STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CUBIC TRANSPORTATION SYSTEMS, INC., Petitioner, vs. Case No. 14 2322BID DEPARTMENT OF TRANSPORTATION, Respondent, and XEROX STATE AND LOCAL SOLUTIONS, INC., Intervenor. _____________________________ __/ ACCENTURE LLP, Petitioner, vs. Case No. 14 2323BID DEPARTMENT OF TRANSPORTATION, Respondent, and XEROX STATE AND LOCAL SOLUTIONS, INC., Intervenor. _______________________________/ RECO MMENDED ORDER Pursuant to notice, a final hearing in this cause was held in Tallahassee, Florida, on June 18 and 19 , and July 9 through 11 , 2014 , before the Division of Administrative Hearings by its designated Administrative Law Judge, Linzie F. Bogan. APPEARANCES For Petitioner in 14 2322BID : Thomas H. Bateman, III, Esquire Albert T. Gimbel, Esquire Bryan Duke, Esquire Messer Caparello, P.A. 2618 Centennial Place Tallahassee, Florida 32308 For Petitioner in 14 2323BID : J. Stephen Menton, Esquire Rutledge Ecenia, P.A. 119 South Monroe Street, Suite 202 Tallahassee, Florida 32301 For Respondent: Denise Johnson, Esquire Florida Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399 0458 For Intervenor : W. Robert Vezina, III, Esq uire Vezina, Lawrence & Piscitelli, P.A. 413 East Park Avenue Tallahassee, Florida 32301 John A. Tucker, Esquire Robert H. Hosay, Esquire Foley & Lardne r, LLP Suite 1300 One Independent Drive Jacksonville, Florida 32202 STATEMENT OF THE ISSUE Whether Respondent Department of TransportationÓs intended decision to conduct negotiations with Xerox State and Local Solutions, Inc. , under ITN DOT 13/14 8001 SM is contrary to the DepartmentÓs governing statutes, rules, or policies or to the solicitation specifications. PRELIMINARY STATEMENT On November 1, 2013, the Florida Department of Transportation (Departmen t/DOT/Respondent) advertised an Invitation to Negotiate (ITN), soliciting proposals from firms interested in participating in competitive negotiations for the award of a contract to provide a Centralized Customer Service System (CCSS) and associated operat ions and maintenance. On April 10, 2014, the Department posted vendor rankings which advised of the DepartmentÓs intent to commence negotiations with the first ranked vendor, Xerox State and Local Solutions, Inc. (Xerox) . Accenture LLP (Accenture) and Cu bic Transportation Systems, Inc. (Cubic) , (collectively referred to as (Petitioners/ Protesters ) timely filed notices of intent to protest the DepartmentÓs rankings, and also timely filed respective formal written protests. On May 16, 2014, both protest pe titions were referred to the Division of Administrative Hearings (DOAH). The cases were consolidated and Xerox intervened . At the hearing, Joint Exhibits 1 through 63 , and 64A were admitted into evidence , as were: Accenture Exhibits 3 , 8 and 9 ; Cubic Ex hibits 1 through 13, 15 through 18, 20 , 21, 2 4, 25, 27, 29, 32, 35, 40 through 42, 47, 50, 52 , 53, 56 , 57, and 61 through 77; Xerox Exhibits 1 through 3, 4A, 7A, 8A, 9A, 10 , 11, and 17 through 23; and Accenture/Cubic Joint Exhibit 2. Accenture offered tes timony from Sheree Merting, the procurement officer for the Florida Turnpike Enterprise (FTE) ; Diane Gutierrez Scaccetti , FTEÓs executive director; and Laura Kelley, acting executive director of the Orlando Orange County Expressway Authority ( OOCEA ) . Cubi c offered testimony from Jon Ramirez, CubicÓs corporate representative. Accenture and Cubic offered testimony from Timothy Garrett, an employee of HNTB Corporation (HNTB) , acting as a consultant to FTE; John McCarey, of McCarey Consulting, LLC, a consulta nt to FTE; and Joseph Waggoner, executive director of the Tampa Hillsborough Expressway Authority ( THEA ) . Xerox offered testimony from Richard Bastan, XeroxÓs group president for the transportation line of business. Xerox and the Department offered testi mony from Javier Rodriguez, executive director of the Miami Dade Expressway Authority (MDX) . Additional testimony was offered by deposition transcripts and marked as exhibits. A ten volume transcript of the proceedings was filed with DOAH on August 5, 20 14. The parties submitted P roposed R ecommended O rder s , which have been considered by the undersigned. FINDING S OF FACT A. The ITN 1. The Department is an agency of the State of Florida charged with planning, acquiring, leasing, constructing, maintai ning, and operating toll facilities and cooperating with and assisting local governments in the development of a statewide transportation system. § 334.044(16) (22), Fla. Stat. (2013). 1/ The Department is authorized to enter contracts and agreements to h elp fulfill these duties. See §§ 20.23(6) and 334.044(7), Fla. Stat. 2. FTE is a legislatively created arm of the Department and is authorized to plan, develop, own, purchase, lease, or otherwise acquire, demolish, construct, improve, relocate, equip, r epair, maintain, operate, and manage the Florida Turnpike System. § 338.2216(1)(b), Fla. Stat. FTE is also authorized to cooperate, coordinate, partner, and contract with other entities, public and private, to accomplish these purposes. Id . 3. The Dep artment has the express power to employ the procurement methods available to the Department of Management Services under chapter 287, Florida Statutes. 2/ § 338.2216(2), Fla. Stat.; see also Barton Protective Servs., LLC v. DepÓt of Transp. , Case No. 06 15 41BID (Fla. DOAH July 20, 2006; Fla. DOT Aug. 21, 2006). 4. OOCEA (now known as the Central Florida Expressway Authority) , MDX , and THEA are legislatively created or authorized agencies of the State with the power to fix, alter, charge, establish, and co llect tolls, rates, fees, rentals, and other charges for the services and facilities system. §§ 348.0003(1) . 0 004(2)(e), Fla. Stat. Each of these authorities has the power to enter contracts and to execute all instruments necessary or convenient for the carrying on of its business; to enter contracts, leases, or other transactions with any state agency or any other public body of the State; and to do all acts and things necessary or convenient for the conduct of its business and the general welfare of the authority in order to carry out the powers granted to it by law. § 348. 0 004(2)(g), (h), (k), Fla. Stat. 5. On November 1, 2013, the Department advertised the ITN, soliciting proposals from vendors interested in participating in competitive negotiations for the award of a contract to provide a CCSS and associated operations and maintenance. The ITN was issued pursuant to section 287.057, Florida Statutes. 6. The purpose of the ITN is to replace the existing customer service center systems of FTE, OOCE A, THEA, and MDX with a CCSS that can be expanded over time to include other tolling and transit agencies in the State of Florida. The CCSS is expected to process nearly all electronic toll transactions in Florida. The successful vendor will enter a cont ract directly with the Department. The Department will then enter agreements with the other authorities to address coordinated and joint use of the system. 7. Generally, the ITN sets forth a selection process consisting of two parts. Part one involves: (a) the pre qualification, or shortlisting, of vendors in order to determine a vendorÓs eligibility to submit proposals; and (b) the proposal submission, evaluation, and ranking. Part two is the negotiation phase. The instant proceeding relates only to part one. Part two negotiations has yet to occur. B. The TRT and Selection Committee Î The Evaluators 8. Cubic alleges that Ðnot all of the members of either [the Technical Review or Selection Committee] teams had the requisite experience or knowledge required by section 287.057(16)(a)1., Florida Statutes.Ñ Accenture alleges that Ðthe Selection Committee did not collectively have expertise in all of the subject areas covered by th[e] ITN.Ñ 9. Section 287.057(16)(a) provides in part that the agency head shall appoint Ð[a]t least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought.Ñ 3/ In accordance with the requirements of section 287.057(16)(a), the ITN established a Technical Review Team (TRT) that would be Ðcomposed of at least one representative from each Agency and may include consultant (private sector) staff.Ñ The ITN also provided for a Sele ction Committee that would be Ðcomposed of executive management at the Agencies.Ñ 10. Each agency executive director appointed two individuals from their agency to the TRT. Each agency director was familiar with the background and qualifications of thei r appointees, who had experience in various aspects of tolling operations including tolling, software, finance, and procurement. 11. The following individuals were appointed to serve on the TRT. Bren Dietrich, a budget and financial planner for FTE, has an accounting degree and has worked at FTE for 12 years in budget and financial planning. Mr. Dietrich has been a technical committee member for seven or eight procurements. Mohamed Hassan, a s enior o peration s m anager for FTE, has been in informatio n technology for nearly 40 years and with FTE for 22 years handling all aspects of software development and maintenance for the stateÓs largest tolling authority. Mr. HassanÓs expertise is in software development and maintenance. Mr. Hassan oversees sta ff that is responsible for maintaining the database application systems, hardware, communications coming in and going out of the customer service center, and any development projects such as transaction processing or account management system upgrades. St eve Andriuk is a deputy executive d irector for MDX and oversees all tolling operations within MDXÓs jurisdiction. Mr. AndriukÓs tolling background goes beyond his tenure at MDX, as he previously was an executive director at Chesapeake Bay Bridge A uthority . Jason Greene, MDXÓs comptroller of f in ancial controls and budget m anager, has a background in finance and accounting and in project management. Mr. Greene has been with MDX for 11 years. 12. Lisa Lumbard, who has been w ith OOCEA for 16 years, is the interim chief financial o fficer and previ ously was the manager of accounting and f inance. Ms. Lumbard runs OOCEAÓs finance and accounting office and has both procurement experience and substantial experience in the financial aspects of back offic e tolling . David Wynne is the director of toll o perations of OOCEA and is responsible for the overall collection of all tolls and for the violation enforcement process. Mr. Wynne has held some iteration of this position for approximately 11 years and worked for O OCEA for 16. He also has both procurement and substantial tolling exper ience. Robert Reardon, THEAÓs chief operating o fficer, is responsible for THEAÓs day to day operations, including tolls. Mr. Reardon has been with THEA for six years and has experien ce as a technical evaluator for public procurement s. Rafael Hernandez is THEAÓs manager of t oll o perations and oversees all toll operations within THEAÓs jurisdiction. 13. The TRT members collectively have the requisite knowledge and experience in tolli ng, software, finance, and procurement. 