STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PRO TECH MONITORING, INC.,
Petitioner,
vs.
DEPARTMENT OF CORRECTIONS,
Respondent,
and
BI INCORPORATED,
Intervenor.
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) Case No. 11-5794BID
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RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on December 15-16 and 20-21, 2011, in Tallahassee, Florida, before E. Gary Early, a designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: John A. Tucker, Esquire
C. Ryan Maloney, Esquire Foley & Lardner, LLP
One Independent Drive, Suite 1300 Jacksonville, Florida 32202
and
Robert H. Hosay, Esquire Benjamin Grossman, Esquire Foley & Lardner, LLP
106 East College Avenue, Suite 900 Tallahassee, Florida 32301
For Respondent: Edith A. McKay, Esquire
Michael David Milnes, Esquire Department of Corrections
501 South Calhoun Street Tallahassee, Florida 32399-2500
For Intervenor: J. Stephen Menton, Esquire
Martin P. McDonnell, Esquire Rutledge, Ecenia, and Purnell, P.A.
119 South Monroe Street, Suite 202 Tallahassee, FL 32301
STATEMENT OF THE ISSUE
The issue in this case is whether Respondent's intended award of a contract to Intervenor pursuant to Request for Proposals No. 10-DC-8200 is contrary to Respondent's governing statutes, Respondent's rules and policies, and the specifications of the Request for Proposals.
PRELIMINARY STATEMENT
On August 30, 2010, Respondent, Department of Corrections (―Department‖ or ―DOC‖), issued a Request for Proposals, Solicitation Number 10-DC-8200, entitled Global Positioning Satellite Electronic Monitoring Services (―RFP‖). On
November 2, 2010, the Department issued Addendum #1 to the RFP, which contained amendments, modifications, and explanations to the RFP in response to proposed vendor questions.
Responses to the RFP were submitted on November 22, 2010, by Petitioner, Pro Tech Monitoring, Inc. (―Pro Tech‖ or
―Petitioner‖); Intervenor, BI, Incorporated (―BI‖ or
―Intervenor‖); G4S Justice Services, LLC; iSecureTrac
Corporation; Satellite Tracking of People, LLC; SecureAlert; and SOS International. Three of the responses, submitted by iSecureTrac Corporation, SecureAlert, and SOS International, failed to pass the Financial Documentation review, and were determined to be non-responsive.
As a result of the process of evaluating and scoring the proposals, the Department ranked BI - 1st, Pro Tech - 2nd, Satellite Tracking of People, LLC - 3rd, and G4S Justice Services, LLC - 4th. On December 17, 2010, the Department posted its intent to award the contract to BI.
On December 22, 2010, Pro Tech filed its notice of intent to protest the award of the contract to BI, and on January 3rd, 2011, filed its formal written protest. Neither Satellite Tracking of People, LLC, nor G4S Justice Services, LLC, protested the award.
Petitioner delivered its formal written protest within the jurisdictional time for filing to the address specified for filing. Due to security measures, the person delivering the petition was not allowed past the security desk. The guard on duty accepted the petition on behalf of the Department, and provided Petitioner with a date-stamped copy attesting to its receipt at the offices of the Department. The Department dismissed the protest petition because the security guard failed to deliver the petition to the agency clerk‘s office until the
following morning. Pro Tech appealed the final order of dismissal to the First District Court of Appeal.
On October 17, 2011, the Court reversed the final order of dismissal, finding that the security guard was the Department‘s agent, and his desk the Department‘s constructive office for filing purposes. The Court remanded the case to the Department for a determination of the timeliness issue. In the event the Department accepted Pro Tech‘s allegations as to the timeliness of the petition, it was instructed by the Court to forward the petition to the Division for a determination on the merits. If the Department chose to maintain its position that the petition was not timely filed, it was instructed to forward the petition to the Division for an evidentiary hearing on whether the petition should be dismissed and, if determined to be timely, heard on the merits. Mandate was issued on November 2, 2011.
On November 10, 2011, the Department forwarded Pro Tech‘s Formal Bid Protest Petition to the Division for assignment of an Administrative Law Judge to conduct the final hearing. In its notice, the Department ―elected to accept Pro Tech Monitoring, Inc.‘s allegations as true with respect to the timeliness of the protest petition, and now forwards the petition to the Division of Administrative Hearings for review on the merits ‖
On November 15, 2011, BI filed its Petition for Leave to Intervene, which was granted by Order dated November 16, 2011.
BI maintained its position that the Pro Tech protest petition was not timely filed and, as to Pro Tech‘s proposal, raised the issue of ―[w]hether Pro Tech‘s RFP reply met all of the requirements of the RFP and/or was materially non-responsive.‖ No further pleadings were filed by BI to identify the ultimate facts in support of the alleged responsiveness issues related to the Pro Tech proposal or to otherwise place the parties on notice of those issues.
The case was set for hearing on December 15-16, 2011. In addition, December 20-21, 2011, was reserved in the event the hearing took longer than the initially allotted two days.
Leading up to hearing, a number of motions were filed and disposed of by separately issued orders. Those motions, and their disposition, may be determined by reference to the docket of this case.
On December 13, 2011, Intervenor, BI, filed a Motion to Dismiss Bid Protest Petition as Untimely Filed, and a Motion in Limine to Exclude all Evidence and Argument Relating to Matters Outside the Scope of the Request for Proposals or Matters Occurring After the Due Date of the Vendor‘s Responsive Proposals. The latter motion was amended on December 14, 2011.
Ruling on the Motion to Dismiss Bid Protest Petition as Untimely Filed was reserved, and the parties were allowed to develop a record, including deposition testimony of Joe Wyland,
the guard assigned to the DOC security desk, Katrina Zimmer, the DOC Agency Clerk, and Justin Splitt, Foley & Lardner‘s runner.
The timeliness issue has been taken up and resolved in this Recommended Order. The Motion in Limine was denied without prejudice, thus allowing argument as to relevance and admissibility at the time the evidence described in the motion was offered.
The parties filed a joint pre-hearing stipulation in which they stipulated to certain facts. Those facts, numbered 1 through 8, have been incorporated in this Recommended Order to the extent that they are relevant.
The responsiveness of Pro Tech‘s proposal was not identified in the pre-hearing stipulation as an issue remaining for disposition in the general statement of BI‘s position, in the issues of fact which remained to be litigated, or in the issues of law which remained to be determined by the Administrative Law Judge. Thus, the issue of the responsiveness of the Pro Tech proposal was not preserved.
The hearing was partially held as scheduled on December 15- 16, 2011. On December 19, 2011, prior to the hearing being reconvened, Petitioner, Pro Tech, filed a Motion in Limine to Exclude All Evidence and Argument Relating to Material Outside the Scope of BI‘s RFP Response and Produced After the Notice of Intended Award, and a Motion in Limine to Exclude All Evidence
and Argument Relating to the Responsiveness of Pro Tech‘s Response to the RFP. The motions were taken up at the re- commencement of the hearing on December 20, 2011, and after a discussion as to the scope of the proceeding and the limitations on the use of evidence of the type described in the motions, the motions were denied. The basis for the denial of the Motion in Limine to Exclude All Evidence and Argument Relating to Material Outside the Scope of BI‘s RFP Response and Produced After the Notice of Intended Award was that such evidence might have been admissible to establish background and context, but as direct evidence of the responsiveness of the proposals, such evidence would carry little or no weight. The Motion in Limine to Exclude All Evidence and Argument Relating to the Responsiveness of Pro Tech‘s Response to the RFP was denied to allow the parties to argue the issue of Pro Tech‘s responsiveness, with the understanding that if a final determination was made that the issue was not preserved, such evidence would not be the basis for any findings of fact. As indicated, the issue of the responsiveness of Pro Tech‘s proposal was not preserved.
The hearing was completed on December 20-21, 2011.
At the final hearing, the parties submitted Joint Exhibits 1-9, 11-12, 17-18, and 28, which were admitted in evidence.
Petitioner called as witnesses Robert Staney, Chief of the DOC Bureau of Purchasing and Supply; Gail Hillhouse, Senior
Management Analyst Supervisor in the DOC Bureau of Purchasing and Supply; Shawn Satterfield, Bureau Chief of the DOC Bureau of Community Programs; Brian Futch, Correctional Program Administrator in the DOC Bureau of Community Programs; Kelly Wright, DOC Procurement Manager; Steve Chapin, President of Pro Tech; Pamela McCoy, a Correctional Probation and Electronic Monitoring Supervisor and member of the DOC‘s RFP evaluation team; Douglas Smith, DOC Chief Information Officer and team leader for the DOC‘s RFP evaluation team; and Michael Russo, Chief Information Security Officer and Chief of Staff of the Agency for Enterprise Information technology and member of the DOC‘s RFP evaluation team. Petitioner's Exhibits 14, 19-22, 47 (limited to Response to Interrogatory 10), 48, 49 (limited to Response to Interrogatories 7 and 8), 50, 51 (limited to
Response to Interrogatory 10), 52-53, 62-63, 66, 70-78, and 82 were admitted in evidence. Petitioner‘s Exhibits 70-77 and 82 consisted of the deposition transcripts of, respectively: Jennifer White, designated BI representative regarding the disaster recovery plan and the ―October 5, 2010 incident‖ (P.Ex.70); Bruce Thacher, designated BI representative regarding cost and the ―October 5, 2010 incident‖ (P.Ex.71); Andrea Young, designated BI representative regarding the disaster recovery plan and the ―October 5, 2010 incident‖ (P.Ex.72); Bob Murnock, designated general BI corporate representative (P.Ex.73);
William James Wills, a member of the DOC‘s RFP evaluation team (P.Ex.74); Gregory Dybiec, a member of the DOC‘s RFP evaluation team (P.Ex.75); Priscilla Carter, a member of the DOC‘s RFP evaluation team (P.Ex.76); Joseph Winkler, a member of the DOC‘s RFP evaluation team (P.Ex.77); and Justin Lee Splitt, an office services assistant for the Foley & Lardner law firm (P.Ex.82).
Intervenor called as witnesses Robert Murnock, Eastern Regional Sales Manager for BI; Bruce Thacher, President of BI; Jennifer Jo White, Vice President of Monitoring Operations for BI; and Andrea Young, Vice President of Development and Systems for BI. Intervenor‘s Exhibits 24 and 67-69 were admitted in evidence.
As to the issue of whether the Pro Tech protest petition was timely filed, Intervenor introduced Intervenor‘s Exhibits 40-46, and 80-81. Intervenor‘s Exhibits 80-81 consisted of the deposition transcripts of, respectively: Joe Wyland, the security guard who accepted the petition (I.Ex.80); and Katrina Zimmer, the Department‘s Agency Clerk (I.Ex. 81).
The Department, in its case-in-chief, recalled Douglas Smith and Robert Staney. The Department introduced no additional exhibits.
Each of the deposition transcripts was offered in lieu of live testimony, and each has been accepted and considered as though the witness testified in person.
The eight-volume Transcript was filed on February 15, 2012.
By agreement of the parties, the parties were each allowed 50 pages for their Proposed Recommended Orders, and the time for submission was extended to 20 days from the filing of the Transcript. The parties timely filed their Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order.
