor, Borg-Warner Protective Services Corporation (Borg-Warner). On June 7, 1994, the case was forwarded to the Division of Administrative Hearings for formal proceedings and a hearing was scheduled for June 21, 1994.

By stipulation of the parties, the hearing was continued and rescheduled on four occasions, but was ultimately heard on October 31 through November 2, 1994. The parties' prehearing statement, including a statement of admitted facts which is incorporated below, was filed on October 26, 1994. The parties' joint exhibits numbered 1 through 8 were received into evidence.

At the hearing, the Petitioner presented the testimony of the following witnesses: Charles Johnson, Larry Alan Reese, Dominic Richard, Laurice Ramsey Long, Jr., and Austin N. Crawford. Petitioner's exhibits numbered 1, 2, 6 through 12, 14 through 24, 28, 32, 34 through 38, and depositions identified by numbers 39 through 49 were received into evidence. The Respondent, Department of Transportation (Department), presented the testimony of Richard Manning, Richard Marino, Raymond Benedict, Dominic Richard, Alan Reese, and Charles Johnson; its exhibit numbered 1 was also admitted into evidence. The Intervenor adopted the testimony of the Department's witnesses and, in addition, offered the testimony of Henry Sturm. Intervenor's exhibits numbered 1 through

14 were admitted into evidence.

The transcript of the proceeding was filed on November 21, 1994. The parties' proposed recommended orders were received on December 1, 1994.

Specific rulings on all proposed findings of fact are included in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. On March 17, 1994, the Department issued a request for proposal, RFP- DOT-93/94-9025, for the provision of rest area/welcome station security services for the Department's districts geographically identified as 1, 2, 3, 5, and 7.

   
   

2. The request for proposal (RFP) contained instructions to proposers, a scope of services, and attachments. Pursuant to the RFP, sealed technical and price proposals were to be submitted to the Department's headquarters no later than 2:30 p.m., April 20, 1994.

   
   

3. The RFP contained the procedure which the Department would follow to evaluate and score competing proposals.

   
   

4. Petitioner, Intervenor, and others timely submitted proposals to be evaluated by the Department.

   
   

5. After reviewing the proposals, the Department posted its proposed tabulations for each of the districts. This posting, on May 10, 1994, identified the proposer to whom the Department intended to award the contract in each of the districts.

   
   

6. Petitioner was ranked first in district 5. The intended award for district 5 is not in dispute.

7. Petitioner was ranked second in districts 1, 2, and 7. Intervenor was ranked first in those districts.

   
   

8. Petitioner was ranked third in district 3. Intervenor was ranked first in that district, and another proposer ranked second ahead of Petitioner.

   
   

9. On May 13, 1994, Petitioner timely filed a notice of intent to protest the intended awards to Intervenor in districts 1, 2, 3, and 7.

   
   

10. Subsequently, Petitioner timely filed the formal written protest which is the subject of this case.

    
    

11. During the last week in June, 1994, the Secretary of the Department issued a declaration of emergency pursuant to Section 120.53(5), Florida Statutes, and awarded the contracts notwithstanding the pendency of this case. As a result, before the end of June, 1993, the Department and Intervenor executed contracts for districts 1, 2, 3, and 7; each with a July 1, effective date.

    
    

12. The substantial interests of Petitioner are affected by the Department's award to Intervenor of the contracts for districts 1, 2, 3, and 7, as are the interests of Intervenor to support those contracts.

    
    

13. Section 1.1 of the RFP defined "proposer" as follows:

For the purpose of this document, the term "proposer" means the prime Consultant acting for itself and those individuals, partnerships, firms, or corporations comprising the proposer's team. The term "proposal" means the complete response of the proposer to the request or invitation for proposals, including properly completed forms and supporting documentation.

1. Section 1.7 of the RFP established the "qualifications for consultant services" as follows:

   
   

   1. General

      The Department will determine whether the proposer is qualified to perform the services being contracted based upon the Consultant demonstrating in its proposal satisfactory experience and capability in the work area.

      The proposer shall include the necessary experienced personnel and facilities to support the activities associated with this contract.

      
      

   2. Qualifications of Key Personnel

      Those individuals who will be directly involved in the project must have demonstrated experience in the areas delineated in the scope of work.

      Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Contract Manager.