14. The following individuals constituted the Selection Committee. Diane Gutierrez Scaccetti has been FTEÓs e xecutive d irector since 2011 and worked for the New Jersey Turnpike Authority for over 20 years, the las t two as e xecutive d irector and the previous 14 as d eputy e xecutive d irector. Laura Kelley is OOCEAÓs d eputy d irector over f inance a dministration and the interim e xecutive d irector. Ms. Kelly has 30 yearsÓ experience in transportation finance and managem ent, 15 of which occurred at the Department and eight of which occurred at OOCEA overseeing information technology, finance, and procurement. Javier Rodriguez, MDXÓs e xecutive d irector, oversees all MDX operations, including planning, finance, operations, and maintenance functions. Mr. Rodriguez has been with MDX for seven years and was with the Department for over 15 years prior to his employment with MDX. Joseph Waggoner has been THEAÓs e xecutive d irector for approximately seven years. Prior to joinin g THEA, he was with the Maryland Department of Transportation for nearly 30 years, six of which were in tolling operations. 15. ITN s ection 2.6.2 provides as follows: Following Proposal Oral Presentations by all short listed Proposers (see section 2.25 P roposal Oral Presentations for additional details) the Technical Review Team members will independently evaluate the Proposals based on the criteria provided in Section 2.5.2 and will prepare written summary evaluations. There will then be a public meetin g of the Selection Committee at the date, time and location in Table 1 2 Procurement Timeline. The Technical Review TeamÓs compiled written summary evaluations will be submitted to the Selection Committee. The Technical Review and Selection Committee wil l review and discuss the individual summary evaluations, and the Selection Committee will come to consensus about ranking the Proposers in order of preference, based on their technical approach, capabilities and best value. In addition to the Technical Re view Team, the Selection Committee may request attendance of others at this meeting to provide information in response to any questions. 16. The ITN is structured such that both the TRT and the Selection Committee have shared responsibility for evaluati ng proposals, with the Selection Committee having ultimate responsibility for ranking the Proposers for the negotiations stage of the procurement process. 17. Combining the eight members of the TRT with the four members of the Selection Team means that t here were a total of 12 individuals tasked with the responsibility of evaluating the proposals prior to the negotiations stage of the process. C . Pre Qualification and Rankings 1 8 . In the pre qualification portion of the ITN, interested vendors initial ly submitted reference forms to demonstrate that the vendors met the minimum project experience set forth in the ITN. Vendors meeting this requirement were invited to give a full day Pre Qualification Oral Presentation to the TRT in which each vendor was given the opportunity to demonstrate its proposed system. Under ITN section 2.6.1, A Technical Review Team will attend the Pre Qualification Oral Presentations and will develop scores and written comments pertaining to the reviewed area(s) identified in S ection 2.5.1. The Technical Review Team will be composed of at least one representative from each Agency and may include consultant (private sector) staff. The scores provided by each Technical Review Team member for each area of the Pre Qualification Or al Presentations will be totaled and averaged with the scores of the other Technical Review Team members to determine the average score for an area of the Pre Qualification Oral Presentation. The average score for each area of a Pre Qualification Oral Pre sentation will then be totaled to determine a total Pre Qualification Oral Presentation score. 19 . Each vendorÓs Pre Qualification Oral Presentation was then scored based on criteria set forth in ITN section 2.5.1. Any vendor that received a score of 700 or higher was Ðshort listedÑ and invited to submit proposals. Put differently, those receiving a score of at least 700 were deemed qualified to submit formal proposals. 2 0 . ITN section 2.5.1 provides that the Ðreview/evaluation of the Pre Qualificat ion Oral Presentations will not be included in decisions beyond determining the initial short list of Proposers to proceed in the ITN process.Ñ Accordingly, the scores assigned in the pre qualification phase were irrelevant after the short listing. 2 1 . Six vendors submitted pre qualifications responses, including Xerox, Accenture, and Cubic. On January 21, 2014, the Department posted its short list decision, identifying that all six vendors, including Xerox, Accenture, and Cubic, were deemed qualified t o submit formal written proposals to the ITN (the ÐFirst PostingÑ). 2 2 . As required by section 120.57(3)(a), Florida Statutes, the posting stated, ÐFailure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes.Ñ This posting created a point of entry to protest, and no vendor initiated a protest. 2 3 . After the First Posting, short listed vendors submitted technical and price proposals and made Proposal Oral Presentations. 2 4 . ITN section 2.24 provides detailed instructions for technical and price proposal preparation and submission. ITN secti on 2.25 (as amended by Addendum 8) sets forth the process for short listed vendors to make Proposal Oral Presentations to the TRT. Short listed Proposers will each be scheduled to meet with the Technical Review Team for Proposal Oral Presentations of thei r firmÓs capabilities and approach to the Scope of Work and Requirements within the time period identified in Table 1 2 Procurement Timeline. Short listed Proposers will be notified of a time and date for their Proposal Oral Presentation. Proposal Oral P resentation sessions are not open to the public. The Selection Committee will attend these Presentations. In advance of the Proposal Oral Presentations Proposers will be given detailed instructions on what the format and content of the Proposal Oral Pres entation will be, including what functionality shall be demonstrated. The Department may also provide demonstration scripts to be followed. Proposers should be prepared to demonstrate key elements of their proposed System and Project approach and to resp ond to specific questions regarding their Proposals. These Proposal Oral Presentations will be used to present the ProposerÓs approach and improve understanding about the DepartmentÓs needs and expectations. The Technical Review Team will participate in all Proposal Oral Presentations. After each Oral Presentation, each individual on the Technical Review Team will complete a written summary evaluation of each ProposerÓs technical approach and capabilities using the criteria established in Section 2.5.2 i n order to assure the Technical Proposal and Oral Presentations are uniformly ranked. The evaluation will consider both the Technical Proposal and the Oral Presentations. 2 5 . ITN section 2.5.2 is titled ÐBest Value SelectionÑ and provides as follows: The Department intends to contract with the responsive and responsible short listed Proposer whose Proposal is determined to provide the best value to the Department. ÐBest value,Ñ as defined in Section 287.012(4), F.S., means the highest overall value to the state, based on objective factors that include but are not limited to . . . . ITN section 2.5.2 goes on to delineate seven Ðobjective factors,Ñ or evaluation criteria, on which proposals would be evaluated: • Company history • Project experience and qua lifications • Proposed Project approach to the technical requirements • Proposed approach to the Project plan and implementation • Proposed approach to System Maintenance • Proposed approach to Operations and performance • Price 2 6 . ITN section 2.6.2 explains the process for evaluation of technical proposals and Proposal Oral Presentations and states that: Following Proposal Oral Presentations by all short listed Proposers (see Section 2.25 Proposal Oral Presentations for additional details) the Technical Review Team members will independently evaluate the Proposals based on the criteria provided in Section 2.5.2 and will prepare written summary evaluations. There will then be a public meeting of the Selection Committee at the date, time and location in Table 1 2 Procurement Timeline. The Technical Review TeamÓs compiled written summary evaluations will be submitted to the Selection Committee. The Technical Review Team and Selection Committee will review and discuss the individual summary evaluations, and the Se lection Committee will come to consensus about ranking the Proposers in order of preference, based on their technical approach, capabilities and best value. In addition to the Technical Review Team, the Selection Committee may request attendance of others at this meeting to provide information in response to any questions. 27 . Of the six short listed vendors, five submitted proposals and gave Proposal Oral Presentations, including Xerox, Accenture, and Cubic. The Department then undertook a ranking usi ng the evaluation criteria delineated in ITN section 2.5.2. To perform this ranking, TRT members individually evaluated the proposals and prepared detailed, written evaluations that tracked the evaluation criteria factors. The TRTÓs evaluations, togethe r with proposal summaries prepared by HNTB, were provided to the Selection Committee in preparation for a joint meeting of the TRT and Selection Committee on April 9, 2014. 28 . At the April 9th meeting, the TRT and Selection Committee members engaged i n an in depth discussion about the bases for and differences between the individual TRT membersÓ rankings and evaluations. Thereafter, the Selection Committee made its ranking decision. 29 . On April 10, 2014, the Department posted its ranking of vendors, with Xerox first, Accenture second, and Cubic third (the ÐSecond PostingÑ). 3 0 . The Second Posting also announced the DepartmentÓs intent to commence negotiations with Xerox as the first ranked vendor. 4 / If negotiations fail with Xerox, negotiations w ill then begin with second ranked vendor Accenture, then Cubic, and so on down the order of ranking until the Department negotiates an acceptable agreement. 