Pursuant to notice, a formal administrative hearing was held in this proceeding before Diane Cleavinger, Administrative Law Judge, Division of Administrative Hearings on May 6, 2008, in Marianna, Florida.
For Petitioner: Seann M. Frazier, Esquire
Greenburg Traurig, P.A.
John T. Hoeft, Esquire
Vice President and General Counsel Veolia Transportation Services, Inc. 14275 Midway Road, Suite 200
Senior Assistant Attorney General Garnett Chisenhall, Esquire Assistant Attorney General Department of Legal Affairs
For Intervenor: Michael E. Riley, Esquire
Mary-Jo Lewis-Wilkinson, Esquire Amy W. Schrader, Esquire
Gray Robinson, P.A.
The issue in this proceeding is whether the Respondent’s decision to award a community transportation provider contract to the Intervenor is clearly erroneous, contrary to competition, arbitrary, or capricious.
On March 5, 2008, pursuant to Request for Proposals No. 10-07-1, Respondent, the Florida Commission for the
Transportation Disadvantaged (Commission or Respondent) awarded Intervenor, MV Transportation, Inc. (MV or Intervenor), a contract to provide community transportation coordinator services for Florida’s Transportation Disadvantaged Program in Hardee, Highlands, and Okeechobee Counties. On March 7, 2008, Petitioner, Veolia Transportation Services, Inc. (Veolia or Petitioner), filed a Notice of Intent to protest the Commission’s award of the contract to MV. The parties could not
resolve the protest and on April 4, 2008, Veolia filed a petition challenging the award of the contract to MV and requesting a formal administrative hearing. Subsequently, Veolia filed a Motion to Amend its Petition. Veolia’s motion was granted.
At the hearing, the parties offered Joint Exhibits 1 through 29 and 31 through 36 into evidence. Veolia called two witnesses to testify and offered one exhibit into evidence. MV called one witness to testify and offered two exhibits into evidence. Additionally, the depositions of Ms. Kathryn Hall, Ms. Shannon Brett and Ms. Helen Sears were offered into evidence.
After the hearing, the parties filed Proposed Recommended Orders on May 30, 2008.
The Commission is an independent entity established by Section, 427.012, Florida Statutes (2007). It is housed, administratively and fiscally, within the Florida Department of Transportation. The purpose of the Commission is to coordinate and set policy for transportation services provided to the “transportation disadvantaged.” It also is the entity that awards contracts to service providers in the coordinated transportation system.
The term “transportation disadvantaged” is defined in Section 427.011(1), Florida Statutes, as:
Those persons who because of physical or mental disability, income status, or age are unable to transport themselves or to purchase transportation and are, therefore, dependent upon others to obtain access to health care, employment, education, shopping, social activities, or other life- sustaining activities, or children who are handicapped or high-risk as defined in
§ 411.012.
Section 427.0155, Florida Statutes, sets forth the powers and duties of a community transportation coordinator as follows:
Execute uniform contracts for service using a standard contract, which includes performance standards for operators.
Collect annual operating data for submittal to the commission.
Review all transportation operator contracts annually.
Approve and coordinate the utilization of school bus and public transportation services in accordance with the transportation-disadvantaged service plan.
In cooperation with a functioning coordinating board, review all applications for local government, federal and state transportation disadvantaged funds, and develop cost-effective coordination strategies.
In cooperation with, and approved by, the coordinating board, develop, negotiate, implement, and monitor a memorandum of
agreement including a service plan, for submittal to the commission.
In cooperation with the coordinating board and pursuant to criteria developed by the Commission for the Transportation Disadvantaged, establish priorities with regard to the recipients of non-sponsored transportation disadvantaged services that are purchased with Transportation Disadvantaged Trust Fund moneys.
Have full responsibility of transportation services for the transportation disadvantaged as outlined in
§ 427.015(2).
Work cooperatively with regional workforce boards established in Chapter 445 to provide assistance in the development of innovative transportation services for participants in the welfare transition program.
