STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RANGER CONSTRUCTION INDUSTRIES, INC.,
Petitioner,
vs.
DEPARTMENT OF TRANSPORTATION,
Case No. 15-5535BID
Respondent,
and
COMMUNITY ASPHALT CORPORATION,
Intervenor.
/
RECOMMENDED ORDER OF DISMISSAL
This case is before the undersigned on Respondent’s Motion for Summary Recommended Order or in the Alternative Motion to Relinquish Jurisdiction (Motion to Relinquish). Respondent essentially contends that Petitioner’s notice of intent to protest and subsequent Formal Written Protest (Petition) were untimely challenges to the specifications in a request for proposals (RFP) as amended by addenda, that Petitioner waived its opportunity to protest the specifications, and that the material facts regarding these questions are not in dispute. Petitioner counters that even if the original Petition is considered an untimely challenge to the RFP specifications only, Petitioner
should be allowed to amend the Petition. Further, Petitioner contends that Respondent’s failure to post the RFP and addenda on the MyFloridaMarketPlace vendor bid system means that the points of entry provided to Petitioner in the RFP and addenda were ineffective as clear points of entry, so no waiver can be found. Petitioner does not appear to contend that the material facts are disputed regarding these issues.
The proceeding was bifurcated, for a threshold determination on the potentially dispositive issues raised by the Motion to Relinquish. The parties submitted an affidavit and two deposition transcripts with deposition exhibits in support of, or in opposition, to the Motion to Relinquish. No party requested an evidentiary hearing with regard to the issues presented in this first part of the bifurcated proceeding, nor did any party request oral argument on the Motion to Relinquish as they were invited to do. No hearing is necessary.
APPEARANCES
For Petitioner: William Robert Vezina, Esquire
Eduardo S. Lombard, Esquire Megan S. Reynolds, Esquire
Vezina, Lawrence and Piscitelli, P.A.
413 East Park Avenue Tallahassee, Florida 32301
For Respondent: Paul J. Martin, Esquire
Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
For Intervenor: Bryan Lee Capps, Esquire
Sean M. Dillon, Esquire
Moye, O'Brien, Pickert & Dillon, LLP 800 South Orlando Avenue
Maitland, Florida 32751 STATEMENT OF THE ISSUE
The ultimate issue presented in this part of the bifurcated proceeding is whether the Petition should be dismissed as an untimely protest to the RFP specifications. Subsidiary issues presented are whether any such timeliness defect could be cured by allowing Petitioner to amend its Petition, and whether the points of entry provided to Petitioner with the RFP, as amended, were ineffective to operate as clear points of entry because Respondent did not also post the RFP and addenda amending the RFP on the MyFloridaMarketPlace vendor bid system.
PRELIMINARY STATEMENT
On May 20, 2015, Petitioner, Ranger Construction Industries, Inc. (Petitioner or Ranger), filed with Respondent, Department of Transportation (Respondent or DOT), a notice of intent to protest the intended award for project E4Q35, involving the widening of Kanner Highway in Martin County (Kanner Highway Project).
Petitioner filed a protest bond with its notice of intent to protest. On June 1, 2015, Petitioner filed its Petition. The Petition sought to reverse the intended award based on allegations that Addendum 3 improperly amended the RFP after submission of vendors’ technical proposals, and that Addendum 3
improperly disclosed concepts in Petitioner’s technical proposal to the other vendors and allowed the vendors to benefit from Petitioner’s efforts without appropriately compensating Petitioner.
The matter was referred to the Division of Administrative Hearings (DOAH) on September 30, 2015, for an administrative hearing pursuant to sections 120.569, 120.57(1), and 120.57(3), Florida Statutes (2015).1/
On October 2, 2015, the final hearing was set for October 30, 2015, and an expedited Order of Pre-Hearing Instructions (OPI) was issued.
On October 6, 2015, Intervenor gave notice of its appearance as a specifically named person whose substantial interests are being determined in this proceeding. Although the Petition only referred to Intervenor as a “vendor” and a “competitor,” the notice of appearance alleged, and it is undisputed, that Intervenor is the intended contract awardee for the Kanner Highway Project. Pursuant to Florida Administrative Code Rule
28-106.211(3), Intervenor’s appearance in support of DOT’s intended decision was acknowledged.
On October 7, 2015, Respondent moved to dismiss the Petition on the grounds that it was an untimely protest to the RFP specifications as amended by Addendum 3. The motion contended, and Exhibit A to the motion appeared to show, that when DOT
issued Addendum 3, it issued a revised RFP that incorporated the Addendum 3 changes, and the revised RFP provided a point of entry to protest its terms, conditions, and specifications. However, Respondent acknowledged in the motion that the timeliness question could not be determined without considering facts outside the four corners of the Petition. The motion was denied without prejudice, based on that concession.
On October 13, 2015, Petitioner filed a Motion for Leave to Amend Petition, to which a proposed Amended Formal Written Protest (Amended Petition) was attached. Respondent responded in opposition on October 14, 2015. Respondent pointed out that, unlike the original Petition, the proposed Amended Petition disclosed the date on which Addendum 3 was issued, and that this disclosure established the untimeliness of the notice of protest and original Petition to contest the RFP specifications as amended by Addendum 3. Respondent contended that the original Petition should be dismissed without leave to amend, because the proposed Amended Petition showed that amendment would be futile to cure the timeliness defect: “Absent a time machine, no amendment can cure that defect[.]” Response, ¶ 7.
On October 15, 2015, Petitioner filed a Motion for Leave to File Reply, or, Alternatively, for Oral Argument with respect to its Motion for Leave to Amend Petition. On October 16, 19,
and 20, 2015, Petitioner filed notices of depositions and amended notices of depositions.