In addition to its [Proposed] Recommended Order, which consumed all of the 50 pages allowed, BI submitted a separate 13-page Supplemental Memorandum in Support of Intervenor‘s Motion to Dismiss Bid Protest Petition as Untimely. On March 13, 2012, Petitioner moved to strike the Supplemental Memorandum on the basis that the timeliness issue was to have
been addressed in the Proposed Recommended Orders, and that the Supplemental Memorandum thus exceeded the allowed 50 pages. It was the intent of the undersigned that all argument, including that related to timeliness, be included in the Proposed Recommended Orders. However, a review of the Transcript reveals that the post-hearing discussion regarding the issue of whether the Pro Tech petition was timely filed included the following:
MR. MALONEY: And I would note, like I said at the beginning, we did file a pretty extensive legal memorandum related to this.
THE COURT: To the extent, but I think both parties have done that, I don‘t want you to feel like you have to use up all of your PRO
pages. So if you want to refer back to your previous, I‘ll accept that as argument. And then anything you want to add will be fine.
The statement at the hearing as to the previously filed memoranda, read in conjunction with ―anything you want to add,‖ added an element of ambiguity that could have been misconstrued as allowing a supplemental memorandum on the timeliness issue. Therefore, Petitioner‘s Motion to Strike is denied.
FINDINGS OF FACT
The State of Florida has, by legislative enactment, developed programs to electronically supervise offenders sentenced under a community control alternative to prison, and to supervise, register, and monitor designated sexual offenders and predators under the Jessica Lunsford Act.
The Department of Corrections is the agency charged with the implementation of the electronic monitoring program, and to ensure that probation officers and other community supervision personnel have access to offender monitoring data.
Pro Tech and BI are both well-recognized and established providers of electronic monitoring devices and monitoring and reporting services to federal, state, and local law enforcement and correctional agencies in Florida and across the United States. Pro-Tech is the incumbent vendor to the Department for electronic monitoring services.
RFP 10-DC-8200
On August 30, 2010, the Department issued RFP 10-DC- 8200, the purpose of which was to select a contractor to provide active Global Positioning Satellite (GPS) electronic monitoring services for supervision of offenders sentenced under a community control alternative to prison, and to monitor designated sexual offenders and predators under the Jessica Lunsford Act.
As of June 30, 2010, the Department was utilizing approximately 2,538 active GPS units to monitor offenders. The Department projected that within three years, as many as 3,015 offenders would be on active GPS monitoring.
The scope of work for the contract was detailed in section 3 of the RFP. Briefly, the winning vendor is expected to ―provide active [GPS] services 24 hours a day, 7 days a week, which shall include a monitoring system that is capable of being accessed through a secure internet connection and fully supported by a secure database for transactional records.‖
Provisions of the RFP that are material to this proceeding include, by section number, the following (all emphasis is in the original):
Failure to meet the responsiveness requirements will cause rejection of a proposal. Any proposal rejected for failure to meet mandatory responsiveness requirements will not be evaluated.
Material Deviations: The Department has established certain requirements with respect to proposals to be submitted by Proposers. The use of shall, must or will (except to indicate simple futurity) in this RFP indicates a requirement or condition which may not be waived by the Department except where any deviation therefore is not material. A deviation is material if, in the Department's sole discretion, the deficient response is not in substantial accord with this RFP's requirements, provides an advantage to one Proposer over other Proposers, or has a potentially significant effect on the quantity or quality of items or services proposed, or on the cost to the Department. Material deviations cannot be waived and shall be the basis for rejection of a response. Because this is an RFP, the Department will apply this definition liberally in reviewing responses in regard to service delivery.
Minor Irregularity: A variation from the RFP terms and conditions which does not affect the price proposed or gives the proposer an advantage or benefit not enjoyed by the other proposers or does not adversely impact the interests of the Department.
As indicated in Section 2.2 and Attachment 1, it is a mandatory responsiveness requirement that the Proposer has at least three (3) years of business/corporate experience within the last five (5) years relevant to providing electronic monitoring services and equipment similar to the services described in this RFP, to correctional, criminal justice or law enforcement agencies. Details of the Proposer‘s experience that meet this requirement shall be provided in narrative form and in sufficient detail so that the Department is able to judge its complexity and relevance. Specifically include:
provide a description of past years‘ experience providing electronic monitoring equipment and services.
provide a description of past experience and the specific length of time providing Active GPS services (as identified in this RFP).
identify all current and/or past (or within three (3) years) federal, state or government contracts for the provision of electronic monitoring services, and the number of active GPS units utilized for each.
provide a narrative summary of contract performance in the above-identified contracts, including any major adverse findings.
provide the name and telephone number and address for the specified federal, state, or government contract manager.
provide a summary of any exemplary or qualitative findings, recommendations, or other validations, demonstrating operational experience. (i.e., specialized accreditation, grant awards, etc.).
The proposer shall provide a detailed description of the General Equipment specifications that meets or exceeds all requirements in Section 3.7.2 and specifically:
provide manufacturer‘s specifications and literature on all equipment proposed, including equipment which is acquired from any other source than the proposer;
describe the process utilized to notify the Department and/or the offender when a low battery condition exists in any component of the equipment (transmitter or receiver dialer);
describe and list the tools necessary for installation of any of the monitoring unit equipment; and
provide copies of required licensing by the Federal Communications Commission for the equipment proposed.
The proposer shall provide a detailed description of the Contractor‘s method and approach for meeting or exceeding all Monitoring Center requirements in Section 3.13, and specifically:
provide a copy of the staffing plan for monitoring services
twenty four (24) hours a day, seven (7) days a week, including holidays; and
provide a copy of the Disaster Recovery plan.
The proposer shall provide a detailed description of the approach to meeting or exceeding all Training requirements in Section 3.16, and specifically:
provide a description of the method(s) for securely sizing and installing the transmitter securely to offenders;
provide a copy of the training curriculum; and
provide a copy of proposed course/instructor evaluation form. Please note - final evaluation form to be approved by Contract Manager and/or designee.
As part of the RFP process, each interested vendor was allowed to submit questions regarding the terms of the RFP, and the services being sought. The Department responded to each of the 72 questions submitted. On November 2, 2010, the responses, along with revised RFP pages resulting therefrom, were provided to each prospective vendor as RFP #10-DC-8200 Addendum #1. Among the questions for which the Department provided answers were the following:
Sections 5.3.2.3 & 5.3.2.4 on Page 38 requires that we:
―identify all current and/or past (or within (3) years) federal, state or government contracts for the provisions of electronic monitoring services, . .
. .‖ And that we ―provide a narrative summary of contract performance in the above identified contracts,. . .‖
In the case of Pro Tech, this would amount to more than a hundred contracts resulting in a voluminous response.
Perhaps a more reasonable requirement would be to provide the information for our 10 largest or 10 most similar contracts.
These requirements remain as stated in the RFP.
identify all current and/or past (or within three (3) years) federal, state or government contracts for the provision of electronic monitoring services, and the number of active GPS units utilized for each.
Question: Since it is feasible that Proposers could have several hundred current/past contracts, will Florida Department of Corrections consider revising the requirement to be “Provide the total number of current and/or past (or within 3 years) federal, state or government contracts?”
This requirement remains as stated in the RFP.
provide a narrative summary of contract performance in the above‐identified contracts, including any major adverse findings.
Question: Since it is feasible that Proposers could have several hundred current/past contracts, will Florida Department of Corrections consider revising the requirement to be “Provide a performance summary of all contracts past/present?”
This requirement remains as stated in the RFP.
Should respondents view ―shall‖ and
―must‖ language as mandatory requirements?
This question is confusing different terms. See Section 1.13 that defines
―Mandatory Responsiveness Requirements‖. See Section 1.15 that defines ―Material Deviations‖ which explains the terms ―shall and must‖, and should not be confused with Section
5.1 Mandatory Responsive Requirements/ Fatal Criteria.
Each proposed vendor signed an Addendum Acknowledgement Form for RFP #10-DC-8200 Addendum #1, and included it as part of its proposal. By signing and submitting the Addendum Acknowledgement Form, the vendors understood that the changes reflected in the Addendum ―are applicable to the original
specifications of the above-referenced RFP‖ and that ―this addendum now becomes a part of the original RFP.‖
No prospective vendor filed a protest of any of the terms, conditions, or specifications of the RFP or Addendum #1. Proposals in Response to the RFP
Proposals were submitted on November 22, 2010, by Pro Tech and BI, as well as five other electronic monitoring vendors, G4S Justice Services, LLC, iSecureTrac Corporation, Satellite Tracking of People, LLC, SecureAlert, and SOS International.
BI proposed using its ExacuTrack One monitoring device to monitor offenders in Florida. The ExacuTrack One is a single piece device that is affixed to the offender‘s ankle. The unit contains a GPS signal receiver, a transmitter, cellular capability to transmit data to the monitoring center, a speaker for transmitting warnings, a device for the offender to transmit acknowledgement signals, and a rechargeable battery. The ExacuTrack One device meets the specifications of the RFP.
When offenders go into prohibited areas, or when tracking capabilities are interrupted, either through shielding of the GPS signal or unauthorized tampering with the device, an alert is transmitted to the monitoring center. Each customer has a time interval set by contract by which a notification is sent to the customer, which may vary based on the nature of the
alert. For example, if an offender strays into a prohibited area, an alert is transmitted to the monitoring center. If the offender exits the area before the contractual time interval is exceeded, a violation report is not required.
The ExacuTrack One device has the ability to transmit an audible alert to the offender when the offender enters into an exclusion zone or otherwise violates the terms of his or her release. When an audible alert is given, the offender is required to acknowledge receipt of the alert, and to exit the
area.
The ExacuTrack One units are fully capable of meeting
the requirements of the RFP operating on their own. However, in order to provide an option to conserve battery life of the ankle device, BI proposed to use a radio frequency ―Beacon.‖ When an offender is in range of his or her Beacon, generally being within the perimeter of the offender‘s home, the GPS feature goes into a low power state, and data is transmitted through the Beacon, thus extending the battery charge. BI considered the Beacon to be an optional device that exceeded the requirements of the RFP, and that could be provided at no additional cost at the discretion of the Department.
Monitoring of the ExacuTrack One device may be accomplished in one of two ways. The monitoring system and devices can be sold to an agency which then provides its own
monitoring, referred to as a ―local host‖ facility. The more commonly used system and that proposed for Florida, is one in which the monitoring devices are provided to the agency, with the resulting data sent to the BI monitoring center. The data is then stored and made available through the TotalAccess case management system. Department staff, correctional and probation officers, and other authorized users can access the system to perform a number of tasks, and are notified according to contract when monitoring alerts are transmitted to the monitoring center.
The BI monitoring center has fully redundant capabilities, with all data being replicated both at the primary monitoring center in Boulder, Colorado, and at the backup center in Anderson, Indiana.
Review of the Proposals
Mandatory Responsiveness Requirements Review
The Department initially reviewed each of the proposals to determine if Mandatory Responsiveness Requirements were met. Pursuant to section 5.1 of the RFP, the only Mandatory Responsiveness Requirements/Fatal Criteria were:
a) that the complete proposal be submitted on time; and b) that the certification and cover sheet be signed. No prospective vendor was determined to be non-responsive for either of the Mandatory Responsiveness Requirements.