3 1 . Accenture and Cubic each timely filed notices of intent to protest the Second Posting and tim ely filed formal written protest petitions and the requisite bonds. D . Negotiations are not at Issue 3 2 . ITN section 2.26 provides: Once Proposers have been ranked in accordance with Section 2.6.2 Proposal Evaluation, the Department will proceed with n egotiations in accordance with the negotiation process described below. Proposers should be cognizant of the fact that the Department reserves the right to finalize negotiations at any time in the process that the Department determines that such election would be in the best interest of the State. ¤ Step 1: Follow the evaluation process and rank Proposals as outlined in Section 2.6 Evaluation Process. ¤ Step 2: The ranking will be posted, in accordance with the law (see Section 2.27), stating the Dep artmentÓs intent to negotiate and award a contract to the highest ranked Proposer that reaches an acceptable agreement with the Department. ¤ Step 3: Once the posting period has ended, the Negotiation Team will undertake negotiations with the first rank ed Proposer until an acceptable Contract is established, or it is determined an acceptable agreement cannot be achieved with such Proposer. If negotiations fail with the first ranked Proposer, negotiations may begin with the second ranked Proposer, and so on until there is an agreement on an acceptable Contract. The Department reserves the option to resume negotiations that were previously suspended. Negotiation sessions are not open to the public and all negotiation sessions will be recorded by the Depa rtment. ¤ Step 4: The Negotiation Team will write a short plain statement for the procurement file that explains the basis for Proposer selection and how the ProposerÓs deliverables and price will provide the best value to the state. ¤ Step 5: The De partment will contract with the selected Proposer. 3 3 . As Accenture and Cubic protested the decision by the Department to enter negotiations with Xerox (and because of the automatic stay provision of section 120.57(3), Florida Statutes) the negotiation phase of the procurement never commenced. Thus, this proceeding concerns the DepartmentÓs actions up to the Second Posting, and not what may happen during future negotiations. E . Second Posting and Intended Award 3 4 . Section 1.2 of the ITN sets forth the procurement timeline for the CCSS project. The ITN originally indicated that the ÐPosting of Ranking/Intended AwardÑ would occur on March 31, 2014. By addendum issued on February 13, 2014, the date for ÐPosting of Ranking/Intended AwardÑ was changed to April 10, 2014. Section 1.3.1 of the ITN provides an agenda for the April 10, 2014, ÐMeeting to Summarize and Determine Ranking/Intended Award.Ñ 3 5 . Section 2.27 of the ITN is labeled ÐPOSTING OF RANKING/INTENDED AWARD.Ñ Section 2.27.1, Ranking/Int ended Award, provides that Ð[t]he Ranking/Intended Award will be made to the responsive and responsible Proposer that is determined to be capable of providing the best value and best meet the needs of the Department.Ñ Section 2.27.2 is labeled ÐPosting of Short list/Ranking/Intended AwardÑ and provides in part that Ð[a]ny Proposer who is adversely affected by the DepartmentÓs recommended award or intended decision must . . . file a written notice of protest within seventy two hours after posting of the Int ended Award.Ñ 3 6 . Joint Exhibits 10 and 12 are copies of forms used to announce the rankings of the Proposers. It is not clear from the record if these forms are a part of the ITN. Nevertheless, the forms are identical in format. Each form has three b oxes that follow the words ÐTYPE OF POSTING.Ñ The first box is followed by the word ÐShortlist,Ñ the second box is followed by the word ÐRanking,Ñ and the third box is followed by the words ÐIntended Award.Ñ The form also has three columns that coincide with the three boxes previously referenced. 37 . The three columns are respectively labeled, ÐX indicates shortlisted vendor,Ñ Ðranking of negotiations,Ñ and ÐX indicates intended award.Ñ With respect to the last two columns, explanatory comments appeari ng at the bottom of the form read as follows: ** Ranking : The Department intends to negotiate separately and will award a contract to the highest ranked vendor that reaches an acceptable agreement with the Department. The Department will commence negotia tions with the number one ranked vendor until an acceptable contract is agreed upon or it is determined an acceptable agreement cannot be reached with such vendor. If negotiations fail with the number one ranked vendor, negotiations may begin with the sec ond ranked vendor, and so on down the order of ranking until the Department is able to negotiate an acceptable agreement. *** Intended Award : ÐXÑ in the Intended Award column indicates the vendor whom the Department intends to award the contract to, but does not constitute an acceptance of any offer created by the vendorÓs proposal or negotiations. No binding contract will be deemed to exist until such time as a written agreement has been fully executed by the Department and the awarded vendor. If irreg ularities are subsequently discovered in the vendorÓs proposal or in the negotiations or if the vendor fails to submit required [b] onds and insurance, fails to execute the contract, or otherwise fails to comply with the ITN requirements, the Department has the right to undertake negotiations with the next highest vendor and continue negotiations in accordance with the ITN process, reject all proposals, or act in the best interest of the Department. 38 . On April 10, 2014, the Department issued a posting w herein the ÐRankingÑ box was checked and the ÐIntended AwardÑ box was not. According to Sher ee Merting, it was a mistake to have only checked the ÐRankingÑ box because the box labeled ÐIntended AwardÑ should have also been checked. 39 . Petitioners co nte nd that by not simultaneously checking both the ÐRankingÑ and ÐIntended AwardÑ boxes that the Department materially changed the process identified in the ITN. Protest e rsÓ arguments as to this issue appear to be more related to form than substance. 4 0 . I n looking at the plain language of the ITN, it reasonably appears that the Department intended to simultaneously announce the ÐRankingÑ and ÐIntended Award.Ñ The fact that the Department failed to combine these two items in a single notice is of no conseq uence because neither Cubic nor Accenture have offered any evidence establishing how they were competitively disadvantaged, or how the integrity of the bidding process was materially imp air ed as a consequence of the omission . In other words, Sher ee Mertin gÓs confessed error of not checking the ÐIntended AwardÑ box contemporaneously with the ÐRankingÑ box is harmless error. See , e.g. , Fin. Clearing House, Inc. v. Fla. Prop. Recovery Consultants, Inc. , Case No. 97 3150BID (Fla. DOAH Nov. 25, 1997; DepÓt of Banking & Fin. Feb 4, 1998)(applying harmless error rule to deny protest where agency initially violated provisions of section 287.057(15), Florida Statutes, by selecting two evaluators instead of three required by statute, but later added required evaluat or). F . Sequential Negotiations 4 1 . As previously noted, section 2.26 of the ITN provides that following the ranking of the short list proposers, the ÐNegotiation Team will undertake negotiations with the first ranked Proposer until an acceptable Contr act is established . . . [and] [i]f negotiations fail with the first ranked Proposer, negotiations may begin with the second ranked Proposer, and so on until there is an agreement on an acceptable Contract.Ñ 4 2 . Petitioners assert that the Department ha s abandoned the sequential negotiation process set forth in section 2.26 and has announced Ðthat it will conduct the procurement negotiations only with Xerox as the number one ranked proposerÑ and that the process of negotiating with only one proposer is c ontrary to the law because section 287.057(1)(c) Ðrequires that the Department negotiate with all proposers wit hin the competitive range.Ñ 4 3 . Diane Gutierrez Scaccetti testified as follows (T: 1119): Q: Now, you understand that as a result of the rank ings that were posted on April 10 th , negotiations under this ITN are to proceed with only a single vendor, is that right? A: I believe the ITN provided for consecutive negotiations starting with the first ranked firm and then proceeding down until we rea ched a contract. 4 4 . Contrary to PetitionersÓ assertions, the evidence establishes that the Department intends to follow the negotiation process set forth in section 2.26. 4 5 . PetitionersÓ contention that section 287.057(1)(c) does not authorize sequ ential negotiations is a challenge to the terms, conditions, and specifications of the ITN and should have been filed within 72 hours after the posting of the solicitation as required by section 120.57(3)(b). Petitioners have waived their right of protest with respect to this issue. PetitionersÓ waiver notwithstanding, section 287.057(1)(c) does not preclude the type of sequential negotiation process set forth in section 2.26 of the ITN. 4 6 . Section 287.057(1)(c) provides in part that Ð[t]he invitation to negotiate is a solicitation used by an agency which is intended to determine the best method for achieving a specific goal or solving a particular problem and identifies one or more responsive vendors with which the agency may negotiate in order to rece ive the best value.Ñ (Emphasis added ) . Sec tion 287.057(1)(c)4. provides that Ð[t]he agency shall evaluate replies against all evaluation criteria set forth in the invitation to negotiate in order to establish a competitive range of replies reasonably sus ceptible of award [and] [t]he agency may select one or more vendors within the competitive range with which to commence negotiations. Ñ (Emphasis added ) . 47 . The opening paragraph of section 287.057(1)(c), which is essentially the preamble portion of the ITN provisions, expresses the purpose for which the ITN process was developed, to wit: Ðto determine the best method for achieving a specific goal or solving a particular problem.Ñ In furtherance of the stated purpose, the Legislature instructs, in the preamble, that the process should Ðidentif[y] one or more responsive vendors with which the agency may negotiate in order to receive the best value.Ñ If the preamble is read in statutory isolation, then one could reasonably conclude that if the agency ide ntifies more than one responsive vendor then the agency should negotiate with each of the vendors Ðin order to receive the best value.Ñ Arguably, the preamble merely looks at vendor ÐresponsivenessÑ as the guidepost for determining with whom the agency sh all negotiate. Mere ÐresponsivenessÑ however , is clearly not the only standard for selecting a vendor through the ITN process and illustrates why this portion of the statute cannot be read in isolation. 48 . As previously noted, subparagraph four of sect ion 287.057(1)(c), provides that the agency Ðshall . . . establish a competitive range of replies reasonably susceptible of award,Ñ and once this is done, Ð[t]he agency may select one or more vendors within the competitive range with which to commence nego tiations.Ñ (Emphasis added ). By using the word Ð mayÑ in subparagraph four, the L egislature is authorizing agencies to exercise discretion when selecting vendors with whom to negotiate. In exercising its discretion, agencies can decide to negotiate with a single vendor or with multiple vendors. An agencyÓs exercise of its discretion is not absolute and the ÐcheckÑ on the exercise of its discretion, in the context of the instant case, is a bid protest whereby an unsuccessful bidder can attempt to prove th at the procurement process was impermissibly tainted. Contrary to PetitionersÓ allegations, the sequential negotiation process utilized by the Department in the present case does not run afoul of section 287.057. 