STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GAUDET ASSOCIATES, INC., and ) ENHEALTH ENVIRONMENTAL, INC., )

)

Petitioners, )

)

vs. ) CASE NOS. 95-5529BID

) 95-5614BID

PALM BEACH COUNTY SCHOOL BOARD, )

)

Respondent, )

and )

) ATLANTIC COAST SERVICE CORPORATION ) and EVANS ENVIRONMENTAL AND ) GEOLOGICAL SCIENCE AND MANAGEMENT, ) INC., )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in these consolidated bid protest cases at West Palm Beach, Florida, on December 15, 1996, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner, Douglas Lambert, Esquire

Gaudet Fleming, Haile, Shaw & Gundlach, P.A. Associates, 11780 U. S. Highway One

Inc.: 3 Golden Beach Plaza, Suite 300 North Palm Beach, Florida 33409

For Petitioner, Joseph W. Lawrence, II, Esquire EnHealth Cummings, Lawrence & Vezina, P.A. Environmental 1600 South East 17th Street Causeway Inc.: Suite 304

Fort Lauderdale, Florida 33316

For Respondent, Robert Rosillo, Esquire Palm Beach Legal Department

County School School District of Palm Beach County Board: 3318 Forest Hill Boulevard, Suite C-302

West Palm Beach, Florida 33408-5813

For Intervenor, Mr. Gary Butler

Atlantic Coast Atlantic Coast Service Corporation Service Post Office Box 387

Corporation: DelRay Beach, Florida 33447-0387

For Intervenor, Norman Frank, Esquire

Evans c/o Kelly Evans, Vice President Environmental: Evans Environmental & Geological

99 Southeast Fifth Street, Fourth Floor Miami, Florida 33131

STATEMENT OF THE ISSUES

This is a bid challenge proceeding in which the Petitioners seek relief on the basis of allegations that the Respondent engaged in conduct which was fraudulent, arbitrary, illegal, or dishonest regarding the award of contracts under RFP No. 96C- 010G, Asbestos and Industrial Hygiene Consulting Services.

The Petitioners assert that if their proposals were properly evaluated, they would both be entitled to contracts under the subject RFP. Specific issues raised by the Petitioners are as follows.

The formal written protest filed by Petitioner Gaudet Associates, Inc. ("Gaudet"), is in the form of a letter dated October 20, 1995. That letter raises numerous issues in twelve numbered paragraphs. At hearing Gaudet announced that it was pursuing only three basic issues. The essence of those three issues is set forth in paragraphs 2, 3, 4, 6, and 7 of Gaudet's formal written protest. Reduced to their simplest terms, the three issues Gaudet pursued at hearing are:

1. Whether it was arbitrary for the evaluation committee to assign a seventy dollar per hour rate to an "office manager" position in its evaluation of Gaudet's proposal.

2. Whether it was arbitrary for the evaluation committee to contact some proposers and allow them to clarify their proposals without also contacting Gaudet and allowing Gaudet to

   clarify its proposal.

3. Whether it was arbitrary for the evaluation committee to deduct points from Gaudet's proposal

because Gaudet did not list an architect in its proposal.

The formal written protest filed by EnHealth Environmental, Inc. ("EnHealth"), is in the form of a letter dated October 19, 1995. That letter raises two basic issues, each with two sub- issues. Reduced to their simplest terms, those issues are:

1. Whether it was arbitrary or illegal for the School District to award contracts to proposers who were not, or might not be, in

   compliance with Section 496.006, Florida Statutes.

2. Whether it was arbitrary or illegal for the School District to award contracts to proposers who were not, or might not be, in

   compliance with Section 496.007, Florida Statutes.

3. Whether it was arbitrary for the evaluation committee to contact some proposers and allow them to clarify their proposals without also contacting EnHealth and allowing EnHealth to clarify its proposal.

4. Whether it was arbitrary for the evaluation committee to deduct points from EnHealth's score based on the assumption that EnHealth's hourly rates for services did not include supplies, materials, and equipment necessary to provide those services.

At the formal hearing, EnHealth for the first time raised two additional issues; namely, (a) whether it was arbitrary for the evaluation committee to assign a sixty dollar per hour rate to an "office manager" position in its evaluation of EnHealth's proposal, and (b) whether it was arbitrary for the evaluation committee to deduct points from EnHealth's score because EnHealth did not have a professional engineer or a licensed architect.