Material Deviations/Minor Irregularities Review
The procedure by which the Department was to begin the process of review of those proposals that survived the Mandatory Responsiveness Requirements/Fatal Criteria review was for procurement staff to review the proposals ―for compliance with the items required in the . . . Proposal Submissions outlined in Section 5 of the RFP.‖ The purpose of the compliance review was to determine whether the proposals contained any deviations from the terms, conditions, and specifications of the RFP, and whether such deviations were material deviations requiring rejection of a response, or whether they were waivable minor irregularities. If a deviation was determined to be a minor irregularity, the Department reserved the right to require additional information prior to the contract award.
Kelly Wright was the Department staff person who was directly, and almost exclusively, responsible for the RFP. Ms. Wright was, in consultation with the Department‘s subject matter experts, the primary drafter of the RFP. She was
responsible for vendor questions and for preparing the Addendum #1 in which those questions were answered. She prepared the evaluation manual, trained the evaluators, and compiled their scores. She performed the review of the proposals for compliance with the mandatory requirements/fatal criteria, and reviewed the executive summaries and transmittal letters. It
was also Ms. Wright‘s responsibility to identify deviations from the RFP requirements and initiate the process by which such deviations were resolved.
Gail Hillhouse, who is Ms. Wright‘s supervisor, and is an active participant in the decision-making process for other procurements, was not materially involved in Request for Proposals No. 10-DC-8200. She did not assist Ms. Wright in the review of responses, nor was she involved in the process of resolving deviations of the proposals from the terms of the RFP. Ms. Hillhouse never reviewed the BI proposal at any time prior to the posting of the award.
If during the course of the pre-evaluation review of the proposals, or otherwise during the selection process, a deviation from the terms, conditions, and specifications was discovered, Ms. Wright was to take it directly to her bureau chief, Robert Staney. Mr. Staney‘s practice was to consult with the Department‘s legal staff, and then make a determination as to whether the deviation was a non-waivable material deviation under section 1.15 of the RFP, or a waivable minor irregularity under section 1.16 of the RFP.
The Department appointed an Evaluation Committee to evaluate the proposals. The evaluators were charged with scoring the proposals as they were provided to them. The evaluators were not asked to determine whether any provision of
the responses constituted a material deviation from the terms, conditions, or specifications of the RFP, and none did so.
The evaluators were provided with scoring sheets that established the factors, referred to as ―considers,‖ that were to go into each individual score by section. Most sections contained multiple ―considers‖ that were to be evaluated to determine the overall score for that section. In the event a proposal was ―completely utterly unresponsive‖ as to the
―considers‖ listed for a particular section, a score of zero could be assigned. A zero would generally be an indication that some item had been omitted, thus triggering a ―material deviation‖ review.
The scoring was to be performed as a composite, and the ―considers‖ within a section were not to be scored individually. Therefore, even if an element of a section was omitted in its entirety, a score of greater than zero would be required as long as there was information provided regarding the other ―considers.‖ That was so even if the omitted ―consider‖ would -- standing alone -- constitute a material deviation from the terms, conditions and specifications of the RFP.
Only if an evaluator assigned an overall section score of zero would a review be undertaken to determine whether that section of the proposal materially deviated from the requirements of the RFP. Neither Pro Tech nor BI scored a zero
for any section. Since there were no zeros, no ―material deviation‖ review was made.
Ms. Wright did not review the BI proposal from beginning to end until the evaluation and scoring was completed, and the award to BI was ready to be posted.
The evidence in this case demonstrates that, except as related to the financial documentation discussed herein, no one in the Department reviewed the proposals to determine if they contained deviations, material or not, from the terms, conditions or specifications of the RFP, nor was any such determination made prior to the posting of the intended award.
Financial Documentation Review
Each prospective vendor was required to submit financial documentation of its ability to perform the contract pursuant to section 5.4 of the RFP. The financial documentation was not a Mandatory Responsiveness Requirement/Fatal Criteria pursuant to section 1.13. Rather, section 5.4.4 provided that the ―proposer shall provide financial documentation that is sufficient to demonstrate its financial viability,‖ and listed the items to be included in the proposal. The RFP further provided that ―[f]ailure to provide any of the aforementioned financial information may result in proposal disqualification.‖
The financial documentation for each proposal was reviewed by an independent Certified Public Accountant, who
determined its sufficiency under section 5.4 of the RFP. Three of the responses, those of iSecureTrac Corporation, SecureAlert, and SOS International, failed to pass the Financial Documentation review, and were disqualified from further review and consideration.
The CPA determined that the G4S Justice Services, LLC financial statement had several deficiencies, including the omission of items required by section 5.4.1 of the RFP. The information was provided by the CPA to the Department‘s procurement office. After consultation with legal staff, the Department determined the deficiency to be a minor irregularity, and it was therefore waived.
Evaluation
Each member of the evaluation committee had experience in the field of electronic monitoring. There are no disputed issues of fact regarding the qualifications or training of the evaluation team, the procedures by which the RFP scoring was performed, or of any individual score. Therefore, further findings or conclusions regarding the evaluators or the scoring of the proposals are unnecessary.
Proposed Award
As a result of the process of evaluating and scoring the proposals, the Department determined that BI was the highest scoring proposer. Pro Tech was the second highest scoring
responsive proposer. Satellite Tracking of People, LLC and G4S Justice Services, LLC were ranked third and fourth, respectively. The final scores were calculated, and the proposers were ranked as follows:
Proposers | Actual points received by Proposers (X) | Highest points received by any Proposal (N) | Awarded Points (Z) |
CATEGORY 1 - Business/Corporate Experience - Maximum 300 Points - (X/N x 300 = Z) | |||
BI | 209.64 | 253.39 | 248.20 |
G4S | 186.07 | 253.39 | 220.30 |
Pro Tech | 253.39 | 253.39 | 300 |
STOP | 196.43 | 253.39 | 232.56 |
CATEGORY 2 - Technical Specs & Service Delivery Approach - Maximum 400 Points - (X/N x 400 = Z) | |||
BI | 241.96 | 285.54 | 338.95 |
G4S | 246.96 | 285.54 | 345.96 |
Pro Tech | 285.54 | 285.54 | 400 |
STOP | 248.57 | 285.54 | 348.21 |
Proposers | Proposed Per Diem Unit Price (X) | Lowest Verified Per Diem Unit Price of All Proposals (N) | Awarded Points (Z) |
CATEGORY 3 - Cost Proposal - Maximum 300 Points - (N/X x 300 = Z) | |||
BI | $3.00 | $3.00 | 300 |
G4S | $6.88 | $3.00 | 130.81 |
Pro Tech | $5.20 | $3.00 | 173.08 |
STOP | $4.15 | $3.00 | 216.87 |
Total Proposal Points and Ranking | |||
Proposers | Total Proposal Points | Ranking | |
BI | 887.15 | 1 | |
G4S | 697.07 | 2 | |
Pro Tech | 873.08 | 3 | |
STOP | 797.64 | 4 | |
On December 17, 2010, the Department posted its intent to award the contract to BI.
The ―October 5, 2010 Incident‖
BI has contracts with the Department of Homeland Security, several states, and numerous political subdivisions
under which persons are monitored with BI-supplied equipment. The data from the monitoring devices is transmitted to a centralized monitoring location.
All of the BI GPS devices, as well as a number of radio frequency and alcohol monitoring devices, were monitored through BI‘s ―TotalAccess‖ system.
On October 5, 2010, at approximately 7:30 a.m. MDT, the number of records contained in the ―identity column‖ field in the TotalAccess database, which operated on a 32-bit platform, exceeded the capacity of that field. As a result, the monitoring center could no longer receive data from any of the 16,000 devices using the TotalAccess system, which included all of BI‘s almost 9,000 GPS devices.
The ―outage‖ lasted approximately 12 hours. Although the monitoring devices continued to collect and store data on the whereabouts of the offenders during that period, the data could not be sent to the monitoring center or accessed by officers.
Offenders had no direct way of knowing that the monitoring devices were not transmitting data.
When the system came back on-line at approximately 7:25 p.m. MDT, the data was transmitted from the affected devices to the monitoring center. No data was permanently lost as a result of the outage. Officers were notified of any
activities that would have triggered an alert during the period of the outage. If any questions arose as to the movements of an offender during the outage, that data could be retrieved and examined after the fact.
During the outage, BI customers were alerted, either by e-mail or by telephone, and advised of the problem. The customers were updated throughout the outage period.
The resolution of the issue was achieved by rewriting the ―identity column‖ data file from 32-bit, with a capacity of
2.1 billion records, to a 64-bit file, with a capacity of 9 quintillion records. In addition, a customized monitor was developed and installed so that a warning will be provided in the future if the system nears capacity. Thus, it is unlikely that this particular problem will recur.
The October 5, 2010, incident was, by BI‘s own admission, the single worst event in BI‘s operational history. Protest Issues
Petitioner, Pro Tech, timely filed a protest of the award of the contract to BI. The January 3, 2011, protest petition identified the issues that formed the basis for its protest of the award of the contract to BI.1/ The issues alleged by Petitioner are:
Whether BI failed to comply with section 5.3.2 of the RFP by failing to: identify all of its federal, state or
government contracts under which it provided electronic monitoring services and the number of active GPS units utilized for each; and provide a narrative summary of contract performance for each contract so identified, including major adverse findings;
Whether BI failed to comply with section 5.2.9 of the RFP by failing to disclose ―complaints filed, investigations made, warning letters or inspection reports issued, or any disciplinary action‖ by governmental entities, specifically related to the outage of service that occurred on October 5, 2010;
Whether BI failed to comply with section 5.5.13 of the RFP by refusing to provide a copy of its Disaster Recovery
Plan.
Whether BI failed to comply with section 5.5.15 of
the RFP by failing to provide a copy of its training curriculum;
and
Whether BI failed to comply with section 5.5.5 of
the RFP by failing to provide a copy of the FCC Grant of Authorization for the ―Beacon‖ device identified in its proposal.
Pro Tech alleged that each of the deficiencies identified in its protest petition constituted a Material Deviation from the terms, conditions, and specifications of the
RFP that, pursuant to section 1.15 of the RFP, could not be waived and that warranted rejection of the BI response.
On November 15, 2011, BI filed its Petition for Leave to Intervene, in which it raised, as a disputed issue of fact and law, ―[w]hether Pro Tech‘s RFP reply met all of the requirements of the RFP and/or was materially non-responsive.‖ The responsiveness of Pro Tech‘s proposal was not preserved as an issue remaining for disposition in the Joint Pre-Hearing Stipulation.2/
Issue 1: Failure to comply with past experience requirements
Section 5.3.2. requires that details of the proposed vendors‘ experience ―shall be provided in narrative form and in sufficient detail so that the Department is able to judge its complexity and relevance,‖ and as part of that directive, the proposed vendor was required, in part, to ―identify all current and/or past (or within three (3) years) federal, state or government contracts for the provision of electronic monitoring services, and the number of active GPS units utilized for each,‖ and to ―provide a narrative summary of contract performance in the above-identified contracts, including any major adverse findings.‖ (emphasis added). The subsections directing the vendors to provide supportive information, including 5.3.2.3. and 5.3.2.4., can be reasonably read in no way other than to be
inclusive of the requirement that such information ―shall be provided in narrative form and in sufficient detail . . .‖
As part of the scheduled process of refining and
clarifying the terms, conditions, and specifications of the RFP, potential responding vendors were allowed to submit questions to the Department. The requirement that prospective vendors
provide information regarding all government contracts was worrisome to two vendors, including Pro Tech, due to the fact that such a requirement would involve at least a hundred, and up to ―several hundred‖ contracts.