In addition to the Commission, independent, local metropolitan planning organizations or designated official planning agencies carry out the transportation planning process required by 23 U.S.C. § 134. See 23 U.S.C. § 134(d)(1);
§ 427.015(1), Fla. Stat. Each metropolitan planning organization or designated official planning agency serves an urbanized area with a population of at least 50,000 individuals. In this case, the Central Florida Regional Planning Council (CFRPC) is the metropolitan planning organization or designated official planning agency covering the multi-county area of Hardee, Highlands, and Okeechobee Counties in Florida. As such, the CFRPC recommends to the Commission a single community
transportation coordinator to serve Hardee, Highlands, and Okeechobee Counties. See 23 U.S.C. § 134(d)(1); § 427.015(2), Fla. Stat.
A community transportation coordinator may be a not- for-profit entity, a for-profit entity or a public body such as a county commission. A community transportation coordinator may personally provide transportation services to the transportation disadvantaged within its service area or contract with other entities for the provision of those services. In either event, because the coordinator’s duties include payment of transportation providers, there is an expense or cost associated with the provision of those transportation services to the community coordinator. The payment of the expense or estimate of such expense is part of the coordination services of the community coordinator.
Since 1993, Veolia has been the community transportation coordinator for Hardee, Highlands, and Okeechobee Counties. The current contract expired on June 30, 2008.
On October 16, 2007, the Commission issued Request for Proposal (RFP #10-07-01) entitled “Request for Technical, Cost and Rate Proposals for the Community Transportation Coordinator Under Florida’s Transportation Disadvantaged Program in Hardee, Highlands, and Okeechobee Counties, Florida” (RFP). The contract to be awarded by the Commission through the RFP was a
five-year contract. The contract only concerned the provision of coordination services. The contract did not include the actual carrier services. As indicated, however, payment of the estimated or actual expense or cost for future transportation services remained part of the overall expense or cost of the requested coordination services.
Section I, B of the RFP states, in pertinent part:
The following is the anticipated schedule for the selection of the firm or agency as the designated Community Transportation Coordinator (CTC). If there are changes in the meeting dates, each agency/firm that submits a letter of interest/proposal will be notified.
* * * | * * * |
Mandatory Pre- Proposal Conference | November 8, 2007 |
Proposal Due (Deadline) | December 6, 2007 3:00 p.m. EST |
Proposal Opening | December 6, 2007 3:00 p.m. EST |
Proposer Presentations to Selection Committee | January 4, 2008 |
Final Action on Recommendation by Central Florida Regional Planning Council | January 9, 2008 |
Florida Commission for the Transportation Disadvantaged Final Selection | Meeting Date Unknown Possibly February /March |
* * * | * * * |
Section I, C of the RFP states, in pertinent part, as follows:
* * *
2. The issuance of this request for proposals constitutes an invitation to present proposals from qualified and experienced proposers. The CFRPC reserves the right to determine, in its sole discretion, whether any aspect of the statement of proposal satisfactorily meets the criteria established in this request for proposal, the right to seek clarification from any proposer, . . . ,and the right to reject any or all responses with or without cause. . . .
* * *
8. It is the responsibility of the proposer to prepare the proposal as clearly as possible in order to avoid any misinterpretation of the information presented. Proposals will be reviewed solely on the basis of the information contained therein. Modifications or changes cannot be made to the proposals after they are opened.
* * *
13. The criteria for evaluation of the proposals is provided in Section III (Evaluation Criteria/Proposal Rating Sheet). Only these criteria will be used to determine the best response.
* * *
Section I, D of the RFP states in part:
The response to this Request for Proposal will be as follows:
1. Community Transportation Coordinator Only
- The Central Florida Regional Planning Council is requesting proposals for the Community Transportation Coordinator only. Proposers who are interested in providing some or all of the transportation trips as a carrier will be expected to competitively compete with other operators to provide that portion of service. The Council will assist the CTC in conducting a Request for Qualifications/Request for Proposals process for selection of carriers prior to service start up on July 1, 2008.
* * *
Section I, H of the RFP states, in part, as follows:
The CFRPC’s Executive Director will appoint a selection team of at least three employees who have experience and knowledge of the coordinated transportation system. Each selection team member will assign points to the proposal using criteria listed in Section III (Evaluation Criteria/Proposal Rating Sheet). Selection team members will assure that each proposal has been rated fairly, impartially and comprehensively.
