STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

50 STATE SECURITY SERVICE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-3580BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

)

and BORG-WARNER PROTECTIVE )

SERVICES CORPORATION, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on October 2, 1995, in Tallahassee, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: W. Douglas Moody, Esquire

Bateman Graham, P.A.

300 East Park Avenue Tallahassee, Florida 32301

For Respondent: Thomas H. Duffy, Esquire

Assistant General Counsel Department of Transportation Haydon Burns Building, Room 562

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

For Intervenor: Davisson F. Dunlap, Jr., Esquire

Pennington & Haben, P.A. Post Office Box 10095

Tallahassee, Florida 32302-2095 STATEMENT OF THE ISSUE

Whether the Department of Transportation (hereinafter referred to as the "Department") should sustain Petitioner's challenge to the Department's preliminary determination to award State Job No. 99906-9520 to Intervenor?

PRELIMINARY STATEMENT

By letter dated June 2, 1995, Petitioner formally protested the Department's determination to award State Job No. 99906-9520 to Intervenor. In

its letter, Petitioner contended that Intervenor "was not a responsive or responsible bidder" and, in any event, "should not have received 30 points under Section 1.16.5/criteria 5 of the proposal" inasmuch as Intervenor's "DBE listed, American Alarms, Inc., [was] not properly licensed for guard services in accordance with the . . . proposal."

On July 12, 1995, the matter was referred to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a Division hearing officer to conduct a formal hearing on the matter. The assignment was made on July 13, 1995. On that same day, the Hearing Officer issued a Notice of Hearing scheduling the formal hearing for July 27, 1995.

On July 17, 1995, Intervenor filed an unopposed petition for leave to intervene in the instant case. By order issued July 25, 1995, the petition was granted.

On July 18, 1995, the Department filed an unopposed motion requesting that the final hearing in the instant case be continued. By order issued July 25, 1995, the motion was granted and the final hearing was rescheduled for August 30, 1995.

On August 11, 1995, Petitioner filed an unopposed motion requesting that the final hearing again be continued. By order issued August 14, 1995, the motion was granted and the final hearing was rescheduled for October 2, 1995.

The final hearing was held, as scheduled, on October 2, 1995. A total of four witnesses testified at the hearing: William Murphy, Petitioner's vice- president; Charles Johnson, Jr., the contractual services administrator in the Department's central office; Jeffrey DuBois, an assistant maintenance contracts engineer with the Department in its District IV office; and Benjamin Blair, the employee of Intervenor who prepared Intervenor's response to the Request for Proposal that is the subject of the instant controversy. In addition to the testimony of these four witnesses, seven exhibits (Joint Exhibits 1 through 4, Petitioner's Exhibits 1 and 2, and Intervenor's Exhibit 1) were offered and received into evidence.

At the close of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised the parties of their right to submit post- hearing submittals and established a deadline (20 days from the date of the Hearing Officer's receipt of the transcript of the hearing) for the filing of these submittals. The parties agreed to waive the requirement of Section 120.53(5)(e), Florida Statutes, that the Hearing Officer issue his Recommended Order "within 30 days after receipt of the hearing transcript by the [H]earing [O]fficer."

The Hearing Officer received the hearing transcript on October 11, 1995. On October 30, 1995, Petitioner filed a motion requesting an extension of the deadline for the submission of proposed recommended orders. A hearing on the motion was held by telephone conference call that same day, following which the Hearing Officer issued an order extending the deadline for the filing of proposed recommended orders to November 9, 1995.

On November 9, 1995, Petitioner, the Department and Intervenor timely filed separate post-hearing submittals. These post-hearing submittals have been carefully considered by the Hearing Officer. They each contain what are labelled as "findings of fact." These "findings of fact" proposed by the parties are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. Through RFP-DOT-94/95-4009, entitled "Rest Area Security Services- District Four" (hereinafter referred to as the "RFP"), the Department requested the submission of proposals from "consultants" interested in providing the Department with security services at rest areas on Interstate Highways in St. Lucie, Martin and Broward Counties in the Department's District IV.

   
   

2. The "objective" of the RFP was explained as follows in Section 1.0 of Exhibit "A," which was attached to, and incorporated in, the main body of the RFP:

   
   

   To provide appropriately equipped and security personnel at Rest Areas along the Interstate Highways, and to provide protection for the General Public, Department personnel, and all property at locations specified in this Contract (see Exhibit "D," for locations). It is the intent of the Department to protect its personnel, property, and the Public by means of well-trained,

   alert, interested, and concerned Security Officers. The Contractor must ensure that their Security Officers properly carry out their primary duty to safeguard the General Public, the Department's personnel, and all property.

   
   

3. The "services to be provided" to the Department were described as follows in Section 2.0 of Exhibit "A:"

   
   

   1. The Contractor shall provide qualified, competent, uniformed, and armed Security Officers to provide security services to protect the health, safety, and welfare of all the citizens of and visitors to the State of Florida.