PRELIMINARY STATEMENT

At the formal hearing on December 15, 1995, testimony was presented from the following witnesses: Joseph Gaudet, Vice President of Gaudet; Robert Mayfield, an Environmental Technician employed by the Respondent; Dan Whetstone, a School Board Administrator employed by the Respondent; Chris Skerlec, an Evaluator employed by the Respondent; and James Latrides, President of EnHealth. Exhibits numbered 1 through 22 were received in evidence.

At the conclusion of the hearing, the parties were allowed ten days from the filing of the transcript within which to file their proposed recommended orders. A transcript of the proceedings was filed with the Hearing Officer on January 16, 1996. All parties were advised in writing of the filing of the transcript and were reminded that the deadline for filing their respective proposed recommended orders would be Friday, January 26, 1996. Thereafter, both Petitioners and the Respondent filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. Neither of the Intervenors filed a proposed recommended order. The proposed recommended orders that were filed have been carefully considered during the preparation of this Recommended Order. Specific rulings on all findings of fact proposed by the parties are contained in the appendix to this Recommended Order.

FINDINGS OF FACT

General matters

1. On or about August 23, 1995, the School District of Palm Beach County issued a request for proposal titled Request For Proposal (RFP) For Asbestos And Industrial Hygiene Consulting Services, which was identified as SB 96C-010G.

   
   

2. Seventeen vendors submitted proposals in response to the subject RFP. During the course of evaluation of all of the proposals, each proposal was assigned a point score. Following evaluation of all proposals, the School District proposed to award contracts to the three proposers with the highest point scores. Those proposers and their scores were as follows:

   
   

   Entek Environmental & Technical Services, Inc. 281 points Atlantic Coast Services Corp. 267 points

   Evans Environmental & Geological 265 points

   
   

3. Petitioner EnHealth, with a total of 257 points, was ranked fourth. Petitioner Gaudet, with a total of 256 points, was ranked fifth. The School District did not offer contracts to EnHealth or Gaudet.

4. Gaudet, EnHealth, and both of the Intervenors all submitted timely responsive proposals.

   
   

   The specifications

   
   

5. The specifications for the subject RFP include the following provisions regarding the School Board's reservations of rights:

   
   

   1. The District reserves the right to accept or reject any or all proposals.

   2. The District reserves the right to waive any irregularities and technicalities and may, at its sole discretion, request a re-submittal or other information to evaluate any or all proposals.

   * * *

   1. The District reserves the right to: (1) accept the proposals of any or all of the items it deems, at its sole discretion, to be in the best interest of the District; and (2) the District reserves the right to reject any and/or all items proposed or award to multiple proposers.

   2. The District reserves the right to give preferences to the award to those firms with the highest ranking; however, nothing herein will prevent the School Board of Palm Beach County, Florida, from making multiple awards and to deem all proposals responsive, and to assign work to any firm deemed responsive.

   
   

6. The specifications for the subject RFP include the following provisions regarding comunications between proposers and the School Board:

   
   

   1. In order to maintain a fair and impartial competitive process, the District must avoid any oral communications with prospective proposers during the proposal preparation and evaluation period. However, all proposers will be provided, in writing, with both the questions and the responses to any inquiries (other than administrative or procedural details).

      
      

      Send all inquiries to attention: Ms. Gaea Peary, Buyer Procurement Department

      School District of Palm Beach County 3326 Forest Hill Boulevard

      West Palm Beach, FL 33406 (407) 434-8412

      All written questions and inquiries are due no later than September 13, 1995.

7. The specifications for the subject RFP include the following provisions regarding the proposal evaluation process:

   
   

   1. An Evaluation Committee, consisting of district personnel, will be appointed by the Superintendent of Schools or her designee.

   2. RFPs are received and publicly opened.

   3. The Evaluation Committee will convene, review and discuss all proposals submitted.

   4. The Evaluation Committee, at its sole discretion, may require any/all proposer(s) to attend an interview in order to further clarify or evaluate any proposal(s). The interview may be used as a factor in evalua- tion of any/all proposal(s).

   5. The Evaluation Committee will individually score or rate each proposal in accordance with the evaluation criteria, as listed below.