On October 19, 2015, pursuant to the OPI, the undersigned’s office was informed by Respondent that a discovery dispute had arisen with regard to the noticed depositions that required resolution by the undersigned. Between that matter and the dispute regarding Petitioner’s Motion for Leave to Amend Petition, a telephonic status conference hearing was coordinated and noticed for the afternoon of October 20, 2015.
Shortly before the telephonic hearing, Respondent filed its Motion to Relinquish, with supporting affidavit attached.
Counsel for all parties participated in the telephonic status conference hearing. The undersigned conducted the hearing by mobile phone from New Port Richey, Florida, as the undersigned was on the road that week for other hearings, but that did not impair the ability of all participants to fully communicate. The undersigned indicated that the newly filed Motion to Relinquish, reviewed briefly, appeared to raise the same threshold question of timeliness as raised in the motion to dismiss, but this time, the issue was raised by an appropriate vehicle for consideration of certain material outside the four corners of the Petition.
Given the potentially dispositive nature of the timeliness issue, the undersigned suggested bifurcation of the proceeding, pursuant to rule 28-106.211, to consider the Motion to Relinquish
and responses that Petitioner and Intervenor indicated they intended to file. The parties agreed to this approach. The undersigned indicated that ruling on Petitioner’s pending Motion for Leave to Amend Petition would be reserved until a determination could be made on whether there was a timeliness defect with the original Petition, and if so, whether that defect was curable by amendment.
Discussion ensued regarding the noticed depositions. The parties agreed that depositions would be limited to the issues raised by the Motion to Relinquish, provided that a subsequent opportunity would be provided for depositions if the issues raised by the Motion to Relinquish were resolved in Petitioner’s favor in the first phase of the bifurcated proceeding.
Petitioner agreed to go forward only with a deposition of Respondent’s designated representative on specified subjects, which would be limited to the issues raised in the Motion to Relinquish. Likewise, it was agreed that Intervenor could proceed with a deposition of Petitioner’s representative on similarly limited designated subjects. The parties agreed that responses to the Motion to Relinquish and supporting material would be filed by the normal response due date of October 27, 2015 (seven days after the Motion to Relinquish was served).
Finally, the undersigned indicated that the scheduled final hearing would not go forward as noticed on October 30, 2015, but
that the hearing time would be reserved for a potential hearing on the Motion to Relinquish, which any party could request by the time responses were to be filed.
On October 27, 2015--the date on which responses and supporting materials were due--Petitioner filed a “partially unopposed” motion for a one-day extension to the filing deadline, which was unopposed by Intervenor. Respondent filed a response in opposition. The motion was granted, and Petitioner and Intervenor timely filed their responses to the Motion to Relinquish on October 28, 2015. Transcripts of the depositions of Petitioner’s and Respondent’s representatives, along with deposition exhibits, were also filed.
An Order issued on October 29, 2015, confirmed the agreed bifurcation of the proceeding, and cancelled the October 30, 2015, hearing. As indicated in the Order, since no party had requested that the hearing be convened to address the Motion to Relinquish, the Motion to Relinquish would be decided on the basis of the parties’ filings.
On October 30, 2015, Petitioner filed an Amended Motion for Leave to Amend Petition. In addition to amending the motion itself, the motion attached a proposed [Second] Amended Formal Written Protest (Second Amended Petition). On October 30, 2015, Intervenor filed a response in opposition, and on November 2,
2015, Respondent filed a response in opposition. The proposed Amended and Second Amended Petitions are addressed below.
SUMMARY OF DETERMINATION
The Motion to Relinquish invokes the procedure in section 120.57(1)(i), Florida Statutes, which provides as follows:
When, in any proceeding conducted pursuant to this subsection, a dispute of material fact no longer exists, any party may move the administrative law judge to relinquish jurisdiction to the agency. An order relinquishing jurisdiction shall be rendered if the administrative law judge determines from the pleadings, depositions, answers to interrogatories, and admissions on file, together with supporting and opposing affidavits, if any, that no genuine issue as to any material fact exists. If the administrative law judge enters an order relinquishing jurisdiction, the agency may promptly conduct a proceeding pursuant to subsection (2), if appropriate, but the parties may not raise any issues of disputed fact that could have been raised before the administrative law judge. An order entered by an administrative law judge relinquishing jurisdiction to the agency based upon a determination that no genuine dispute of material fact exists, need not contain findings of fact, conclusions of law, or a recommended disposition or penalty.
The undersigned has determined from the pleadings, depositions, and affidavit on file that no genuine issue as to any material fact exists with regard to the dispositive issues raised by the Motion to Relinquish, and that, based on the undisputed facts, the Petition should be dismissed as untimely.
The undersigned has also determined that the untimeliness of the original Petition is not a pleading defect that can be cured by amendment. Neither the proposed Amended Petition nor the proposed Second Amended Petition cure the untimeliness of the original Petition, and Petitioner has not demonstrated through deposition testimony, affidavit, or otherwise that the deficiency can be cured.
Although the proposed Amended Petition and Second Amended Petition are not accepted, the undersigned has fully considered Petitioner’s argument (set forth in the proposed amended petitions but not in the original Petition) that the premise of the Motion to Relinquish--that Petitioner waived clear points of entry--should be rejected because of the means by which Respondent conveyed those points of entry. Here, too, the material facts are not disputed. The undersigned concludes that clear points of entry were provided in accordance with the requirements of the following: section 120.57(3) and the uniform rules of procedure; the statutory authority and implementing rules of the Department of Management Services (DMS) with regard to electronic posting, the MyFloridaMarketPlace vendor bid system, and exceptions to the required use of that system; and Respondent’s statutory authority and implementing rules.