* * *
Section K of the RFP specified that proposers “must” use the Florida CTD standardized rate calculation model to determine rates and rate structures for service delivery. The CTD rate calculation model was designed to produce a rate which accounts for the costs associated with providing coordination services and transportation services. As indicated earlier, the contract in this case only asked for prices pertaining to coordination services.
Section III of the RFP contains the Evaluation Criteria/Proposal Rating Sheet. The rating sheet states, in part:
EVALUATION CRITERIA/PROPOSAL RATING SHEET
Each proposal submitted will be evaluated on listed criteria. Evaluation Committee members will use this proposal rating sheet to assign point values to items in Section II using the following scale (the weighing for each criterion has been assigned):
6 Excellent
5 Very Good
4 Good
3 Adequate
2 Fair
1 Poor
0 Not addressed
1. GENERAL
The following items must be included in the submitted proposal. Any proposal with a “no” response on any of the following questions will be rejected without further consideration.
After the above general introductory language, Section
1 of the rating sheet then lists four criteria that have yes or no responses. The remainder of Section 1 of the rating sheet lists seven categories and subcategories of evaluation criteria along with the total possible points for each category. The categories for evaluation were Management Resources (24 points), Proposer’s Experience (30 points), Financial Capacity to Undertake Project (30 points), Demonstration of Transportation
Coordination Ability (42 points), Demonstration of Transportational Coordination Operational Ability (18 points), Vehicle Acquisition (18 points), and Rate Proposal (6 points). The category for Demonstration of Transportational Coordination Operational Ability required the committee members to evaluate and score a proposer’s “transition plan describing the process needed to ensure a smooth change-over.”
The employees who would comprise the selection committee were to be employees of CFRPC. In this case, the selection committee consisted of Marcia Staszko, Kathryn Hall, Helen Sears, and Shannon Brett. Therefore, under the RFP, each committee member could award a total of 168 points on a proposal and each proposal could score a maximum of 672 points.
Veolia and MV were the only two vendors that submitted responses to the RFP.
On December 6, 2007, Ms. Staszko opened Veolia and MV’s responses and distributed them to the other three selection committee members. She also instructed the other selection committee members to preliminarily score Veolia and MV’s proposals but not to finalize their scores until after the oral presentations by representatives of Veolia and MV on January 4, 2008.
As set forth in the time table of the RFP, the selection committee members met on December 19, 2007, in order
to discuss any questions or concerns that had arisen during the evaluations of the proposals. The December 19th meeting was noted on page 3 of the RFP documents. However, the RFP did not specify where or at what time the December 19, 2007, meeting would occur. Likewise, the RFP did not specify the purpose of the December 19, 2007 meeting. The evidence demonstrated that the purpose of the meeting was to discuss any issues or questions which the individual evaluators had regarding the RFP requirements or the RFP process. The evidence further demonstrated that no final decisions were made regarding the scoring of the parties’ proposals and that no evaluator finalized their individual score regarding the parties’ proposals. Given this lack of finality and the fact that the meeting was limited to the processes of the RFP, the
December 19, 2007, meeting was not required to be noticed within the parameters of the Florida Sunshine Law, Section 286.011, Florida Statutes.
In its proposal, MV submitted a rate for coordination services of $2.47 per trip for all five years of the contract. Veolia submitted a rate proposal for coordination services of
$2.99 per trip until July 1, 2009, at which time the rate would increase to $3.05 per trip.
As indicated earlier, the RFP required the proposers to use the CTD rate model to calculate the rate submitted by
that proposer. The RFP included a compact disk for use with the model and referenced a web site where the model could be obtained. The RFP also included historical data which could be used in the CTD model.