   6. The Evaluation Committee will have central responsibility for reviewing and evaluating all proposals submitted in response to this RFP.

      The Evaluation Committee will act as advisor to the District.

   7. The Evaluation Committee will recommend award to one or more proposer(s), to the Procurement Department Coordinator.

   8. The Procurement Department Coordinator will prepare and submit an agenda item to the Superintendent of Schools, Palm Beach County, Florida.

   9. The Superintendent will recommend to the School Board, the award or rejection of any and/or all proposal(s).

   10. The School Board will award or reject any or all proposal(s).

   
   

8. Section 10.0 of the specifications for the subject RFP contains the following provisions regarding the evaluation criteria to be used by the Evaluation Committee:

   
   

   1. EXPERIENCE AND QUALIFICATIONS OF THE FIRM: (Maximum 20 points)

      The firm must hold appropriate licenses, permits, and insurance to operate in the State of Florida. At minimum, firm must be a licensed asbestos consultant as detailed in Chapter 455, Florida Statutes, and employ

      acertified industrial hygienist. Submit copy of all required licenses and permits.

   2. EXPERIENCE AND QUALIFICATIONS OF FIRM'S STAFF: (Maximum 20 points)

      The qualifications and experience of the firm's staff will be reviewed from information submitted in the proposal documents.

   3. FIRM'S LOCATION AND TIME CONSIDERATION: (Maximum 10 points)

      Geographical location of the firm and field

      staff will be considered regarding how it relates to availability and timely scheduling of services.

   4. CAPABILITIES OF THE FIRM: (Maximum 25 points)

      The District is interested in contracting with firms capable of providing a broad range of asbestos and industrial hygiene consulting services.

      Asbestos consulting services needed include: asbestos abatement design and coordination, asbestos abatement supervision, preparation

      of abatement reports, facility surveys in accordance with AHERA, asbestos management plan development and updating, sampling and analyses for bulk and air samples, all record keeping for the District's asbestos management program, claims preparation for the Manville Property Settlement Trust and other related duties.

      Industrial hygiene consulting services needed may include indoor air quality assessments, hazard assessments, ventilation assessment, radon measurement and mitigation, laboratory services, personal monitoring and other related activities.

   5. PRICE PROPOSAL: (Maximum 25 points)

   The fees listed in the proposal document shall remain fixed for the first year of the contract. However, the fees may be subject to adjustment in subsequent years based on changes in the National Consumer Price Index for the prior calendar year as published by the US Department of Commerce, Division of Labor. The price adjustment will be considered upon written request from the firm.

   
   

9. Section 14.1 of the specifications for the subject RFP contains the following language:

   
   

   14.1 Federal, state, county and local laws, ordinances, rules and regulations that in any manner affect the items covered herein apply.

   Lack of knowledge by the proposer(s) will in

   no way be a cause for relief from responsibility.

   
   

10. Section 20.1 of the specifications for the subject RFP contains the following language:

    
    

    20.1 The proposer(s) will be responsible for obtaining any necessary permits and licenses

    and will comply with laws, rules, and regulations whether state or federal and with all local

    codes and ordinances without additional cost to the District.

11. No one filed a protest challenging the specifications of the subject

    RFP.

    
    

    The evaluation process

    
    

12. All of the proposals were evaluated by an evaluation committee comprised of three School District employees; Chris Skerlec, Robert Mayfield, and Dan Whetstone. The evaluation committee rated each of the seventeen proposals on the basis of each proposer's responses to specific questions related to the five categories of evaluation criteria and assigned a point value to the responses given by each proposer. For each proposer the evaluation committee than totalled the points scored in each of the five categories.

    
    

13. During the course of the evaluation of the proposals, one of the members of the evaluation committee contacted several of the proposers and gave them an opportunity to clarify information in their respective proposals prior to the scoring of those proposals. Neither Gaudet nor EnHealth was contacted and given such an opportunity. The evaluation committee as a whole did not conduct any of the "interviews" provided for by Section 9.4 of the RFP specifications.

    
    

14. The act of allowing some proposers to clarify their proposals prior to scoring gave those proposers an unfair advantage over proposers like Gaudet and EnHealth who were not afforded such an opportunity.