As a result of its concern with the extent of the work necessary to identify all of its electronic monitoring contracts, Pro Tech made the specific inquiry as to whether it would be allowed to ―provide the information for our 10 largest or 10 most similar contracts.‖ Similarly, another vendor sought to limit the scope of the specification by requesting to ―provide the total number of current and/or past (or within 3 years) federal, state or government contracts,‖ rather than identifying them individually, and to provide an aggregated, rather than an individual, narrative summary of contract performance.
To each question, the Department responded that
―[t]hese requirements remain as stated in the RFP.‖ The answers were posted by the Department, and became part of the RFP‘s terms, conditions, and specifications.
The only reasonable construction of the Department‘s response is that it remained ―a requirement or condition‖ of the
RFP for vendors to identify all electronic monitoring contracts, specify the number of GPS units utilized in each contract, and provide a narrative summary of contract performance. While that requirement may appear to be burdensome, it nonetheless is the requirement. If a proposed vendor believed the requirement to be overly broad or unnecessary, it was obligated to challenge the specification. The specification was not challenged.
Failure to identify all contracts
In response to section 5.3.2.3, BI responded as follows: ―While BI currently has contracts for EM equipment and services with approximately 1,000 customers, as directed by the requirements in Section 5.3.2 we are providing contracts that are similar in size and scope to those specified in this RFP only.‖ BI thereupon listed seven contracts, the largest of which used approximately 3,500 ExacuTrack One GPS units, and the smallest of which used 100 ExacuTrack One GPS units. BI believed that listing all of its contracts was not necessary for it to show that it had the requisite experience to perform the Florida contract.
Mr. Murnock testified that ―[i]t was clear we did not respond with all one thousand contracts,‖ and that BI‘s deficient response was made with ―[t]he risk of being scored lower, yes, is one of the risks.‖
The decision to limit the information to be provided in response to what is an objectively clear requirement was made with considerable forethought and calculation. With regard to the decision to identify seven of its approximately 1,000 customers, Mr. Murnock testified that ―there's certain things
that we did not put in this response. We provided our answers to that because we knew, at the risk of getting a lower score, it was a risk-risk situation, you know, where do I expose contracts, do I expose my customer list that could -- while being protected by confidentiality we don't trust, we have seen that breached in other jurisdictions, we've seen that breached here in Florida, I was not going to expose information that we feel to be protected. I answered the specification as I defined
it.‖ (emphasis added).
Mr. Murnock stated that BI‘s decision to limit contract
disclosure was, in part, the result of a desire to avoid the risk of exposing its customer list because ―[t]here are some customers that don‘t like their information being disseminated.‖ The suggestion that BI‘s decision was driven by an altruistic concern for the interests of its customers is unconvincing. The Department requested only ―federal, state or government contracts.‖ No explanation was offered as to why the existence of a government contract would be confidential, or a narrative of BI‘s performance under that contract would be a problem.
Regardless of the purported reasons for non-compliance, the options when faced with a clear, direct, and unambiguous
requirement of a public procurement to disclose ―sensitive‖ information are to: a) protest the specification; b) submit the information under the procurement‘s confidential information provisions; or c) choose not to submit a proposal. Picking and choosing what required information to provide, and what not to provide, is not among the acceptable or competitive options.
Section 5.2.3 of the RFP is clear and unambiguous. BI‘s response was not in substantial accord with the RFP's requirements. The suggestion that vendors are free to unreasonably ―define‖ terms so as to meet their subjective desires is contrary to a fair and even-handed procurement process. All vendors are expected to comply with the terms, conditions, and specifications in the same way so as to present an equal playing field. BI‘s decision to provide only a tiny percentage of its government contracts tilted the field in its favor by allowing it to devote the time saved by not compiling the required information -- time spent by the other complying vendors -- to other sections of its proposal, a result that is contrary to competition.
BI‘s representation that it provided contracts
―similar in size and scope‖ is itself questionable.
The contract with the Wisconsin DOC was described as an Electronic Home Detention Program. Wisconsin uses the BI 9000, the HomeGuard 200, and the Sobrietor systems. Those systems were not described in the proposal. There was no indication of whether they are active GPS units or whether they
are comparable to the ExacuTrack One system proposed for Florida. In short, the proposal failed to provide any information that would allow the reader to conclude that the Wisconsin DOC contract is similar in scope to the services being sought by the Florida DOC.
The contract with the Delaware DOC does not include monitoring of the field units, as is called for in the Florida contract. The lack of a monitoring component makes the Delaware contract dissimilar in scope from the proposed Florida
contract.
The information provided with regard to the
Broward County, Florida contract failed to indicate whether that contract utilizes BI monitoring services. Furthermore, the Broward County narrative indicated that the Broward Pretrial Services Division ―uses BI ExacuTrack AT, HomeGuard 200, GroupGuard Plus, and BI VoiceID,‖ but failed to describe those units or indicate their comparability to units proposed for the Florida contract. The undersigned will presume that the
―ExacuTrack AT‖ is a version of the ExacuTrack One. However, the narrative failed to list the ―number of active GPS units‖ as required by the specification, so it is unknown how many are in service.
There was little information provided that would allow a determination that the Pennsylvania contract is ―similar
in size and scope‖ to the proposed Florida contract. The RFP proposal states that ―the Pennsylvania Office of Probation and Parole Services have been operating its own offender monitoring center . . . .‖ Mr. Murnock confirmed that Pennsylvania was not affected by the October 5, 2010, incident because it used its own local host monitoring system. The lack of a monitoring component makes the Pennsylvania contract dissimilar in scope from the proposed Florida contract. The proposal also indicated that Pennsylvania ―has 450 HomeGuard units and 649 BI 9000‘s units, operating through a GuardServer 750 system.‖ None of those units, or the GuardServer 750 system, are described in the proposal, and they are not the devices or services proposed for the Florida contract. As such, the proposal fails to provide any information that would allow the reader to conclude that the Pennsylvania contract is similar in scope to the services being sought by Florida.
In addition to the fact that Wisconsin, Delaware, Broward County, and Pennsylvania contracts are not, based on the information provided in the RFP, of the same scope as the Florida proposal, the Delaware DOC contract (175 ExacuTrack One units), the Broward County, Florida contract (an unknown number of ExacuTrack AT units), the Fayette County Adult Probation contract (120 ExacuTrack One units), and the City and County of Denver contract (100 ExacuTrack One units, along with 300 radio
frequency and 70 alcohol monitoring units) do not approach the size of the Florida contract.
As a result of BI‘s decision to forego its duty to identify all of its contracts, as required by the RFP, the Department was left with precious few contracts ―similar in size and scope‖ to that proposed for Florida with which to compare.
BI was a party to other contracts that included BI monitoring and the use of the GPS device proposed for Florida that it elected not to disclose.
BI has a contract with the state of Missouri that includes BI monitoring services and, in part, the ExacuTrack One field device. BI failed to list its contract with the state of Missouri in its response to section 5.3.2, purportedly because it consisted predominantly of alcohol and radio frequency monitoring, with ―a few GPS, but I couldn‘t tell you the count.‖ However, at section 5.5.19 of its proposal, BI noted that the Missouri Department of Corrections ―awarded BI with a contract for GPS, alcohol monitoring and radio frequency‖ that included the use of the same ExacuTrack One unit proposed for Florida. BI touted the Missouri contract as an example of its ability to rapidly implement the Florida contract. By tucking away information regarding the Missouri contract (along with contracts with agencies in California and Illinois) in section 5.5.19, BI was not obligated to provide a narrative summary of
contract performance, or contact information that would allow the Department to follow up if it so chose.
The reasoning for excluding the Missouri contract is disingenuous, considering that BI listed its contract with the City and County of Denver, in which GPS monitoring is a small percentage of the total monitoring devices in that contract. Because of BI‘s failure to disclose, it is not known how many other contracts among the 1,000 include features proposed for Florida, and which may have been of value to the evaluators.
BI made a calculated decision not to disclose all of its contracts. Petitioner‘s allegations that BI ―cherry-picked‖ the contracts it chose to disclose is a harsh assessment, but it is an assessment that is supported by the evidence of this proceeding.
BI made similar decisions to limit disclosure of its contracts in past procurements, with other agencies, without the consequence of disqualification. Therefore, BI decided to stay with its practice, in the words of Mr. Murnock, to ―disseminate it as we see fit‖ and chose not to disclose all government electronic monitoring contracts ―at the risk of being scored low.‖
The fact that BI was ―allowed‖3/ to proceed, despite
the fact that its response was not in substantial accord with the RFP's requirements, provided a competitive advantage to BI over
other proposers. The first advantage is the immeasurable advantage conferred by withholding information on its contracts, and possible problems related thereto. The more direct advantage is the time saved by BI as a result of its decision to forego the work necessary to compile the contracts, and provide a narrative summary of their performance. The competitive advantage conferred on BI was, in this case, significant. Petitioner‘s President, Mr. Chapin, testified that Pro Tech devoted two full- time employees for approximately two weeks to collect the data necessary to fully respond to section 5.2.3, in addition to the time devoted by contract account managers in verifying contract performance matters. That was time not expended by BI –- and was time that BI could use to bolster and enhance other sections of its proposal.
In addition to the direct competitive advantage
conferred on BI, the Department‘s failure to enforce the clear and unambiguous requirements, especially when its ―decision‖ was made after the preliminary results of the evaluation were known, and when the deviation benefitted the vendor proposing a lower price, fosters an appearance and opportunity for preferential treatment that compromises the integrity of the competitive process.4/
The response to section 5.2.3.3. of the RFP provided by BI is clearly deficient, is not in substantial accord with the RFP's requirements, and is a material deviation from the terms, conditions, and specifications of the RFP. The
Department‘s failure to enforce the requirement in accordance with the terms of section 1.15 was clearly erroneous, contrary to competition, arbitrary, and capricious.
Failure to provide a narrative summary of contract performance
Section 5.3.2.4 of the RFP required proposed vendors to provide a narrative summary of their contract performance, including major adverse findings. The summaries were not limited to major adverse findings. Rather, contract performance goes beyond adverse findings, and includes the manner and efficiency in which the contract services are accomplished, whether good or bad. BI provided narrative summaries of the few contracts it chose to identify, but little information as to contract performance.