While it is recognized that, per section 120.57(1)(i), this Order “need not” contain findings of fact, conclusions of law,
and recommended disposition, the undersigned chooses to do so here, to fully explain the bases for these determinations and to offer the legal analysis leading to the recommended disposition.
FINDINGS OF FACT
By this action, Petitioner seeks to reverse Respondent’s intended decision to award a contract to Intervenor for a design- build project to widen Kanner Highway from four lanes to six lanes over a 4.3 mile stretch in Martin County (the Kanner Highway Project).
Instead of awarding a contract to Intervenor, Petitioner contends that Respondent should reject all proposals and conduct a new procurement. Petitioner’s complaint is directed to Respondent’s issuance of one or more addenda as RFP amendments after the three shortlisted vendors submitted technical proposals, but before they submitted price proposals.
Adjusted Score Design-Build Process for Kanner Highway Project
DOT is the state agency authorized to contract for the construction and maintenance of roads designated as part of the State Highway System, the State Park Road System, and other roads placed under DOT’s supervision by law. § 337.11(1), Fla. Stat.
When DOT determines, as it did for the Kanner Highway Project, “that it is in the best interests of the public [to] combine the design and construction phases” of certain projects into a single contract, DOT is authorized to use the design-build
contract procurement procedures generally outlined in section 337.11(7) for competitive selection of a design-build firm.
Section 337.11(7)(b) authorizes DOT to “adopt by rule procedures” that detail the processes and procedures by which design-build projects are publicly announced, qualified design- build firms are selected to submit bid proposals, and the firm to receive the contract award is selected. DOT’s rules carrying out the authority conveyed in section 337.11(7)(b) are codified in Florida Administrative Code Chapter 14-91.2/
The solicitation for the Kanner Highway Project began with the posting of a Notice to Contractors/Consultants on DOT’s website, which set forth a general description of the project, identified required submittals, and provided a draft RFP, as specified in rule 14-91.005 (“Public Announcement Procedures”). The notice with draft RFP was first posted on September 22, 2014, on the “planned advertisement” webpage, to give a heads-up to the vendor community that a public announcement was forthcoming for this project. The official announcement was posted on October 6, 2014, on DOT’s design-build “current advertisement” webpage.
As required by rule 14-91.005, the posted notice advised that for the Kanner Highway Project, DOT would use the adjusted score design-build (ASDB) process.
The notice also described the ASDB process, which is a two-phase process.
In the first phase, interested design-build firms were required to file an expanded letter of interest (ELOI) by October 27, 2014, demonstrating their qualifications to perform the work contemplated by the project, as generally described in the notice and preliminarily detailed in the draft RFP. The notice specified the required ELOI contents and supporting documents, the minimum qualification requirements by work class, and the criteria for evaluating and scoring the ELOIs.
The notice provided that ELOIs and supporting documents “shall be submitted electronically” in .pdf format attached to a single electronic mail (email) transmission. In turn, each ELOI was to designate and give contact information, including email address, for the design-build firm’s contact person.
As authorized by section 337.11(7)(b)9., and rule 14- 91.007(8), the posted notice also provided the criteria by which DOT would pay stipend compensation to certain design-build firms who are not ultimately awarded the contract.
Both public announcements (posted on September 22, 2014, and on October 6, 2014), contained the following:
Pursuant to Sections 120.57(3) and 337.11, Florida Statutes, and Rule Chapter 28-110, Florida Administrative Code, any person adversely affected by the agency decision or intended decision shall file with the agency both a notice of protest in writing and bond within 72 hours after the posting of the notice of decision or intended decision, or posting of the solicitation with respect to a
protest of the terms, conditions, and specifications contained in a solicitation and will file a formal written protest within ten days after the filing of the notice of protest. The required notice of protest and bond, and formal written protest must each be timely filed with the Florida Department of Transportation, Clerk of Agency Proceedings, 605 Suwannee St, Mail Station 58, Tallahassee, FL 32399-0458. Failure to file a notice of protest or formal written 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.
There were no notices of protest filed within 72 hours of the posted solicitation, nor formal written protests within 10 days after a notice of protest, to contest the terms, conditions, or specifications in the Kanner Highway Project solicitation.
Four design-build firms submitted ELOIs for the Kanner Highway Project, were determined to be responsive, and were scored. The ELOI scores were posted on DOT’s website on the procurement office’s page for design-build selection results. At the top of this webpage, an all-bold point of entry is provided in the same language contained in the public announcement notice. There were no notices of protest filed within 72 hours after the ELOI scoring results were posted, nor any formal written protests within 10 days after a notice of protest.
Consistent with rule 14-91.007(2)(a) and the process described in the public announcements, design-build firms whose
ELOIs were responsive and scored were required to provide DOT with written affirmation by December 10, 2014, of the firms’ intent to proceed to phase two. Three of the four firms--the three with the best ELOI scores--provided written affirmation: Petitioner, Intervenor, and Prince Contracting, LLC. In accordance with rule 14-91.007(2)(a), those three firms were shortlisted and, thereby, eligible to proceed to phase two, receive the final RFP and addenda, and submit technical and price proposals.
For design-build projects using the two-phase ASDB process, the RFP developed by DOT serves the purpose of “furnish[ing] sufficient information for Design-Build Firms to prepare technical and price proposals,” and the RFP is provided only to shortlisted firms, because only the shortlisted firms are eligible to submit technical and price proposals. Fla. Admin. Code R. 14-91.007(2)(a) and (3). Thus, while a “draft” RFP for the Kanner Highway Project was attached to the public announcement posted on DOT’s website, the “final” RFP was not posted on DOT’s website. Instead, DOT followed the procedure in rule 14-91.007(3), by providing the final RFP directly to the three shortlisted firms.3/
As is apparently common practice with design-build procurements, the so-called “final” Kanner Highway Project RFP was not actually final; it was amended by several addenda.4/
RFP addenda are posted on DOT’s website. The Contracts Administration page for design-build projects identifies the addenda by number, and the addenda themselves are linked and can be accessed by clicking on each number.
