On November 14, 2008, an administrative hearing in this case was conducted in Tampa, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Colleen M. Fitzgerald, Esquire
Carlton Fields, P.A.
Jose A. Loredo, Esquire Carlton Fields
For Respondent: C. Denise Johnson, Esquire
For Intervenor: Xavier A. Franco, Esquire
The issue in this case is whether the Department of Transportation's (DOT) proposed award of contracts for emergency debris removal services is contrary to law, the agency's governing statutes, rules or policies, or the specifications of the Request for Proposals (RFP).
In August 2008, DOT issued an RFP, seeking to contract with vendors for emergency debris removal services. On September 19, 2008, DOT posted its Notice of Intended Awards. Ashbritt, Inc. (Petitioner), one of the vendors that submitted a proposal in response to the RFP, filed a challenge to the proposed awards.
DOT forwarded the challenge to the Division of Administrative Hearings on October 21, 2008, which scheduled the hearing for November 14, 2008.
The Petitioner asserts that DOT's notice of the oral presentation schedule was improperly emailed, causing the Petitioner to miss the oral presentations and to receive none of
the 50 available points related thereto. The Petitioner asserts that the allegedly improper notice was clearly erroneous, arbitrary, capricious, contrary to competition, contrary to governing statutes and rules, and contrary to the RFP specifications. The Petitioner also asserts that DOT's provision of notice constitutes a breach of an implied contract, based on DOT's solicitation of proposals, DOT's receipt of the Petitioner's proposal, and the alleged subsequent failure to utilize the contact information contained within the Petitioner's proposal
Second, the Petitioner asserts that DOT should have agreed to postpone the oral presentation period due to Hurricane Ike and that the failure to do so was arbitrary, capricious, and contrary to competition.
One day prior to the hearing, a Motion to Intervene was filed by T.F.R. Enterprises, Inc. (Intervenor). On the day of the hearing, the Petitioner filed a response in opposition to the motion. The motion was heard at the commencement of the hearing. Upon review of the motion and response, and after hearing argument from the parties, the motion was granted, but the Intervenor was not permitted to raise new issues and its participation at the hearing was limited to cross-examination of previously identified witnesses.
At the hearing, the Petitioner presented the testimony of three witnesses and had Exhibits numbered 1 through 15 admitted into evidence. DOT presented the testimony of one witness and had Exhibits 1 through 3 admitted into evidence. The Intervenor presented no witnesses or exhibits.
A Transcript of the hearing was filed on December 15, 2008.
All parties filed Proposed Recommended Orders that have been reviewed in the preparation of this Recommended Order.
The Petitioner is a Florida corporation that provides emergency debris removal services following natural events such as hurricanes.
DOT is a Florida state agency responsible for obtaining emergency debris removal services for roadways in the state.
The Intervenor is one of the intended recipients of a contract for emergency debris removal services, resulting from the agency action at issue in this proceeding.
On August 12, 2008, DOT published a Request for Proposals (RFP-DOT-08/09-7009RM) on the Florida Vendor Bid System, seeking to contract with vendors for emergency removal of debris from roadways within DOT District 7.
DOT originally intended to enter into contracts with three vendors, but, through an addendum to the RFP, increased the number to four vendor contracts.
The RFP stated that potential vendors were required to register on the "MYFLORIDAMARKETPLACE" website and to monitor the Florida Vendor Bid System for "any changing information prior to submitting their proposal."
On the first page of the RFP, DOT provided an explicit "timeline" that included a "list of critical dates and actions," including various deadlines and scheduled meetings.
The RFP timeline stated that a "Mandatory Pre-Proposal Conference" was scheduled for August 19, 2008. The RFP did not specify whom a prospective vendor could send to the mandatory conference, but stated that the failure to attend the mandatory conference would result in rejection of a proposal submitted by a non-attending vendor.
According to the RFP, the proposals were to be submitted in two separate sections, a "technical" component and a "price" component.
The RFP identified a three-part, 200-point evaluation system for use in reviewing the proposals, including 100 points allotted for technical proposal scores, 50 points allotted for price proposal scores, and 50 points allotted for oral presentations scores.
The RFP timeline stated that the proposals were to be filed on August 27, 2008, and that the technical section would be opened on that date.
According to the RFP, proposals scoring at least
70 points in the technical evaluation would be deemed responsive and included on a "shortlist" that, according to the RFP timeline, would be posted on September 9, 2008. Vendors identified on the shortlist were permitted to proceed into the oral presentation process.
The RFP timeline specifically stated that the oral presentations would occur September 16 through 18, 2008.