      
      

   3. Authorizations and Licenses

      The Consultant must be authorized to do business in the State of Florida. Such authorization and/ or licenses should be obtained by the proposal

      due date and time, but in any case, will be required prior to award of the contract. For corporate authorization, contact:

      Florida Department of State Division of Corporations The Capitol Building Tallahassee, Florida 32399

      (904)487-6052

      
      

   4. Review of Facilities

   After the proposal due date and prior to contract award, the Department reserves the right to perform or have performed, an on-site

   review of the proposer's facilities. This review will serve to verify data and representations submitted by the Proposer and to determine whether the proposer has an adequate, qualified, and experienced staff, and can provide overall management facilities. The review will also

   serve to verify whether the Proposer has finan- cial capability adequate to meet the contract requirements. In the event the Department determines that the size or nature of the proposer's facilities or the number of experienced personnel (including technical staff) are not reasonably adequate to ensure

   satisfactory contract performance, the Department has the right to reject the proposal.

   
   

2. Section 1.8 of the RFP provided:

   
   

   1. General

      The Department reserves the right to accept or reject any or all proposals received and reserves the right to make an award without further discussion of the proposals submitted. Therefore, the proposals should be submitted initially in the most favorable manner. It is understood that the proposal will become a part of the official file

      on this matter without obligation to the Department.

      
      

   2. Responsiveness of Proposals

      All proposals must be in writing. A responsive proposal is an offer to perform the scope of services called for in this Request for Proposal.

      Proposals found to be non-responsive shall not

      be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained.

      A proposal may be found to be irregular or non- responsive by reasons, including, but not limited to, failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, improper and/or undated signatures.

   3. Multiple Proposals

      Proposals may be rejected if more than one proposal is received from an individual, firm, partnership, or corporation, or combination thereof, under the same or different names. Such duplicate interest may cause the rejection of all proposals in which such proposer has participated. Subconsultants

      may appear in more than one proposal.

      
      

   4. Other Conditions

      Other conditions which may cause rejection of proposals include evidence of collusion among proposers, obvious lack of experience or expertise to perform the required work, or failure to perform or meet financial obligations on previous contracts, or in the event an individual, firm, partnership,

      or corporation is on the United States Comptroller General's List of Ineligible Contractors for Federally Financed or Assisted Projects.

      Proposal will be rejected if not delivered or received on or before the date and time specified as the due date for submission.

      
      

   5. Waivers

   The Department may waive minor informalities or irregularities in proposals received where such is merely a matter of form and not substance, and

   the correction or waiver of which is not prejudicial to other proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department's interest and will not affect the price of the Proposals by giving a proposer an advantage

   or benefit not enjoyed by other proposers.

   
   

3. Section 1.10 of the RFP provided:

   
   

   1.10 Contractual Obligations

   The general terms and conditions of any agree- ment between the Department and the selected proposer will be guided by State procedures.

   Each individual, partnership, firm or corporation that is part of the proposer's team, either by joint venture, or subcontract, will be subject

   to, and comply with, the contractual requirements. The basic form of Agreement shall be the State of Florida Department of Transportation's Contractual Service Agreement, attached hereto as Attachment II.

   
   

4. Section 1.19 of the RFP provided:

   
   

   1.19 Award of the Contract

   The Department intends to award the contract to the responsible and responsive proposer whose proposal is determined to be the most advantageous to the Department IN EACH DISTRICT.

5. Section 1.21 of the RFP provided:

   
   

   1.21 Contract Execution

   The Department and the successful proposer will enter into a contract establishing the obligations of both parties, FOR EACH DISTRICT.

   
   

6. Section 1.16.2 of the RFP provided:

   
   

   1.16.2 Technical Proposal(Part I)(6 copies) (Do not include price information in Part I)

   The Proposer must submit six (6) copies of the technical proposal which are to be divided into

   the sections described below. Since the Department will expect all technical proposals to be in this format, failure of the Proposer to follow this outline may result in the rejection of the proposal. The technical proposal must be submitted in a separate sealed package marked "Technical Proposal Number RFP-DOT-93/94-9025."

   
   

   1. EXECUTIVE SUMMARY

      The Executive Summary is to be written in non- technical language to summarize the proposer's experience, overall capabilities, and approaches for accomplishing the services specified herein. The proposer is encouraged to limit the summary to no more than ten (10) pages.

      
      

   2. PROPOSER'S MANAGEMENT PLAN

      The Proposer shall provide a management plan which explains the approach, capabilities, and

      means to be used to administer and manage the work.