      
      

   2. The Contractor will be responsible for verifying that the scope of its operations are sufficiently broad and well defined to ensure the maximum protection of property and life and are also consistently managed in an efficient and profes- sional manner. It shall be the responsibility

      of the Contractor to provide security services as stated herein, within the physical limits of the rest areas and/or welcome stations. Those limits

      shall begin at the approach taper of the deceleration lane, extend through the rest area and/or welcome station from the edge of the paved shoulder of the main roadway, and terminate at the end of the acceleration taper. The Security Officers will

      be responsible for monitoring the grounds surround- ing the facility, including, but not limited to: all parking lots, picnic areas, and restroom build-

      ings. The Contractor shall insure that all employees comply with all applicable laws, ordinances, rules, and regulations set forth by the Department.

      
      

   3. The security services shall be provided on a continuous 24-hours-per-day and 7-days-a-week (including all holidays) basis. The Contractor shall have sufficient back-up personnel and equip- ment available to immediately replace personnel and/ or equipment that may fail. The Department may modify the type of service, number of hours, or number of employees upon 24-hours-notice in writing.

      
      

   4. The Contractor shall furnish one or more Security Officer(s) per each Rest Area unit and/or Welcome Station. There are five (5) units in District IV (see exhibit "D" for locations).

      
      

   5. The Contractor, and every employee of the Contractor assigned to the project, shall comply with the security industry standards referenced in Chapter 493, Florida Statutes.

      
      

   6. The Contractor shall provide materials and equipment as specified herein.

      
      

   7. At all times, Security Officers will be courteous and display a professional and friendly manner.

      
      

4. The "special requirements" of the contract into which the Department would enter with the winning "consultant" were set forth in Section 3.0 of Exhibit "A," which provided, in pertinent part, as follows:

   
   

   1. The Department reserves the right to require the Contractor to relieve an employee from duty assignments and/or bar an employee from further service under this Contract. No reason need be given by the Contract Manager. 1/

      
      

   2. The Contractor shall obtain and pay for any and all licenses, permits, registrations, and inspections, etc. required for this project's proposal and performance. The Contractor shall comply with all laws, ordinances, regulations, and code requirements applicable to the work contemplated herein. Damages, penalties, and/or fines imposed on the Department or the Contractor for failure to obtain any and all required licenses and/or permits shall be borne by the Contractor.

      
      

   3. Prior to any employee beginning work pursuant to this Contract, the Contractor's Project Manager

   shall provide sworn certification to the Department's Contract Manager that each employee (Security Officers and Contract Supervisors) 2/ meets the eligibility criteria as specified herein.

5. The "eligibility criteria" for these "Security Officers and Contract Supervisors" were set forth in Section 18.0 of Exhibit "A," which provided, in pertinent part, as follows:

   
   

   All Security Officers and Contract Supervisors employed by the Contractor under this Contract are required to meet the minimum qualifications and standards regarding background, experience, and health. The suitability of Security Officers and Contract Supervisors for employment pursuant to this Contract must be determined by the Contractor; however, the Department reserves

   the right to disapprove of the employment of Security Officers and Contract Supervisors due to unsuitability.

   
   

   1. Minimum Requirements for Security Officers:

      . . .

      8) Must acquire, keep active, and possess on their persons at all times while on duty all personal, professional, and technical licenses or certificates specified in this Contract, or otherwise required for performance of the work required pursuant to this Contract. . . .

      
      

   2. Minimum Requirements for Contract Security Supervisors

      
      

      Contract Supervisors must meet the eligibility criteria established for the Security Officer classification. . . .

      
      

   3. Required Documentation:

      
      

      All of the Contractor's personnel (e.g. Security Officers and Contract Supervisors) performing work under this Contract must possess on their person at all times while on duty, and keep current all appropriate cards, certificates, and licenses,

      as follows (unless the Contractor's personnel is certified and employed as a law enforcement officer or correctional officer and exempted from such licensure requirements pursuant to Section 493.6102(1), Florida Statutes):

      1. State of Florida Class "D" License (security guard license)

      2. State of Florida Class "G" License (license authorizing individual to bear a firearm)

         
         

         NOTE: The use or possession of a concealed firearm in connection with this Contract is prohibited.

         
         

      3. State of Florida Driver's License or other State Driver's License which permits the individual to operate a vehicle in the State of Florida.

6. Section 1.7 of the main body of the RFP addressed the subject of the "consultant's" qualifications to provide the services to be performed under the contract. It read as follows:

   
   

   1. Qualifications for Consultant Services

      
      

      1. General

         
         

         The Department will determine whether the proposed 3/ 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 services. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Project 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 financial 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 exper-

   ienced personnel (including technical staff) are not reasonably adequate to ensure satisfactory contract performance, the Department has the right to reject the proposal. 4/

   
   

7. Section 1.8 of the main body of the RFP addressed the subjects of "Department reservations and responsiveness of proposals." It read as follows:

   
   

   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 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.

      
      

   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.

   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.

   
   

8. Section 1.10 of the main body of the RFP provided that "[t]he general terms and conditions of any agreement between the Department and the selected proposer will be guided by State procedures" and that "[e]ach 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."

   
   

9. Subsection 1.14.2 of the main body of the RFP established 12:00 noon on Friday, May 12, 1995, as the deadline for the submission of proposals in response to the RFP.