49 . Petitioners forcefully argue that th ey have been shutout of the negotiation process because neither of them was ranked first. This assertion mischaracterizes the nature of the sequential negotiation process used by the Department. The evidence shows that if the Department fails to come to terms with Xerox, then negotiations may begin with the second ranked vendor, and so on down the order of ranking until the Department negotiates an acceptable agreement. The truth of the matter is that neither of the protest ers has been shutout of the neg otiations. It is simply the case that neither occupies the preferred position of being the highest ranked, short listed vendor. 5 0 . Petitioners also argue that the Florida Department of Transportation Commodities and Contractual Services Procurement Man ual Î 375 040 020, prohibits sequential negotiations. For invitations to negotiate, the manual provides: There are two general negotiation methods used: 1) Competitive Method A Î Vendors are ranked based on technical qualifications and negotiations are conducted commencing with the first ranked vendor. 2) Competitive Method B Î Vendor qualifications are evaluated and vendors may be short listed. Negotiations of scope and price will be conducted with short listed or all vendors. An award is made to t he vendor with the best combination of proposal, qualifications, and price. According to Petitioners, the ITN does not comport with either Method A or Method B. Again, Petitioners failed to timely challenge the ITN specifications regarding sequential neg otiations and thus have waived th is argument. 5 1 . Even if the merits of the argument are considered, PetitionersÓ argument fail s . The methods described in the manual are not the only methods available to the Department; in fact, the manual, by stating t hat Ðthere are two general negotiation methods used ( e mphasis added ),Ñ recognizes that the methods are subject to refinement or modification as the Department deems best to meet the perceived needs of a particular solicitation as long as the final method c omplies with section 287.057(1), Florida Statutes. Further, the procurement manager for the ITN, Sheree Merting, testified that the shell, or template, provided by the DepartmentÓs central office, and used when drafting an invitation to negotiate, contain s a combination of the manualÓs methods A and B, which is referred to as A/B. The order of negotiations provided for in the ITN and reiterated in the First and Second Postings is not, therefore, inconsistent with the DepartmentÓs policies or procedures. G . Best Value Decision 5 2 . Petitioners contend that the Department, via the Second Posting, has already (and improperly) determined which vendor will provide the best value to the State even though negotiations have not yet occurred. This contention is not supported by the evidence. 5 3 . ITN section 2.5.2 states the DepartmentÓs intent to contract with the vendor whose proposal is determined to provide the best value and sets forth the statutorily mandated objective factors, or criteria, on which prop osals will be evaluated. ITN section 2.6.2 provides that the TRT and Selection Committee will review and discuss the TRT membersÓ individual summary evaluations and the Selection Committee Ðwill come to consensus about ranking the Proposers in order of pr eference, based on technical approach, capabilities and best value.Ñ 5 4 . The evidence reflects that the evaluation factors were applied during the evaluation process to formulate a best value ranking, but the question of which vendor ultimately provides the best value to the State will not be conclusively determined until after negotiations are concluded. See § 287.057(1)(c)4., Fla. Stat. (ÐAfter negotiations are conducted, the agency shall award the contract to the responsible and responsive vendor that the agency determines will provide the best value to the state, based on the selection criteria.Ñ). As testified by Ms. Gutierrez Scaccetti , Ð[t]he Selection Committee agreed upon the ranking of firms. It has not made an award.Ñ This is consistent with the ITN and Florida law, which require award to the best value proposer after negotiations. H . Evaluation Criteria Properly Followed 5 5 . As explained above, ITN section 2.5.2 sets forth the evaluation factors that the TRT and Selection Committee were to use in evaluating proposals. Petitioners allege that the TRT and Selection Committee did not follow the ITN and based their evaluations and rankings on factors other than those listed in ITN section 2.5.2. 5 6 . The evidence establishes that the TRT d id in fact use these factors, as evidenced by the detailed evaluation summaries prepared by each of the eight TRT members, which almost uniformly tracked these factors. Seven of these summaries are organized by headings that mirror the seven criteria of s ection 2.5.2. The remaining summary, prepared by TRT member Mohamed Hassan, was formatted in terms of pros and cons, but nonetheless addressed all of the s ection 2.5.2 evaluation criteria. Reflective of the TRTÓs approach, TRT member David Wynne prepared detailed, typed proposal summaries that are four pages long and single spaced for each proposal. Mr. WynneÓs summaries capture his deliberate thought process in ranking the proposals and include headings that directly tie back to the evaluation criteria in the ITN. His summaries include specific details from each proposal justifying his qualitative assessment of the proposals. For example, he discusses the benefits of XeroxÓs Vector 4G tolling platform, XeroxÓs proposed project schedule, and maintenance . Mr. Wynne even included a breakdown of the pricing and his thoughts on how the pricing compared to the other vendors. 57 . The other TRT members had equally detailed summaries. When read as a whole, these summaries demonstrate that the TRT engaged in a rational, deliberative, and thoughtful evaluation of the proposals based on the ITN criteria. 58 . Additionally, the TRT members testified that they applied the ITN section 2.5.2 factors in conducting their evaluations. Thus, the evidence demonstrates that the TRT members did as instructed in the ITN and evaluated proposals based on ITN section 2.5.2Ós factors . T here is no credible basis to find that the s ection 2.5.2 criteria were not the bases of the TRTÓs evaluations, rankings, and narratives. 59 . The evidence also establishes that the Selection Committee applied ITN section 2.5.2 factors in reaching its decision. The Selection Committee reviewed the TRT summaries, along with a detailed notebook prepared by HNTB, the DepartmentÓs consultant. The HNTB notebook was a comprehensive summary of information compiled from the vendorsÓ voluminous proposals and organized in a digestible format to aid the Selection CommitteeÓs review, including helpful summaries providing head to head objective comparisons of vendor pricing, software development, and vendorsÓ exceptions and assumptions. The HNTB notebook of materials objectively compiled the content taken directly from the vendorsÓ own proposals and included no editorial comments or opinions by the Departm entÓs consultants. 6 0 . Moreover, the HNTB notebook contained a chart summarizing the TRTÓs rankings by TRT member, along with copies of each TRT memberÓs detailed written summaries. It also contained a detailed, 36 page pricing summary that pulled price information directly from the vendorsÓ proposals and summarized the information in a manner that allowed for easy side by side comparison. 6 1 . The notebook also included a systems matrix summary that was prepared by taking proposed systems information d irectly from the vendorsÓ proposals and combining it in a format that could be easily processed. In fact, the notebook even included pages copied directly from the proposals. 6 2 . Armed with the comprehensive TRT summaries and the HNTB notebook, the Se lection Committee then engaged the TRT in a thoughtful and detailed discussion and analysis of the qualitative merits of each vendorÓs proposal all within the bounds of the s ection 2.5.2 criteria. 6 3 . Petitioners con tend that during the TRT and Selec tion CommitteeÓs discussions, issues such as risk were improperly considered. Although ÐriskÑ was not a separately labeled criterion under s ection 2.5.2 (Ðrisk of solutionÑ is , however , referenced as a sub bullet), risk is inherently a significant conside ration in each of the evaluation factors. Stated differently, the concept of risk is integral to the ITN section 2.5.2 factors, and the Department properly considered such risks. For example, a vendorÓs prior project experience whether it has successf ully completed similar projects before was a listed criterion, which is directly relevant to the risk the Department would take in selecting a vendor, that is, the risk that the vendorÓs experience is or is not sufficient to assure a timely project comp letion and quality services under the ITN. Indeed, section 287.057(1)(c) requires that the Department consider prior experience. 6 4 . Another example of risk considered by at least one Selection Committee member was the potential that AccentureÓs projec t manager would not be assigned solely to this project, but might be shared with AccentureÓs Illinois tolling project (Ðlocal presence commitmentÑ is referenced as a sub bullet in s ection 2.5.2). The evidence shows that Accenture stopped short of saying w ithout qualification that its project manager would be released from Illinois and solely assigned to CCSS. This uncertainty raised a risk concern whether the critical project implementation would be properly managed. Considerations such as these are rati onal and reasonable. I . The re is a Reasonable Basis for the DepartmentÓs Ranking 6 5 . Petitioners further contend that there was no reasonable basis for the DepartmentÓs intended decision to begin negotiations with Xerox. However, as explained above, t he evidence demonstrates the opposite as the TRT and Selection Committee collectively discussed and considered the evaluation criteria and the Selection Committee reached consensus on moving forward to negotiations with Xerox. Moreover, there is ample evi dence that the Selection CommitteeÓs decision was rational and reasonable. 6 6 . The TRT and Selection CommitteeÓs discussion at the April 9, 2014, meeting where the ranking decision was reached, demonstrates the studied analysis by which the evaluations w ere conducted. At the meeting, the four Selection Committee members, who had already reviewed the TRT membersÓ individual rankings and evaluations, each questioned the TRT members about their assessments of the proposals. Selection Committee members aske d about the bases for the differences between the individual TRT membersÓ evaluations, and the TRT members explained why they ranked the vendors the way they did. The discussion revolved around the top three ranked vendors, Xerox, Accenture, and Cubic, wh ich one TRT member described as being Ðhead and shoulders above the restÑ that is, above the vendors ranked fourth and fifth. 