The model’s general use is to calculate a rate based on the provision of both coordination services and transportation services. The calculation in the model includes categories of business costs or expenses of the provider such as salaries and payments made to the actual transportation carriers. The evidence showed that the payment of costs to the carriers are part of the coordination services requested under the RFP and a legitimate cost, or estimate thereof, should be included in any rate calculation for coordination-only services. These costs are not insubstantial and range from $150,000.00 to
$300,000.00 a year. Additionally, the use of the rate calculation model ensures that a proposer’s rate for coordination services is based on a budget that includes all of the duties of a transportation coordinator.
Prior to the submission of its bid, MV submitted a written question regarding the use of the CTD model. MV asked:
The RFP indicates that the current CTC is a broker that only handles the 'administrative' part of the delivery system. When responding with pricing in the RFP, are we expected to base our rates only on this function, or as a total including the service delivery functions? If it is
the latter, are we expected to negotiate rates for potential providers in advance of the proposal submittal?
Unfortunately, MV did not receive a response to its question and submitted its bid without using the CTD rate calculation model. MV used the rate calculation model as a guideline for including relevant cost data in its proposal. However, MV did not include cost data or estimated cost data regarding the payment of transportation costs to transportation carriers. The exclusion of such data, when such payments are required as part of the coordination services, could potentially lower the rate MV proposed. MV disclosed its non-use of the CTD model in its proposal. The evidence was not clear on what data MV did not include in its rate proposal.
On the other hand, Veolia did use the rate calculation model and submitted the model’s calculation as part of its proposal. Veolia made some adjustments to its proposed rate due to the fact that the RFP was requesting a rate proposal only for coordination services. Again, the evidence was not clear what adjustments were made by Veolia to its rate proposal. However, the evidence showed that Veolia did include an expense or cost for the payment of transportation services to carriers. In effect, the inclusion of the transportation expense could potentially increase the rate proposed by Veolia.
Ms. Staszko, as well as other committee members, was uncertain whether MV’s failure to use the CTD model was responsive to the RFP. As a result, she contacted Commission staff members and sought guidance on the CTD model issue.
The Commission staff members instructed Ms. Staszko that MV’s rate calculation did not render its answer unresponsive since the RFP was only for coordination services. However, that instruction ignored the clear language of the RFP specifications and resulted in a comparison of rates which were not based on a uniform method of calculation.
During the December 19, 2007, meeting, Ms. Staszko informed the other committee members of the instructions she received from the Commission’s staff. Ms. Staszko did not instruct other selection committee members how they should score the rate portion of MV’s proposal. That determination was left up to the individual judgment of each selection committee member.
In this case, Ms. Staszko awarded MV five out of a possible six points for its rate proposal. She deducted one point because MV did not fully utilize the standardized rate calculation model set forth in the RFP. She awarded a five to Veolia because she considered MV’s rate proposal to be lower. Ms. Hall considered MV’s failure to use the CTD model, but awarded six points on MV’s rate proposal. She also awarded six
points to Veolia. Ms. Sears awarded four points to MV because it did not use the rate calculation model. She awarded a score of six to Veolia. Ms. Brett awarded five points to MV and five points to Veolia because she felt both proposals were “sufficient.” In sum, MV received a cumulative score of 20 points and Veolia received a cumulative score of 22 out of 24 possible points on their respective rate proposals. However, even though Veolia received a higher overall score than MV, the higher score cannot offset the impact of the Commission’s attempt to waive the requirement of the rate model. The committee did not have the information necessary to compare MV’s rate with Veolia’s because expense data for transportation carriers was not reported or estimated by all the proposers.
This lack of uniformity was material and not waivable by the Commission.
Section I-1 of the RFP required each proposer to “provide a transition plan describing the process needed to ensure a smooth startup, July 1, 2008.” Each of the evaluators was to use her own judgment in awarding zero to six points for a proposer’s transition plan.
Rather than setting forth any explanation pertaining to the transition from its current contract to the one for which it was competing, Veolia responded that this aspect of the RFP was not applicable to its proposal. Veolia’s statement was
clearly non-responsive to the sub-category requesting a transition plan. Veolia’s proposal did not take into consideration the fact that transportation provider contracts would have to be sought or renewed at the termination of this contract. Similarly, Veolia’s response did not mention transition plans should Veolia not be awarded the contract. On the other hand, MV provided a detailed transition plan in its proposal. A comparison of the two clearly shows that MV’s transition plan was superior to Veolia’s.