   
   

10. Pursuant to Section 1.16 of the main body of the RFP, each proposal was to consist of a management plan (worth a maximum of 20 points), a technical plan (worth a maximum of 15 points) and a price proposal (worth a maximum of 65 points).

    
    

11. Section 1.19 of the main body of the RFP addressed the subject of "award of contract." It provided as follows:

    
    

    The Department intends to award ONE (1) contract to the responsible and responsive proposer whose proposal is determined to be the most advantageous to the Department.

    
    

    NOTE: CONTRACTOR SHALL EXECUTE AND RETURN AGREEMENT WITHIN TEN (10) CALENDAR DAYS AFTER "NOTICE OF AWARD." IN THIS TIME PERIOD THE CONTRACTOR SHALL DEMONSTRATE COMPLIANCE WITH CONTRACT REQUIREMENTS. FAILURE TO MEET THE REQUIREMENTS WITHIN THIS SPECIFIED TIME

    WILL SHOW EVIDENCE OF CONTRACTOR'S LACK OF ABILITY TO MEET THE REQUIREMENTS AND THE DEPARTMENT MAY REWARD TO THE PROPOSER WITH THE NEXT HIGHEST SCORE.

    
    

12. Proposers seeking Disadvantaged Business Enterprise (DBE) preference points were also required to complete and submit a DBE Preference Certification form, as explained in subsection 1.16.5 of the main body of RFP, which provided as follows:

    
    

    For the purposes of this RFP, a certified DBE shall be certified by the Florida Department of Transportation pursuant to Florida Administrative Code, Rule Chapter 14-78.

    
    

    The Proposer shall address Florida CDBE partici- pation by either themselves or subcontractors. 5/

    The Department will add 30 points to the scores of Certified Disadvantaged Business Enterprises (CDBE) proposing as the prime consultant on this project.

    
    

    The Department will add up to 30 points to the scores of firms (Non-CDBE) utilizing Certified DBE's as subcontractors for services or commodities as follows:

    
    

    30 percent or more of the total project costs-

    30 points

    
    

    25 percent but less than 29.99 percent of the total project costs- 20 points

    
    

    20 percent but less than 24.99 percent of the total project costs- 10 points

    
    

    15 percent but less than 19.99 percent of the total project costs- 05 points

    
    

    0 percent to 14.99 percent of the total project costs- 0 points

    
    

    Complete and submit the DBE Preference Points Certification Form (Form "D") in the Price Proposal, if CDBE preference points are to be considered.

    
    

13. On Form "D," proposers had to indicate the following:

    
    

    I, (Name), (Title), of (Name of Firm), herby certify that our firm (is) (is not) a Department of Transportation (Department) certified Dis- advantaged Business Enterprise (DBE). I also certify that our firm's intention regarding subcontracting on the above referenced project(s) to Department certified Disadvantaged Business Enterprises is as follows:

    
    

    (Check One)

    
    

    Intends to subcontract at least 30 percent or more= 30 points

    
    

    Intends to subcontract at least 25 percent but less than 29.99 percent= 20 points

    
    

    Intends to subcontract at least 20 percent but less than 24.99 percent= 10 points

    
    

    Intends to subcontract at least

    15 percent but less than 19.99 percent= 05 points

    Intend[s] to subcontract less than 15 percent work to DBE(s)= 0 points

    
    

    Since I have indicated above that a percentage of total project costs will be subcontracted to certified DBE(s), the firms considered as proposed DBE subconsultant/vendors and the types of services/commodities to be subcontracted are

    as follows:

    
    

    DBE SUBCONSULTANTS/VENDORS: TYPE OF WORK/

    COMMODITIES

    
    

    I understand that the Department will give preference in selection of DBE(S) and to other firms who propose to subcontract at least 15 percent or more of the total project costs to DBE(s). I further understand that five (5) preference points will be added to my proposal score if my firm indicates its intent to sub- contract at least 15 percent but less than 19.99 percent of the services/commodities to DBE(s); and that ten (10) preference points will be added to my proposal score if my firm indicates its intent to subcontract at least 20 percent but

    less than 24.99 percent of the services/commodities to DBE(s); that twenty (20) preference points

    will be added to my proposal score if my firm indicates its intent to subcontract at least 25 percent but less than 29.99 percent of the services/commodities to DBE(s); and a maximum of thirty (30) preference points will be added to my proposal score if my firm indicates its intent to subcontract 30 percent or more of the

    services/commodities to DBE(s) or is a Department certified DBE.

    
    

14. On or about May 5, 1995, the Department issued the following addendum to the RFP "to answer and clarify questions presented by a potential proposer:" 6/

    
    

    Reference the above project in which you have an interest. Please add this letter and enclosed pages into your Request for Proposal.

    
    

    • Will DOT permit subcontracting of security services to DBE's? (The DBE would have to comply with all requirements of the RFP regarding security officer qualifications, etc.). 7/

      
      

      Response: Yes

      
      

    • Will the DOT permit proposals which include a "pending" DBE certification for a business applying for DBE certification?