6 7 . As noted above, the Selection Committee membersÓ primary focus in these discussions was on risk assessment the finan cial risks, operations risks, and information technology risks that the TRT members believed accompanied each proposal. Major Selection Committee items of discussion included modifications to the existing systems, proprietary versus off the shelf software issues, and the vendorsÓ proximity to Florida. Additional discussion points included the risk associated with AccentureÓs use of multiple subcontractors and CubicÓs lack of experience with certain tolling systems. 6 8 . From these discussions, it appears that the overriding factor behind the Selection CommitteeÓs ranking decision at the April 9 meeting was XeroxÓs proven experience with other similar and large tolling projects, including some of the countryÓs largest tolling systems, which Accenture and C ubic simply did not possess. 5 / As one Selection Committee member expressed, Xerox brought a Ðcomfort levelÑ that did not exist with Accenture and Cubic. 69 . Moreover, Xerox, with 78 percent, is the leader in the evaluative category that looks at the per centage of the companyÓs existing baseline system that meets the CCSS requirements more than AccentureÓs and CubicÓs combined percentages. As the percentage of existing baseline system compliance increases, the implementation risks decrease. Selection Committee members Diane Gutierrez Scaccetti and Joseph Waggoner expressed the importance of this based on their firsthand experience with existing tolling systems in use for their respective agencies. 7 0 . In sum, this analysis and assessment is a vali d and reasonable basis for the DepartmentÓs decision. 7 1 . Cubic also contends that such analysis is improper because the ITN allowed transit firms to submit proposals, thus making tolling experience an irrelevant evaluative factor. This contention fai ls because by prequalifying transit firms to bid, the Department was not precluded from considering a vendorÓs specific tolling experience as part of the evaluative process. Contrary to CubicÓs allegation, the factors listed in ITN section 2.5.2, includin g ÐProject Experience and Qualifications,Ñ contemplate tolling experience as being part of the relevant analysis. Therefore, the Selection Committee was fully authorized under the ITN to consider the benefits of a proven commodity a firm with XeroxÓs e xtensive tolling experience. The Selection CommitteeÓs qualitative assessment that, on the whole, Xerox was the better choice for commencing negotiations was supported by reason and logic and was wholly consistent with the ITN specifications. 7 2 . Petiti oners further argue that the DepartmentÓs ranking decision is inconsistent with the pre qualification scoring, where Accenture and Cubic each scored slightly higher than Xerox. This argument fails as ITN section 2.5.1 expressly provides that the evaluatio ns and scoring of the Pre Qualification Oral Presentations will not be included in decisions beyond determining the initial short list. Regardless, these three vendors were essentially tied in that scoring: AccentureÓs score was 885.38, CubicÓs was 874.7 5, and XeroxÓs was 874.00. 7 3 . Petitioners also contend that the Selection CommitteeÓs ranking decision is inconsistent with the ranking decision of the TRT majority. The ITN is clear, however, that the Selection Committee would be the final arbiter of ranking. J . No Demonstrations Were Cancelled 7 4 . The procurement timeline in the original ITN allotted ten business days for Proposal Oral Presentations. The revised timeline in Addendum 8 allotted two days. Cubic asserts that this reduction in prese ntation time occurred because the Department, without explanation, cancelled planned vendor demonstrations that were to occur during Proposal Oral Presentations, thus placing Cubic at a disadvantage as it was unable to present its demonstrations to Selecti on Committee members. Cubic also asserts that the cancellation of demonstrations is an indication that the Department had already made up its mind to select Xerox. 7 5 . The ITN and the testimony are unequivocal that no demonstrations were Ðcancelled.Ñ ITN section 2.25 contemplates that the Department may request demonstrations in the proposal evaluation phase but in no way states that demonstrations will be held. Section 2.25 also provides that if any demonstrations were to be held, they would be as d irected by the Department. Thus, the ITN did not guarantee Cubic any presentation , as Cubic suggests. Moreover, all vendors were treated equally in this regard. 7 6 . Further, the evidence reflects that the decision to hold demonstrations only during the Pre Qualification Presentations was made when the ITN was released and that the Department never planned to have vendor demonstrations at the Proposal Oral Presentations. Indeed, during the mandatory pre proposal meeting, the Department informed all vend ors of the planned process, to include one demonstration at the pre qualification phase and an oral presentation and question and answer session during the proposal and ranking phase. 7 7 . In short, Cubic presented no credible evidence i n support of its a llegations regarding the alleged cancellation of the demonstrations or any resulting harm. K . Exceptions and Assumptions were properly considered 7 8 . The ITN required vendors, in their technical proposals, to identify assumptions and exceptions to contr act terms and conditions. Significantly, the ITN states that the Department is not obligated to accept any exceptions, and further that exceptions may be considered at the DepartmentÓs discretion during the evaluation process. ITN Technical Proposal Sect ion 9 provides, in its entirety: ¤ Technical Proposal Section 9: Exceptions and Assumptions If Proposers take exception to Contract terms and conditions, such exceptions must be specified, detailed and submitted under this Proposal section in a separate, signed certification. The Department is under no obligation to accept the exceptions to the stated Contract terms and conditions. Proposers shall not identify any exceptions in the Price Proposal. All exceptions should be noted in the certification pro vided for in Proposal Section 9. Proposers shall not include any assumptions in their Price Proposals. Any assumptions should be identified and documented in this Section 9 of the Proposal. Any assumptions included in the Price Proposals will not be con sidered by the Department as a part of the Proposal and will not be evaluated or included in any Contract between the Department and the Proposer, should the Proposer be selected to perform the Work. Failure to take exception in the manner set forth above shall be deemed a waiver of any objection. Exceptions may be considered during the Proposal evaluation process at the sole discretion of the Department. 79 . Petitioners allege that the ITN did not clearly set forth how vendorsÓ exceptions and assumpti ons would be treated and that the Department accordingly failed to consider such exceptions and assumptions. This is a belated specifications challenge and therefore has been waived. Regardless, the evidence demonstrates that both the TRT and Selection C ommittee did, in fact, consider the exceptions and assumptions in the evaluation and ranking of proposers. 8 0 . The TRT and Selection Committee were instructed to consider exceptions and assumptions and to give them the weight they deemed appropriate subj ect to staying within the confines of the ITNÓs s ection 2.5.2 criteria. Consistent with these instructions, some TRT members included comments regarding exceptions and assumptions in those membersÓ evaluation summaries, reflecting that exceptions and assu mptions were considered during the evaluation process. Other TRT members considered the exceptions of minimal significance given that the Department would address them during negotiations and was not bound to agree to any. Indeed, the evidence was that i t was the DepartmentÓs intent to sort out the exceptions and assumptions in the negotiation process and, again, that the Department need not agree to any exceptions initially set forth by the vendors. Thus, the Department acted rationally and within the b ounds of the ITN and its discretion when considering exceptions and assumptions. L . The Selection Committee Reached Consensus 8 1 . Accenture alleges that the Selection Committee failed to carry out its duty to reach a ÐconsensusÑ in ranking vendor prop osals. The evidence establishes the exact opposite. 8 2 . The ITN provides that the Selection Committee will come to ÐconsensusÑ about ranking the vendors in order of preference, based on technical approach, capabilities, and best value. A consensus does not require unanimity. 8 3 . According to the testimony of Selection Committee member Javier Rodriguez, who was the only Selection Committee member who voted for Accenture as his first choice, Ðat the end, Xerox got three votes from the Selection Committe e; Accenture got one. So for me, consensus meant: Are we in consensus to move forward with Xerox? And as I said at the selection meeting, I didnÓt object. So from a consensus standpoint, weÓre moving on to starting negotiations with Xerox, and that was the intent.Ñ Therefore, the unrebutted evidence is that the Selection Committee did, in fact, reach consensus. M . Subject Matter Experts 8 4 . Accenture contends that the TRT and Selection Committee made use of subject matter experts in the course of the evaluation and ranking in violation of Florida statutory requirements and governing procurement policies. The record, however, is void of any substantial competent evidence in support of these allegations. 8 5 . Tim Garrett is the tolls p rogram m anag er for HNTB under the General Engineering Consulting contract for FTE. Mr. Garrett was the overall project manager assigned to support FTE in the development and execution of the ITN. He and other HNTB employees, such as Wendy Viellenave and Theresa Wee kes, CPA, provided support to both TRT and Selection Committee members in regards to summarizing proposals and defining the process. There is no evidence that any employee of, or sub consultant to , HNTB communicated qualitative assessments or opinions abo ut any of the competing proposals to TRT or Selection Committee members. Rather, the evidence shows that HNTB facilitated the TRTÓs and Selection CommitteeÓs evaluation work by presenting to the committee members data in the form of summaries, charts, and recapitulations pulled from the voluminous technical and price proposals submitted by the five competing vendors. 8 6 . Other than the support provided by HNTB, the record is essentially devoid of evidence that proposal evaluators made use of subject ma tter experts. 6/ But in any event, neither P etitioner has made a showing that the use of subject matter experts is pro scribed by governing statutes, rules, policies, or the specifications of the ITN. 8 7 . Although the use of subject matter experts was not addressed in the ITN itself, the Department, before the Pre Qualification Oral Presentations in early January 2014, issued written ÐInstructions to Technical Review Committee.