vs.
Intervenor.
) Case No. 11-2816BID
Pursuant to notice to all parties, the final hearing was conducted in this case on July 8, 2011, in Pinellas Park, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings.
For Petitioner: John J. Fumero, Esquire
Thomas F. Mullin, Esquire
For Respondent: Donald D. Conn, Esquire
Pennington, Moore, Wilkinson, Bell & Dunbar, P.A.
For Intervenor: Edward P. de la Parte, Jr., Esquire
Kristin Y. Melton, Esquire
de la Parte and Gilbert, P.A. Post Office Box 2350
This proceeding involves a challenge by Petitioner, Dynamic Solutions, LLC, a Florida limited liability company ("Dynamic"),
to the RFP Award Notification by TBEP. TBEP issued the RFP for the Old Tampa Bay Integrated Model Development Project (the "Project"). Dynamic, Janicki Environmental, Inc. ("Janicki"), and seven other entities submitted proposals to TBEP in response to the RFP. TBEP distributed, via email, its final rankings of all nine respondents,1/ reflecting Janicki as the top-ranked candidate, with Dynamic being the second-ranked candidate.
Dynamic timely filed a Petition for Formal Administrative Hearing with TBEP, and the Petition was forwarded to the Division of Administrative Hearings ("DOAH") for assignment of an Administrative Law Judge ("ALJ") to conduct a formal administrative hearing.
On June 8, 2011, Janicki filed an unopposed motion to intervene in this matter, which was granted. On June 9, 2011, TBEP and Janicki filed a motion to dismiss Dynamic's Petition on the grounds that Dynamic waived its right to an administrative hearing by failing to post the requisite security pursuant to sections 120.57(3) and 287.042(2)(c), Florida Statutes (2010),2/ and by attempting to untimely challenge the terms and conditions of the RFP. The motion was denied without prejudice to raise the issue again at final hearing.
On June 23, 2011, Dynamic filed a motion to strike and to limit issues raised by Janicki in its Petition to Intervene.
That motion was also denied. Dynamic filed a renewed motion to
strike on July 6, 2011, and also filed a motion seeking to admit the deposition transcripts of Dr. James Martin and Lizanne Garcia into evidence. Both motions were considered at the commencement of the final hearing in this matter. A ruling on the motions was reserved pending presentation of evidence during the final hearing. Upon further review and after argument of counsel and presentation of evidence, the Renewed Motion to Strike and Limit Issues or, in the Alternative, Motion for Leave to Amend Petition, is denied. The deposition transcripts of Dr. Martin and Lizanne Garcia are admitted.
At the final hearing, the parties agreed that TBEP would present its case-in-chief first, followed by Dynamic, and then Janicki. The order of proof did not affect the burden of proof. TBEP called the following witnesses: Holly Greening, executive director of TBEP. TBEP's Exhibits 1 through 9, 12 through 16, 20, and 22 through 24 were admitted into evidence. Dynamic called Edward Sherwood, program specialist for TBEP; and Christopher Wallen, vice-president of Dynamic. Dynamic's Exhibits 1, 2, 4 through 6, 8, 9, 12 through 14, 16 through 19,
22, 24, 27 through 32, 34, 36 through 38, 51, 52, 54, 57, and 58 were admitted into evidence. Janicki did not call any witnesses or offer any exhibits into evidence. The parties agreed to the admission of Joint Exhibits 1 through 14.
A transcript of the final hearing was ordered by the parties. The Transcript was filed at the DOAH on July 22, 2011. By rule, the parties were allowed ten days, i.e., until
August 1, 2011, to submit proposed recommended orders. The parties requested and were given three additional days to file their proposed recommended orders. Each party timely submitted a Proposed Recommended Order, and each was duly considered in the preparation of this Recommended Order.
(Findings of Fact 1 through 17 are taken from the parties' Prehearing Stipulation.)
Dynamic is a Florida limited liability company with its principal place of business in Knoxville, Tennessee.
TBEP is an independent special district formed by an Interlocal Agreement between 13 governmental entities pursuant to section 163.01, Florida Statutes.