The evidence in this case demonstrates that the October 5, 2010, incident was, without question, the worst single operational event in BI‘s history, and among the two or three most significant failures in the history of the electronic monitoring industry. It affected at least one of the contracts identified by BI, that being with the state of Wisconsin. It occurred while the RFP proposal was being prepared, and approximately six weeks prior to its submission. It is absurd to believe that the October 5, 2010, incident was not a
significant element that should have been disclosed in any discussion of contract performance.
It may well be, as asserted by BI, that its customers were satisfied with its response to the October 5, 2010, incident. If so, it would have been a simple matter to provide an assessment of the satisfaction of BI‘s customers with its response, and with a description of the remedial measures taken to ensure that it would never recur. BI did not.
Although several customers, including the state of Wisconsin, expressed their concern with the situation in writing, and BI offered credits to its customers, there do not appear to have been any ―major adverse findings‖ as that term may be narrowly construed.
As a measure of ―contract performance,‖ Mr. Murnock testified that the October 5, 2010, incident ―is certainly not a good incident to occur. But when you look at the specifications, we interpreted them exactly the way they were listed.‖ That is not the case. Rather, the decision to withhold any mention of the incident came about by a careful and measured parsing of words.
BI witnesses testified that the October 5, 2011, incident was no secret, and that it had put out media coverage and press releases because it ―wanted to be an open book‖ regarding the incident. However, as to the ―threshold‖ of the
items that would have to be disclosed as a significant issue of contract performance, Mr. Murnock testified that ―that would be a very long list of performance items, whether it be from a billing issue that may have been raised, to this October 5th issue.‖ The equation of a simple ―billing issue‖ with the October 5, 2010, incident -- the single worst event in BI‘s history -- serves to highlight the attitude that allowed BI to willingly avoid disclosure of a direct, material, and significant element of contract performance that affected the very goods and services being proposed for Florida.
The incident was enough of a secret that no evaluator was aware of it. The evaluators acknowledged that the event was significant, and could have affected their scores on the performance section of the RFP, though none could state whether the effect would have been positive or negative. It may well be that the explanation of the prompt remedial measures would have been well received by the evaluators, and that no reduction in scores would have resulted. It may also be that the event, given its severity, would have negatively affected their scores.5/
The testimony of Department witnesses that the October 5, 2010, incident was not necessarily something that it would have wanted to know about rings hollow. There is
absolutely no reason why that information would not be pertinent
and material to this RFP. The suggestion that the October 5 incident was something the Department viewed with ambivalence goes more to its desire to support the contract award than it does to the sufficiency of the BI narrative of contract performance.6/
Despite what is clearly a designed and calculated effort on the part of BI to withhold information regarding the incident from the Department -- and the Department‘s inexplicable lack of concern regarding the withholding of material information regarding subject matter of the RFP -- the fact is that BI‘s proposal included ―narrative summaries,‖ thereby meeting the minimal requirement established in section
5.3.2.4. Despite a lack of candor on the part of BI that raises significant concern, the undersigned cannot conclude that the deficiencies in the narrative summaries constituted an issue of basic responsiveness. Therefore, the undersigned cannot find that BI‘s omission of information regarding the goods and services proposed for Florida is a material deviation from section 5.3.2.4. of the RFP.
Issue 2: Failure to disclose ―complaints‖ related to the October 5, 2010 event
Section 5.2.9. of the RFP requires proposed vendors to provide ―any and all documents regarding complaints filed, investigations made, warning letters or inspection reports
issued, or any disciplinary action imposed by Federal or State oversight agencies within the past five (5) years.‖ Pro Tech asserts that an October 7, 2010, ―deficiency notice‖ from the Missouri Department of Corrections regarding the October 5, 2010, incident, and follow-up correspondence through
December 23, 2010, fell within the class of governmental action that should have been disclosed, but was not.
The October 7, 2011, letter from the Missouri DOC identifies itself as a ―letter of notification to BI of a deficiency notice,‖ and requested of BI ―a written response within 7 calendar days identifying the problem area(s) which led to the failure and what steps BI intends to initiate to ensure that the system failure is not repeated.‖
BI witnesses testified that a ―deficiency notice‖ was not one of the specific items listed in section 5.2.9 of the RFP, and that it was therefore not obligated to disclose the Missouri letter under its very narrow reading of the items requested. BI‘s candor with regard to the October 5, 2010, incident as expressed in its response to section 5.2.9. is roughly approximate to that evident from its response to section 5.3.2.4.7/
Section 5.2.9. uses very specific terms. It is doubtful that the Department intended potential vendors to disclose only those documents with the words ―complaint,‖
―investigation,‖ ―warning letter,‖ ―inspection report,‖ or
―disciplinary action‖ splashed prominently across the document. Rather, a fair reading of the requirement, coupled with an interest in being open and forthright regarding performance -- an ―open book‖ as stated by Mr. Murnock -- would clearly include a ―deficiency notice‖ to be within the class of items being requested. However, since the specific RFP language listed specific items, without a more inclusive descriptor, such as
―including but not limited to,‖ or ―in the nature of,‖ the undersigned will not broaden the specific RFP requirement.
Since the Missouri letter did not include the words
―complaint,‖ ―investigation,‖ ―warning letter,‖ ―inspection report,‖ or ―disciplinary action‖ within the body of the correspondence, despite its being plainly within the general class of those documents, the response provided by BI to section
5.2.9. was not a material deviation from that requirement of the RFP.
Issue 3: Failure to provide a copy of the Disaster Recovery Plan
The RFP, at section 5.5.13., provides that ―[t]he proposer shall provide a detailed description of the Contractor‘s method and approach for meeting or exceeding all Monitoring Center requirements in section 3.13, and specifically
. . . provide a copy of the Disaster Recovery plan.‖ The
requirement is clear, direct, and unambiguous. BI did not file a protest of the specification, nor did it question the submission of its Disaster Recovery Plan during the process that resulted in the issuance of Addendum #1.
In response to section 5.5.13. of the RFP, BI responded as follows: ―Because of security reasons, the Disaster Recovery Plan is not included with this response. For an outline of the Disaster Recovery Plan, see „3.13.4‟ beginning on page 148.‖ BI‘s refusal to provide the Disaster Recovery Plan is reiterated in its response to section 3.13.10.
There is no industry standard as to what constitutes a Disaster Recovery Plan. However, BI clearly understood what constituted its Disaster Recovery Plan, and made the calculated decision that it was not going to submit it. The response provided by BI is clearly deficient, and is not in substantial accord with the RFP's requirements.
BI decided that it would not provide its Disaster Recovery Plan to the Department ―because it has always been a practice that we not provide that unless it is outside of the production of the RFP, upon request.‖ The decision to ignore the requirement was made with calculated and matter-of-fact intent, relying on the assumption that it would entail at most a scoring reduction.
In lieu of providing the Disaster Recovery Plan as required, Ms. White testified that elements of the plan were
―listed within the RFP itself in several different sections, about 30 different pages.‖ Thus, according to BI, various elements of what one might expect to find in a Disaster Recovery Plan lay flung about in unrelated sections of its RFP proposal, awaiting the efforts of the intrepid evaluators to uncover their existence and significance. BI‘s assertion that it intended those far-flung elements to meet the RFP‘s requirement that it provide its Disaster Recovery Plan is belied by its express statement that, with knowledge of its action, it elected to omit the Disaster Recovery Plan.
The evaluation of a procurement proposal is not akin to a game of hide-and-seek. It is unreasonable to expect evaluators to scour each proposal to glean information scattered throughout, when there is a clear, unmistakable, and mandatory direction to provide the Disaster Recovery Plan as a single, stand-alone document. Compliance with a mandatory item of a public procurement, particularly one designed to ensure that the proposing vendor can adequately reply to a disaster scenario when its services are arguably most needed, cannot be left to the chance that an evaluator might be able to sift through the proposal, and to thereby piece together an understanding of what disaster preparedness measures are proposed.
The fact that the Disaster Recovery Plan contains confidential and proprietary information does not lessen the obligation to provide that information. Section 4.3.20. of the RFP provides the procedure by which confidential, proprietary, or trade secret material may be subject to protection under the Constitution and laws of Florida. If a proposed vendor believes the protections to be insufficient, it has a hard decision to make as to whether to submit or not submit a proposal. That decision does not include whether to ignore a mandatory requirement of the RFP on the chance that the consequence would be insignificant.
It is clear that the Department never determined whether BI‘s admitted failure to disregard the Disaster Recovery Plan requirement was a material deviation from the terms, conditions, and specifications of the RFP. When Ms. Wright finally reviewed the BI proposal immediately before the posting of the award of the contract, she noted that BI had not submitted a copy of its Disaster Recovery Plan as required by the RFP. Ms. Wright did not follow the established procedure of discussing the issue with Mr. Staney, nor was legal staff consulted. Rather, Ms. Wright called Douglas Smith, who was an evaluator. Ms. Wright indicated that, despite BI‘s express statement that it was not submitting a copy of its Disaster Recovery Plan as required, she wanted ―to check with Mr. Smith
on if he felt comfortable with what they had shared about the Disaster Recovery Plan, and was it sufficient.‖
Mr. Smith recalled his conversation with Ms. Wright, and indicated that ―it wasn‘t so much the Disaster Recovery Plan specifically, she was asking about the elements we reviewed.
Are you comfortable with the score that was given? Are they adequate, satisfactory to be able to perform the services based on the contract?‖
Based on her discussion with Mr. Jones, Ms. Wright unilaterally determined that she did not need to take the issue of the omission of the Disaster Recovery Plan to Mr. Staney or to legal staff. Notably, Ms. Wright admitted that she did not make a determination of whether BI‘s admitted failure to provide a copy of its Disaster Recovery Plan, as required by the RFP, was a material deviation or a minor irregularity.
Vendors with an interest in the Florida contract may have been discouraged from submitting proposals because of similar concerns with the security of their Disaster Recovery Plans, or because they did not have a stand-alone Disaster Recovery Plan. It generally cannot be known how many, if any, potential proposers may have been dissuaded from submitting a proposal because of one project specification or another. However, although the effect of an agency choosing to ignore a clear and unambiguous requirement for one proposer that is
applicable to all other proposers confers a competitive advantage that is difficult to calculate, it is nonetheless
real.
Furthermore, withholding its Disaster Recovery Plan
until after the posting of the award gave BI the opportunity to review the other proposals. If it then determined that its proposal was less than advantageous, it could effectively pull itself from the procurement by maintaining its refusal to submit its Disaster Recovery Plan when requested by the Department.
Thus, the failure to submit the Disaster Recovery Plan when required was a material deviation that conferred a competitive advantage on BI that was not enjoyed by the other compliant proposers.
In addition to the foregoing, the refusal to enforce the clear and unambiguous requirement that BI submit a copy of its Disaster Recovery Plan, particularly when such a waiver has occurred outside of the Department‘s normal practice of evaluating deviations from the requirements of the RFP, and after the preliminary outcome of the evaluation was known, raises the distinct appearance of favoritism and preferential treatment towards BI.
BI‘s failure to provide a copy of its Disaster Recovery plan is not in substantial accord with the RFP‘s requirements, and is a material deviation from the terms,
conditions, and specifications of the RFP. The Department‘s failure to enforce the requirement in accordance with the terms of section 1.15 was clearly erroneous, contrary to competition, arbitrary, and capricious.