The addenda are also transmitted by email to an email list of contact persons for the shortlisted firms. In addition, each time an addendum is issued that amends the “final” RFP, the entire RFP, as amended, is reissued and transmitted with the same email message. A redlined version of the reissued RFP is also transmitted with the same email message, to highlight the addendum changes and put them in context with the whole RFP.
Emails transmitting the Kanner Highway Project addenda, the reissued RFPs as amended by the addenda, and the redlined versions of the reissued RFPs, as amended by the addenda, were sent to the three shortlisted firms with a “high importance” flag and a request to confirm the receipt of the email.
Petitioner’s designated representative--its president, Bob Schafer--confirmed in his deposition testimony that this was the procedure followed for the Kanner Highway Project.
Mr. Schafer confirmed that Petitioner received the emails transmitting each of the six addenda, and Petitioner confirmed receipt within minutes of the transmittals.
The Kanner Highway Project RFP, in its “final” form and in each reissued form as amended by addenda, is a 62-page
document, not counting attachments. The first two pages of the RFP is a Table of Contents. Page one of the RFP lists a section called “Protest Rights,” which appears at page nine.
Beginning on page nine of each version of the RFP, as reissued and amended by the addenda, a separate section identified as “Protest Rights” provides as follows:
Any person who is adversely affected by the specifications contained in this Request for Proposal must file a notice of intent to protest in writing within seventy-two hours of the posting of this Request for Proposals. Pursuant to Sections 120.57(3) and 337.11, Florida Statutes, and Rule Chapter 28-110, Florida Administrative Code, any person adversely affected by the agency decision or intended decision shall file with the agency both a notice of protest in writing and bond within 72 hours after the posting of the notice of decision or intended decision, or posting of the solicitation with respect to a protest of the terms, conditions, and specifications contained in a solicitation and will file a formal written protest within ten days after the filing of the notice of protest. . . .
[Agency Clerk address provided for filing]
Failure to file a notice of protest or formal written protest with 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.
No notices of protest were filed within 72 hours of the electronic transmittal of each reissued RFP, as amended by
addenda, nor were formal written protests filed within 10 days after a notice of protest, to protest the terms, conditions, and specifications in any of the reissued RFPs, as amended by addenda.
After Addenda 1 and 2 were issued, the three shortlisted firms submitted technical proposals by the deadline on March 16, 2015.
Addendum 3, the reissued RFP, and the redlined reissued RFP were transmitted by a single email sent to the shortlisted firms on April 27, 2015, at 5:03 p.m. Petitioner confirmed receipt of the email transmittal 20 minutes later, at 5:23 p.m.
Petitioner knew of its objections to Addendum 3 as soon as it was read, which was within hours of its electronic transmittal on April 27, 2015. Petitioner took steps to notify DOT of its objections regarding Addendum 3, but those steps did not include filing a notice of protest to the amended RFP specifications within 72 hours after its transmittal or receipt.
Instead, Mr. Schafer, Jason Daley (Ranger’s designated contact person for the project), David Wantman of the Wantman Group (engineering firm that is a member of Petitioner’s design- build team), and Randy Cropp with Cone & Graham (bridge contractor team member) had a telephone conference with John Olsen (described by Mr. Schafer as DOT’s design-build
coordinator), and “two or three people from the Department, I’m not sure other than John.” (Schafer deposition at 17).
Mr. Schafer said he believed the conference call was the day after Addendum 3 was received, which was April 28, 2015.
On April 29, 2015, at 10:23:55 a.m., Mr. Schafer sent an email to Gerry O’Reilly, P.E., the DOT District Four Secretary, with copies to Jim Boxold (DOT Secretary, the agency head), and Bob Burleson with the Florida Transportation Builders’ Association. The email text was as follows:
Guys,
I’m extremely disappointed. What is going on in D-4 with releasing Team’s cost saving ideas. For the second time in two projects, either an ATC [Alternative Technical Concept] or concept in our Technical Proposal, one of our cost saving ideas has been released to the other bidders by the Department. For this $20+M project, a drainage concept that would’ve saved about $1.2M has been released by Addendum to all the bidders, after the Technical Proposals were submitted and 2 weeks prior to the submission of the numbers. Why has that happened???
I have partners on this project in Cone & Graham and Wantman Group that, along with Ranger, have spent a lot of money and man- hours trying to “design a better mouse trap” to give us a competitive advantage. If we’re not successful on this one, we may not have a choice but to protest. This has got to Stop.
Two subsequent emails, from representatives of the Wantman Group and Cone & Graham, echoed Mr. Schafer’s complaints. All three emails were sent on April 29, 2015, with the last
transmittal being made at 6:20 p.m., approximately 49 hours after Petitioner received the email transmittal with Addendum 3.
Addendum 4, the reissued RFP, and the redlined reissued RFP were transmitted by a single email sent to the three shortlisted firms, including Petitioner, on May 4, 2015, at
4:11 p.m. Petitioner confirmed receipt of the email transmittal three minutes later, at 4:14 p.m.
Addendum 5, the reissued RFP, and the redlined reissued RFP were transmitted by a single email message transmitted to the three shortlisted firms, including Petitioner, on May 5, 2015, at 12:10 p.m. Petitioner confirmed receipt of the email transmittal two minutes later, at 12:12 p.m.
The three shortlisted firms, including Petitioner, submitted sealed lump-sum price proposals and proposed contract time (number of calendar days to complete the project) for the Kanner Highway Project by the May 6, 2015, deadline.