During the December 19, 2007 meeting, the other selection committee members questioned Ms. Staszko about Veolia’s response, and Ms. Staszko stated that she did not consider Veolia’s answer to be responsive to the RFP’s inquiry about a transition plan. However, Ms. Staszko did not instruct the other selection committee members how they should score this aspect of Veolia’s proposal.
Ms. Staszko awarded zero points to Veolia on its transition plan. She awarded MV five points on its transition plan. Ms. Hall’s rating sheet reflects that she initially awarded Veolia six points for its transition plan. At some point after discussions on the subject, she changed her score to zero and then three points. Ms. Hall awarded six points to MV for its transition plan. Ms. Sears was also dissatisfied with Veolia’s transition plan and awarded zero points to Veolia for
its transition plan. She awarded MV four points. Likewise,
Ms. Brett awarded zero points to Veolia for its transition plan. She awarded six points to MV.
However, in scoring Veolia’s non-response to the transition plan sub-category, the committee did not recognize the fact that Veolia’s proposal was non-responsive to the RFP. The response was essentially a negative answer to one of the categories that Section III of the RFP stated in bold and underlined language should be materially addressed in a proposal.
Finally, as indicated earlier, the RFP required at least three committee members who have knowledge and experience of the coordinated transportation system. The RFP did not require expertise regarding the coordinated transportation system.
Ms. Staszko is the CFRPC’s Program Director. She has been with the transportation program since its inception in 1979. As director, she is the person primarily responsible for the transportation disadvantaged program in Hardee, Highlands and Okeechobee Counties and was primarily responsible for writing the RFP. She also was responsible for overseeing the process for procuring the contract at issue in this case. All of the parties to this proceeding agree that Ms. Staszko possesses an extensive amount of knowledge about the coordinated
transportation system for the “transportation disadvantaged in Hardee, Highlands and Okeechobee Counties and is well qualified to evaluate responses to the RFP at issue in this proceeding.
Ms. Hall has been the Program Coordinator for the CFRPC since October of 2007. In that position, she works with the Director of the Transportation Disadvantaged Program. Prior to becoming the CFRPC’s Program Coordinator, Ms. Hall spent
27 years working as the CFRPC’s executive assistant. During those 27 years, she gained knowledge and experience about the coordinated transportation system and the issues facing it. She also gained knowledge and experience through her time as the coordinator for that program. Ms. Hall is clearly qualified to serve on the selection committee.
Ms. Sears is a principal planner at the CFRPC. She has maintained that position for over two years. During her time with the CFRPC, Ms. Sears has worked on a series of projects relating to transportation issues in the Central Florida region. Her transportation planning experience was primarily related to the issue of concurrency of infrastructure, like roads and sewers, and fair share arrangements among developers and various governmental entities for providing such concurrency. In general, her experience did not relate to coordinated transportation systems. Prior to working for the CFRPC, Ms. Sears worked with a national engineering and
consulting firm for six years. During her employment at the engineering firm, Ms. Sears gained experience in public and private projects relating to general transportation planning and experience in public contract procurement. Indeed, the evidence demonstrated that Ms. Sears did not have any more than passing knowledge about, and no significant experience with, coordinated transportation systems. Given these facts, Ms. Sears did not meet the requirement of the RFP that committee members have knowledge and experience with coordinated transportation systems.
Ms. Brett is employed by CFRPC as a Senior Planner.
She has held that position since about June of 2007. During her time with the CFRPC, Ms. Brett has worked on procuring capital improvements for local municipalities, organized a long-term comprehensive plan for infrastructure development, taken part in a series of projects assigned to her by the CFRPC’s Director, and has been responsible for a different RFP pertaining to the acquisition of marketing services for the CFRPC. None of her experience appears to be in the area of transportation or transportation for the disadvantaged.
Prior to working for the CFRPC, Ms. Brett was employed as a city manager administrator in Hallandale Beach, Florida. During the course of her seven years with Hallandale Beach,
Ms. Brett was involved with hundreds of procurement requests and
served on dozens of evaluation committees. Again, none of Ms. Brett’s experience appears to be in the area of transportation or transportation for the disadvantaged.