      1. Administration and Management

         Proposer should include a description of the organizational structure and management style established and the methodology to be

         used to provide quality services and to maintain schedules; as well as the means of coordination and communication between the organization and the Department.

      2. Identification of Key Personnel

         1. Project Manager:

            Provide the name of Project Manager on Proposer's team, as well as a resume. A description of the functions and responsibilities of the person relative to the task to be performed is required. The approximate percent of time to be devoted exclusively for this project and to the assigned tasks also must be indicated.

         2. Contract Supervisors:

            Provide the names and resumes of all supervisors proposed. If you are proposing on more than one District, the number of supervisors should be consistent with the number of Districts being proposed.

         3. PROPOSER'S TECHNICAL PLAN

            1. Technical Approach

               This section should explain the approach, capabilities, and means to be used in accomp- lishing the tasks in the Scope of Services for each District.

               (i.e.; number of security guards, phones, vehicles, backup capabilities for equipment and personnel, etc.)

            2. Facility Capabilities

   A description and location of the proposer's facilities as they currently exist and as they will be employed for the purpose of this work must be identified.

   
   

7. Section 1.17 of the RFP provided the criteria for the proposal evaluation. That section provided, in part:

   
   

   1. Evaluation Process:

      A Selection Committee, hereinafter referred to as the "Committee", will be established to

      review and evaluate each proposal submitted in response to this Request for Proposal (RFP).

      The Committee will be comprised of at least three persons with background, experience,

      and/or professional credentials in the service area.

      
      

      The Contractual Services Office will distribute to each member of the Committee a copy of each technical proposal. The committee members will independently base their evaluation of each proposal on the same criteria in order to assure that values are uniformly established. The Committee will evaluate each technical proposal on its own merit without compar- ison to proposals submitted by other firms and individuals. The Committee will assign points, utilizing the technical evaluation criteria identi- fied herein and complete a technical summary.

      * * *

      
      

      During the process of evaluation, the Committee will conduct examinations of proposals for responsiveness to requirements of the RFP. Those determined to be non-responsive will be automatically rejected.

      
      

      The Committee shall make a determination of the responsibility level of each Proposer. Proposals that are determined to have been submitted by non-responsible Proposers will be so marked.

      
      

   2. Criteria for Evaluation

      1. 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 product.

      2. Price Proposal SEPARATE EVALUATION WILL BE DONE BY EACH DISTRICT PROPOSED

         Price evaluation is the process of examining a prospective price without evaluation of the separate cost elements and proposed profit of the potential provider. Price analysis is conducted through the comparison of price quotations submitted FOR EACH DISTRICT.

         
         

         The criteria for price evaluation shall be based upon the following formula:

         
         

         (Low Price/Proposer's Price) x Weighted Price Points = Total Points

         
         

   3. Point Distribution (Weighted Values) The following point system is established for scoring the proposals:

   Point Value

   1. Technical Proposal 30

   2. Price Proposal 70

   3. Certified Minority

   Business Enterprise 10

   Total Points 110

   
   

8. Borg-Warner Protective Services Corporation (Borg-Warner ) timely submitted a response to the RFP and proposed to provide services to the Department by using its affiliates or subsidiaries in each of the districts.

   
   

9. Borg-Warner identified Wells Fargo Guard Service Inc. of Florida (Wells Fargo) as the service provider for districts 1 and 2; NYCO and Burns International as the providers for district 3; and Burns International for district 7.

   
   

10. Prior to submitting its proposal, Borg-Warner communicated with the Department to inform it of the plan to submit its response as Borg-Warner offering the services of its operating divisions in each geographical area. The Department approved the concept of one proposal with each district clearly identified by provider.

    
    

11. Wells Fargo is wholly-owned by Borg-Warner.

    
    

12. Burns International Security Services, Inc., was a former corporate name for the entity now known as Borg-Warner.

    
    

13. Burns International Security Services is a fictitious name that has been registered to Borg-Warner (or its predecessors) since 1982.

    
    

14. "NYCO" is a fictitious name registered to Borg-Warner.

15. The following Department employees served on the selection committee that evaluated and scored the RFP proposals:

    
    

    Larry Alan Reese All districts

    Dominic Richard All districts

    Richard A. Marino District 1

    R.S. Manning District 2

    Thomas W. Cook, Jr. District 3

    Raymond D. Benedict District 7

    
    

16. Mr. Reese was the chairman of the selection committee; his point awards together with scores from two other members were tabulated for each district to arrive at the assignment of points for each proposer for criteria 1 (technical proposal).