The RFP stated that the price proposals would be opened and evaluated on September 19, 2008, and that DOT would post the notice of intended awards on the same date.
The projected path of Tropical Storm Fay through the Tampa area resulted in the closure of government offices on August 19, 2008, the originally scheduled mandatory conference date.
By an addendum dated August 18, 2008, the date of the mandatory conference was delayed to August 21, 2008.
The Petitioner assigned Employee Matthew Gierden, a regional manager, to attend the mandatory conference.
Mr. Gierden had also attended a previous mandatory conference related to an earlier RFP for debris removal services.
The Petitioner assigned Mr. Gierden to attend the mandatory conference because his base of operations (his residence in Ft. Myers, Florida) was geographically closer to
the Tampa location of the conference than were the other employees located in Pompano Beach, Florida, where the Petitioner is headquartered.
As did the other attendees at the August 21, 2008, mandatory conference, Mr. Gierden placed his signature and email address on a sign-in sheet.
At the close of the conference, Mr. Gierden gave his business card to Rosa Morales, the DOT contract administrator responsible for the RFP at issue in this proceeding.
On the back of his business card, Mr. Gierden wrote a request that a PowerPoint presentation from the conference be emailed to him.
The business card contained Mr. Gierden's corporate email address and the Pompano Beach address where the Petitioner's corporate office was located.
Ms. Morales subsequently emailed the presentation to him, as she did in response to the requests of other participants. Mr. Gierden forwarded the emailed presentation to company officials.
The Petitioner submitted a proposal in response to the RFP and received sufficient points following evaluation of the technical part to be placed on the shortlist. DOT posted the shortlist as provided in the RFP. As stated previously,
prospective vendors who were identified on the shortlist were eligible to make oral presentations to DOT.
Specifically as to the oral presentations, the RFP provided in relevant part as follows:
The Department will hold a public meeting to announce the short-list of Proposers, who will continue in this procurement process and be participating in the Oral Presentations on the date, time and location scheduled in the Timeline (See Introduction Section 2 Timeline). The Department will post the short-list on the Florida Vendor Bid System on the date and time scheduled in the Timeline. See Section 29.1 for information on posting of intended shortlist decision.
* * *
The committee members will independently evaluate the oral presentations on the criteria established in the section below in order to assure that all orals are uniformly rated. Oral Presentations are open to the public and are scheduled to begin on the date and time and location scheduled in the Timeline (See Introduction Section 2 Timeline).
After the shortlist was determined, DOT established an oral presentation appearance schedule. According to the schedule, the Petitioner was to make its oral presentation at 9:00 a.m. on September 16, 2008.
The day after the shortlist was posted on September 9, 2008, Ms. Morales sent an email to the shortlisted vendors, advising them of the scheduled order of oral presentation
appearances. When doing so, she used the sign-in sheet from the mandatory conference and used Mr. Gierden's corporate email address because that was the address he provided on the sign-in sheet.
The Petitioner's proposal included a cover sheet and contacts page identifying certain individuals, including John Noble, the Petitioner's chief operating officer, with the capacity to represent the Petitioner. Mr. Noble has been involved in previous RFPs and was aware of the Florida Vendor Bid System. Ms. Morales did not email the presentation schedule to Mr. Noble.
Whether Mr. Gierden read Ms. Morales' September 10, 2008, email is disputed. Ms. Morales received a "read receipt" for the email (indicating that the email document had been opened), but Mr. Gierden has no recollection of reading the email.
Mr. Gierden's primary responsibility with the Petitioner was as a project manager for storm-related recovery operations. Generally, Mr. Gierden deploys to the location of projected storm landfall and then relocates as needed to accommodate changes in a projected storm path. After a storm makes landfall, Mr. Gierden remains on-site to manage continuing extended activities as directed by company officials.
In August and early September 2008, Mr. Gierden had been assigned to track Tropical Storm Hannah through the Florida eastern coast and into Georgia and South Carolina. He was also responsible for recovery efforts in Collier County, Florida, related to Tropical Storm Fay.
Other than attending the mandatory conference as assigned by his employer, Mr. Gierden was not involved in the preparation of the Petitioner's response to the RFP.
It is illogical to presume that Mr. Gierden read and then ignored Ms. Morales' September 10, 2008, email. However, on that same date, Mr. Gierden was instructed to prepare for imminent deployment to Texas where Hurricane Ike, a large and potentially dangerous weather event, appeared to be headed. Within a few minutes of having received the assignment,
Mr. Gierden was involved in making the travel, family, and personal household decisions required to allow for an extended absence from home.