In sum, the evidence demonstrated that only two selection committee members met the requirement of the RFP that the selection committee be comprised of “at least three employees who have experience and knowledge of the coordinated transportation system.” Indeed, Ms. Staszko was aware of the lack of experience and knowledge on the selection committee and attempted to find potential committee members outside of the CFRPC. Her attempts were not successful.
On January 4, 2008, Veolia and MV made oral presentations to the selection committee. Following those presentations, the committee members met privately to discuss their scoring and submit their scores for each item set forth in the RFP. Ultimately, the committee members scored the proposals of MV and Veolia. All of the committee members rated MV’s proposal slightly higher than Veolia’s proposal. Ms. Staszko
awarded | 138 | points | to | MV | and | 134 | points | to | Veolia. | Ms. Hall |
awarded | 165 | points | to | MV | and | 163 | points | to | Veolia. | Ms. Sears |
awarded | 134 | points | to | MV | and | 132 | points | to | Veolia. | Ms Brett |
awarded | 144 | points | to | MV | and | 142 | points | to | Veolia. | When added |
together, the committee awarded 571 points to Veolia and 581 points to MV. Given the closeness of the scoring and the
importance of understanding the information provided by the CTD rate model, the requirement in the RFP of experience and knowledge is material and not waivable by the Commission.
The evidence was clear that this RFP had a number of problems associated with its process. Most importantly, the attempted waiver of at least two material requirements of the RFP related to the use of the model calculation and the knowledge and experience of the committee members. Compounding the difficulties is the fact that Veolia’s proposal was not responsive to the RFP. Given this myriad of problems, the Commission should reject all bids and begin the RFP process anew.
CONCLUSION OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. § 120.57(3), Fla. Stat. (2007).
Section 120.57(3), Florida Statutes (2007), provides in pertinent part:
[i]n a competitive-procurement protest, other than a rejection of all bids, proposals, or replies, the administrative law judge shall conduct a de novo proceeding to determine whether the agency’s proposed action is contrary to the agency’s governing statutes, the agency’s rules or policies, or the solicitation specifications. The standard of proof for such proceedings shall be whether the proposed agency action was
clearly erroneous, contrary to competition, arbitrary, or capricious.
The object of the proceeding is to evaluate the action taken by the agency. State Contracting Agency Eng’g Corp. v. Dept. of Transp., 709 So. 2d. 607,609 (Fla. 1st DCA 1998), Intercontinental Prop., Inc. v. State, Dept. of Health Rehab. Serv., 606 So. 2d. 380,386 (Fla. 1st DCA 1992).
The burden of proof is on the party protesting the award to establish by a preponderance of the evidence that the proposed award is clearly erroneous, contrary to competition, arbitrary, or capricious. Infrastructure Corp. of America v. Dep’t of Transport., Case # 07-4410BID, ¶89 (DOAH 2007). Gtech Corp. v. State, Dep’t of the Lottery, Gtech Corp. v. State, Dep’t of the Lottery, 737 So. 2d. 615,619 (Fla.1st DCA 1999).
A proposed award is clearly erroneous if the evidence demonstrates a definite and firm conviction that a mistake has been committed in the agency's award of the contract. An agency action is capricious if the action is irrational or without thought or reason. Agency action is arbitrary if it is not supported by facts or logic. An agency decision is contrary to competition if it unreasonably interferes with the objectives of competitive bidding. Lakeview Center, Inc. v. Agency for Health Care Administration, Case # 06-3412BID, ¶44 (DOAH 2006) (internal citations omitted).