Ñ These instructions authorized TRT members to confer with subject matter exper ts during the procurement process on specific technical questions and subject to certain additional parameters, as follows: Subject Matter Experts Subject matter experts are authorized to support the TRC on specific technical questions that the TRC membe rs may have throughout the procurement process. Subject matter experts may respond to questions on any aspect of the procurement or pr o posal, but may not b e a s ked to, nor will they support, the evaluation of proposal s , which is the re s ponsibility of each TRC member. A subject matter expert can discuss the specific elem e nt s of the ITN and a vendorÓs proposal with a TRC member, but they cannot meet with more than o ne TRC member at a time, unless in a public meeting Î subject to the Procurement Rules of Cond u ct stated above. The subject matter experts are fact finders. A subje ct matter expert cannot disclose the specific questions a sked by another TRC member. 8 8 . No evidence has been presented to establish that the Instructions to Technical Review Commit tee, as to the use of subject matter experts, violated Florida law or the terms of the ITN, or that any subject matter expert whether affiliated with HNTB or not failed to perform within the parameters set forth in the Instructions. 7/ 89 . Both Pet itioners devoted significant hearing time to the FTE consultancy work of John McCarey, McCarey Consultants, LLC, and John Henneman, an employee of Atkins Engineering, Inc., and sub consultant to HNTB. There has been no showing by Petitioners that either M r. McCarey or Mr. Henneman served as a subject matter expert to any member of the TRT or Selection Committee or that either had improper contacts in regards to the evaluation or ranking of the vendors. 9 0 . The undisputed evidence is that Mr. McCarey did not serve as a subject matter expert for any of the evaluators. As for Mr. Henneman, although one TRT member testified in deposition that he Ðbelieve[d]Ñ Mr. Henneman was a technical expert or considered one of the subject matter experts, there is no evid ence that Mr. Henneman served as a subject matter expert for any of the evaluators TRT or Selection Committee. 9 1 . In sum, there is simply no evidence that any of the subject matter experts had any improper influence on the TRT or Selection Committee members. 8/ N . N o Improper Contacts, Attempts to Influence, or Bias 9 2 . Cubic alleges that there was improper contact between the Department and Xerox during this protest that violates the statutorily imposed Ðcone of silenceÑ for procurements. Cubic a lso asserts that there were attempts by Xerox to influence the evaluations or rankings based on the DepartmentÓs, or the other agencies Ó , past or existing relationships with Xerox or XeroxÓs acquired entities. 9 3 . There simply is no record support for th e assertions that there was any improper contact or any attempt by any person to influence the DepartmentÓs evaluations or rankings based on past or existing relationships between the Department and Xerox or XeroxÓs acquired entities. 9 4 . XeroxÓs counsel did not have any contact with the TRT or the Selection Committee prior to the filing of the protests and the attendant ÐstopÑ of the procurement process pursuant to section 120.57(3)(c), Florida Statutes. The only contact XeroxÓs counsel had with TRT or Selection Committee members was as a participant with the DepartmentÓs counsel in pre deposition meetings with some witnesses designated by Petitioners all in the context of ongoing litigation following the filing of AccentureÓs and CubicÓs protest peti tions. This contact is essentially no different than PetitionersÓ contact with Department personnel in depositions and the trial, as well as during the section 120.57(3)(d)1., Florida Statutes, settlement conference with the Department. 9 5 . Furthermore, all such contact was after both the TRTÓs and the Selection CommitteeÓs work under the ITN was completed and the said contact was of no import to the procurement process. 9 6 . In short, there is no evidence of attempts by Xerox to influence the process, improper contact between Xerox and the Department, or Department bias in favor of Xerox. O . Responsiveness of XeroxÓs Proposal 9 7 . The evidence, at best, is that the Department has yet to fully vet the representations made in the proposals by the respe ctive Proposers, including Xerox. Protesters suggest that such a full vetting is a condition precedent to negotiations. Such an argument, however, ignores ITN section 2.12, which has to be reconciled with ITN section 2.9.1 b). 9 8 . ITN section 2.9.1 b) provides in part that Ð[t]he Proposer shall have Key Team members with the following experience at the time of Proposal submission.Ñ The section then goes on to list several positions that fall within the ÐKey Team PersonnelÑ category. Petitioners conten d that the Contract Project Manager, Quality Assurance Manager, and Human Resources Manager proposed by Xerox fail to meet the ÐQualifications of Key Team PersonnelÑ set forth in ITN section 2.9.1 b), thus rendering the Xerox proposal nonresponsive. 99 . ITN section 2.12 provides in part that Ð[a]fter the Proposal due date and prior to Contract execution, the Department reserves the right to perform . . . [a] review of the ProposerÓs . . . qualifications [and that] [t]his review will serve to verify data a nd representations submitted by the Proposer and may be used to determine whether the Proposer has an adequate, qualified, and experienced staff.Ñ 10 0 . XeroxÓs omission, at this point in the process, amounts to a non material deviation from the ITN speci fications given that ITN section 2.12 reserves in the Department the right to review key personnel representations made by Xerox, and any other short listed Proposer, at any ti me Ðprior to Contract execution. Ñ 10 1 . Cubic also contends that Xerox and Acc enture submitted conditional Price Proposals rendering their proposals non responsive under ITN section 2.16. The analysis turns on the provisions of Technical Proposal Section 9: Exceptions and Assumptions, which provides a detailed description of how e xceptions and assumptions are to be provided by vendors, and explains that Ð[e]xceptions may be considered during the Proposal evaluation process at the sole discretion of the Department.Ñ 10 2 . As provided by the ITN, all vendors included a detailed list ing of exceptions and assumptions in their Technical Proposal. 10 3 . Consistent with the discretion afforded to the Department under ITN Technical Proposal Section 9 to consider listed exceptions during the Proposal evaluation process, the Department then made the following inquiry of each of the Proposers: 8. Please identify whether your price proposal is based on the DepartmentÓs acceptance of the Exceptions in Section 9 of your technical proposal? 9. Please identify whether your price proposal is bas ed on the DepartmentÓs acceptance of the Assumptions in Section 9 of your technical proposal? Xerox responded to both inquiries as follows: ÐThe Xerox price proposal is based on the assumptions and general risk profile created by the inclusion of Sectio n 9. We assume the parties will reach mutual agreement on the issues raised in Section 9 without a material deviation in the price proposal.Ñ 10 4 . In addition to providing written answers to the questions, the vendors also addressed these issues in th e Proposal Oral Presentations in response to questions by the Department. By the end of the Proposal Oral Presentations, all three vendors had made clear to the Department that resolution of exceptions and assumptions would not affect the proposed price. For example, XeroxÓs senior executive in charge of the procurement, Richard Bastan, represented that there is no financial implication to any of the exceptions and that Xerox would honor the terms and conditions and the scope of services in the ITN for th e price set forth in the Price Proposal. Accordingly, none of the proposals were improperly conditioned, and Xerox, Accenture, and Cubic were treated equally. 10 5 . Cubic also contends that XeroxÓs proposal was nonresponsive as Xerox allegedly failed to meet the stated experience minimums for transactions processed and accounts maintained. There is, however, no credible evidence to support this contention. Indeed, the evidence is that the Department, through its consultant HNTB, verified these requirem ents by calling the referenced projects. Moreover, Xerox met or exceeded the stated minimums with its New York project reference . The DepartmentÓs decision that Xerox was responsive on this issue is logical , reasonable , and supported by the evidence . P. Price Proposals 10 6 . ITN section 2.5.2 lists ÐpriceÑ as a factor to consider in determining ÐBest Value.Ñ The vendorsÓ price proposals were presented to the TRT members for purposes of conducting their evaluations. Price was also an appropriate facto r for consideration by the Selection Committee. 1 0 7 . Accenture argues that Ð[t]he ITN does not indicate how pricing will be considered by FDOT during the selection process.Ñ AccentureÓs contention that the ITN failed to disclose the relative importance of price is a challenge to the terms, conditions, and specifications of the ITN and should have been filed within 72 hours after the posting of the solicitation , as required by section 120.57(3)(b). Accenture has waived its right of protest with respect t o this issue. Q. Conflict of Interest 1 0 8 . Accenture complains that Ð[n]either Mr. Henneman nor Mr. McCarey submitted conflict of interest forms as required under the DepartmentÓs Procurement Manual . . . [because both] were present during the oral pre sentations made by the vendors in connection with this procurement.Ñ Accenture also complains that Wendy Viellenave never disclosed that her husband works for TransCore, a company that is a subcontractor for Xerox. Ms. ViellenaveÓs husband currently wor ks for TransCore as a maintenance and installation manager in California and has not worked in Florida in nearly twenty years. 1 09 . There is no credible evidence that Ms. Viellenave, through the relationship with her husband, has any ÐsignificantÑ direct or indirect financial or otherwise interest in TransCore that would interfere with her allegiance to the Department. The fact that Ms. Viellenave is married to an individual that works for a Xerox subcontractor is insufficient, in itself, to establ ish a real or potential conflict of interest. 11 0 . Jack Henneman currently runs the back office operation for FTE at its Boca Raton facility. His future role for the CCSS is as p roject m anager for the implementation of the CCSS. Mr. Henneman became aw are of the CCSS procurement through his work on a Florida Transportation Commission Report that culminated in 2012. This report documented the cost efficiencies for all of the tolling authorities in Florida. 11 1 . Mr. Henneman attended some of the Pre Qu alification Demonstrations as his schedule would permit because he is the Ðgo forwardÑ p roject m anager for the CCSS implementation. 11 2 . Mr. Henneman formerly worked for ACS from 2002 Î 2009, and met Ms. Gutierrez Scaccetti during his employment with the company. Mr. Henneman was the transition manager for the transfer of the back office operation of the New Jersey Turnpike from WorldCom to ACS. Mr. Henneman did not have any contact with Ms. Gutierrez Scaccetti from approximately 2009 to 2012. 