      
      

      Response: To receive performance points a DBE

      prime contractor must be certified by the May 23, 1995 posting.

      
      

    • Will points be awarded to DBE subconsultants/ vendors with a "pending" certification status during the evaluation process?

    
    

    Response: To receive performance points a DBE Subconsultant/Vendor must be certified by the May 23, 1995 posting. 8/

    
    

    Can DOT provide a list of certified Disadvantaged Business Enterprises?

    
    

    Response: An FDOT DBE Directory is available for review at any District Office or a copy can be obtained from the FDOT Minority Programs Office in Tallahassee by calling 904-921-7370. We have

    listed below three (3) Certified DBE firms who have shown an interest in providing security services[.] 9/ [T]hey are:

    American Alarms, Inc. 305-653-7708

    Tunjos Trading Company, Inc. 305-621-2668 Universal Private Investigative & Guard

    Agency, Inc. 407-636-7270

    The following ten (10) firms have "Pending" applications as of May 5, 1995, for FDOT-DBE Certification:

    
    

    Alanis Security, Inc.	305-595-8171
    Barkley Security Agency	904-856-5646
    Delad Security, Inc.	305-691-5772
    Ford Patrol & Security	305-836-5544
    Jake Ross Detective &
    Security Agency	904-258-8709

    Pacific Security Service,

    Inc. 305-989-0369

    Small Rehab Services &

    Small Security Agency	813-237-2689
    Special Tech Security Agency	904-723-0115
    Supreme Intelligence Agency	305-777-3134
    Walter Investigative Services	305-653-1144

    
    

    Pleas remember that you must SIGN AND RETURN THIS ADDENDUM WITH YOUR BID PROPOSAL. FAILURE TO SUBMIT WITH BID PROPOSAL AND ACKNOWLEDGE THIS ADDENDUM WILL DISQUALIFY YOUR PROPOSAL.

    
    

    If you have any questions, please call me at (305)777-4611.

    
    

15. Petitioner and Intervenor, both Florida-licensed security guard agencies, submitted proposals in response to the RFP, which included completed and signed Form "D"s.

16. Petitioner's and Intervenor's price proposals (on a monthly basis) were $60,720.00 and $53,458.80, respectively.

    
    

17. On its completed and signed Form "D," Petitioner indicated that it was not a Department-certified DBE, but that it intended to subcontract "at least 30 percent or more" of the total project costs to a certified DBE. Petitioner further indicated on the form that its "proposed DBE subconsultant/vendor" was Dadeline Corporation and that the "services/commodities to be subcontracted" were "security guard services."

    
    

18. Dadeline was a Department-certified DBE that possessed a Class "B" Security Agency license issued by the Department of State, Division of Licensing pursuant to Chapter 493, Florida Statutes.

    
    

19. On its completed and signed Form "D," Intervenor, like Petitioner, indicated that it was not a Department-certified DBE, but that it intended to subcontract "at least 30 percent or more" of the total project costs to a certified DBE. 10/ Intervenor further indicated on the form that its "proposed DBE subconsultant/vendor" was American Alarms, Inc., and that the "services/commodities to be subcontracted" were "security services."

    
    

20. American Alarms, Inc., was one of the three Department-certified DBE firms mentioned in the addendum to the RFP as having "an interest in providing security services." Unlike Dadeline Corporation, however, it did not possess a Class "B" Security Agency license issued by the Department of State, Division of Licensing, nor did it have any experience in providing security guard services.

    
    

21. Both Petitioner and Intervenor received 30 DBE preference points. Intervenor was awarded these DBE preference points, notwithstanding that its "proposed DBE subconsultant/vendor," American Alarms, Inc., did not possess a Class "B" Security Agency license authorizing it to conduct business as a security guard agency in the State of Florida or have any experience in the provision of security guard services. There is no indication, however, that the Department was aware, at the time it awarded these preference points to Intervenor, that American Alarms, Inc., was unlicensed and inexperienced. The RFP did not direct proposers to provide the Department with any information regarding the current licensure status and experience of its "proposed DBE subconsultant/vendor" and Intervenor did not volunteer such information in its response to the RFP. 11/

    
    

22. Petitioner's total score was 109.25, the second highest of all proposers.

    
    

23. Intervenor's total score was 119.92, the highest of all proposers.

    
    

24. The scores were posted on May 23, 1995.

    
    

25. The posted proposal tabulation reflected that the contract award was made to Intervenor as "the responsive and responsible offeror whose proposal [was] determined to be the most advantageous to the State taking into consideration price and other criteria."

    
    

26. Thereafter, Petitioner filed the protest that is the subject of the instant proceeding.

    CONCLUSIONS OF LAW

    
    

27. With certain exceptions not applicable to the instant cases, state agencies must purchase commodities and contractual services through the process of competitive bidding. Section 287.057, Fla. Stat.

    
    

28. It has been said on more than one occasion that competitive bidding requirements, such as those imposed upon state agencies, have as their purpose and object the following:

    
    

    [T]o protect the public against collusive contracts; to secure fair competition upon equal terms to all bidders; to remove not only collusion but temptation for collusion and opportunity for gain at public expense; to close all avenues to favoritism and fraud in various forms; to secure the best values for the [public] at the lowest possible expense;

    and to afford an equal advantage to all desiring to do business with the [government], by affording an opportunity for an exact comparison of bids.