    
    

    Evaluation of Gaudet's proposal

    
    

15. The evaluation committee deducted points from Gaudet's total score based on a value the committee assigned to an "office manager." Gaudet does not employ an office manager. Gaudet does not bill its customers for office manager functions because it treats those functions as part of its overhead. Gaudet neither proposed nor intended to charge the School District for the performance of office manager services. Gaudet's proposal does not contain any reference to a proposed charge to the School District for the services of an office manager. The subject RFP specifications do not require that a proposer employ an office manager, nor do they require that a proposer charge the School Board for the services of an office manager.

    
    

16. In scoring the price proposal section of the subject RFP, the evaluation committee selected five categories of job responsibilities and assigned a price to each of those categories for each proposer based on job titles and duties described in each proposer's proposal. The five job categories used by the evaluation committee were: asbestos consultant, office manager, project manager, technician, and clerical.

    
    

17. Mr. Skerlec devised this price proposal evaluation methodology; the two other evaluators merely followed Mr. Skerlec's method. Mr. Skerlec's methodology was not based on his individual experiences with the pricing details of the proposing firms. Rather, it was based on his experience with other consultants who had previously provided similar services to the School District. This methodology was flawed and produced unfair results because it was based in part on arbitrary and unwarranted assumptions about some of the proposals, rather than on information contained in the proposals.

    
    

18. In scoring Gaudet's price proposal, the evaluation committee applied a value of seventy dollars per hour for office manager services. The committee members did not obtain this value from the proposal submitted by Gaudet because

    Gaudet's proposal did not list an office manager. Rather, the evaluators concluded that someone must perform office manager duties at Gaudet and Gaudet must charge the School District some price for office manager services. Based on these conclusions, the evaluators then assumed that Gaudet would charge seventy dollars per hour for the services of an office manager.

    
    

19. The members of the evaluation committee deducted a total of thirty points (ten points each) from Gaudet's total score due to the assignment of a seventy dollar per hour value to the nonexistent "office manager" position. If those thirty points were to be added back to Gaudet's total point score, Gaudet would have received a total of 286 points. With a score of 286, Gaudet would have been one of the top three proposers.

    
    

20. During the evaluation process, none of the evaluators (nor anyone else from the School District) contacted Gaudet to seek clarification as to whether Gaudet proposed to charge for the services of an office manager and, if so, how much Gaudet proposed to charge. Similarly, during the evaluation process none of the evaluators (nor anyone else from the School District) contacted Gaudet to seek clarification as to any other aspect of Gaudet's proposal.

    
    

21. The evaluation committee also deducted points from Gaudet's overall score based on the fact that Gaudet does not employ a licensed architect. Section 30.0 of the RFP specifications asks whether the proposer has a professional engineer and/or a licensed architect "on staff." Each of the evaluators deducted points from Gaudet's score because Gaudet does not employ a licensed architect. A total of nine points was deducted from Gaudet's score on the basis that it did not employ an architect.

    
    

    Evaluation of EnHealth's proposal

    
    

22. The evaluation committee deducted points from EnHealth's total score based on the assumption that EnHealth proposed to charge the School District for equipment independent of the charge for personnel.

    
    

23. The base price for personnel, listed at Section 34.1(A) of EnHealth's proposal, was intended by EnHealth to include all equipment, supplies, and materials necessary to perform the work required, without an additional charge for such equipment, supplies, and materials. Such intent was not clearly stated in Section 34.1(A) of EnHealth's proposal. Some other proposers did clearly state such an intent in their proposals.

    
    

24. Section 34.1(B) of the RFP specifications requires each proposer to: "Attach a price list for all equipment, supplies, and services offered to the District. In response to this requirement, EnHealth included the following information in its proposal:

    
    

    Equipment	Daily	Weekly
    Personal Monitoring Pumps	$40.00	$160.00
    Hi-volume Sampling Pumps	$35.00	$115.00
    Anderson-Graseby N-6 Sampler
    & Pump Kit	$55.00	$180.00

    
    

    Additional IH sample equipment can be provided upon request. Rental costs will be negotiated based on equipment needed. Shipping charges to be paid by School Board. Equipment is to be returned to EHE in good condition and repair,

    wear from reasonable and proper use expected. Clean-up and decontamination charges of $50 per item will apply if such service is deemed necessary. School Board is responsible for damage to equipment due to abuse, misuse, or negligence and agrees to pay repair or replacement cost.