    
    

17. The price proposal (worth a point value up to 70) is not in dispute. The selection committee did not calculate the points assigned for price and it is presumed such calculations have been computed correctly.

    
    

18. Similarly, points for firms utilizing certified minority business enterprise participation (worth a point value up to 10) are not in dispute. The selection committee did not tabulate the points assigned for MBE participation, and it is presumed such calculations have been computed correctly.

    
    

19. All submittals were screened by the Department's contract services office to verify the proper forms (both in type and quantity) were timely submitted by each proposer. Such review is not in dispute.

    
    

20. At all times material to this case, Borg-Warner has been appropriately licensed, or has submitted materials to become licensed, as required by the RFP. No administrative action has been taken to deny or limit Borg-Warner's right to do business through its affiliates or subsidiaries in Florida.

    
    

21. Borg-Warner's proposal clearly and accurately identified the subsidiaries or affiliates who were to perform services in each geographic district proposed.

    
    

22. The selection committee members were employees of the Department with experience in the areas of contracts, maintenance, and service requirements. While the members had limited, if any, expertise in terms of providing security services, each member has had experience in evaluating a management plan for providing services for the Department. It is found that such experience and the directions of the RFP adequately apprised them of the criteria for scoring the proposals for this RFP.

    
    

23. Mr. Richard drafted the scope of services for this RFP and relied on his research of another contract and applicable statutes and rules.

    
    

24. Mr. Reese participated in the administration of the Department's first contract for security guard services and assisted Mr. Richard.

    
    

25. Mr. Marino, who is the maintenance contracts engineer for District 1, participated in the administration of the Department's first contract for security guard services. He has 25 years of experience with the Department, has drafted and reviewed scopes of services for other projects, and has reviewed RFP proposals for at least one other service contract.

26. Mr. Manning, a maintenance engineer in District 2, participated in the administration of the Department's first contract for security guard services. He has 33 years of experience with the Department.

    
    

27. Mr. Cook, an assistant district maintenance engineer in District 3, participated in the administration of the Department's first contract for security guard services. He has worked for the Department 23 years and has scored other RFP proposals in the past.

    
    

28. Mr. Benedict, a maintenance contract engineer in District 7, participated in the administration of the Department's first contract for security guard services. He has written scopes of services for other projects and reviewed RFP proposals for another services contract.

    
    

29. None of the criteria within the technical proposal for evaluation are of such a complex or technical nature that the selection committee members would not fully understand the proposals being submitted.

    
    

30. Additionally, such criteria were not challenged as vague or ambiguous. No proposal was rejected as vague or ambiguous.

    
    

31. The RFP sought submittals from contractors who could best ensure that properly licensed security guards would be at each rest area or welcome station

    24 hours per day, seven days per week. Such contractor was to provide supervision for such guards to assure that they followed applicable laws and the general criteria set forth in the scope of services.

    
    

32. Of the 30 possible points allowed for the technical proposal, 20 were identified for management, the other 10 points were split between the technical plan and facilities.

    
    

33. Aside from the point distribution set forth in paragraph 45, the selection committee members were given discretion as to how, within the given parameters, to assign the points scored.

    
    

34. Each reviewer scored the points consistently within the parameters described above and consistently assigned points as they deemed appropriate within that guideline. That is, for example, each consistently scored the 20 points for management in the same manner for each proposer.

    
    

35. While the selection committee members individually may not have used the same method for scoring (each had discretion in applying the given criteria), each was consistent to their own system of evaluation when applying it to each proposal.

    
    

36. Each evaluation was consistent with the RFP instructions to independently evaluate each proposal on the same criteria to assure uniform values.

    
    

37. Each evaluator scored each proposal on its own merit without comparison to another proposal. The proposals were not ranked against one another but, rather received scores based upon the reviewer's comparison of it to the RFP terms.

    
    

38. The committee members did not reject any proposal, or fail to review any, due to its nonresponsiveness to the RFP.

39. The committee members did not reject any proposal, or fail to review any, because the proposer was deemed nonresponsible.

1. The committee members had flexibility in scoring the proposals but did so consistently for each submittal reviewed.

   
   

2. Borg-Warner submitted an unambiguous offer to perform the scope of services called for in the RFP and, therefore, its proposal was responsive.