    
    

    Wester v. Belote, 103 Fla. 976, 138 So. 721, 723-24 (Fla. 1931); Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So.2d 1190, 1192 (Fla. 2d DCA 1977).

    
    

29. In soliciting and accepting competitive bids or proposals, a state agency has wide discretion. See D.O.T. v. Groves-Watkins Constructors, 530 So.2d 912, 913 (Fla. 1988); Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982).

    
    

30. Its discretion with respect to these matters, while broad, is not unbridled. It must exercise its discretion in a manner that is not illegal, dishonest, fraudulent, arbitrary, unreasonable, capricious or in any other way that would subvert or undermine the purpose and object of competitive bidding. See D.O.T. v. Groves-Watkins Constructors, 530 So.2d 912, 913-14 (Fla. 1988); Caber Systems v. Department of General Services, 530 So.2d 325, 336 (Fla. 1st DCA 1988); Couch Construction Company, Inc. v. Department of Transportation,

    361 So.2d 172, 175 (Fla. 1st DCA 1978); Wood-Hopkins Contracting Company v. Roger J. Au & Son, Inc., 354 So.2d 446, 450 (Fla. 1st DCA 1978).

    
    

31. Section 287.057(1), Florida Statutes, mandates that, where, as in the instant case, competitive bidding for contractual services is required, the "[c]ontract shall be awarded . . . to the qualified and responsive bidder who submits the lowest responsive bid." A "qualified and responsive bidder [or offeror]," within the meaning of Section 287.057(1), Florida Statutes, is "a person who has the capability in all respects to perform fully the contract requirements and has the integrity and reliability which will assure good faith performance." Section 287.012(14), Fla. Stat. A "responsive bid [or proposal]," within the meaning of Section 287.057(1), Florida Statutes, is "a bid or proposal submitted by a responsive, and responsible or qualified bidder or offeror which conforms in all material respects to the invitation to bid or request for proposals." Section 287.012(17), Fla. Stat. In determining whether there is such conformance, the invitation to bid or request for proposal should be construed, "if at all reasonable, in a way that would give all bidders an opportunity to compete." Air Support Services International, Inc. v. Metropolitan Dade County, 614 So.2d 583, 584 (Fla. 3d DCA 1993).

32. Section 287.057(1), Florida Statutes, makes it illegal for an agency to use criteria "in determining the acceptability of [a] bid that w[ere] not set forth in the invitation to bid."

    
    

33. A state agency may not accept a bid that is materially at variance with the bid specifications. See Rule 60A-1.002(13), Fla. Admin. Code ("[v]ariations which are not minor cannot be waived"). "[A]lthough a bid containing a material variance is unacceptable, not every deviation from the [bid specifications] is material. It is only material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition." Tropabest Foods, Inc. v. Department of General Services, 493 So.2d 50, 52 (Fla. 1st DCA 1986). If it does not provide the bidder with such a palpable competitive advantage, it constitutes a minor irregularity that should be waived by the agency. See Robinson Electrical Co., Inc. v. Dade County, 417 So.2d 1032, 1034 (Fla. 3d DCA 1982); Rule 60A-1.002(13), Fla. Admin. Code ("[t]he [a]gency shall reserve the right to waive any minor irregularities in an otherwise valid bid/proposal"). 12/

    
    

34. An unsuccessful bidder or proposer may file a protest with the agency pursuant to Section 120.53(5), Florida Statutes, which provides in pertinent part as follows:

    
    

    An agency which enters into a contract pursuant to the provisions of . . . chapter 287 . . . shall adopt rules specifying procedures for the resolution of protests arising from the contract bidding process. Such rules shall at least provide that:

    1. The agency shall provide notice of its decision or intended decision concerning a bid solicitation or contract award as follows:

       1. For a bid solicitation, notice of a decision or intended decision shall be given by United States mail or by hand delivery.

       * * *

       3. For any other agency decision, notice of a decision or intended decision shall be given either by posting the bid tabulation at the location where bids were opened or by certified United States mail or other express delivery service, return receipt requested.

       The notice required by this paragraph shall contain the following statement: "Failure to file

       a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes."

    2. Any person who is adversely affected by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after the date he filed the notice of protest. With respect to a protest of the specifications contained in an invitation to bid or in a request for proposals, the notice of protest shall be filed in writing

    within 72 hours after the receipt of notice of the project plans and specifications or intended project plans and specifications in an invitation to bid or a request for proposals, and the formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter. The formal written protest

    shall state with particularity the facts and law upon which the protest is based.

    * * *

    1. The agency, on its own initiative or upon the request of a protestor, shall provide an opportunity to resolve the protest by mutual agreement between the parties within 7 days, excluding Saturdays, Sundays, and legal holidays, of receipt of a formal written protest.