    
    

25. EnHealth did not intend to charge the School District for the use of the pumps listed in Section 34.1(B) of its proposal unless the pumps were used by School District personnel.

    
    

26. The members of the evaluation committee deducted a total of nine points (three points each) from EnHealth's total point score due to the assumption that EnHealth planned to charge the School District separately for personal monitoring pumps and high volume sampling pumps when such pumps were used by EnHealth personnel to provide services. If these nine points were to be added back to EnHealth's total point score, EnHealth would have received a total of 266 points. With a score of 266, EnHealth would have been one of the top three proposers.

    
    

27. During the evaluation process, none of the evaluators (nor anyone else from the School District) contacted EnHealth to seek clarification as to whether EnHealth proposed to charge the School District separately for personal monitoring pumps and high volume sampling pumps when such pumps were used by EnHealth personnel to provide services. Similarly, during the evaluation process none of the evaluators (nor anyone else from the School District) contacted EnHealth to seek clarification as to any other aspect of EnHealth's proposal.

    
    

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

    
    

29. The basic legal principles applicable to a case of this nature are summarized in Systems/Software/Solutions v. Department of Transportation, DOAH Case No. 92-0339BID, Recommended Order issued March 12, 1992, where Hearing Officer Kilbride wrote:

    
    

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

       [A] public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when based on an honest exercise of this discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree. Liberty County v. Baxter's Asphalt and Concrete, Inc.,

       421 So.2d 505, 507 (Fla. 1982).

    2. In deciding Department of Transportation

       v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988), the Supreme Court of Florida ruled that the Liberty County decision established

       the standard by which an agency's decision on competitive bids for a public contract should be measured when it further held that the agency's discretion, as stated above, cannot be overturned absent a finding of "illegality, fraud, oppression or misconduct." Groves- Watkins, 530 So.2d at 913.

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

    in these types of proceedings and stated: The Hearing Officer need not, in effect,

    second guess the members of the evaluation committee to determine whether he and/or other reasonable and well-informed persons might have reached a contrary result . . . "[T]he Hearing Officer's sole responsibility is to

    ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly."

    Groves-Watkins, 530 So.2d at 914.

    Scientific Games, Inc., 586 So.2d at 1131.

    See also, C.J. Courtenay v. Department of Health and Rehabilitative Services,

    581 So.2d 621 (Fla. 5th DCA 1991). (It is not the Hearing Officer's function to reweigh award factors and award to protestor).

    
    

    Other summaries citing additional authorities can be found in the recommended orders issued in the following cases: Bozell, Inc., et al. v. Department of Lottery, et al., DOAH Case No. 91- 3165BID, Recommended Order issued July 25, 1991; Consultec, Inc. v. Department of Administration, Division of State Employees' Insurance, et al., DOAH Case No. 91-5950BID, Recommended Order issued November 13, 1991; Professional Testing Service, Inc. v. Department of Professional Regulation, DOAH Case No. 91-7429BID, Recommended Order issued January 3, 1992; Linder-Funk-Fregley- Oertel Interest v. Department of Corrections and ARC Developmental Companies, Inc., DOAH Case No. 93-0875BID, Recommended Order issued May 5, 1993.

    
    

30. Of parti cular interest are the following observations by former Hearing Officer Benton in Linder-Funk-Fregley-Oertel Interest, supra:

    
    

31. In Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988), the Court held that an agency's free-form decision to reject all bids must stand, in the absence of proof that "the agency acted fraudulently, arbitrarily, illegally or dishonestly." 530 So.2d 914.

32. While it is one thing to defer to an agency's judgment that budgetary constraints,

    a reordering of agency priorities or external economic conditions make it wise for the agency to defer or forego goods or services; see Couch Construction Co. v. Department of

    Transportation, 361 So.2d 172 (Fla. 1st DCA 1978);

    Willis v. Hathaway 95 Fla. 608, 117 So. 89 (1928); it is another to oust the Division of Administrative Hearings from its traditional

    role of recommending agency action on the basis of fact, policy and law established in a neutral forum, when the question is which

    of two (or more) competing bidders is entitled to the award. See Capeletti Brothers v.

    Department of Transportation, 499 So.2d 855 (Fla. 1st DCA 1986); McDonald v. Department of Banking and Finance, 346 So.2d 569

    (Fla. 1st DCA 1977).