Janicki is a Florida corporation with its principal place of business in St. Petersburg, Florida.
TBEP issued the RFP (for the Project) on or about March 4, 2011.
The stated purpose of the RFP was to develop, calibrate, and validate an integrated set of numerical and/or empirical models.
Nine project teams submitted responses to the RFP.
Dynamic and Janicki timely submitted proposals on or about April 15, 2011.
TBEP distributed, via email, its final rankings of the nine-project teams on May 13, 2011.
TBEP notified Dynamic that it was the second-ranked candidate.
TBEP notified Janicki that it was the first-ranked candidate.
Dynamic timely filed its notice of written protest on May 19, 2011.
Dynamic timely filed its Petition for Formal Administrative Hearing on May 31, 2011.
In lieu of a security bond, Dynamic submitted a cashier's check as security in the amount of $11,979.08 to TBEP on May 31, 2011.
TBEP referred Dynamic's Petition to DOAH on June 2,
2011.
Janicki served its Petition to Intervene on or about
June 8, 2011.
Dynamic submitted a cashier's check as replacement security to TBEP on June 10, 2011.
Dynamic did not submit a protest bond.
Background on TBEP
TBEP's mission is to assist local and regional governments in developing a comprehensive plan to restore and protect the body of water known as greater Tampa Bay. TBEP has an Interlocal Agreement whose stated purpose is to emphasize regional cooperation and regulatory flexibility that allows it to select cost-effective and environmentally beneficial bay improvement options for the surrounding communities. The Interlocal Agreement seeks to implement the Comprehensive Conservation & Management Plan for Tampa Bay, known as Charting
the Course. TBEP's Interlocal Agreement establishes a Management Board and a Policy Board with specified duties and responsibilities, which are further described in TBEP's By-Laws. The Management Board serves as an advisor to the Policy Board.
The Policy Board exercises all the powers of the entity and manages the business and affairs of TBEP. Only the Policy Board may promulgate TBEP policy or procedures or issue waivers of such policies and procedures.
TBEP has adopted an Operating Procedures Manual ("OPM"), which sets forth procurement procedures. It provides that all procurement shall be conducted in accordance with the Code Of Federal Regulations (40 C.F.R. § 31.36) and, as applicable, chapter 287 and Florida Administrative Code Chapter 60A-1, to the extent the statutes and rules are not in conflict with applicable federal laws and standards.
The OPM provides that the Policy Board must approve all contract awards for services in excess of $25,000, unless delegated by the Policy Board to the Management Board. Also, the OPM says an evaluation committee appointed by TBEP's executive director will review proposals received by TBEP in response to an RFP for services in excess of $25,000. The results of an evaluation committee's review of proposals are presented to the Management Board, which makes a recommendation to the Policy Board. The final procurement decision is made by the Policy Board.
The Project is the result of a cooperative agreement between TBEP and Southwest Florida Water Management District (SWFWMD) to develop comprehensive models, to evaluate potential management actions, to improve water quality, and to expand seagrass coverage in Old Tampa Bay. The Project includes development, calibration, and validation of an integrated set of numerical (and/or empirical) models of: 1) watershed loading;
hydrodynamic circulation; and 3) water quality/ecological response that will be used to evaluate management action scenarios in Old Tampa Bay. Total cost of the Project is estimated to be $1,200,000 to $1,300,000; the length of time needed to carry out the Project would be approximately 36 months.
The Project will be jointly funded by TBEP and SWFWMD. TBEP is funded by the Environmental Protection Agency, the City of Clearwater, the City of St. Petersburg, the City of Tampa, Hillsborough County, Pinellas County, Manatee County and SWFWMD. The Project is the largest single project undertaken by TBEP in terms of costs, but TBEP has previously procured services and entered into contracts for other projects which are as technically complex as the Project.