Issue 4: Failure to provide a training curriculum
The RFP, at section 5.5.13, provides that ―[t]he proposer shall provide a detailed description of the approach to meeting or exceeding all Training requirements in section 3.16, and specifically: . . . provide a copy of the training curriculum.‖
In response to section 5.5.15 of the RFP, BI provided a summary of the topics to be covered in its course for training officers and other employees in the use of the monitoring system. The summary described the outline for the training to be provided, but did not go into detail as to manner in which the training would be provided.
The RFP does not define the term ―curriculum.‖ In general, a curriculum is defined as ―the courses offered by an educational institution‖ or ―a set of courses constituting an area of specialization.‖ MERRIAM-WEBSTER DICTIONARY, at http://www.merriam-webster.com. In this case, there is a single training course. The information provided by BI described the basic course that it intended to provide. What appears to be the subject of Pro Tech‘s complaint is that BI did not provide a
complete syllabus, or the complete set of materials, for the training course that was to be provided. A syllabus or training materials were not required.
The RFP, at section 3.16, provided that:
[t]he training curriculum . . . [is] hereby adopted as the approved curriculum . . . to be utilized for all training purposes under this Contract. Said curriculum . . . [is] incorporated herein as if fully stated. Any changes to these documents shall be approved in writing by the Department‘s Contract Manager.
Based on that provision of the RFP, a credible argument can be made that the intent of the provision was for the proposer to submit a document far more comprehensive than provided by BI.
The Department‘s proffered explanation that the
―curriculum‖ provided by BI was what was intended by the RFP is not convincing, and generally runs contrary to the requirements of section 3.16. However, the description of what was to constitute a curriculum was imprecise and ambiguous. The information provided by BI describes the training course offering, and may reasonably be construed -- in a broad sense of the term -- to be a curriculum.
The response provided by BI to section 5.5.15 is in substantial accord with the RFP's requirements as stated, and was not a material deviation from those requirements.
Issue 5: Failure to provide the FCC license for the ―Beacon‖
Section 5.5.5 of the RFP requires the proposed vendors to provide the Department with ―a detailed description of the General Equipment specifications that meets or exceeds all requirements in section 3.7.2,‖ and ―provide copies of required licensing by the Federal Communications Commission for the equipment proposed.‖
The equipment proposed by BI as responsive to the general equipment specifications of section 3.7.2 consists of the ExacuTrack One single piece GPS tracking unit. The ExacuTrack One meets or exceeds all requirements established in section 3.7.2. The FCC grant of equipment authorization was provided for the ExacuTrack One unit.
The ―Beacon‖ was identified in section 5.5.21 of the RFP as a value-added service that was above and beyond the RFP‘s minimum service delivery requirements and specifications. The Beacon is not a necessary component of the equipment for tracking offenders as established in section 3.7.2, but serves as a home-base unit to transmit location and data, and conserve battery power.
Section 5.5.5, is reasonably construed to require that the FCC ―license‖ be provided only for the general equipment proposed pursuant to section 3.7.2 of the RFP. BI complied with that requirement. Based on the terms, conditions and specifications of the RFP, the response provided by BI to
section 5.5.5 is in substantial accord with the RFP's requirements, and was not a material deviation from those requirements.
Ultimate Findings of Fact
Based on the foregoing, the BI response to Request for Proposals, Solicitation Number 10-DC-8200, materially deviated from the mandatory terms, conditions, and specifications of sections 5.3.2.3. of the RFP, as supplemented by Addendum #1, and section 5.5.13 of the RFP. The items that rendered the BI proposal non-responsive, and that materially deviated from the terms, conditions, and specifications of the RFP, gave BI an advantage or benefit not enjoyed by the other proposers, were not minor irregularities, and could not be waived under the terms of the RFP.
Based on the foregoing, Pro Tech demonstrated by a preponderance of the evidence that the award of the contract to BI was clearly erroneous, contrary to competition, arbitrary, and capricious.
The undersigned is not unmindful of the fact that BI proposed the lowest cost, and that the rejection of the BI proposal will result in a higher overall cost for offender monitoring services to the state. Perhaps the fact that Pro Tech proposed a system that was scored higher based on its business experience and technical merits will offset any
concerns. Regardless, the decision as to whether BI met the clear and unambiguous requirements of RFP 10-DC-8200 cannot, in the interests of fair and open competition, be the result of preferential treatment afforded to BI based on one element of a multi-factored RFP.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. See §§ 120.569 and 120.57, Fla. Stat. (2010); Dep‘t
of Lottery v. Gtech Corp., 816 So. 2d 648, 651 (Fla. 1st DCA 2001).
Chapter 287, Florida Statutes, establishes the various methods for the procurement of commodities and services by state agencies. The Department utilized a request for proposals as the method for procurement of the contract at issue. Section 287.057(1)(c) describes that method of procurement as follows:
(b) Request for proposals.— An agency shall use a request for proposals when the purposes and uses for which the commodity, group of commodities, or contractual service being sought can be specifically defined and the agency is capable of identifying necessary deliverables. Various combinations or versions of commodities or contractual services may be proposed by a responsive vendor to meet the specifications of the solicitation document.
* * *
4. The contract shall be awarded by written notice to the responsible and responsive vendor whose proposal is determined in writing to be the most advantageous to the state, taking into consideration the price and other criteria set forth in the request for proposals. The contract file shall contain documentation supporting the basis on which the award is made.
Section 287.012(25) defines a ―responsive‖ submission to a solicitation as ―a bid, or proposal, or reply submitted by a responsive and responsible vendor that conforms in all material respects to the solicitation.‖ A ―responsive vendor‖ is defined by section 287.012(26) as ―a vendor that has submitted a bid, proposal, or reply that conforms in all material respects to the solicitation.‖
Section 120.57(3)(f) provides that:
. . . 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.
The nature of the de novo review in a bid protest proceeding has been established as follows:
[T]he phrase 'de novo hearing' is used to describe a form of intra-agency review. The
judge may receive evidence, as with any formal hearing under section 120.57(1), but the object of the proceeding is to evaluate the action taken by the agency. See Intercontinental Properties, Inc. v. State Department of Health and Rehabilitative Services, 606 So. 2d 380 (Fla. 3d DCA 1992).
State Contracting and Eng‘g Corp. v. Dep‘t of Transp., 709 So. 2d, 607, 609, (Fla. 1st DCA 1998).
The standard of review of the agency‘s proposed action in a bid protest proceeding has been generally described as follows:
. . . a "public body has wide discretion" in the bidding process and "its decision, when based on an honest exercise" of the discretion, should not be overturned "even if it may appear erroneous and even if reasonable persons may disagree." Department of Transportation v. Groves- Watkins Constructors, 530 So.2d 912, 913 (Fla. 1988) (quoting Liberty County v.
Baxter's Asphalt & Concrete, Inc., 421 So.2d
505 (Fla. 1982)) (emphasis in original). "The hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly." Groves-Watkins, 530 So.2d at 914.
Scientific Games, Inc. v. Dittler Brothers, Inc., 586 So. 2d 1128, 1131 (Fla. 1st DCA 1991).
Section 120.57(3)(b) provides in pertinent part that
―[t]he formal written protest shall state with particularity the facts and law upon which the protest is based.‖ In order to place the parties on notice of the issues for disposition in a
bid protest proceeding, a petitioner must allege specific facts and how the agency‘s proposed action is contrary to the agency‘s governing statutes, the agency‘s rules or policies, or the solicitation specifications. See Hamilton v. Dep‘t of Bus. & Prof‘l Reg., 764 So. 2d 778 (Fla. 1st DCA 2000), (citing Cottrill v. Dep‘t of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996)); Anchor Towing, Inc. v. Dep‘t. of Transp. & Sunshine Towing, Inc., Case No. 04-1447BID (Fla. DOAH Sept. 23, 2004; Dep‘t of Transp. Dec. 1, 2004, remanded on other grounds
Apr. 18, 2005). Based on the pleadings filed in this case by each of the parties, the issues for consideration in this proceeding are limited to the five remaining issues alleged by Pro Tech in its Formal Bid Protest Petition, as set forth herein.
Pro Tech, as the petitioner, has the burden to establish that BI‘s proposal materially deviated from the terms, conditions, and specifications of the RFP such that the Department‘s decision to award the contract to BI was clearly erroneous, contrary to competition, arbitrary, or capricious.
§ 120.57(3)(f); Dep‘t of Transp. v. J. W. C. Co., Inc., 396 So. 2d 778, 787 (Fla. 1st DCA 1981).
Agency action 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." U.S. v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948); see also Pershing Industries, Inc. v.
Dep‘t of Bank. and Fin., 591 So. 2d 991, 993 (Fla. 1st DCA 1991). Agency action may also be found to be "clearly erroneous" if the agency's interpretation of the applicable law conflicts with its plain meaning and intent. Colbert v. Dep't
of Health, 890 So. 2d 1165, 1166 (Fla. 1st DCA 2004). In such a case, "judicial deference need not be given" to the agency's interpretation. Id.
An act is "contrary to competition" if it runs contrary to the objectives of competitive bidding, which have been long held:
to protect the public against collusive contracts; to secure fair competition upon equal terms to all bidders; to remove not only collusion but temptation for collusion and opportunity for gain at public expense; to close all avenues to favoritism and fraud in various forms; to secure the best values for the [public] at the lowest possible expense . . . .
Wester v. Belote, 138 So. 2d 721, 723-24 (Fla. 1931); see also Harry Pepper & Assoc., Inc. v. City of Cape Coral, 352 So. 2d 1190, 1192 (Fla. 2d DCA 1977). In that regard, public officials do not have the power ―to make exceptions, releases and modifications in the contract after it is let, which will afford opportunities for favoritism, whether any such favoritism is practiced or not.‖ Wester v. Belote at 724. The public policy
regarding exceptions and releases in contracts applies with equal force to the contract procurement.
An "arbitrary" action is "one not supported by facts or logic, or despotic." A "capricious" action is "one which is taken without thought or reason or irrationally." Agrico Chemical Co. v. Dep‘t of Envtl. Reg., 365 So. 2d 759, 763 (Fla. 1st DCA 1978); see also Hadi v. Liberty Behavioral Health Corp., 927 So. 2d 34, 38-39 (Fla. 1st DCA 2006). If agency action is justifiable under any analysis that a reasonable person would use to reach a decision of similar importance, the decision is neither arbitrary nor capricious. Dravo Basic Materials Co., Inc. v. Dep‘t of Transp., 602 So. 2d 632, 634 n.3 (Fla. 2d DCA 1992).
Section 287.001 establishes the legislative intent that public procurement be intrinsically fair and open, and that it also eliminate the appearance and opportunity for favoritism so as to preserve public confidence in the process, and provides that:
The Legislature recognizes that fair and open competition is a basic tenet of public procurement; that such competition reduces the appearance and opportunity for favoritism and inspires public confidence that contracts are awarded equitably and economically; and that documentation of the acts taken and effective monitoring mechanisms are important means of curbing any improprieties and establishing public confidence in the process by which commodities and contractual services are procured.