33. The First District has nevertheless extended the narrow Groves-Watkins standard

of review to situations where an administrative agency elects to choose among competing bidders, and let the contract. E.g. Procacci v. State Department of Health and Rehabilitative Services, 603 So.2d 1299 (Fla. 1st DCA 1992); Moore v. Department of Health and Rehabilitative Services, 596 So.2d 759 (Fla. 1st DCA 1992); Scientific Games v. Dittler Bros., Inc.,

586 So.2d 1128 (Fla. 1st DCA 1991).

* * *

1. A request for proposals sets out specifications which proposals filed in response must meet in substance in order for the proposer to qualify as a competitor for the contract to be let. The request for proposals is the standard against which pro- posals are measured to determine whether they are eligible for consideration. Here the request for proposals also prescribed certain procedures for evaluation of the proposals. Specifications in invitations to bid, like "[w]ords in [almost] an[y] instrument should be given their natural or most commonly understood meaning." Tropabest Foods, Inc. v. State Department of General Services,

   493 So.2d 50, 51-2 (Fla. 1st DCA 1986). The

   same is true regarding requests for proposals.

2. "Although a bid containing a material variance is unacceptable . . . not every deviation from the invitation is material. " Robinson Electrical Co. v. Dade County, 417 So.2d 1032, 1034 (Fla. 3d DCA 1982); Tropabest Foods, Inc. v. State Department of General Services, 493 So.2d 50, 52

(Fla. 1st DCA 1986); Glatstein v. Miami,

399 So.2d 1055 (Fla. 3rd DCA) rev. den.

407 So.2d 1102 (Fla. 1981). Unless the variance from specifications frustrates

governmental requirements, it "is only material if itgives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition." Tropabest Foods, Inc. v. State Department of General

Services, 493 So.2d 50, 52 (Fla. 1st DCA 1986); Harry Pepper & Associates, Inc. v. City of

Cape Coral, 352 So.2d 1190, 1193 (Fla. 2d DCA 1977). The same principle applies to proposals at variance with specifications in requests

for proposals. System Development Corp. v. Department of Health and Rehabilitative Services, 423 So.2d 433 (Fla. 1st DCA 1982).

1. There is no evidence in the record of this case suggesting that the Respondent acted fraudulently, illegally, or dishonestly. The disposition of this case turns on whether the Respondent's contract awards under the subject RFP were arbitrary. In this regard, the Petitioners bear the burden of proving by a preponderance of the competent substantial evidence that the Respondent acted arbitrarily in some material aspect of its evaluation of the proposals.

   
   

2. We learn from Agrico Chemical Company v. State Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978), that:

   
   

   An arbitrary decision is one not supported by facts or logic, or despotic. Administrative discretion must be reasoned and based upon competent substantial evidence. Competent substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion.

   
   

3. Directing attention to the specific issues raised by Gaudet, as noted in the findings of fact, it was arbitrary for the evaluation committee to assign a rate of seventy dollars per hour to an artificially contrived "office manager" position in the course of its evaluation of Gaudet's proposal. As a result of the manner in which the RFP specifications were constructed, the evaluation committee was faced with a difficult problem in its efforts to compare price proposals because the proposers used many different job titles and had many different job descriptions for the personnel they proposed to use if they were to be awarded a contract. The evaluation committee's effort to solve that problem created another problem; its methodology, which was designed to allow the committee to compare "apples to apples," unfortunately incorporated some unwarranted assumptions. The effect of those unwarranted assumptions was unfair to Gaudet, and perhaps also unfair to other similarly situated proposers.

   
   

4. It was also arbitrary for a member of the evaluation committee to contact some proposers and allow them to clarify their respective proposals without also contacting Gaudet and allowing Gaudet to clarify its proposal. The act of allowing some proposers to clarify their proposals prior to scoring gave those proposers an unfair advantage over proposers who were not afforded such an opportunity. Further, that course of conduct is in violation of Section 6.1 of the subject RFP specifications, which reads, in pertinent part:

   In order to maintain a fair and impartial competitive process, the District must avoid any oral communications with prospective proposers during the proposal preparation and [evaluation period]. [Emphasis added.]