       * * *

       2. If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and legal holidays, of receipt of the formal written protest, and if there is a disputed issue of material fact, the agency shall refer the protest to the [D]ivision [of Adminis-

       trative Hearings] for proceedings under s. 120.57(1).

    2. Upon receipt of a formal written protest referred pursuant to this subsection, the division director shall expedite the hearing and assign a hearing officer within 15 days of the receipt of

    the formal written protest by the division and render a recommended order within 30 days after the hearing or within 30 days after receipt of the hearing transcript by the hearing officer, whichever is later. The provisions of this paragraph may be waived upon stipulation of all parties.

    
    

35. In a bid protest proceeding, "the scope of inquiry is limited to whether the purpose of competitive bidding has been subverted." "[T]he hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, 13/ illegally, or dishonestly." D.O.T. v. Groves- Watkins Constructors, 530 So.2d 912, 914 (Fla. 1988); Fort Howard Company v. Department of Management Services, 624 So.2d 783, 784 (Fla. 1st DCA 1993). See also Moore v. Department of Health and Rehabilitative Services, 596 So.2d 759, 761 (Fla. 1st DCA 1992)(inappropriate "for the hearing officer [in a bid protest proceeding] to make a de novo evaluation of the bids;" "[d]e novo consideration is ordinarily appropriate in a section 120.57(1) hearing, as the proceeding is used to formulate, rather than to review, agency action. However, in Groves- Watkins the supreme court established a different procedure for a competitive bidding dispute.")

    
    

36. "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. 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.'" Scientific

    Games, Inc. v. Dittler Brothers, Inc., 586 So.2d 1128, 1131 (Fla. 1st DCA 1991); see also City of Cape Coral v. Water Services of America, Inc., 567 So.2d 510,

    513 (Fla. 2d DCA 1990)("[e]ven where a public entity makes an erroneous decision over which reasonable persons may disagree, the exercise of its discretion in soliciting and accepting bids should not be interfered with absent a showing of dishonesty, illegality, fraud, oppression or misconduct").

    
    

37. Under Groves- Watkins, the burden is on the protestant to prove by a preponderance of the record evidence that the agency's decision should be overturned. Cf. Board of Trustees of the Internal Improvement Trust Fund v. Levy, 656 So.2d 1359, 1363 (Fla. 1st DCA 1995)("[t]he burden of proving abuse of agency discretion is upon the challenger of the rule, who must meet that burden with a preponderance of the evidence").

    
    

38. Petitioner has failed to meet this burden in the instant case.

    
    

39. Petitioner argues that the Department "acted fraudulently, arbitrarily, illegally, or dishonestly in deciding to award [State Job No. 99906-9520] to [Intervenor]." According to Petitioner, Intervenor's "proposal was not responsive to the material terms of the RFP" inasmuch as Intervenor failed "to enumerate a DBE subcontractor who was qualified by licensure and experience to provide security services" and this failure on Intervenor's part "was not a minor irregularity that could be waived by the Department." At the

    very least, Petitioner contends, Intervenor "should not [have] be[en] awarded 30 performance points for DBE participation."

    
    

40. The preponderance of the record evidence does not support Petitioner's position.

    
    

41. Upon a careful review of all of the component parts of the RFP, including the addendum, as well as the remainder of the record evidence, the Hearing Officer concludes that the Department acted within the bounds of reason and logic, and not fraudulently, arbitrarily, illegally, or dishonestly, in construing the RFP to not require, in those cases where a proposer has indicated on Form "D" an intention to subcontract security guard services to a certified DBE subcontractor, that the proposed certified DBE subcontractor named on the form be currently licensed by the Department of State, Division of Licensing, as a security guard agency or that the proposed certified DBE subcontractor have anything more than an "interest in providing security services," in order for the proposer's proposal to be deemed responsive and for the proposer to be entitled to receive DBE preference points.

    
    

42. By all appearances, the Department was simply engaging in an honest exercise of its discretion, in accordance with such a reasonable interpretation 14/ of the provisions of the RFP, 15/ when it added 30 DBE preference points to Intervenor's score (for indicating on Form "D" an intention to subcontract to a certified DBE subcontractor 30 percent or more of the total work under the contract) and, on the basis of these additional points, awarded the contract to Intervenor, even though the proposed certified DBE subcontractor named on Intervenor's form was, at the time, unlicensed and inexperienced.

    
    

43. Inasmuch as it has not been shown that the Department acted "fraudulently, arbitrarily, illegally, or dishonestly" in deciding to award State Job No. 99906-9520 to Intervenor, the award should stand.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department of Transportation enter a final order rejecting Petitioner's protest of the decision to award State Job No. 99906-9520 to Intervenor.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of November, 1995.

STUART M. LERNER

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 21st day of November, 1995.

ENDNOTES

1/ Sections 14.0 and 16.0 of Exhibit "A" contained similar provisions. Section

14.0 provided that the "Department reserves the right to demand without explanation that an employee be relieved from duty assignments, and/or barred from further service under this Contract (or any other Department Security Contract)." Section 16.0 provided that the "Department may demand that any and all individuals, including Key Contractor Personnel, be immediately barred from any particular or all work pursuant to this Contract."