In this case, Petitioner has alleged that the meeting of December 19, 2007, violated Florida’s Sunshine Law, Section 286.022(1), Florida statutes. In general, the Sunshine Law provides that meetings in which official actions are taken by state or local government must be properly noticed to the public. The notice of such meetings must state the purpose of the meeting and the date, time and location of the meeting. The Sunshine Law applies to meetings “at which official acts are to be taken”. If a government action is taken at a meeting that should have been noticed as required by the Sunshine Law, such action is void. However, enforcement of the Sunshine Law is given to the circuit courts. Under the statute, the Division
of Administrative Hearings has no jurisdiction to enforce the Sunshine Law. See Kids, Inc. v. Palm Beach County School Bd., DOAH Case No. 03-2168BID, ¶78 (DOAH 2003) (concluding that “[d]isputes about alleged violations of Section 286.011 are normally resolved in civil actions in the courts of this state. There does not appear to be any jurisdiction for the judges of the Division of Administrative Hearings to dispose of such disputes.”); Affiliated Computer Serv., Inc. v. AHCA, et al.,
DOAH Case No. 05-3676BID, ¶95 (DOAH 2006)(concluding “[t]he Administrative Law Judges of the Division of Administrative Hearings continue to lack jurisdiction to dispose of disputes
involving allegations of violations of Florida’s Sunshine Law. Relief for any such violations must be sought elsewhere.”).
Moreover, even if the Division of Administrative Hearings had jurisdiction to resolve the alleged violation of the Sunshine Law, the evidence demonstrated that no “official acts” were taken during the December 19, 2007, meeting. At that meeting, Ms. Staszko relayed the instructions she received from the Commission staff regarding MV’s rate calculation. She did not tell the other selection committee members how to score that aspect of MV’s proposal. Likewise, she stated her opinion regarding Veolia’s transition plan. Again, she did not tell the other selection committee members how they should score this aspect of Veolia’s proposal. According to the testimony of the committee members, any scoring that had occurred prior to or at the meeting was preliminary only because final scoring would not occur until after the oral presentations of the proposers in January. The committee members did not make any final decision regarding their scores and did not collectively determine a total score for either MV or Veolia at the December meeting. Since no official action was taken during the December 19th meeting, notice was not required under Section 286.011, Florida Statutes, and the RFP award of the contract to MV should not be set aside on the basis of a Sunshine Law violation. See Compass Envtl., Inc. et al. v. Dept. of Envtl. Protection, et al., DOAH
Case No. 05-0007BID, ¶35 (DOAH 2005)(finding there was “no evidence that the evaluators met in closed meetings. Rather than scoring as a group, each of the evaluators scored the BAFOs separately and independently. Therefore, there was no meeting of the evaluators that was required to be conducted in the sunshine.”); South Fla. Jail Ministries, Inc. v. Dep’t of Juvenile Justice, et al., Case No. 00-1366BID, ¶113 (DOAH 2000)(noting that “members of the SSET met together as a group on only one occasion” but that “no 'official acts’ were taken” and concluding “there was no obligation, under the Sunshine Law, to have given reasonable public notice of the meeting and to open the meeting to the public”).
However, Veolia also alleges that the award of the contract to MV should be set aside based on MV’s failure to use the rate calculation model required by the RFP and the selection committee’s failure to have at least three employees with knowledge and experience in coordinated transportation systems.
The evidence was clear that the RFP required the use of the CPT rate calculation model. Further, the evidence demonstrated that data related to the costs associated with paying transportation carriers provided in that model was useful, if not critical, to analyzing the proposed rates submitted by the proposers. The use of the model provided a uniform method for calculating and analyzing such submitted
rates. Clearly, the method of calculation impacted the rates submitted. Veolia included transportation cost data. MV did not. Unfortunately, the Commission did not clarify the question about the model and carrier expenses posed by MV prior to submission of the proposals in this case. If such clarification or RFP amendment had been forthcoming, then the rates submitted by the proposers could be compared with a reasonable degree of confidence that the rates were based on similar information and within a reasonable budget for the transportation coordinator.