   
   

5. With regard to the deduction of points for failure to list an architect, the evidence shows that Gaudet was treated the same as all other proposers in this regard. Nine points were deducted from the score of every proposer who failed to list an architect in its proposal. Accordingly, there was nothing biased or partial about the manner in which this issue was handled by the evaluation committee. With regard to the argument that it was arbitrary for the evaluation committee to deduct any points at all for failure to list an architect, the evidence is insufficient to support such an argument. In cases of this nature, an evaluation committee has a wide range of discretion in determining how many points to add or subtract in the evaluation of a proposal. The burden to demonstrate any arbitrary or otherwise improper conduct in the allocation of points is on the Petitioner. Where, as here, the evidence is insufficient to demonstrate the basis upon which the evaluators chose one number of points over another, the allocation of the burden of proof requires that the matter be resolved in favor of the Respondent. In addressing a similar issue in PCA Health Plans of Florida, Inc. v. The School Board of Broward County, Florida, DOAH Case No. 95-4559BID (Recommended Order issued December 8, 1995), it was noted:

   
   

   A great deal of the Petitioner's argument is based on the notion that an unexplained deviation from an expected scoring result constitutes proof that the unexpected result was the result of some arbitrary action by one or more Committee members. Such is not the case. Deviations from expectations can result from any number of different reasons. In order to demonstrate entitlement to relief from unexpected results, the Petitioner must present evidence of the reason for the results and must prove that the reasonconstituted an arbitrary, illegal, fraudulent, or dishonest

   act. Absent such proof, relief must be denied.

   
   

6. Turning now to the issues raised by EnHealth, first, there is no evidence in the record of this case as to whether any of the proposers to whom the School District proposes to award contracts have failed to comply with Sections 496.006 or 496.007, Florida Statutes. Accordingly, there is no record basis upon which to afford any relief on those grounds.

   
   

7. Second, EnHealth is not entitled to any relief on the basis of issues it raised for the first time at hearing, but did not raise in its formal written protest. Section 120.53(5)(b), Florida Statutes, requires that the formal written protest, which must be filed within ten days of the posting of results, "state with particularity the facts and law upon which the protest is based." The statute does not permit material amendments or the addition of new issues beyond the statutory time period for filing a formal protest. Accordingly, EnHealth is not entitled to any relief on the basis of its assertions regarding the rate assigned to an "office manager" or regarding points deducted because it did not list a professional engineer or a licensed architect.

8. Third, for the reasons discussed above concerning Gaudet, it was arbitrary and unfair for the evaluation committee to contact some proposers and allow them to clarify their proposals without affording the same opportunity to EnHealth.

   
   

9. The remaining issue raised by EnHealth is inextricably intertwined with the issue addressed in the immediately preceding paragraph. The pricing information in Section 34.1(A) and (B) of EnHealth's proposal, standing alone and unexplained, was ambiguous. Without further clarification, the evaluation committee's interpretation was a reasonable interpretation of the ambiguous information. Accordingly, such an interpretation, standing alone, would not be arbitrary. But it was arbitrary for the evaluation committee to attempt to resolve ambiguities in some proposals by contacting the proposers and asking for clarification and to resolve ambiguities in other proposals by taking their best guess without seeking clarification. Therefore, it was arbitrary under the circumstances of this case for the evaluation committee to deduct nine points from EnHealth's score based on the assumption that EnHealth would be charging extra for the pumps without contacting EnHealth to clarify whether EnHealth did or did not intend to charge extra for the pumps.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the School Board issue a Final Order in this case concluding that the evaluation of the proposals submitted in response to the subject RFP was conducted in an arbitrary manner which was fundamentally unfair to the Petitioners in these cases and curing the fundamental unfairness by either re-evaluating all proposals or by

re-bidding the project with revised specifications.

DONE AND ENTERED this 29th day of March 1996 at Tallahassee, Leon County, Florida.

MICHAEL M. 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 29th day of March, 1996.

APPENDIX

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner Gaudet:

Paragraphs 1 through 7: Accepted in substance.

Paragraph 8 (and its many subparagraphs): Rejected as comprised primarily of argument, conclusions of law, and summaries of testimony, rather than proposed findings of fact. (Based on the evidence the Hearing Officer has made

findings on the subjects addressed by these subparagraphs that are generally consistent with the views advanced by the Petitioner Gaudet.)