TBEP and SWFWMD developed a team of professionals in the fall of 2010 to begin development of the Project. In March 2011, TBEP issued the RFP for the Project. Proposals in response to the RFP were accepted until 2:00 p.m. (Eastern
Standard Time) on Friday, April 15, 2011. Information was to be provided in each proposal under the following headings: Project Summary, Title Page, Table of Contents, Letter of Transmittal, Understanding and Approach, Respondent Qualifications, Quality Control and Conflict of Interest, Time Schedule and Effort Proposal, Listing of Deviations, and Additional Data.
Respondents were also directed to indicate whether they had an affirmative action plan in effect. In addition, respondents had to disclose whether they had been involved in a government contract that ended in termination, litigation due to substandard quality, untimely submittal of deliveries, or for
other reasons. All team members for each respondent were to be disclosed, including prime contractors and subcontractors.
Responding entities were allowed until March 18, 2011, to submit any questions they had about the RFP process. All questions submitted, along with TBEP's responses, were then compiled and made a part of the RFP package. The RFP package was available to anyone who requested it. In response to one of the questions asked by a respondent, TBEP provided a list identifying all of the evaluation committee members.
Dynamic represented that it was the respondent and provided appropriate contact information. Dynamic named Christopher Wallen, its vice-president, as the person authorized to make representations for and bind Dynamic to its proposal. The proposal indicated that Dynamic agreed to hold TBEP and SWFWMD harmless from any claims resulting from injury or damages incurred by volunteers participating in the program, although no executed hold harmless agreement was included in its proposal.
Dynamic indicated some support or collaboration with other entities as part of its proposal. Both Old Dominion University ("ODU") and the University of South Florida ("USF") were named as part of Dynamic's "team" for purposes of their proposal. Professional biographical information for Dr. Mark Luther from USF and Dr. Richard Zimmerman from ODU was included in the proposal, along with information for Dynamic's employees
and experts from other entities. There is no documentation from either of the universities, however, indicating they are expecting to participate in the Project. Dynamic takes the position that the two university-based experts were hired as independent consultants, working for their private consulting businesses, rather than for the universities. (This position is similar to TBEP's position on two of its committee members. See discussion herein.) However, the universities' logos appear on the front cover of Dynamic's proposal.
Dynamic did not have, at the time of its proposal or even as of the date of final hearing, an affirmative action plan in place. However, as a minority-owned business (Wallen's wife is the president of the company), Dynamic does not believe it is required by law to have such a plan. Therefore, no plan was included in its application. By not having, or creating such a plan, Dynamic forfeited a point in its evaluation by committee members.
Dynamic did not include information in its proposal concerning a government contract it had previously been awarded that had been terminated. However, the reason for that termination was that the government had stopped work on the project, when another party entered a protest of some sort. The contract was "terminated" pending resolution of the dispute, but was then reinstated. Dynamic did not feel as if those
circumstances would warrant disclosure of the contract under the terms of the RFP.
The RFP included instructions for the evaluation committee's use in reviewing proposals. Each committee member was to score each proposal and rank the respondents. The evaluation committee was expected to reach a consensus on a ranked list of the respondents at the end of the process. A hypothetical ranking table was included in the RFP instructions for consideration by the committee.
TBEP's standard practice for RFP reviews was to use the rankings to award a contract. The scores assigned by each committee member were not generally as consistent, so rankings were used to reach a better decision. There were no instructions in the RFP as to how the committee was to handle a tie. Each evaluation committee member was allowed to use their own judgment as to how to reflect a tie. Some committee members used fractions while some would rank two respondents equally and leave one rank vacant. For example, one reviewer might rank the respondents: 1, 2, 3, 4, 4, 6, 7, 8, 9; another reviewer might use 1, 2, 3, 4, 4.5, 5, 6, 7, 8 to reflect the same ranking. Dynamic correctly pointed out that the instructions provided to the committee members included a sample format for making rankings. The sample did not include a ranking based upon a tie, but the instructions did not prohibit ties either.