Additionally, the evidence demonstrated it was essential to have a rate calculation which accounts for the costs associated with coordination and provision of transportation services because part of the coordination service in the contract includes paying the transportation providers. This payment is not a simple pass-through expense and is a substantial cost for the transportation coordinator. Given these facts, use of the model rate calculation was a material requirement of the RFP and could not be waived by the Commission. Therefore, the award of the contract to MV should be set aside. See Robinson Electrical Co., Inc. v. Dade County,
417 So.2d 1032, 1034 (Fla. 3rd DCA 1982)(noting that “not every deviation from the invitation is material” and that “[i]n determining whether a specific noncompliance constitutes a substantial and hence, non-waivable irregularity, the courts
have applied two criteria – first, whether the effect of a waiver would be to deprive the municipality of its assurance that the contract will be entered into, performed and guaranteed according to its specified requirements, and second, whether it is of such a nature that its waiver would adversely affect competitive bidding by placing a bidder in a position of advantage over other bidders or by otherwise undermining the necessary common standard of competition.”); Tropabest Foods, Inc. v. State, Dep’t of General Serv., 493 So. 2d. 50, 52 (Fla. 1st DCA 1986)(noting that “although a bid containing a material variance is unacceptable, not every deviation from the invitation to bid is material. It is only material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition.” Infrastructure Corp. of America, Case No. 07-4410BID, ¶89 (DOAH 2007)(noting “[i]t is not enough under Section 120.57(3), Florida Statutes, for the protestor to show that the proposed award is inconsistent with some provision of the RFP; the protestor must also show that
. . . the proposed award is clearly erroneous, contrary to competition, arbitrary, or capricious.”).
Compounding the Commission’s attempted waiver of a material provision of the RFP, the selection committee did not consist of at least three employees with knowledge and
experience in coordinated transportation systems. Such knowledge and experience was required by the RFP.
Section 287.057(17)(a), Florida Statutes, provides that if the value of a contract will exceed $150,000, then there must be “[a]t least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought.” (emphasis added) However, the RFP imposed a specification more stringent than Section 287.057(17)(a), Florida Statutes, in that at least three members of the selection committee have knowledge and experience with coordinated transportation systems.
In this case, the evidence showed that two of the four committee members had sufficient knowledge and experience with coordinated transportation systems. Two of the committee members did not have such knowledge or experience. The requirement was material since the RFP required the committee members to evaluate complex rate proposals based on an amount of knowledge regarding the duties of a transportation coordinator and the operation of a transportation coordinator. Without such knowledge and experience, the rates proposed by the proposers could not be independently analyzed by the selection committee and reasonable confidence cannot be given to the committees’ scoring of the proposals. Such lack of confidence serves to
undermine the competitive bid process. See R.N. Expertise, Inc. v. Miami-Dade County School Board, Case No. 01-2663BID, 2002 WL 185217 (Fla. Div. of Admin. Hrgs, Feb 4, 2002).
In R.N., four out of five evaluators did not have sufficient knowledge or experience to evaluate the proposals for compliance with the technical requirements of the RFP. The evaluation committee had technical advisors available, one of whom served on the committee. In analyzing the requirement that at least three employees were required to have knowledge and experience in the program areas involved in the RFP, the court noted:
Among the sound reasons for requiring a knowledgeable and experienced selection team is to produce evaluations in which merits of competing proposals are fairly and competently considered.
The court held that such lack of competence was contrary to competition and eroded public confidence in the bidding process.
Finally, the evidence demonstrated that Veolia’s proposal was not responsive to the RFP since it did not provide a transition plan in its proposal. Because of Veolia’s non- responsiveness, there is no proposal which materially meets all the requirements of the RFP. Moreover, the RFP process was flawed since the selection committee did not meet the requirements of the RFP. Given the multiplicity of problems in
this RFP and the lack of any responsive bidder, the Commission should reject all proposals and re-issue its RFP.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,
RECOMMENDED that the Commission enter a final order rejecting all proposals and re-issuing its RFP.
DONE AND ENTERED this 9th day of July, 2008, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2008.
Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01
Michael E. Riley, Esquire
Mary-Jo Lewis-Wilkinson, Esquire Amy W. Schrader, Esquire
Gray Robinson, P.A. Post Office Box 11189
Seann M. Frazier, Esquire Greenberg Traurig, P.A.
John T. Hoeft, Esquire
Vice President and General Counsel Veolia Transportation Services, Inc. 14275 Midway Road, Suite 200
10 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