2/ Pursuant to Section 16.0 of Exhibit "A," in addition to providing the Department with these "Security Officers and Contract Supervisors," the "consultant" needed to have a "Project Manager" to "provide overall management and coordination of this [c]ontract and . . . act as the ['consultant's'] central point of contact with the Department." Furthermore, Section 21.0 of Exhibit "A" provided that it would be the "consultant's" responsibility under the contract to furnish the following items: "facility post orders;" "all working materials necessary for proper performance of this Contract, which include, but are not limited to: bound Logbooks, notebooks, pens, and pencils;" "uniforms for security personnel;" "[o]ne standard police .38 caliber revolver with standard ammunition;" "[h]andcuffs;" "[c]ellular [t]elephone, [b]atteries and [c]hargers (including [a]ir [t]ime);" "[n]ightstick;" "[b]adge;" "[e]quipment belt;" "[f]lashlight;" and "high-visibility vehicle[s]."

3/ The term "proposer," as used in the main body of the RFP, is defined in Section 1.1 thereof, as "the prime Consultant acting for itself and those individuals, partnerships, firms, or corporations comprising the proposer's team by joint venture or subcontract."

4/ Subsection 1.8.4 of the main body of the RFP similarly provided that a proposal may be rejected where there was an "obvious lack of experience or expertise to perform the required work."

5/ This provision makes clear that the term "proposer," as used in the RFP, was not intended to include subcontractors.

6/ The "potential proposer" who had posed these questions was Intervenor.

7/ It is not unreasonable to construe this statement to mean that "[t]he DBE would have to comply with all requirements of the RFP regarding security officer qualifications, etc." during the period of time that the "DBE" would be providing these subcontracted "security services," which could be at any time during the term of the contract inasmuch as the RFP did not specify a time frame during which these subcontracted services had to be provided.

8/ While the addendum stated that the "DBE would have to comply with all requirements of the RFP regarding security officer qualifications, etc.," nowhere in the addendum or elsewhere in the RFP did the Department specify that a proposer's named "subconsultant/vendor" had to be licensed by the Secretary of State, Division of Licensing (in addition to being certified by the Department as a DBE) before the May 23, 1995, posting for the proposer to receive DBE preference points.

9/ That the addendum made no mention of, or reference to, the current Chapter

493 licensure status of these firms suggests that it was not the Department's intention to require that a proposer's proposed "DBE Subconsultant/Vendor" be currently licensed as a security guard agency in order for the proposer to receive DBE performance points.

10/ In so doing, Intervenor, like Petitioner, guaranteed that, if it was awarded the contract, there would be at least 30 percent certified DBE participation under the contract, even if its named "proposed DBE subconsultant/vendor" proved to be unable to perform "security services." If such were to occur, Intervenor would have to find another certified DBE to deal with in order to meet its 30 percent DBE obligation under the contract.

11/ Pursuant to the RFP, proposers were required to reveal only the name of their "proposed DBE subconsultants/vendors" and the type and amount of "work/commodities" to be subcontracted.

12/ A "valid bid/proposal," as that term is used in Rule 60A-1.002(13), Florida Administrative Code, is defined in Rule 60A-1.001(10), Florida Administrative Code, as follows:

A responsive offer in full compliance with the invitation to bid/request for proposal specifications and conditions by a responsible person or firm. The responsiveness of the bid or proposal and qualifications or responsibility of the offeror will be determined as of the time the bid/proposal is publicly opened.

13/ "An arbitrary decision is one not supported by facts or logic, or despotic." Agrico Chemical Company v. Department of Environmental Regulation,

365 So.2d 759, 763 (Fla. 1st DCA 1978). "If an administrative decision is justifiable under any analysis that a reasonable person would use to reach a decision of similar importance, it would seem that the decision is [not] arbitrary." Dravo Basic Materials Company, Inc., v. Department of Transportation, 602 So.2d 632, 634 n.3 (Fla. 2d DCA 1992).

14/ That this may not have been the only, or even the most reasonable interpretation of these provisions, is not a basis upon which the Department's decision may be overturned. See Air Support Services International, Inc. v.

Metropolitan Dade County, 614 So.2d 583, 584 (Fla. 3d DCA 1993); Scientific Games, Inc. v. Dittler Brothers, Inc., 586 So.2d 1128, 1131 (Fla. 1st DCA 1991); City of Cape Coral v. Water Services of America, Inc., 567 So.2d 510, 513 (Fla. 2d DCA 1990).

15/ To the extent that Petitioner is challenging the provisions of the RFP, as so construed, its challenge comes too late because it was not made within the 72-hour time limit prescribed by Section 120.53(5), Florida Statutes. See Capeletti Brothers, Inc. v. Department of Transportation, 499 So.2d 855, 857 (Fla. 1st DCA 1986).

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-3580BID

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the parties in their post-hearing submittals:

Petitioner's Proposed Findings

1. To the extent that this proposed finding states that the RFP was dated May 12, 1995, it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

2. Not incorporated in this Recommended Order because, even if entirely true, it would add only unnecessary detail to the factual findings made by the Hearing Officer.