11 3 . In his capacity as the Ðgo forward Ñ p roject m anager, Mr. Henneman reviewed the technical proposals submitted by the vendors in the instant proceeding but he did not have any discussions with the TR T members or the Selection Committee members about the prop osals. He reviewed the technical proposals for the purpose of educating himself so that he would be better prepared to carry out his functions as the Ðgo forwardÑ p roject m anager. 11 4 . John McCarey is a sub consultant to FTE general engineering contrac tor, Atkins. Mr. McCarey has a future role as being a part of the negotiations group for the CCSS. Mr. McCarey formerly worked for Lockheed for approximately 25 years and then spent 5 years working for ACS. Mr. McCarey was the c hief f inancial o fficer f or ACSÓs State and Local Solutions Group at one time. Mr. McCarey left the employment of ACS in 2006. Mr. McCarey currently assists with various functions, including work on issues with the consolidation of the back office systems of OOCEA and FTE. For approximately 10 years before becoming a sub consultant, Mr. McCarey had not had any contact with Ms. Gutierrez Scaccetti . As it relates to the CCSS project, there is no persuasive evidence that Mr. McCarey provided recommendations to the TR T or the Selec tion Committee. CONCLUSIONS OF LAW 1 1 5 . The Division of Administrative Hearings has jurisdiction to hear this protest and to issue a recommended order. §§ 120.569 and 120.57, Fla. Stat. 1 1 6 . This is a de novo proceeding to determine whether the Depa rtmentÓs notice of intent to negotiate with Xerox is contrary to the DepartmentÓs governing statutes, rules, or policies or to the ITN specifications. § 120.57(3)(f), Fla. Stat. Although this is a de novo proceeding, DOAH does not substitute its judgment for that of the Department. Instead, DOAH engages in a form of Ðinter agency review,Ñ the object of which is to evaluate the action taken by the Department. State Contracting & EngÓg Corp. v. DepÓt of Transp. , 709 So. 2d 607, 609 (Fla. 1st DCA 1998). 1 1 7 . Petitioners have the burden of proof. Petitioners must establish that the DepartmentÓs proposed action (the intent to negotiate) was either: (1) contrary to the agencyÓs governing statutes, (2) contrary to the agencyÓs rules or policies, or (3) cont rary to the ITN specifications. § 120.57(3)(f), Fla. Stat. 1 1 8 . To prevail, Petitioners must prove that the agencyÓs proposed action was: (1) clearly erroneous; (2) contrary to competition; or (3) arbitrary or capricious (that is, an abuse of discret ion). R.N. Expertise, Inc. v. Miami Dade Cnty. Sch. Bd. , Case No. 01 2663BID (Fla. DOAH Feb. 4, 2002; Sch. Bd. Miami Dade Mar. 20, 2002). Petitioners must establish all of the above by a preponderance of the evidence. Id. 1 1 9 . Agency action will be fo und to be clearly erroneous if it is without rational support and, consequently, the Administrative Law Judge has a Ðdefinite and firm conviction that a mistake has been committed.Ñ United States v. U.S. Gypsum Co. , 333 U.S. 364, 395 (1948); see also Pers hing Indus., Inc. v. DepÓt of Banking & Fin. , 591 So. 2d 991, 993 (Fla. 1st DCA 1991). Agency action may also be found to be clearly erroneous if the agencyÓs interpretation of the applicable law conflicts with the lawÓs plain meaning and intent. Colbert v. DepÓt of Health , 890 So. 2d 1165, 1166 (Fla. 1st DCA 2004). 1 20 . An act is contrary to competition if it (1) creates the appearance of and opportunity for favoritism; (2) erodes public confidence that contracts are awarded equitably and economically; (3) causes the procurement process to be genuinely unfair or unreasonably exclusive; or (4) is unethical, dishonest, illegal, or fraudulent. Syslogic Tech. Servs., Inc. v. S. Fla. Water Mgmt. Dist. , Case No. 01 4385BID (Fla. DOAH Jan. 18, 2002), modified in part , Case No. 2002 051 (Fla. SFWMD Mar. 6, 2002). 12 1 . An arbitrary decision is one not supported by facts or logic or one that is despotic. Agrico Chem. Co. v. State DepÓt of Envtl. Reg. , 386 So. 2d 759, 763 (Fla. 1st DCA 1978). To act capricious ly is to act without thought or reason or to act irrationally. Id. 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 B asic Mats. Co. v. DepÓt of Transp. , 602 So. 2d 632, 634 n.3 (Fla. 2d DCA 1992). 12 2 . This procurement process is governed by the Ðinvitation to negotiateÑ provisions of section 287.057(3), Florida Statutes. The invitation to negotiate process is disting uished from requests for proposals and invitations to bid in part because it provides the State and competitors more flexibility in crafting a solution to meet the StateÓs needs. Invitations to negotiate are used when an agency determines that negotiation s may be necessary for the State to receive the best value. § 287.057(1)(c), Fla. Stat. 12 3 . Section 287.057 provides: The criteria that will be used for determining the acceptability of the reply and guiding the selection of the vendors with which t he agency will negotiate must be specified. The evaluation criteria must include consideration of prior relevant experience of the vendor. The agency shall evaluate replies against all evaluation criteria set forth in the invitation to negotiate in order to establish a competitive range of replies reasonably susceptible of award. § 287.057(1)(c)3 . 4 . , Fla. Stat. 12 4 . Once evaluations are completed, [t] he agency may select one or more vendors within the competitive range with which to commence negot iations. After negotiations are conducted, the agency shall award the contract to the responsible and responsive vendor that the agency determines will provide the best value to the state, based on the selection criteria. § 287.057(1)(c)4 . , Fla. Stat. 1 2 5 . Thus, chapter 287 provides for two distinct parts to every ITN. The first part consists of submission of proposals or replies, evaluations, and ranking. The second part consists of negotiations with vendors selected from the ranking. In other wor ds, an agency first determines which vendors are responsive and reasonably susceptible of award. The agency is then free to negotiate with one or more vendors and award a contract to the vendor that provides the best value , taking into consideration the s election criteria of the ITN. R . The TRT and Selection Committee had the Requisite Experience 1 2 6 . Section 287.057(16)(a)1., Florida Statutes, requires that evaluation committees Ðcollectively have experience and knowledge in the program are as and service requirements.Ñ 1 2 7 . Implicit in Protesters Ó arguments regarding the qualifications of the TRT and Selection Committee is the contention that the Selection Committee and TRT have to each, independent of the other, comply with the provisio ns of section 287.057(16)(a). Protesters are reading the statute too narrowly. 1 2 8 . Given the evaluative nexus between the Selection Committee and the TRT, it is not necessary, and the statute does not require, that each member of the TRT and Selection Committee possess Ðtechnical qualificationsÑ related to the underlying procurement. The statute only requires that at least three persons, who collectively have experience and knowledge in the program area for which contractual services are sought, be app ointed to evaluate the proposals. This is precisely what was done in the instant case. 1 2 9 . The collective experience of the TRT and Selection Committee more than satisfies the requirements of section 287.057(16)(a). Therefore, the Department acted con sistent with the statute, and its decision to use the TRT and Selection Committee members for this procurement is not clearly erroneous, contrary to competition, arbitrary, or capricious. S . The Department Complied with the ITN and Florida Law 1 30 . As explained in the Findings of Fact, the DepartmentÓs actions in short listing and ranking vendors were consistent with the ITN and section 287.057, Florida Statutes. The short listing and the ranking processes were carried out in a rational, delibe rate, and thoughtful manner by the TRT and Selection Committee by applying the ITN evaluation criteria and by considering the materials and information submitted by vendors. The evidence affirmatively establishes that the Selection CommitteeÓs consensus r anking was reasonable and rational and that all vendors were afforded a level playing field. Therefore, it is concluded that the DepartmentÓs actions complied with the ITN specifications and Florida law. T . The Second Posting is Consistent with the I TN 13 1 . PetitionersÓ argument that the Second Posting does not comport with the ITN and Florida law is rejected. Under section 287.057(1)(c)4., Florida Statutes, the Department must post an award after the negotiations are conducted. The record is uneq uivocal that the negotiation phase of this procurement has not occurred. The DepartmentÓs Second Posting is simply a ranking and notice that negotiations will commence with Xerox as the first ranked proposer. 13 2 . The Department acted within its authori ty to publish the Second Posting. Section 120.57(3)(a) requires that an agency provide a notice of rights to accompany Ða decision or intended decision concerning a solicitation, contract award, or exceptional purchase by electronic posting.Ñ Although th e statute does not specifically use the word Ðranking,Ñ agencies have discretion in determining at what point Ðthe necessary or convenient procedures . . . by which an agency transacts its day to day businessÑ crystallize into Ðagency actionÑ and permit th e offering of a point of entry. Capeletti Bros., Inc. v. DepÓt of Transp. , 362 So. 2d 346, 348 (Fla. 1st DCA 1978). The Department properly exercised its discretion to post a decision or intended decision concerning the solicitation here that is, the intent to enter negotiations with Xerox. See Barton Protective Servs., LLC v. DepÓt of Transp. , Case No. 06 1541BID (Fla. DOAH July 20, 2006; DepÓt of Transp. Aug. 21, 2006) (recommending dismissal of protest challenging FDOTÓs announced intention to comm ence negotiations with vendor ranked first by FDOTÓs selection committee). In short, the Second Posting is not prohibited by law or policy, and the posting was well within the range of discretion afforded to the Department in transacting its official busi ness. 13 3 . Moreover, Petitioners were made aware by the ITNÓs plain terms that the Department intended to publish the ranking. Assuming for purposes of argument that the ITN was unclear in this regard, Petitioners had an opportunity to challenge the spe cifications if they believed the specifications were vague. Petitioners did not do so and have waived the right to challenge the specifications. § 120.57(3)(b), Fla. Stat.; Optiplan, Inc. v. Sch. Bd. of Broward Cnty. , 710 So. 2d 569, 572 (Fla. 4th DCA 1 998). 