Assuming that Mr. Gierden even read the Morales email, it is reasonable to presume that he overlooked its importance since he bore no responsibility for the RFP and had no involvement in the oral presentation schedule.
In any event, the evidence establishes that the Petitioner's corporate office did not receive Ms. Morales'
September 10, 2008, email and was not aware of the scheduled order of appearance for oral presentations.
The Petitioner correctly notes that, although
Mr. Gierden had attended the mandatory conference for an earlier RFP for emergency debris removal services and had similarly provided his email address on the sign-in sheet, in that instance Ms. Morales emailed the oral presentation schedule to a company official identified in its RFP response rather than to Mr. Gierden.
The Petitioner asserts that DOT has breached a duty to provide notice of the actual oral presentation schedule to appropriate company officials.
The RFP clearly provided for the public posting of the shortlist and explicitly identified the dates upon which the oral presentations would occur. Neither the RFP nor any other DOT policy required that DOT provide to vendors any actual notice of the scheduled order of presentation.
The RFP states that, in accordance with state law, only written communication may occur between prospective vendors and DOT officials during the period between the release of the RFP and 72 hours after the posting of the notice of intended award.
The evidence establishes that the Petitioner was clearly aware that it could communicate during the RFP process
through email with Ms. Morales. A person identified as a marketing coordinator for the Petitioner inquired by email as to whether, due to Tropical Storm Fay, the mandatory conference would be rescheduled (as it was).
Through other email to Ms. Morales, the same person also sought to obtain copies of bid proposals submitted by other prospective vendors as well as the evaluations of such proposals while the RFP process was ongoing. Because the release of such information was prohibited prior to the posting of the notice of intended award, Ms. Morales declined to provide the information.
The Petitioner apparently assumed (based on the previous RFP experience) that DOT would send an email identifying the oral presentation schedule. Nonetheless, when such email was not received, the Petitioner appears to have made no effort to obtain the schedule or to otherwise ascertain the status of the oral presentations, notwithstanding the explicit identification of the oral presentation period in the RFP.
Nine vendors were scheduled to make oral presentations. Three shortlisted vendors failed to attend the oral presentations. None of the three received any of the
50 points available for award based on oral presentations. The Petitioner asserts that the misdirected email was the cause of its non-attendance. The two other shortlisted vendors failed to make presentations for reasons unrelated to notice.
The evidence is insufficient to establish that the Petitioner's failure to make an oral presentation was attributable to Ms. Morales' email to Mr. Gierden.
The Petitioner asserts that DOT should have postponed the oral presentation period due to Hurricane Ike. Although there were initial concerns that Hurricane Ike could impact the State of Florida, ultimately the storm came ashore at the Gulf of Mexico coastline in the southern part of Texas.
The evidence fails to establish that the Petitioner made any request to postpone the oral presentation period. The request was made by a vendor, also unsuccessful, that is not a party to this proceeding.
DOT declined to postpone the oral presentation period because, according to DOT's emergency coordination officer, who was responsible for the decision, the storm was not affecting the locality where the presentations would occur. Further, DOT expected that a successful vendor would have the capacity to handle multiple storm-related activities, as well attend to its own business affairs.
There is no credible evidence that DOT's refusal to postpone the oral presentation period was inappropriate or improper in any regard.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.57(1) and 120.57(3), Fla. Stat. (2008).
Subsection 120.57(3)(f), Florida Statutes (2008), provides in relevant part as follows:
Unless otherwise provided by statute, the burden of proof shall rest with the party protesting the proposed agency action. In 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.
There is no evidence that DOT's proposed award of contracts pursuant to the RFP relevant to this proceeding is contrary to the agency's governing statutes, the agency's rules or policies, or the solicitation specifications.
A decision is clearly erroneous when it is based on substantial error in proceedings. Blacks Law Dictionary, Rev. 4th Ed. (1968). An agency's decision or intended decision will be found to be "clearly erroneous" if it is without rational support, and, consequently, the Administrative Law Judge has a
"definite and firm conviction that a mistake has been committed." See U.S. v. U.S. Gypsum Co., 68 S. Ct. 525, 542 (1948).
There is no evidence that DOT's intended award of contracts in this case is clearly erroneous.
As to whether the RFP process was "contrary to competition," the phrase is best understood by its plain and obvious meaning, i.e. against or in opposition to competition. The purpose of the competitive bidding process is to secure fair competition on equal terms to all bidders by affording an opportunity for an exact comparison of bids. Harry Pepper and Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190, 1192 (Fla. 2nd DCA 1977). There is no credible evidence that all bidders were not afforded an opportunity for an exact comparison of bids or that DOT’s RFP process was otherwise contrary to competition.