3-8. Accepted and incorporated in substance.

9-11. Rejected as findings of fact because they are more in the nature of statements of law than findings of fact.

12-20. Accepted and incorporated in substance.

1. Footnote 3, second and third sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, this proposed finding has been accepted and incorporated in substance.

2. Rejected as a finding of fact because it is more in the nature of a statement of law than a finding of fact.

23-26. Accepted and incorporated in substance.

27. Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact. See T.S. v. Department of Health and Rehabilitative Services, 654 So.2d 1028, 1030 (Fla. 1st DCA 1995)("Hearing Officer's "factual findings" which "merely summarize[d] the testimony of witnesses" were "insufficient").

28-30. Not incorporated in this Recommended Order because, even if entirely true, they would add only unnecessary detail to the factual findings made by the Hearing Officer.

1. Accepted and incorporated in substance.

2. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. (In the instant case, a certified DBE was listed on Intervenor's Form "D.")

3. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

4. Accepted and incorporated in substance.

5. Not incorporated in this Recommended Order because, even if true, it would add only unnecessary detail to the factual findings made by the Hearing Officer.

The Department's Proposed Findings

1-2. Accepted and incorporated in substance.

1. First Sentence: Rejected because it lacks sufficient evidentiary/record support. (It is Section 1.7.3, not Section 1.7.4, of the main body of the RFP which contains the provision recited in this proposed finding.) Second sentence: Accepted and incorporated in substance.

2. Accepted and incorporated in substance.

3. To the extent that this proposed finding states that the RFP did not contain any statement specifically addressing the licensure status of subcontractors at or before the time of contract award, it has been accepted and incorporated in substance.

6-12. Accepted and incorporated.

1. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Accepted and incorporated in substance.

3. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

4. Accepted and incorporated in substance.

5. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

18-23. Accepted and incorporated in substance.

24. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

25-26. Accepted and incorporated in substance.

Intervenor's Proposed Findings

1. Accepted and incorporated in substance.

2. Rejected because it lacks sufficient/evidentiary record support. (The proposal submission deadline was on May 12, 1995, at 12:00 noon, not at 2:00 p.m.)

3-9. Accepted and incorporated in substance.

1. To the extent that this proposed finding states that the RFP did not contain any provision specifically requiring proposed subcontractors to be licensed as security guard agencies at or before the time of contract award, it has been accepted and incorporated in substance.

2. Last sentence: Rejected as a finding of fact because it is more in the nature of a statement of law than a finding of fact; Remaining sentences: Accepted and incorporated in substance.

3. To the extent that this proposed finding states that the RFP did not contain any provision requiring proposed subcontractors to be licensed at or before the time of contract award, it has been accepted and incorporated in substance. To the extent that it states that the RFP did not contain any provision requiring subcontractors to be licensed during the period of time that they would be performing subcontracted security guard services, it has been rejected because it lacks sufficient evidentiary/record support.

4. Accepted and incorporated in substance.

5. First sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because it lacks sufficient evidentiary/record support. (Subsection 1.16.5 of the main body of the RFP provided that a proposer had to "complete and submit" Form "D," in order to receive DBE preference points. The

   completion of this form entailed more than simply indicating a "commit[ment] to use DBE subcontractors for 30 percent of the job.")

6. Rejected because it lacks sufficient evidentiary/record support.

7. First sentence: To the extent that this proposed finding states that the RFP "did not require any of the proposers . . to include any information about their licensing status as a security guard firm," it has been rejected because it lacks sufficient evidentiary/record support. To the extent that it states that the RFP "did not require any of the . . proposed subcontractors to include any information about their licensing status as a security guard firm," it has been accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because, even if entirely true, it would add only unnecessary detail to the factual findings made by the Hearing Officer.

17-18. Not incorporated in this Recommended Order because, even if entirely true, they would add only unnecessary detail to the factual findings made by the Hearing Officer.

19-20. Accepted and incorporated in substance.

21-22. Not incorporated in this Recommended Order because, even if entirely true, they would add only unnecessary detail to the factual findings made by the Hearing Officer.

1. Rejected because it lacks sufficient evidentiary/record support. (Walters Investigations, not Intervenor, had "the lowest bid price" and therefore received the most points, 65, of any proposer, including Intervenor, for the price of its proposal.)

2. Rejected as a finding of fact because it is more in the nature of a statement of law than a finding of fact.

COPIES FURNISHED:

W. Douglas Moody, Esquire Bateman Graham, P.A.

300 East Park Avenue Tallahassee, Florida 32301

Thomas H. Duffy, Esquire Assistant General Counsel Department of Transportation Haydon Burns Building, Room 562 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Davisson F. Dunlap, Jr., Esquire Pennington & Haben, P.A.

P.O. Box 10095

Tallahassee, Florida 32302-2095

Ben G. Watts, Secretary ATTN: Diedre Grubbs Department of Transportation Haydon Burns Building

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Thorton J. Williams, Esquire General Counsel

Department of Transportation Haydon Burns Building, Room 562 605 Suwannee Street, M.S. 58

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 of time 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: 95-003580BID

Orders for Case No: 95-003580BID