Paragraph 9 (and its many subparagraphs): Rejected as comprised primarily of argument, conclusions of law, and summaries of testimony, rather than proposed findings of fact. (Based on the evidence the Hearing Officer has made findings on the subjects addressed by these subparagraphs that are generally consistent with the views advanced by the Petitioner Gaudet.)

Paragraph 10 (and its many subparagraphs): Rejected as comprised primarily of argument, conclusions of law, and summaries of testimony, rather than proposed findings of fact. (Based on the evidence the Hearing Officer has made findings on the subjects addressed by these subparagraphs that are generally consistent with the views advanced by the Petitioner Gaudet.)

Paragraph 11: Rejected as procedural details that do not need to be included in the findings of fact.

Paragraph 12: Accepted in substance. Findings submitted by Petitioner EnHealth:

Paragraphs 1 through 4: Accepted in substance.

Paragraph 5: Rejected as procedural details that do not need to be included in the findings of fact.

Paragraph 6: Rejected as irrelevant because EnHealth did not raise any issue about the office manager in its formal protest.

Paragraphs 7 and 8: Accepted, but only because they are relevant to issues raised by another party.

Paragraphs 9 and 10: Rejected as irrelevant because EnHealth did not raise any issue about the office manager in its formal protest.

Paragraph 11: Accepted in substance, but with the deletion of editorial or argumentative comments.

Paragraph 12: First sentence accepted in substance. Second sentence rejected as contrary to the greater weight of the evidence.

Paragraphs 13 and 14: Accepted in substance.

Paragraph 15: Rejected as primarily argument, rather than proposed findings of fact.

Paragraph 16: First sentence rejected as argument. Second sentence accepted in substance.

Paragraph 17: Accepted in part and rejected in part. Accepted that nine points were deducted from EnHealth's score based on the pump charge issue. No points were deducted because of the office manager issue.

Paragraphs 18, 19, and 20: Rejected as primarily argument, rather than proposed findings of fact.

Paragraph 21: Accepted in part and rejected in part. Accepted that nine points were deducted from EnHealth's score based on the pump charge issue. No points were deducted because of the office manager issue.

Paragraphs 22 through 28: Rejected as irrelevant because EnHealth did not raise any issue about the engineer or architect in its formal protest.

Paragraph 29: Accepted.

Paragraphs 30 and 31: Accepted in substance with some unnecessary details omitted.

Paragraph 32: Rejected as argument or as conclusion of law, rather than proposed findings of fact.

Paragraph 33: Accepted in substance.

Paragraph 34: Up to first comma is accepted in substance; the remainder is rejected as argument or conclusion of law, rather than proposed finding of fact.

Findings submitted by Respondent:

Paragraphs 1 and 2: Accepted in substance.

Paragraph 3: Rejected as subordinate procedural details that do not need to be included in the findings of fact.

Paragraph 4: Accepted in substance, but with additional details in the interest of clarity and accuracy.

Paragraphs 5 and 6: Rejected as subordinate procedural details that do not need to be included in the findings of fact.

Paragraph 7: Accepted in substance, but with additional details in the interest of clarity and accuracy.

Paragraph 8: Accepted.

Paragraph 9: Rejected as contrary to the greater weight of the evidence. Paragraph 10: Accepted in substance.

Findings submitted by Intervenors:

(Neither Intervenor submitted any proposed findings of fact.)

COPIES FURNISHED:

Douglas Lambert, Esquire

Fleming, Haile, Shaw & Gundlach, P.A. 11780 U. S. Highway One

3 Golden Beach Plaza, Suite 300 North Palm Beach, Florida 33409

Joseph W. Lawrence, II, Esquire Cummings, Lawrence & Vezina, P.A. 1600 South East 17th Street Causeway Suite 304

Fort Lauderdale, Florida 33316

Robert Rosillo, Esquire Legal Department

School District of Palm Beach County 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33408-5813

Mr. Gary Butler

Atlantic Coast Service Corporation Post Office Box 387

DelRay Beach, Florida 33447-0387

Norman Frank, Esquire

c/o Kelly Evans, Vice President Evans Environmental & Geological

99 Southeast Fifth Street, Fourth Floor Miami, Florida 33131

Dr. Bernard Shulman Superintendent of Schools

Palm Beach County School Board 3340 Forest Hill Boulevard

West Palm Beach, Florida 33406-5869

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: 95-005529BID

Orders for Case No: 95-005529BID