Petitioner’s price proposal acknowledged that as of May 6, 2015, Petitioner had received Addenda 1 through 5 during the bidding period, and specified the dates of receipt of each addendum.5/
Thereafter, Respondent calculated the “adjusted scores,” using the following components: the technical score (combination of the ELOI score and the technical proposal score), the proposed contract time, the time value costs provided in the
RFP ($7,093 per day), and the bid price proposal. The formula, set forth in the RFP, is the bid price proposal plus the product of the proposed contract time in number of days times the time value cost per day, divided by the technical score (ELOI, or phase one, score, plus technical proposal, or phase two, score). As provided in the RFP, the design-build firm to be selected is the one whose adjusted score is the lowest.
The adjusted score calculation components and results, announced at a public meeting and posted on the DOT website, were as follows:
If We Are Not Successful, We Might Have To Protest: The Petition
As forewarned, within 72 hours after DOT announced and posted the results on its website, showing that Intervenor had the lowest adjusted score and was the intended awardee, and that Petitioner’s proposal was in third place, Petitioner filed its notice of protest and protest bond. Within 10 days thereafter (as extended to the following Monday, day 12, by virtue of the uniform rules of procedure), Petitioner filed its Petition.
The Petition sets forth the objections to Addendum 3 voiced in the April 29, 2015, emails, alleging in pertinent part:
Technical proposals had already been submitted by the time Addendum 3 was
released. Thus, the Department changed the proposal requirements after submission of vendors’ proposals. (Petition, ¶ 11).
In Addendum 3, which was issued one day after the Q&A – after Ranger submitted its drainage concept as part of its technical proposal – the Department adopted Ranger’s drainage concept, significantly revising the plan for SMF 4, utilizing a smart box drainage control structure, and Basin 4’s piping system, including relocating SMF 4 structures and retaining existing pipes. That is, the Department gave the other vendors Ranger’s design for use by the other vendors after the technical proposals had been submitted and opened. (Petition, ¶ 15).
Although none of the other vendors had included this design in their original technical proposals, they each improperly benefitted from Ranger’s efforts to develop a unique, substantially improved, more cost efficient plan: in violation of Florida law, the Department disclosed Ranger’s proposal concept to these firms, and, by mandating through Addendum 3 that all vendors use Ranger’s design concept, effectively allowed the other vendors to revise their own proposals after the technical proposal submission deadline and base their pricing on Ranger’s concept. (Petition, ¶ 16).
The end result of the Department’s improper reveal of Ranger’s design concept was the posting of an intended award of the contract to another vendor instead of Ranger . . . making no attempt whatsoever to compensate Ranger for handing others the benefits that Ranger had earned. (Petition, ¶ 17).
The complaint that Addendum 3 changed the RFP after submission of the technical proposals is a complaint directed to the RFP specifications as reissued on April 27, 2015.
As to Petitioner’s complaint about not being compensated, it is not clear whether the Petition’s references are to stipend compensation or to some other asserted basis for compensation. The references to Petitioner not being compensated are not tied to the relief sought, which is a rejection of all bids (and not payment of compensation).
To the extent Petitioner is attempting to assert a right to stipend compensation, such a request would be premature and would not be grounds for rejection of all bids. The RFP provides that non-selected shortlisted firms are eligible for stipend compensation if they have executed the Design-Build Stipend Agreement, and if they submit an invoice “after the selection/award process is complete.” (RFP at 62). By virtue of this proceeding, the selection/award process is not complete.
Any other claim of a right to compensation would not be cognizable in a bid protest proceeding, as apparently Petitioner recognizes by not actually seeking compensation as relief.
The Proposed Amended Petition
In reaction to Respondent’s motion to dismiss the Petition as an untimely specifications challenge, on October 13, 2015, Petitioner offered the proposed Amended Petition. The proposed Amended Petition seeks to add to the claim that Addendum 3 modified the RFP’s specifications after the technical
proposals were submitted, by extending that same claim to Addenda
4 and 5; that is, that Addenda 3, 4, and 5 modified the RFP’s specifications after the technical proposals were submitted. (Amended Petition, ¶ 11).
With regard to the suggestion that Petitioner’s protest was an untimely challenge to the RFP’s specifications, the proposed Amended Petition adds the following:
The Department did not electronically post any of the procurement documents – the RFP, the addenda, or the notice of intended award decision – as required by section 120.57(3)(a), Florida Statutes, and Florida Administrative Code Rule 60A-1.021.
Amended Petition, ¶ 12.
The Amended Petition also seeks to evoke the impression of a scoring challenge by alleging that “on information and belief” the technical proposals were not scored on the basis of the RFP amendments that were issued after the technical proposals were submitted. (Amended Petition, ¶ 18).
In explaining the grounds for Petitioner’s protest, Petitioner’s president described this challenge to the “scoring” as follows: Petitioner is “protesting that the – how could the technical scores reflect all of the addendums that were submitted after the technical proposal[s].” (Schafer deposition at 10). In other words, this is not a scoring challenge, but a process challenge: Petitioner’s objection is to the issuance of one addendum (per the Petition) or three addenda (per the Amended
Petition) that amended the RFP after technical proposals were submitted, but before price proposals were submitted.
The proposed Amended Petition does not cure the Petition’s timeliness problem. Petitioner’s notice of protest with protest bond was not filed within 72 hours of the electronic transmittal or receipt of Addendum 3, Addendum 4, or Addendum 5. Petitioner received the reissued RFPs, incorporating these addenda, on April 27, May 4, and May 5, respectively. The notice of protest was not filed until May 20, a full 15 days after Addendum 5 was received.