That legislative intent has been applied to determine whether an action is contrary to competition as follows:
Thus, from Section 287.001 can be derived an articulable standard of review. Actions that are contrary to competition include those which:
create the appearance of and opportunity for favoritism;
erode public confidence that contracts are awarded equitably and economically;
cause the procurement process to be genuinely unfair or unreasonably exclusive; or
are unethical, dishonest, illegal, or fraudulent.
Syslogic Tech. Servs., Inc. v. So. Fla. Water Mgmt. Dist., Case No. 01-4385BID (Fla. DOAH Jan. 18, 2002; SFWMD Mar. 6, 2002).
As to the ability of an agency to overlook items in a proposal that clearly meet the definition of a ―material deviation‖ from its written specifications, it is clear that ―a public body is not entitled to omit or alter material provisions required by the RFP because in doing so the public body fails to
‗inspire public confidence in the fairness of the [RFP] process.‘‖ (emphasis in original) Emerald Corr. Mgmt. v. Bay
Cty. Bd. of Cty. Comm'rs, 955 So. 2d 647, 652 (Fla. 1st DCA 2007), (citing Dep‘t of Lottery v. Gtech Corp., 816 So. 2d 648, 651 (Fla. 1st DCA 2001)).
Material Deviation of the BI Proposal
Every deviation from the RFP is not material and does not mandate rejection of the proposal. The Department reserved the right to waive minor irregularities. The standard for determining whether a variance is a material deviation or a minor irregularity is as follows:
―Although a bid containing a material variance is unacceptable, not every deviation from the invitation is material." Robinson Elec. Co. v. Dade County, 417 So. 2d 1032, 1034 (Fla. 3d DCA 1982); Tropabest Foods, Inc. v. State, Dep't of Gen. Servs.,
493 So. 2d 50, 52 (Fla. 1st DCA 1986)(citation omitted); Glatstein v. Miami,
399 So. 2d 1005 (Fla. 3d DCA) review denied,
407 So. 2d 1102 (Fla. 1981). "It is only material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition." Tropabest, 493 So. 2d at 52; Harry Pepper & Assocs., Inc. v. City of Cape Coral, 352 So. 2d 1190, 1193 (Fla. 2d DCA 1977).
Procacci Commer. Realty v. Dep‘t of HRS, 690 So. 2d 603, 606 (Fla. 1st DCA 1997).
Issue 1: Failure to comply with past experience requirements
Failure to identify all federal, state or government contracts for the provision of electronic monitoring services
BI‘s failure to identify its electronic monitoring contracts, and the Department‘s after-the-fact decision to accept BI‘s deficient submission conferred an unfair advantage on BI in the preparation of its proposal that was not enjoyed by
vendors who complied with the plain, direct, and unambiguous terms of section 5.3.2. of the RFP and its subsections.
Not only was section 5.3.2. of the RFP itself clear and unambiguous, but it was further clarified by the Department‘s responses to Questions 11, 16, and 17 in RFP #10- DC-8200 Addendum #1. BI‘s hyper-technical interpretation of section 5.2.3. notwithstanding, an interpretation or construction of those terms to mean anything less than ―all . .
. federal, state, or government contracts for the provision of electronic monitoring services, and the number of active GPS units utilized for each‖ is not reasonable. That is particularly true given that BI omitted electronic monitoring contracts that included GPS services, just not to the threshold number of units that it unilaterally and subjectively determined to be appropriate for disclosure.
BI did not file a written protest of section 5.2.3. or of Addendum #1 within 72 hours of their release. As such, any disagreement or concern with the Department‘s requirement that it ―identify all current and/or past (or within (3) years) federal, state or government contracts for the provisions of electronic monitoring services‖ has been waived. Section 120.57(3)(b); accord Consultech of Jacksonville v. Dep‘t of Health, 876 So. 2d 731, 734 (Fla. 1st DCA 2004); Optiplan, Inc. v. Sch. Bd. Of Broward Co., 710 So. 2d 569, 572 (Fla. 4th DCA
1998); Capeletti Bros., Inc. v. Dep‘t of Transp., 499 So. 2d 855 (Fla. 1st DCA 1986), rev. denied, 509 So. 2d 1117, (Fla. 1987).
The unfair bidding advantage that is conferred on a bidder who fails to provide necessary and required information
is generally threefold: (1) it provides the precious few minutes which may be saved by failing to provide a name for the appropriate blank on form D-1 and matching the name with the price used in the bid computation, (2) it allows the potential for speculation, by use of a phantom price and efforts to shop that item or trade until a subcontractor can be found at the speculative contract price, and (3) it permits a successful bidder to accept additional subcontractor bids after the bid opening, giving the opportunity for undercutting the low subcontractor on whom he relied in formulating his bid. (emphasis added).
E. M. Watkins & Co. v. Bd. of Regents, 414 So. 2d 583, 587 (Fla. 1st DCA 1982). The items in (2) and (3) are not applicable in this case. However, as set forth in the findings of fact, the timesaving to BI as a result of its non-compliance was significant. Allowing BI to benefit from its non-compliance with the terms, conditions, and specifications of the RFP would confer an unfair bidding advantage on BI that was not enjoyed by other compliant vendors.
The requirement that vendors identify all electronic monitoring contracts was a clear, direct, and mandatory requirement of section 5.3.2. of the RFP, and the failure to do
so was a substantial and material deviation from the terms, conditions, and specifications of the RFP. It was not a minor irregularity. Such failure required the rejection of BI‘s proposal under the terms of section 1.15. of the RFP. The Department‘s effort to excuse BI‘s intentional failure to meet the reasonable terms of section 5.3.2.3. was clearly erroneous, arbitrary and capricious, and contrary to competition.
Failure to provide a narrative summary of contract performance
BI‘s failure to provide a complete narrative of the contract performance, not only of the seven contracts identified, but of the other contracts not identified, led directly to the facts surrounding the October 5, 2010, event being concealed from the Department. The evaluators admitted that knowledge of the incident would likely have affected their scores, though none could say with certainty what their scores would have been.
The requirement that vendors provide a narrative summary of contract performance was a direct and mandatory requirement of section 5.3.2.4. of the RFP. However, despite the fact that BI‘s ―narrative summary of contract performance‖ withheld more than it revealed, the fact is that BI submitted documents that contained the words ―narrative summary.‖
Based on the foregoing, the undersigned is reluctantly compelled to conclude that BI‘s failure to disclose the October 5, 2010, event is not a responsiveness issue, and does not constitute a basis for the rejection of BI‘s proposal under the terms of section 1.15. of the RFP.
Issue 2: Failure to disclose ―complaints‖ related to the October 5, 2010, event
For the reasons set forth herein, BI‘s failure to disclose the October 7, 2010, letter from the Missouri Department of Corrections regarding the October 5, 2010, incident, and the follow-up correspondence, under the narrow but literal language of section 5.2.9. of the RFP, was not a material deviation from the terms, conditions, and specifications of the RFP, and does not constitute a basis for the rejection of BI‘s proposal under the terms of section 1.15. of the RFP.
Issue 3: Failure to provide a copy of the Disaster Recovery Plan
BI‘s refusal to provide its Disaster Recovery Plan was done in direct contravention to the clear, direct, and unambiguous requirement of section 5.5.13. that it do so. The Department‘s after-the-fact decision to excuse BI‘s intentionally-deficient submission conferred an unfair advantage on BI in the preparation of its proposal that was not enjoyed by vendors who complied with the requirement.
BI did not file a written protest of section 5.5.13. that ―[t]he proposer shall provide a detailed description of the Contractor‘s method and approach for meeting or exceeding all Monitoring Center requirements in section 3.13, and specifically
. . . provide a copy of the Disaster Recovery plan.‖ Thus, any disagreement or concern with the requirement has been waived.
BI decided to withhold its Disaster Recovery Plan because of its belief that the information contained therein was too sensitive to risk exposure in a public procurement. However, the requirement was couched in ―shall‖ terms to ensure that it was provided. The disagreement with a required term does not confer a license to ignore it. To be sure, vendors
that may have had interest in the Florida contract may have been discouraged from submitting a proposal because of a similar fear. Therefore, BI‘s decision to ignore the requirement, a requirement that other proposed vendors met, cannot be waived as a minor irregularity ―which does not affect the price proposed or gives the proposer an advantage or benefit not enjoyed by the other proposers.‖
The competitive advantage that is conferred on a proposer when an agency chooses to ignore a clear and unambiguous requirement that is applicable to all other potential vendors has been described as follows:
The touchstone of these tests for materiality--substantial advantage--is an elusive concept, to say the least, easier to state than to apply. Obviously, waiving any defect that might disqualify an otherwise winning bid gives the beneficiary of the waiver an advantage or benefit over the other bidders. In practice, differentiating between, on the one hand, "fair" advantages
-- i.e. those that are tolerable because they do not defeat the object and integrity of the competitive procurement process -- and "unfair" (or intolerable) advantages, on the other, is exceptionally difficult; and, making matters worse, there are not (as far as the undersigned is aware) many generally recognized, consistently applied, neutral principles available for the decision- maker's use in drawing the distinction between a "substantial" advantage and a "mere" advantage.
That said, the undersigned believes that a bidder's noncompliance with a specification which was designed to winnow the field -- especially one which prescribes particular characteristics that the successful bidder must possess -- should rarely, if ever, be waived as immaterial. This is because such a provision acts as a barrier to access into the competition, potentially discouraging some would-be participants, namely those who lack a required characteristic, from submitting a bid.
Phil‘s Expert Tree Service v. Broward Co. Sch. Bd., Case No. 06- 4499BID at 29-30, (Fla. DOAH Mar. 19, 2007; BCSB June 11, 2007);
see also Syslogic Technology Servs., Inc. v. So. Fla. Water Mgmt. Dist., Case No. 01-4385BID at 63, n.23, (Fla. DOAH
Jan. 18, 2002; SFWMD Mar. 6, 2002)("Of course, it will usually not be known how many, if any, potential proposers were
dissuaded from submitting a proposal because of one project specification or another. That is why specifications that have the capacity to act as a barrier to access into the competition
. . . should generally be considered material and non-waivable for that reason.").
The Disaster Recovery Plan specification was designed to provide assurances that the successful proposer had a plan that could be rapidly consulted and implemented in the event of either a natural or man-made disaster. Those whose plans were less than comprehensive, or not as easily implemented, would be discouraged from expending the substantial effort necessary to develop and submit a proposal given the likelihood of an adverse responsiveness determination. Thus, the requirement to submit the proposer‘s Disaster Recovery Plan could have prevented some interested vendors from submitting proposals.
The requirement that vendors provide a copy of their Disaster Recovery Plan with their proposals was a clear, direct, and mandatory requirement of section 5.5.13. of the RFP, and the failure to do so was a substantial and material deviation from the terms, conditions, and specifications of the RFP. It was not a minor irregularity. Such failure requires the rejection of BI‘s proposal under the terms of section 1.15. of the RFP. The Department‘s effort to excuse BI‘s intentional failure to meet the reasonable terms of section 5.5.13. was clearly
erroneous, arbitrary and capricious, and contrary to competition.