The evidence further fails to establish that the process was arbitrary or capricious. "A capricious action is one which is taken without thought or reason or irrationally.
An arbitrary decision is one not supported by facts or logic, or despotic." Agrico Chemical Co. v. State Department of Environmental Regulation, 365 So. 2d 759, 763 (Fla. 1st DCA 1978), cert. den., 376 So. 2d 74 (Fla. 1979).
The fact that Ms. Morales sent the oral presentation schedule to Mr. Gierden in this instance does not establish that her use of Mr. Gierden's email address was arbitrary or capricious, or otherwise inappropriate. This is so even in light of the fact that, during the previous RFP for emergency debris removal services, Ms. Morales sent the scheduling email to a company official other than Mr. Gierden, even though
Mr. Gierden attended the mandatory conference for that RFP as well.
At the mandatory conference for the instant RFP,
Mr. Gierden provided his email address to Ms. Morales on his business card for purposes of receiving the mandatory conference presentation, apparently so that Mr. Gierden could forward the presentation to company officials. Mr. Gierden could have requested that Ms. Morales forward the presentation directly to such company officials, but he did not. Ms. Morales could reasonably have presumed that Mr. Gierden would forward, in the same way, any other information sent to him.
An agency is given wide discretion in soliciting and accepting bids, and its decisions, when based on an honest exercise of its discretion, will not be overturned even if the decision may appear erroneous and reasonable people may disagree. Liberty County v. Baxter's Asphalt & Concrete, 421 So. 2d 505 (Fla. 1982)
More importantly, there is no evidence that any vendor received any significant information that was not provided to all vendors. Ms. Morales’ email simply assigned time slots to the shortlisted vendors. The RFP explicitly identified the dates during which the oral presentations by shortlisted vendors would occur. The shortlist was posted. Clearly, all shortlisted vendors had access to the information required to prepare for the oral presentation portion of the evaluation process.
This dispute does not present the issue of a refusal by DOT to hear a shortlisted vendor's oral presentation within the designated presentation period but at a time other than announced in a DOT email, which the vendor allegedly did not receive. The Petitioner was denied oral presentation points not because it appeared for oral presentations at the wrong time, but because it did not make an oral presentation at all.
While the Petitioner's lack of knowledge about the scheduled order of presentation could be initially attributable to misdirected email, the Petitioner's complete failure to make a presentation whatsoever is attributable to the Petitioner's failure to make a note of the explicitly identified oral presentation period.
The Petitioner has asserted that, as to the Morales email, DOT's provision of notice constituted a breach of an
implied contract, based on the DOT's solicitation of proposals, the DOT's receipt of the Petitioner's proposal, and the subsequent failure to utilize the contact information contained within the Petitioner's proposal. Such an assertion is outside the jurisdiction of this proceeding; however, there is nothing in the RFP or in the applicable regulations that binds the DOT in such manner based on the receipt of a vendor's proposal.
The Petitioner finally asserts that DOT should have agreed to a vendor request to postpone the oral presentation period due to Hurricane Ike and that the failure to do so was arbitrary, capricious, and contrary to competition.
The Petitioner is not the vendor that made the request to postpone the oral presentation period. Assuming that the Petitioner has standing to challenge the denial of the request (an issue that was not raised by the parties), there is no evidence that DOT's decision to proceed with the oral presentation period as scheduled was inappropriate.
According to the testimony of the official responsible for making the decision, DOT expects that any successful vendor meeting the requirements of the RFP should have the capacity to simultaneously perform multiple tasks, including maintaining continuing business operations. Given the nature of the services sought under the RFP at issue in this proceeding, the expectation was not unreasonable. The decision to move forward
with the oral presentation period was clearly within the discretion of the agency.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order dismissing the bid protest at issue in this proceeding.
DONE AND ENTERED this 14th day of January, 2009, in Tallahassee, Leon County, Florida.
WILLIAM F. QUATTLEBAUM
Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2009.
C. Denise Johnson, Esquire Department of Transportation
William J. Spriggs, Esquire Spriggs & Hollingsworth 1350 I Street Northwest Washington, DC 20005
Jose A. Loredo, Esquire Carlton Fields
Colleen M. Fitzgerald, Esquire Carlton Fields, P.A.
Xavier A. Franco, Esquire Smith, Currie & Hancock, LLP 2700 Marquis One Tower
James C. Myers,
Alexis M. Yarbrough, General Counsel Department of Transportation
Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building
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.