The evaluation committee was made up of nine members, each having a special area of knowledge or expertise as to the proposed project. The team members were:
Mark Flock, Pinellas County staff;
Lizanne Garcia, SWFWMD staff;
Kristen Kaufman, SWFWMD staff;
David Glicksberg, Hillsborough County staff;
Holly Greening, TBEP staff
Edward Sherwood, TBEP staff;
Charles Kovach, Department of Environmental Protection;
Dr. William Kemp, subject matter expert; and
Dr. James Martin, subject matter expert.
The Scoring Process
The RFP Instructions include a set of eight criteria used to evaluate the proposals by assigning scores to the proposals based on the provided criteria. Evaluation committee members were to apply the first five technical criteria to score proposals.3/ Those criteria and potential scores for each were: Project Team Qualifications--20 points; Project Approaches--35 points; Level of Effort and Cost by Task--15 points; Performance Considerations--20 points; and Management Approach--5 points. The remaining three non-technical criteria were assigned by TBEP staff and were applied to each proposal. Those criteria were: Minority (business ownership); Previous Work Awarded; and Total
Proposed Project Costs. The reviewers could then add "extra" points for the candidate's purported ability to adequately complete the tasks as outlined in the RFP. A total of 95 points could be awarded for each candidate.
On April 15, 2011, the committee members were provided copies of the nine proposals submitted by interested respondents. Each committee member was also given a copy of the RFP, a blank score sheet, and a "Code of Standards of Conduct" statement to be completed for the purpose of showing no conflict of interest. The committee members were then directed to assign scores for the various criteria as the initial element of their review.
The RFP provided directions as to how the process would work. At page 7 of the RFP, it states that "[E]valuation committee members may adjust scores based on discussion during the evaluation committee meeting prior to the finalization of scores" and that "each evaluation committee member will then add up their scores for Criteria 1 through 5 and staff-provided scores 6 through 8 for each respondent, and rank respondents based on their individual scores." The RFP then provided that once the scoring was complete, "[r]anks from each evaluation committee member shall be totaled, and an overall ranked
short-list developed therefrom."
Each of the committee members then completed scoring sheets for each respondent. The committee then met on April 29, 2011, to review, discuss, and rank the proposals. A short list of proposals was made at that time for the purpose of allowing certain respondents to make oral presentations to the committee. The list was developed by having each committee member give a score (or rank) of one or zero for each respondent. The four respondents who were ranked the highest were allowed to make oral presentations. The scores assigned by each committee member in their individual review on score sheets were not the sole basis for creating the short list. However, each committee member made a 1 or 0 rank for the respondents based at least, in part, on how they had scored the respondents.
On May 6, 2011, the four highest ranked respondents, including Dynamic and Janicki, were allowed to make oral presentations to the committee. After the presentations, the committee met and deliberated for approximately two hours concerning their choices. At that time, the initial rankings were created. Each member's initial ranking of the nine respondents was placed on a white board at the front of the meeting room. As the rankings were discussed, some members decided to alter their rankings based on consideration of other members' input. Each of the committee members brought a particular expertise to the table, so each had pertinent insight
to share with other committee members as to the abilities or capabilities of each respondent.
The scores that each member had individually assigned to the respondents for the various categories were not specifically discussed as part of the ranking dialogue. Those scores were a preliminary method for each reviewer to compare the respondents' proposals on a comparatively even "apples to apples" review. The scores may or may not have formed the primary basis for each reviewer's initial ranking placed on the white board at the May 6, 2011, meeting. Nonetheless, the rankings could be changed upon discussion with other members of the committee. Dynamic argues that the scores on each evaluation committee member's score sheets should have been used without consideration of any other factors to make the final rankings. Although it is possible to interpret the scoring instructions in that fashion, the approach used by the evaluation committee was sufficiently consistent with the instructions and based on a logical, reasonable approach. There is nothing inherently deficient about how the committee reached its decision.
The committee reached a consensus at the May 6, 2011, meeting that Janicki should be awarded the contract. Although the vote was close, 16 to 17, the committee all agreed with the final decision. With the exception of Kaufman, none of the
committee members deviated from their individual final ranking made at the meeting. Kaufman, subsequently, determined that her ranking as shown on the white board mistakenly had Dynamic ranked as 1 and Janicki as 2, just the opposite of what she intended. Making that change would have resulted in Janicki winning by three points instead of one point.