Proposed Second Amended Petition
Putting aside the argumentative portions of the proposed Second Amended Petition,6/ the proposed new allegations include pleading in the alternative that either the technical proposals were evaluated and scored without consideration of the RFP addenda that were issued after the technical proposals were submitted; or, in the alternative, that the RFP addenda were
considered in evaluating the technical proposals, but the awarded scores must be improper because the technical proposals did not address the RFP addenda. (Second Amended Petition, ¶¶ 20-22).
By pleading in the alternative this way, the proposed Second Amended Petition confirms that the Petition and both proposed amended petitions only challenge the RFP specifications as amended by Addendum 3, or by Addenda 3, 4, and 5. Petitioner
complains that the process was rendered flawed by virtue of the issuance of RFP addenda after the technical proposals were submitted, and that--one way or another--this must have undermined the evaluation and scoring of the technical proposals.
The proposed Second Amended Petition seeks to add an allegation directed to Intervenor’s technical proposal, alleging that it “did not address the changes to SMF 4 that were required by Addendum 3.” (Second Amended Petition, ¶ 22). A corollary disputed issue of fact alleged is “[w]hether Community’s proposal complied with the requirements of the addenda[.]” (Second Amended Petition, ¶ 31.e.). While these allegations single out Intervenor, in substance they are no different than the other process challenges. While perhaps they are directed to the intended awardee in an effort to appear as if Petitioner is raising grounds to challenge the award decision, that effort would give rise to another problem. Petitioner, as the third- ranked firm, would lack standing to protest a contract award on grounds that the highest ranked firm should not have been highest ranked or should have been found non-responsive (not alleged by Petitioner in any petition).
How Clear Were the Points of Entry?
Neither the proposed Amended Petition nor the proposed Second Amended Petition would cure the Petition’s timeliness problem. However, they raise as a defense to Respondent’s
timeliness challenge (which itself is in the nature of a defense, that of waiver of a clear point of entry) that the points of entry relied on were ineffective to operate as clear points of entry. It is not necessary to amend the Petition to consider this argument, as it is responsive to the issues raised by the Motion to Relinquish.
Petitioner, and members of its design-build team, are hardly newcomers to DOT design-build procurements.7/ Petitioner’s president acknowledged that the Kanner Highway Project is not Petitioner’s first involvement in a DOT design-build procurement. Petitioner has successfully responded to a number of design-build proposals, including several in District Four, the results of which were that Petitioner was awarded the contracts.
Petitioner is familiar with the DOT website and uses that website as a tool to stay abreast of design-build project advertisements and procurement information. Petitioner’s president could not identify any other tool, on the internet or otherwise, used by Petitioner for those purposes.
In particular, although Petitioner is aware of the MyFloridaMarketPlace vendor bid system on myflorida.com, Petitioner could not say whether, for any of the design-build projects in which Ranger succeeded as the contract awardee, DOT posted RFPs, addenda, or notices of intended award on that myflorida.com system.
DOT’s representative confirmed that DOT does not use the MyFloridaMarketPlace vendor bid system on myflorida.com for design-build procurements that are conducted pursuant to section 337.11(7) and DOT’s implementing rules, or for other road/bridge construction procurements under section 337.11. DOT uses the MyFloridaMarketPlace vendor bid system for procurements of commodities and contractual services.
Petitioner’s president acknowledged that he was aware of the protest rights provision set forth in each version of the RFP for the Kanner Highway Project, as reissued to incorporate each of the addendum amendments. Petitioner also acknowledged that none of the email communications with DOT officials regarding the objections of Petitioner and its team members to Addendum 3 were filed as a notice of protest or formal written protest of the terms, conditions, or specifications of the RFP as amended by Addendum 3.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction. §§ 120.569, 120.57(1) and (3), Fla. Stat.
In its Motion to Relinquish, Respondent has raised a threshold issue concerning whether the Petition is an untimely protest to RFP specifications. It is.
The Petition challenges the DOT intended contract award solely on the basis of objections to the terms, conditions, and
specifications of the RFP, as amended by Addendum 3. Because Petitioner failed to timely file a protest to the terms, conditions, and specifications of the RFP when it was reissued with the changes in Addendum 3, its belated attempt to challenge the award to Intervenor on this basis must fail. See Consultech
of Jacksonville, Inc. v. Dep’t of Health, 876 So. 2d 731, 734 (Fla. 1st DCA 2004) (“Because Consultech failed to file a protest to the terms and conditions of the RFP as required by section 120.57(3), Florida Statutes, its belated attempt to challenge the award to ISF on this basis must fail.”).
“Specification challenges under section 120.57(3) are intended to allow an agency to correct or clarify plans and specifications prior to accepting bids in order to save expense to the bidders and to assure fair competition among them.” Id.
at 734 n.5; accord Optiplan, Inc. v. Sch. Bd. of Broward Cnty., 710 So. 2d 569, 572 (Fla. 4th DCA 1998); Capeletti Bros., Inc. v.
Dep’t of Transp., 499 So. 2d 855, 857 (Fla. 1st DCA 1986).
Petitioner chose to hold back on its objections to Addendum 3 (at least as to lodging them by the authorized procedure of a specifications protest), when Petitioner knew that it had a window to assert those objections by the authorized procedure. Instead, Petitioner chose to go forward with submission of its price proposal in response to the RFP as amended by the addenda that it now seeks to belatedly challenge.
Having chosen not to raise its specification objections in a timely protest, and having submitted a price proposal based on the RFP as amended by Addenda 1 through 5, Petitioner waived its right to chapter 120 proceedings. Optiplan, 710 So. 2d at 572-
573 (“Having failed to file a bid specification protest, and having submitted a proposal based on the published criteria, Optiplan has waived its right to challenge the criteria.”). Petitioner’s Untimely Specifications Challenge Cannot Be Cured
Petitioner argues it must be allowed, at least once, to amend its Petition before dismissal. However, the timeliness problem is not a mere pleading defect that can be fixed through better pleading.