   
   

3. At all times material to the RFP Borg-Warner was able to perform the services called for in the RFP.

   
   

4. Borg-Warner's proposal included all forms and was appropriately signed and dated. Its proposal was not conditional.

   
   

5. The Borg-Warner proposal met the "other conditions" criteria found at Section 1.8.4 of the RFP. Moreover, it is found that no credible evidence was offered to establish collusion or other misconduct in connection with the submittal of this proposal.

   
   

6. No proposer was favored or disadvantaged by the method or procedures utilized by the Department in the award of this project.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding.

   
   

8. Petitioner's substantial interests have been and will be affected by the Department's award of the contract to Borg-Warner. As Petitioner has shown that the agency action will result in an injury-in-fact, which is of the type that the statute under which the agency acted is designed to protect, Petitioner has established standing in this proceeding. See Fairbanks, Inc. v. Department of Transportation, 635 So.2d 58 (Fla. 1st DCA 1994).

   
   

9. The procurement at issue in this case is governed by the provisions of Chapter 287, Florida Statutes, as stipulated by the parties. Section 287.057(15), Florida Statutes, provides:

   
   

   For requests for proposals, a selection team

   of at least three employees who have experience and knowledge in the program areas and service requirements for which contractual services are sought shall be appointed by the agency head to aid in the selection of contractors for contracts of more than the threshold amount provided in s.

   287.017 for CATEGORY FOUR.

   
   

10. In this case, "the scope of the inquiry is limited to whether the purpose of competitive bidding has been subverted. In short, 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, 914 (Fla. 1988).

    
    

11. In Scientific Games, Inc. v. Dittler Brothers, Inc., 586 So.2d 1128, (Fla. 1st DCA 1991) the court, citing Groves-Watkins, supra, found, at 1131:

    The Hearing Officer need not, in effect, second guess the members of evaluation committee to determine whether he and/or other reasonable and well-informed persons might have reached a contrary result. Rather, a 'public body has wide discretion' in the bidding process and 'its decision, when based on an honest exercise' of the discretion, should not be overturned 'even

    if it may appear erroneous and even if reasonable persons may disagree.' [Emphasis in original.]

    
    

12. In this case, the Petitioner has not established that the agency acted fraudulently, arbitrarily, illegally, or dishonestly.

    
    

13. In accordance with the terms of the RFP the committee members scored the submittals, and the proposers were ranked according to the formula set forth in the RFP. The Intervenor was entitled to submit one proposal for its subsidiaries or divisions and by doing so received no benefit not enjoyed by other proposers. The RFP allowed a "team" concept.

    
    

14. As the RFP did not require licensure until the time of contracting, the issues as to the licensure status of Borg-Warner at the time of its submittal are irrelevant. However, Intervenor has established that its license was never suspended or disciplined at any time material to this case.

    
    

15. Additionally, while the committee members scored the proposals and exercised discretion in awarding points to each submittal, the members uniformly applied the RFP scope of services to each proposal reviewed and gave scores consistent to their understanding of the terms. When scored in total with the three member responses, each proposal for a given district was evaluated on the same criteria.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of Transportation enter a final order dismissing Petitioner's challenge to the award of RFP-DOT-93/94-9025 to Borg-Warner.

DONE AND RECOMMENDED this 31st day of January, 1995, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 31st day of January, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3160BID

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs 1 through 9, 27, 30, 31, 38, 42, 43, 51, 52, 55, 61, 62, 63,

65, 66, 67, 68, 71, 72, 73, 74, 87, 88, 89, 99, 105, 106, 109, 110, 111, 114,

and 115 are accepted.

1. Paragraph 10 is rejected as vague or irrelevant.

2. Paragraph 11 is rejected as vague or irrelevant.

3. Paragraph 12 is rejected as contrary to the weight of the credible evidence.

4. Paragraph 13 is rejected as irrelevant or contrary to the weight of the credible evidence.

5. Paragraph 14 is rejected as contrary to the weight of the credible evidence. Petitioner's argument is misplaced: since Borg-Warner may perform security services state-wide it makes little difference whether it chooses to use its foot or its hand or some other portion of its corporate body to perform the services. Since all must account to the head, they are not in competition with each other. In this case, Borg-Warner designated which affiliate, division, or subsidiary would perform the work for each district identified.