The committee then reported its decision to the Management Board, which met on May 12, 2011, and approved the evaluation committee's recommendation. The Management Board then recommended to the Policy Board that Janicki be awarded the contract. The Policy Board modified the committee's recommendation slightly, deciding that if contract negotiations were not successful with Janicki, then Dynamic should be awarded the contract. On May 13, 2011, the Policy Board accepted the recommendation and awarded the contract to Janicki.
After the May 6, 2011, meeting, the committee members were asked to submit their final score sheets to TBEP to be used by TBEP to evaluate strengths and weaknesses of the proposals for future consideration. Some members submitted several erroneous score sheets prior to sending their final score sheet. Kaufman initially submitted a blank score sheet for one respondent and had mathematical errors showing the two
top-ranked respondents as tied, even though Janicki actually had a higher score. Garcia submitted an additional score sheet
along with a justification as to how she broke a tie by using the higher technical score. Kemp submitted revised score sheets in order to provide justification for how he derived his final rankings. Inasmuch as there were discussions between committee members after the initial scoring was done but before the final rankings, it is logical and reasonable that the final rankings may not be consistent with the scoring done by each committee member.
Notification to Respondents
Once the decision was made to award the contract to Janicki, all respondents were notified via email. The OPM states that TBEP will "provide notice of a decision concerning a bid solicitation or a contract award to all respondents by United States mail or by hand delivery or telephone facsimile." Email is not listed as a means of notification.
Even though TBEP provided the notification via email, there is no showing that such notice prejudiced any respondent in any way. Email is similar to and as fast as facsimile transmission. There is no evidence that any respondent failed to receive the notice. Just as Dynamic failed to disclose information about the government contract that had been technically terminated, TBEP's use of email, rather than
U.S. Mail or fax, is a minor error in the process that is not material to the final decision.
Bid Protest Process
After receipt of the notice that Janicki had been awarded the contract, Dynamic timely filed a bid protest. Part and parcel to any bid protest is the submission of a bid protest security, usually in the form of a security bond.
Dynamic submitted a cashier's check on May 31, 2011, in the amount of $11,979.08, representing one percent of Dynamic's estimated contract amount. The check was erroneously made out to Holly Greening, the executive director of TBEP, rather than to TBEP, as stated in its cover letter. Dynamic cured this scrivener's error when it became aware of the mistake.
TBEP objected to the amount of the security provided, saying that $50,000 was required, but did not substantiate the basis for that amount. TBEP also objected to the sufficiency of the cashier's check because it had a termination date, i.e., if not cashed within 90 days, the check would become void.
Although that objection is well taken, Dynamic cured the defect when it sent in the replacement check made out to TBEP. Makeup of the Evaluation Committee
Dynamic takes exception to the appointment of two consultants, Dr. Martin and Dr. Kemp, to the evaluation committee. According to the OPM, "[c]onsultants, whether or not
they submit proposals to TBEP, are not permitted to serve on selection committees."
It is clear that both Dr. Martin and Dr. Kemp often provide services to clients as private consultants. However, both are also university professors and were purportedly serving on the evaluation committee as representatives of their respective universities.
Nonetheless, all respondents were advised about the makeup of the evaluation committee prior to submission of their proposals. It is disingenuous for a respondent to claim, after the fact, that it did not wish to be evaluated by certain members of the committee.
Dynamic takes exception that Janicki's status as a local company was considered, because local connection was not a designated RFP criterion. It is logical and reasonable, however, for TBEP to consider that factor (and any other relevant information about the respondents) during discussions in a close decision such as this.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to sections 120.569 and 120.57(3), Florida Statutes (2011).
The burden of proof is on Dynamic to establish grounds for invalidating the proposed procurement decision by a preponderance of the evidence. State Contracting & Eng'g Corp. v. Dep't of Transp., 709 So. 2d 607, 609 (Fla. 1st DCA 1998). Section 120.57(3) describes that burden, stating:
[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.