13 4 . PetitionersÓ other contentions that the DepartmentÓs decision to engage in sequential negotiations is impermissible and that sequential negotiations will not yield the best value to the State are simply incorrect as a matter of law. The ITN p lainly provided that the Department would engage in sequential negotiations. Petitioners failed to timely challenge those specifications and thus have waived the argument. § 120.57(3)(b), Fla. Stat.; Optiplan at 572. Nevertheless, even if PetitionersÓ ar guments are considered, the DepartmentÓs decision to enter sequential negotiations is consistent with the ITN and not otherwise prohibited by statute, rule, or policy. 13 5 . Chapter 287 does not mandate that an agency negotiate with any particular number of vendors in an ITN. Instead, the statute expressly provides that an agency may negotiate with as few as one vendor. § 287.057(3)(b), Fla. Stat. The statute also does not mandate that negotiations be sequential or concurrent. That is, an agency may al so choose to negotiate with one vendor at a time or may negotiate with multiple vendors at the same time. See id. The evidence conclusively establishes that the Department disclosed it would engage in sequential negotiations beginning with the first rank ed vendor, and the DepartmentÓs decision to proceed as announced is consistent with the ITN and Florida law. 13 6 . Additionally, PetitionersÓ argument that sequential negotiations will not yield the best value to the State is rejected. The undersigned do es not accept PetitionersÓ proposition that best value can be achieved only by inviting two or more vendors to negotiations when the plain language of section 287.057 provides for negotiations with one or more vendors. Id. U . There Was No Improper Use o f Subject Matter Experts 13 7 . As explained in the Findings of Fact, Petitioners have failed to demonstrate that any TRT or Selection Committee member impermissibly used subject matter experts. The use of subject matter experts is prohibited whe n these experts become de facto members of the decision making committee. Cf. R.N. Expertise, Inc. v. Miami Dade Cnty. Sch. Bd. , Case No. 01 2663BID (Fla. DOAH Feb. 4, 2002; Sch. Bd. Miami Dade Mar. 20, 2002) (concluding that consultant improperly became de facto evaluator when he went beyond even handed explanation of technical process or objective summary of proposalsÓ details). As explained in the Findings of Fact, the evidence affirmatively establishes that all consultants and procurement personnel st ayed well within their boundaries. PetitionersÓ arguments are therefore rejected. V . The Improper Contact Arguments Are Rejected 13 8 . As to the purported Ð cone of silence Ñ violation, Petitioners have failed to allege conduct that is improper or imperm issible. The cone of silence is intended by section 287.057(23), Florida Statutes, to prohibit vendors from contacting agency personnel during the pendency of a procurement in an attempt to influence the decision makers. PetitionersÓ argument that the co ne of silence has been violated is premised on an improper reading of the statute in the context of bid protests, as the cone of silence provision must be read in conjunction with chapter 120, the Uniform Rules, and the Florida Rules of Civil Procedure (as applicable here). PetitionersÓ interpretation is far too broad as it would effectively foreclose the right to conduct discovery, interview witnesses, confer with other parties with similarly aligned interests, and take any other action permissible under the applicable rules and privileges, just as exists in any other litigation. 1 3 9 . The Ðcone of silenceÑ provision cannot be interpreted or applied to prevent such activities and has not been so interpreted in the few cases addressing the cone of silence. Three Division recommended orders have addressed the cone of silence requirement since the provisionÓs adoption. See Health Mgmt. Sys., Inc. v. Ag . for Health Care Servs. , Case No. 08 2566BID (Fla. DOAH Aug. 15, 2008; Ag. for Health Care Admin. Sept. 2, 2008); CTS Am. v. DepÓt of Highway Safety & Motor Vehicles , Case No. 11 3372BID (Fla. DOAH Oct. 19, 2011; Dept. of Transp. Nov. 14, 2011); Roam Secure, Inc. v. Div. of Emerg. Mgmt. , Case No. 07 5454BID (Fla. DOAH Apr. 23, 2008; Div. of Emerg. Mgmt. May 30 , 2008). None of these cases applied the cone of silence provision to actions taken during the discovery process of bid protests; instead, all recognized the applicability during active procurements where vendors attempted to improperly influence an agenc yÓs decision prior to a protest. The allegations in the present case stand in stark contrast to these cases, as the instant allegations all center on contacts occurring after the filing of AccentureÓs and CubicÓs protests and during the actual litigation process. 1 40 . Finally, even if the litigation contacts can somehow be considered improper, section 287.057(23) does not mandate disqualification. Instead, such a decision is left to the agencyÓs discretion, where the agency must consider such factors as whether anti competitive harm or a competitive advantage results. On these factors, no such anti competitive result is present as the TRTÓs and Selection CommitteeÓs evaluative work was complete at the time of the protest and the related litigation. W . XeroxÓs Proposal Was Responsive 14 1 . Finally, there is no evidence that XeroxÓs proposal was nonresponsive to the ITN requirements or that the Department erred in determining that Xerox is responsive. Therefore, the DepartmentÓs decision to enter n egotiations with Xerox is not contrary to statute, rule, or policy, and is not clearly erroneous, contrary to competition, arbitrary, or capricious. X . Conflict of Interest 14 2 . Section 287.057(17)(a), Florida Statutes, provides in part that Ð[e]ach ag ency must avoid, neutralize, or mitigate significant potential organizational conflicts of interest before a contract is awarded.Ñ 14 3 . Section 2.2 of the DepartmentÓs Commodities and Contractual Services Procurement Manual (Section 2) provides in part as follows: [t]he Conflict of Interest Certification Î Form No. 375 030 50, must be completed and signed by each individual involved in the development of the specifications or scope of work, the development or selection of criteria to be used for evaluat ion, the evaluation process, and the award process for all procurements of commodities/services that cost more than the dollar threshold amount for Category Two. 14 4 . The evidence is insufficient to support AccentureÓs claim that either Jack Henneman or Wendy Viellenave should have filed a conflict of interest form. Similarly, the evidence is also insufficient to support AccentureÓs claim that John McCarey should have filed a conflict of interest form. However, since Mr. McCarey was hired to assist wit h the yet to commence negotiation phase of this procurement, consideration should be given as to whether s ection 2.2 requires his completion of a conflict of interest form due to his possible involvement in the Ðaward process.Ñ RECOMMENDATION Based on the Findings of Fact and Conclusions of Law, it is recommended that PetitionersÓ protests be dismissed. DONE AND ENTERED this 4th day of September , 2014 , in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 4t h day of September , 2014 . ENDNOTE S 1/ All subsequent references to Florida Statutes will be to 2013, unless otherwise indicated. 2/ The question whether the Department has the authority to purchase services on behalf of and for the use of the other t ransportation authorities is not before DOAH . Accenture moved to file a second amended petition to include this issue. The motion was denied. Nevertheless, based on the findings in this Recommended Order, it is concluded that the Department does in fact and as a matter of law have the authority to issue the ITN. 3/ Xerox moved to strike paragraphs 24, 25, 27, 28, 76, and 153 of AccentureÓs Proposed Recommended Order Ðto the extent those paragraphs contain any allegations or argument about whether the T RT or the Selection Committee were appointed by the DepartmentÓs agency head . . . which is an issue not pleaded or otherwise identified in AccentureÓs Amended Protest Petition.Ñ The motion is granted and the undersigned will not address the referenced ar guments in this Recommended Order. 4/ Sher ee Merting testified that she forgot to check the ÐIntended AwardÑ box on the ITN posting tabulation form. This omission by Ms. Merting, as explained infra , is harmless as none of the proposers were advantaged o r disadvantaged by the occurrence of the same. 5 / Of the three vendors, only Xerox has fully operational tolling systems in the United States, with existing long term contracts with the two largest back office systems in the U nited S tates; New York and N ew Jersey. 6/ TRT member Mohamed Hassan conferred with one of his subordinate project managers at FTE who suggested that Mr. Hassan use a Ðpros and consÑ format for the written summary evaluation. There is nothing improper about this conversation. 7/ Xerox does not have the burden to prove a negative, so to speak, but Mr. GarrettÓs testimony as p roject m anager is probative. He knows of no instance in which the Instructions as to subject matter experts were not followed. More specifically, he knows of no subject matter expert who evaluated proposals or made any recommendations as to one vendor over another. (Tr. 578) In other words, no person performing the role of subject matter expert became a de facto evaluator. 8/ Petitioners seem to suggest th at some subject matter experts had conflicts of interest because of prior relationships with Xerox. Except for suppositions and innuendo, there was no evidence of favoritism by the subject matter experts or anyone else with the Department. COPIES FURNIS HED: Albert T. Gimbel, Esquire Messer Caparello, P.A. 2618 Centennial Place Tallahassee, Florida 32308 (eServed) Eduardo S. Lombard, Esquire Vezina, Lawrence and Piscitelli, P.A. 413 East Park Avenue Tallahassee, Florida 32301 (eServed) W. Robert Vezina, III, Esquire Vezina, Lawrence and Piscitelli, P.A. 413 East Park Avenue Tallahassee, Florida 32301 (eServed) John A. Tucker, Esquire Foley and Lardner, LLP One Independent Drive , Suite 1300 Jacksonville, Florida 32202 (eServed) Robert H. Hosay, Esquire Foley and Lardner, LLP 106 East College Avenue , Suite 900 Tallahassee, Florida 32301 (eServed) J. Stephen Menton, Esquire Rutledge Ecenia, P.A. 119 South Monroe Street, Suite 202 Post Office Box 551 (32302) Tallahassee, Florida 32301 (eServed) James A. McKee, Esquire Foley and Lardner, LLP 106 East College Avenue , Suite 900 Tallahassee, Florida 32301 (eServed) Denise Johnson, Esquire Florida Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399 0458 An anth Prasad, Secretary Florida Department of Transportation Haydon Burns Building, Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399 0450 (eServed) Gerald B. Curington, General Counsel Florida Department of Transportation Haydon Burns Buildi ng, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399 0450 (eServed) Trish Parsons, Clerk of Agency Proceedings Florida Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399 0450 (eServed) NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions within 1 0 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 14-002322BID

Orders for Case No: 14-002322BID