6. Paragraph 15 is rejected as irrelevant.

7. Paragraph 16 is rejected as contrary to the weight of the credible evidence or irrelevant. See comment to paragraph 14 above.

8. Paragraph 17 is rejected as irrelevant.

9. Paragraph 18 is rejected as contrary to the weight of the credible evidence.

10. Paragraph 19 is rejected as contrary to the weight of the credible evidence.

11. Paragraph 20, the first sentence, is accepted. The second sentence is rejected as speculative or irrelevant.

12. Paragraph 21, the first sentence, is accepted. The remainder is rejected as irrelevant or contrary to the weight of the credible evidence.

13. Paragraph 22 is rejected as irrelevant.

14. Paragraphs 23 through 26 are rejected as contrary to the weight of the credible evidence or irrelevant.

15. Paragraph 28 is rejected as incomplete or contrary to the exhibit when reviewed in its totality.

16. Paragraph 29 is rejected contrary to the weight of the credible evidence.

17. The second sentence of paragraph 32 is accepted; the remainder is rejected as contrary to the weight of the credible evidence.

18. Paragraph 33 is rejected as irrelevant.

19. With regard to paragraph 34 it is accepted that Borg-Warner acquired companies which became members of it corporate family; regardless of whether those entities are doing business under fictitious names or otherwise, it is clear they were properly identified and authorized by the parent to perform the services in each of the districts proposed.

20. Paragraphs 35 and 36 are rejected as contrary to the weight of credible evidence or irrelevant.

21. Paragraph 37 is rejected as vague, incomplete or contrary to the weight of credible evidence.

22. Paragraph 39 is rejected as irrelevant.

23. Paragraph 40 is rejected as repetitive, irrelevant or contrary to the weight of credible evidence.

24. Paragraph 41 is rejected as irrelevant.

25. Paragraph 44 is rejected as irrelevant or contrary to the weight of credible evidence.

26. Paragraph 45 is rejected as irrelevant.

27. Paragraph 46 is rejected as irrelevant or contrary to the weight of credible evidence.

28. Paragraphs 47 through 50 are rejected as irrelevant or contrary to the weight of credible evidence.

29. With regard to paragraph 53 the first sentence is accepted; the remainder is rejected as irrelevant or contrary to the weight of credible evidence.

30. With regard to paragraph 54 the first three sentences are accepted; the remainder is rejected as irrelevant or contrary to the weight of credible evidence.

31. Paragraphs 56 (including all subparts), 57, 58, and 59 are rejected as irrelevant or contrary to the weight of credible evidence.

32. With regard to paragraph 60 and others which state what the committee "may" do, the committee had the authority to do many things, it was not required to take any specified action such that the failure to exercise its authority automatically constituted some breach of their duties. As there is no evidence that the committee acted arbitrarily or favored one proposer over another, its decision not to take action is not a material issue. Therefore, the paragraph is rejected as contrary to the weight of the total evidence or irrelevant.

    Where paragraphs 61 through 63 and 65 through 67 have been accepted they have been considered to accurately state what occurred, no conclusion should be reached that should suggest the actions were inappropriate or contrary to the duties given to them.

33. Paragraph 69 is rejected as contrary to the weight of credible evidence.

34. Paragraph 70 is rejected as irrelevant or contrary to the weight of credible evidence.

35. Paragraph 75 is rejected as contrary to the weight of credible evidence.

36. Paragraph 76 is rejected as incomplete, inaccurate or contrary to the weight of credible evidence.

37. Paragraphs 77 through 86 are rejected as irrelevant or contrary to the weight of credible evidence. While some portions of the proposed findings are accurate the totality of what the paragraphs suggest, that the committee inappropriately scored the responses, is rejected as contrary to the weight of the evidence.

38. Paragraph 90 is rejected as an incomplete statement and is therefore rejected as contrary to the weight of credible evidence.

39. Paragraph 91 is rejected as contrary to the weight of credible evidence.

40. Paragraphs 92 through 95 are rejected as contrary to the weight of credible evidence or irrelevant.

41. Paragraph 96 is rejected as argument.

42. Paragraph 97 is rejected as irrelevant.

43. Paragraph 98 is rejected as argument and contrary to the weight of credible evidence.

44. Paragraphs 100 through 104 are rejected as contrary to the weight of credible evidence.

45. Paragraph 107 is rejected as contrary to the weight of credible evidence.

46. Paragraph 108 is rejected as contrary to the weight of credible evidence and argument.

47. Paragraph 112 is rejected as contrary to the weight of credible evidence.

48. Paragraph 113 is rejected as irrelevant.

Rulings on the proposed findings of fact submitted by the Respondent:

1. Paragraphs 1 through 6, 8 through 14, 16 through 41, 43 through 47, 49 through 54, 57, 58, 59, paragraph erroneously marked 39 after 60, 61 through 68, 70, and 71 are accepted.