It is a basic principle of administrative law in Florida that formal proceedings conducted by the Division regarding decisions which affect a party's substantial interest are de novo. Dep't of Transp. v. J.W.C., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); McDonald v. Dep't of Banking and Fin., 346 So. 2d 569, 584 (Fla. 1st DCA 1977).
In a bid case, however, the ALJ does not put himself in the role of the agency in determining if bids are responsive, scoring bids, or performing similar tasks. The purpose of the bid hearing is merely to review the proposed agency action. State Contracting & Eng'g Corp., 709 So. 2d at 609; Intercontinental Prop., Inc. v. Dep't of HRS, 606 So. 2d 380,
386 (Fla. 1st DCA 1992). Rather, it is the ALJ's role to
determine whether the agency action was clearly erroneous, contrary to competition, arbitrary, or capricious.
"A capricious action is one taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic." Agrico Chem. Co. v. Dep't of Envtl. Reg., 365 So. 2d 759, 763 (Fla. 1st DCA 1978). A decision is considered to be clearly erroneous when, although there is evidence to support it, after review of the entire record, the tribunal is left with the definite and firm conviction that a mistake has been committed. U.S. v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).
In Florida, 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
Cnty. v. Baxter's Asphalt & Concrete, Inc., 421 So. 2d 505, 507 (Fla. 1982).
TBEP followed the review process as outlined in the RFP with only minimal deviations. Those deviations were based on logic and reason, and the process was not clearly arbitrary and capricious as carried out by TBEP.
TBEP applied the scoring and review process, as evidenced by the facts. Each of the respondents was given full
and appropriate consideration by each member of the evaluation committee.
The RFP instructions were substantially followed by TBEP. There were sufficient directions given in the RFP for the evaluation committee and the Management Board to make a recommendation. There is no persuasive evidence in this case that the evaluation committee acted arbitrarily in scoring, ranking, or making its recommendation.
Section 287.042(2)(c) addresses the security bond and says in pertinent part:
Any person who files an action protesting a decision or intended decision pertaining to contracts . . . shall post with the . . . agency at the time of filing the formal written protest a bond payable to the . . . agency in an amount equal to 1 percent of the estimated contract amount. The
estimated contract amount shall be based upon the contract price submitted by the protestor . . . In lieu of a bond, the
. . . agency may, in either case, accept a cashier's check, official bank check, or money order in the amount of the bond. If, after completion of the administrative hearing process and any appellate court proceedings, the . . . agency prevails, it shall recover all costs and charges which shall be included in the final order or judgment, excluding attorney's fees. . . .
Dynamic's check represented one percent of its estimated contract amount and was sufficient security under the statute. If TBEP determined that the check was insufficient, it should have summarily dismissed the petition, rather than
forwarding it to the DOAH for further consideration. See Fla. Admin. Code R. 28-110.005(3).
No evidence was presented at final hearing as to the amount of TBEP's costs and charges in this matter.
RECOMMENDED that a final order be entered by Respondent, Tampa Bay Estuary Program, upholding the award of the contract to Intervenor, Janicki Environmental, Inc.
Tampa Bay Estuary Program shall include a statement of its costs and charges in the final order. If the parties cannot agree on the amount of such costs and charges, this matter may be remanded to the Division of Administrative Hearings for further proceedings as to that issue.
DONE AND ENTERED this 31st day of August, 2011, in Tallahassee, Leon County, Florida.
R. BRUCE MCKIBBEN Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2011.
1/ The entities filing responses to the RFP are referred to as both respondents and candidates.
2/ Unless stated specifically otherwise herein, all references to the Florida Statutes shall be to the 2010 version.
3/ Evaluation committee members are also referred to herein as reviewers or evaluators.
Donald D. Conn, Esquire Pennington, Moore, Wilkinson, Bell
& Dunbar, P.A.
John J. Fumero, Esquire Thomas F. Mullin, Esquire
Edward P. de la Parte, Jr., Esquire Kristin Y. Melton, Esquire
de la Parte and Gilbert, P.A. Post Office Box 2350
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.