As raised by the Motion to Relinquish, the timeliness issue has been laid out in depositions and affidavit, from which it has become clear that there is no dispute as to any material fact, and Petitioner has pointed to none.
Petitioner does not argue with any real conviction that the original Petition filed on June 1, 2015, seeks to reverse the intended award and replace it with a rejection of all bids on any basis other than the objections raised to the RFP as amended by Addendum 3. Instead, Petitioner is arguing for leave to “amend” its Petition in an attempt to transform its specifications challenge to a challenge of the DOT’s intended contract award decision. While Petitioner offers substantial authority standing
for the general proposition that leave to amend administrative petitions should be liberally granted (absent prejudice), Petitioner offers no authority for the notion that this general proposition goes so far as to say that a petition untimely challenging one type of agency action can be transformed, via “amendment,” into a challenge of different agency action.
It has been well recognized that there are two distinct types of protest actions that can be filed: the first is a protest directed to the specifications in the RFP (including amendments or addenda to the RFP); the second is a protest directed to the agency’s intended decision to award the contract or to reject all bids. Each distinct type of protest has its own window of opportunity to timely file. See Florida Administrative Practice § 11.12 (10th ed. 2015). Although the Petition was
filed within the window of opportunity to challenge DOT’s intended contract award decision, in substance the Petition only challenges the separate agency action of reissuing the RFP with the Addendum 3 amendments.
Moreover, Petitioner’s efforts to re-plead have not helped Petitioner’s cause. No matter how couched or pled in the alternative, Petitioner’s objections all stem from issuance of Addendum 3 (or Addenda 3 through 5) to amend the RFP.
Petitioner is limited, as a third-ranked bidder, in its standing to challenge the intended award to Intervenor.
Petitioner would not have standing, for example, to challenge the scores received by Intervenor as too high compared to Petitioner’s scores, such that Petitioner should have been awarded the contract, because that would not be true. See Westinghouse Electric Corp. v. Jacksonville Transp. Auth., 491
So. 2d 1238 (Fla. 1st DCA 1986); Preston Carroll Co. v. Fla. Keys Aqueduct Auth., 400 So. 2d 524 (Fla. 3d DCA 1981) (an
unsuccessful bidder lacks standing to challenge an award to the highest bidder where the challenger is not the second lowest bidder and would not receive the award even if the challenge were successful). That is why no version of the Petition seeks as relief that the contract be awarded to Petitioner. Instead, as third-ranked bidder, Petitioner is relegated to arguing, as it has, that the process was fundamentally flawed such that all bids should be rejected. The problem with this necessary framework is that Petitioner’s process challenge is based on the timing of reissuing the RFP specifications, as amended by Addenda 3, 4,
and 5, which Petitioner alleges necessarily caused one kind of problem, or another, with scoring the technical proposals.
Petitioner has failed to show that it could amend its Petition to show that the specifications challenge was timely. And in two attempts, Petitioner has failed to offer proposed amended petitions that would transform its specifications challenge into a challenge to the intended award decision, even
if such an amendment were permissible. Instead, Petitioner’s representative admitted that Petitioner’s objections are to the issuance of addenda amending the RFP after the technical proposals were submitted, which Petitioner asserts would have necessarily given rise to scoring problems.
The Motion to Relinquish is akin to a motion for summary judgment, allowing for consideration of depositions, affidavits, and pleadings on file. The timeliness issue has been advanced beyond the pleading stage; it was incumbent on Petitioner to respond to the Motion with permissible material to show that there are disputed facts on the threshold issues raised. Instead, the material submitted, including the deposition of Petitioner’s representative, show otherwise. See Conserv. Alliance of St. Lucie Cnty., Inc. v. Ft. Pierce Util.
Auth. and Dep’t of Envtl. Prot., Case No. 09-1588 (Fla. DOAH May 24, 2013; Fla. DEP Jul. 8, 2013), FO at 9-10 (motion to
relinquish jurisdiction under section 120.57(1)(i) is the chapter
120 equivalent of a motion for summary judgment; unlike a motion to dismiss, consideration of a motion to relinquish jurisdiction is not limited to the four corners of the petition).8/
DOT Provided Clear Points of Entry to Challenge Specifications
Petitioner argues that none of DOT’s points of entry were effective to provide a clear point of entry, because Petitioner contends that DOT is required to electronically post
all advertisements, all RFPs and addenda, all ELOI scoring results, and all intended decisions to award contracts on the MyFloridaMarketPlace vendor bid system at myflorida.com.
Petitioner’s argument has some superficial appeal, based on the general language in section 120.57(3) and the uniform rules of procedure governing bid protests. However, the argument does not withstand analysis when the details of the actual provisions are probed.
First, as a threshold matter, it is undisputed that DOT’s “protest rights” notice in each version of the RFP as amended by each addendum was provided to shortlisted firms, including Petitioner, in accordance with DOT’s design-build rules of procedure for ASDB projects. Each reissued RFP was transmitted electronically in a single email to the three shortlisted firms, including Petitioner. The language of the protest rights in each reissued RFP matches the contents of the notice of rights set forth in section 120.57(3).
Petitioner admits that it received electronically (by email) each reissued RFP, that it had actual knowledge of the contents of each reissued RFP, and that it was aware of the protest rights provision in each reissued RFP.9/ Petitioner had actual notice of each intended agency action, in the form of the RFP as reissued with each addendum amending the specifications, and of its right to protest each of those actions. The protest
rights provision specified the time period for protesting the agency actions and the rules applicable to filing protests.
These are the classic ingredients of clear points of entry.