2. With regard to paragraph 7, Section 1.7.3 not 1.7.2 specifically stated:

   The Consultant must be authorized to do business in the State of Florida. Such authorization and/or licenses should be obtained by the proposal due date and time, but in any case, will be required prior to award of the contract. *

   * *[Emphasis added.]

   In light of the foregoing, it is expressly found that the RFP only mandated licensure at the time of the contract and not at the time of the RFP proposal.

3. With regard to paragraph 15, the response filed by Borg-Warner identified the entities through whom the work would be performed as its "divisions." See letter dated 20 April 1994, Joint Ex. 3. However, the record in this case (and the RFP response in its totality) make it clear that Borg- Warner proposed to use its "divisions" or its affiliates or its subsidiaries, whichever name should be used, which are controlled by the parent entity to perform the services in the districts identified. There was no confusion as to which sub-entity would perform the service. Additionally, it is expressly found that the parent Borg-Warner, at all times material to this case, owned or controlled its affiliates.

4. Paragraph 42 is rejected as argument.

5. Paragraph 48 is rejected as argument.

6. Paragraph 55 is rejected as irrelevant.

7. Paragraph 56 is rejected as an incomplete statement. It is found, however, that three-person committees utilizing consistent review criteria as to each proposal reviewed would produce objective results despite the subjectiveness involved in each individual review. If criteria are consistently applied the three results taken together are reliable.

8. Paragraph 60 is rejected as an incomplete statement. The proposals were to be evaluated on an individual basis reviewed against the criteria of the RFP; that is what the committee members did. That they may have compared responses from one proposer to the next is understandable; however, the scores given related not to each other but to the criteria of the RFP.

9. With regard to paragraph 69, the evaluation process is described in Section 1.17.1 of the RFP, that section does not specify that every word of every page must be read. However, it is presumed that the committee will be required to fairly review the documents submitted. In this case, it is found that while every word of every page may not have been read, the individual members consistently and thoroughly reviewed the proposals submitted. Except as explained herein, paragraph 69 is rejected as argument.

10. Paragraph 72 is rejected as argument.

Rulings on the proposed findings of fact submitted by the Intervenor:

1. Paragraphs 1 through 12, 19, 20, 24 through 31, 33, 34, 36, 38 through 48, 50, 51, and 55 are accepted.

2. Paragraphs 13 through 18 are rejected as irrelevant. The RFP required licensure and compliance with Chapter 493 at the time of contracting.

3. Paragraph 21 is rejected as repetitive or unnecessary.

4. Paragraphs 22 and 23 are rejected as irrelevant or repetitive.

5. Paragraph 32 is rejected as repetitive or irrelevant.

6. The last sentence of paragraph 35 is accepted; otherwise rejected as incorrect or inaccurate quote.

7. Paragraph 37 is rejected as incorrect summary and repetitive.

8. Paragraph 49 is rejected as irrelevant.

9. Paragraphs 52 and 53 rejected as vague or contrary to the weight of the evidence.

10. Paragraph 54 is rejected as irrelevant.

COPIES FURNISHED:

Paul R. Ezatoff

Katz, Kutter, Haigler, Alderman, Marks & Bryant, P.A.

Post Office Box 1877

Tallahassee, Florida 32302-1877

Thomas H. Duffy

Department of Transportation Haydon Burns Building, Room 562 605 Suwanee Street

Tallahassee, Florida 32399-0458

Bruce Culpepper Davisson F. Dunlap, Jr.

D. Andrew Byrne Pennington & Haben, P.A. Post Office Box 10095

Tallahassee, Florida 32302-2095

Ben G. Watts, Secretary

ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building

605 Suwanee Street

Tallahassee, Florida 32399-0458

Thorton J. Williams General Counsel

562 Haydon Burns Building 605 Suwanee Street

Tallahassee, Florida 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 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: 94-003160BID

Orders for Case No: 94-003160BID