Issue 4: Failure to provide a training curriculum
For the reasons set forth herein, BI‘s ―training curriculum,‖ under the literal language of section 5.5.13. of the RFP, was not a material deviation from the terms, conditions, and specifications of the RFP, and does not constitute a basis for the rejection of BI‘s proposal under the terms of section 1.15. of the RFP.
Issue 5: Failure to provide the FCC license for the ―Beacon‖
For the reasons set forth herein, BI‘s failure to provide a copy of the FCC grant of equipment authorization for the Beacon was not a material deviation from the terms, conditions, and specifications of section 5.5.5. of the RFP, and does not constitute a basis for the rejection of BI‘s proposal under the terms of section 1.15. of the RFP.
Ultimate Conclusions
The BI proposal contained material deviations from the RFP. Those deviations, generally involving the failure to provide relevant, material, and required information in response to unambiguous instructions to do so, gave BI a competitive advantage over the other vendors. The deviations from the terms, conditions, and specifications were not minor irregularities. Thus, the BI proposal should be rejected.
TIMELINESS OF PRO TECH PETITION
On December 17, 2010, at 1:00 p.m., the Department posted its notice of intent to award the contract under Request for Proposals No. 10-DC-8200 to BI. Pursuant to section 120.57(3)(b), the notice of protest was to be filed by
1:00 p.m., on December 22, 2010.
On December 22, 2010, Pro Tech filed its notice of intent to protest the award of the contract to BI. The Notice was stamped with the date stamp located at the Department‘s security desk as having been received by the Department at 9:50 a.m. on December 22, 2010. It was not stamped with an
―agency clerk‖ stamp until 1:39 p.m. No party contested the fact that the notice of protest was timely filed.
On January 3, 2011, at 4:46 p.m., Justin Splitt delivered Petitioner‘s formal written protest to the address specified for filing. Due to security measures, Mr. Splitt was not allowed past the security desk. The guard on duty, Joe Wyland, accepted the petition, and provided Petitioner with a date-stamped copy attesting to its receipt at the offices of the Department.
As a rule, Mr. Wyland began the process of closing up for the day by 4:45 p.m., about the time Mr. Splitt delivered the petition and copies. The ―end-of-day procedures‖ included collecting security badges, returning ID cards, and lowering and
folding the flags. The evidence demonstrated that Mr. Wyland‘s attention was singularly directed to completing the tasks necessary to complete his day, and that ―my end-of-day procedures is the reason I did not call.‖ As he stated, ―[t]hat way at 5:00 I can leave and go home for the day.‖
When Mr. Splitt dropped off the envelopes containing Pro Tech‘s jurisdictional filing, and filled out the ―green card‖ showing at least one of the envelopes was for the agency clerk, Mr. Wyland did not have time to call the persons to whom the envelopes were addressed. He did not tell Mr. Splitt of his
―end-of-day procedures‖ or, despite advising him that because
―it is so close to 5:00 that all of these individuals you are dropping off to might not be here,‖ advise him that he would not be calling the agency clerk‘s office.
BI argues that Mr. Splitt did not say the magic words
―I am here to file this with the Agency Clerk,‖ thus failing to initiate the sequence that would have resulted in the appearance of the agency clerk to collect the petition. Without the magic words, BI asserts that the fact that Mr. Splitt delivered the petition to the correct address, to the innermost point at which he had lawful access, and into the hands of the person manning the security desk -- receiving a dated acknowledgment of receipt in return -- was for naught.
The evidence is contradictory as to whether
Mr. Splitt uttered the magic words or not. Mr. Splitt averred with conviction that he stated the specific words that BI argues were necessary to crack open the door to the agency clerk‘s chamber. Mr. Wyland averred with equal conviction that he did not. It should not be, and is not, necessary to rely on year- old memories to determine whether a jurisdictional filing was timely.
The Department dismissed the protest petition because the security guard, busy with his ―end-of-day procedures,‖ failed to call the agency clerk or take the petition to the agency clerk‘s office until the following morning. Thus, according to the Department, the Petition was not filed by the jurisdictional deadline of 5:00 p.m., on January 3, 2010, when the petition was delivered to the Department‘s offices and date- stamped at the security desk, but rather was filed at
10:15 a.m., on January 4, 2010, when the petition made its way to the Department‘s upstairs offices and was date-stamped with the agency clerk‘s stamp. Pro Tech appealed the final order of dismissal.
On October 17, 2011, the First District Court of Appeal issued its opinion in Pro Tech Monitoring, Inc. v. Dep‘t of Corr., 72 So. 2d 277 (Fla. 1st DCA 2011).
The Court reversed the final order of dismissal, finding that the security guard was the Department‘s agent, and his desk the Department‘s constructive office for filing purposes.
On November 10, 2011, the Department forwarded Pro Tech‘s Formal Bid Protest Petition to the Division for assignment of an Administrative Law Judge to conduct the final hearing. In its notice, the Department ―elected to accept Pro Tech Monitoring, Inc.‘s allegations as true with respect to the timeliness of the protest petition, and now forwards the petition to the Division of Administrative Hearings for review on the merits. ‖
Based on the evidence presented at the hearing in this matter, there is nothing to cause the undersigned to disagree with the opinion of the First DCA. Even without the assistance of the appellate court‘s analysis, the undersigned would have drawn the same conclusion. The Pro Tech petition was
timely filed.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Corrections, enter a final order that adopts the Findings of Fact and Conclusions of Law set forth herein. It is further recommended that the contract issued in response to Request for Proposals, Solicitation Number 10-DC-8200, entitled "Global
Positioning Satellite Electronic Monitoring Services" be awarded to Petitioner, Pro Tech Monitoring, Inc. as the highest scoring responsive vendor.
DONE AND ENTERED this 4th day of April, 2012, in Tallahassee, Leon County, Florida.
S
E. GARY EARLY Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2012.
1/ The protest petition initially alleged that the evaluation team members did not meet the experience and knowledge requirements of section 287.057(16)(a), and that the price proposed by BI was unrealistically low, thereby jeopardizing the ability of BI to provide service under the contract. Both of those issues were withdrawn prior to the final hearing.
2/ If the issue of the responsiveness of the Pro Tech proposal had not been waived, the undersigned would have found and concluded that BI failed to demonstrate that the Pro Tech proposal was not responsive to the terms, conditions, and
specifications of the RFP. The responsiveness issue was related solely to whether Pro Tech identified its contracts, provided narrative summaries, and disclosed complaints related thereto, in violation of sections 5.3.2. and 5.2.9. of the RFP. The only evidence of such non-responsiveness was related to a contract between G4S Justice Services, LLC, and the state of Connecticut, for which Pro Tech was a subcontractor. The RFP contained no requirement that a proposer disclose or discuss its subcontracts with other vendors, but rather required only the disclosure of
―all current and/or past (or within three (3) years) federal, state or government contracts.‖ Therefore, Pro Tech‘s failure to disclose its subcontract with G4S -- despite its disclosure of a different subcontract to which it was a party in Missouri -
- was not a deviation from the terms, conditions, and specifications of the RFP.
3/ The suggestion that the Department ―allowed‖ the BI proposal to pass through the review process, or that the Department made such a decision, is a bit inaccurate. The evidence clearly demonstrates that the Department made no decision as to whether BI‘s proposal contained material deviations until faced with the issue in the context of litigation. However, for ease of reference, the terms ―allowed‖ and ―decision‖ will be used when describing the effect of BI‘s decisions to submit less information than required under the terms, conditions, and specifications of the RFP, and the Department‘s after-the-fact litigation strategy to support its determination to award the contract to BI.
4/ In Syslogic Technology Servs., Inc. v. So. Fla. Water Mgmt. Dist., Case No. 01-4385BID, at 61, n.19, (Fla. DOAH Jan. 18,
2002; SFWMD Mar. 6, 2002), Judge Van Laningham was similarly faced with a situation in which the agency failed to make a determination as to whether a deviation from the procurement specifications was material until after the proposals were scored and ranked, and the preliminary outcome known. His analysis is instructive and well-written, and is adopted, with full attribution, by the undersigned.
The reason for this should be clear: If the decision on materiality were made from a post facto perspective based on extrinsic factors, then the temptation would be great to base the determination on reasons that should not bear on the issue. In particular, the materiality of a deviation should not depend on whether the deficient
proposal happens to be highest ranked. To see this point, imagine a close football game in which, at the start of the fourth quarter, one team scores a go-ahead touchdown -- if the receiver came down in bounds. Would anyone think it fair if the referees awarded the points provisionally and reserved ruling on whether the touchdown should count until after the end of the game? Of course not. In a contest, potentially determinative decisions involving a competitor's compliance with the rules need to be made when the outcome is in doubt, when the effect of the decision is yet unknown; otherwise, the outcome may be manipulated.
5/ The Department would treat the failure to disclose the October 5, 2010, incident as a minor irregularity, thus allowing it to be treated as a scoring issue. However, the October 5, 2010, incident cannot be treated as a scoring issue due to BI‘s failure to disclose. Captain Yossarian would have made an appropriate evaluator of Request for Proposals No. 10-DC-8200.
6/ Again, with a tip of the hat to Judge Van Laningham:
When an agency asserts for the first time as a party litigant in a bid protest that an irregularity was immaterial, the contention must be treated, not with deference as a presumptively neutral finding of ultimate fact, but with fair impartiality as a legal argument; in other words, the agency is entitled to nothing more or less than to be heard on an equal footing with the protester.
Phil‘s Expert Tree Service v. Broward Co. Sch. Bd., Case No. 06- 4499BID at 42, n.13, (Fla. DOAH Mar. 19, 2007; BCSB June 11,
2007).
7/ To BI‘s credit, it did disclose an investigation by the state of New Jersey into its billing practices which, not surprisingly, ―concluded that BI was not at fault,‖ and for which BI included 23 pages of supportive information.
COPIES FURNISHED:
J. Stephen Menton, Esquire Rutledge, Ecenia, and Purnell, P.A.
119 South Monroe Street, Suite 202 Post Office Box 551
Tallahassee, Florida 32301 smenton@reuphlaw.com
Christopher Ryan Maloney, Esquire Foley and Lardner
Suite 1300
1 Independent Drive Jacksonville, Florida 32202 cmaloney@foley.com
Benjamin J. Grossman, Esquire Foley and Lardner, LLP
Suite 900
106 East College Avenue Tallahassee, Florida 32301 bjgrossman@foley.com
Jonathan P. Sanford, Esquire Florida Department of Corrections
501 South Calhoun Street Tallahassee, Florida 32399 sanford.jonathan@mail.dc.state.fl.us
Ken Tucker, Secretary Department of Corrections
501 South Calhoun Street Tallahassee, Florida 32399-2500
Jennifer Parker, General Counsel Department of Corrections
501 South Calhoun Street Tallahassee, Florida 32399-2500
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit exceptions within 10 days from the date of the Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| May 02, 2012 | Agency Final Order | |
| Apr. 04, 2012 | Recommended Order | Petitioner proved that Intervenor's proposal contained material deviations from the terms, conditions and specifications of the RFP. The award of the contract to Intervenor was clearly erroneous, arbitrary, capricious, and contrary to competition. |
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