The oft-cited decision in Henry v. Department of Administration, 431 So. 2d 677, 680 (Fla. 1st DCA 1983),
provides: “Notice of agency action which does not inform the affected party of his right to request a hearing, and the time limits for doing so, is inadequate . . . to commence the running of the time period. . . . The requirements for such notice are objective, rather than subjective in nature, and apply regardless of actual or presumed notice of agency action[.]” (emphasis added). But actual notice of agency action that does inform
affected parties of the right to request a hearing and the time limits for doing so is an effective clear point of entry.
In the bid protest context, appellate decisions considering whether an agency provided a clear point of entry address the predecessor to section 120.57(3), in section 120.53(5). For example, in Northrop & Northrop Building Partnership v. Department of Corrections, 528 So. 2d 1249, 1250
(Fla. 1st DCA 1988), the court described the statutory requirements, and the agency’s shortfalls, as follows:
Section 120.53(5), Fla. Stat. provides that an agency which engages in a contract bidding process shall provide notice to bidders of its decision either by posting at the
location where the bids were opened, or by certified U.S. mail, return receipt requested. In this case the DOC did neither. Instead, the DOC's regional budget manager contacted Northrop by telephone to advise Northrop that its bid had been rejected.
Section 120.53(5) further directs that the required notice shall contain the statement: "Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes." The notice afforded by the DOC to Northrop did not contain this statutorily mandated statement.
Similarly, in Capital Copy, Inc. v. University of Florida,
526 So. 2d 988 (Fla. 1st DCA 1988), the court noted that the University’s notice of decision failed to include the statutory notice (“Failure to file a protest within the time prescribed in
s. 120.53(5), Florida Statutes shall constitute a waiver of proceedings under chapter 120.”). The court concluded: “The failure to include the statutory notice, or words of substantially similar effect, in the posted bid tabulation
resulted in appellant’s not receiving a clear point of entry.” Id. (emphasis added). The court contrasted its decision with that in Lamar Advertising Company v. Department of
Transportation, 523 So. 2d 712 (Fla. 1st DCA 1988), wherein the court held that a clear point of entry was provided, despite the fact that the agency did not track the precise language required for the notice. In Lamar, the court concluded: “[W]e fail to
see how appellant was prejudiced by the notice provided.” Id. at
713 (emphasis added). As the emphasized language in these cases suggests, exact compliance with the statutory procedures has not been demanded to the extent of elevating form over substance; as with other procedural mandates, the question is whether any technical deviation from the procedural requirements was material, i.e., prejudicial. See § 120.68(7)(c), Fla. Stat.
The current statute continues to address how and in what form an agency must give notice of its procurement decisions, like the predecessor statute. Section 120.57(3) does so indirectly, by prescribing what must be in the uniform rules of procedure regarding points of entry for protests arising from the contract solicitation or award process. The statute directs that “[s]uch rules shall at least provide that”:
The agency shall provide notice of a decision or intended decision concerning a solicitation, contract award, or exceptional purchase by electronic posting. This notice shall contain the following statement: “Failure 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.”
Any person who is adversely affected by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the notice of decision or intended decision. With respect to a protest of the
terms, conditions, and specifications contained in a solicitation, including any provisions governing the methods for ranking bids, proposals, or replies, awarding contracts, reserving rights of further negotiation, or modifying or amending any contract, the notice of protest shall be filed in writing within 72 hours after the posting of the solicitation. The formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter. The formal written protest shall state with particularity the facts and law upon which the protest is based. Saturdays, Sundays, and state holidays shall be excluded in the computation of the 72-hour time periods provided by this paragraph.
The phrase “electronic posting” is not specifically defined in either section 120.57(3) or the uniform rules.
Instead, both refer to the definitions in section 287.012, Florida Statutes.
Section 287.012(10) provides the following definition:
“Electronic posting” or “electronically post” means the noticing of solicitations, agency decisions or intended decisions, or other matters relating to procurement on a centralized Internet website designated by [DMS] for this purpose, and in the manner and form required under s. 120.57(3)(a).
As Petitioner acknowledges, this statutory definition does not fully answer the question of what “electronic posting” is, but rather, delegates authority to DMS. Thus, as Petitioner
argues, to ascertain its meaning, one must look to DMS’s rules. In addition, other statutes in chapter 287 that use this defined term must be considered, because they create the parameters for DMS’s centralized online procurement program. In particular, DMS is given the following powers and duties:
To establish a system of coordinated, uniform procurement policies, procedures, and practices to be used by agencies in acquiring commodities and contractual services, which shall include, but not be limited to:
* * *
(b)1. Development of procedures for advertising solicitations. These procedures must provide for electronic posting of solicitations for at least 10 days before the date set for receipt of bids, proposals, or replies, unless the department or other agency determines in writing that a shorter period of time is necessary to avoid harming the interests of the state. The Office of Supplier Diversity may consult with the department regarding the development of solicitation distribution procedures to ensure that maximum distribution is afforded to certified minority business enterprises as defined in s. 288.703.
2. Development of procedures for electronic posting. The department shall designate a centralized website on the Internet for the department and other agencies to electronically post solicitations, decisions or intended decisions, and other matters relating to procurement. (emphasis added).
§ 287.042(3), Fla. Stat.
The procurement of commodities and contractual services is governed by section 287.057. In this section, DMS is directed
to develop the online procurement program and DMS is given statutory authority to promulgate rules to administer the program for online procurement. § 287.057(22), Fla. Stat. DMS is specifically authorized to promulgate rules adopting criteria for exceptions to participation in the online procurement program. § 287.057(22)(b)5., Fla. Stat.
Petitioner points to a single DMS rule--one of several rules adopted pursuant to the statutory directives--providing:
All agency decisions or intended decisions (as defined in Rule 28-110.002, F.A.C.), shall be electronically posted on the myflorida.com website. All competitive solicitations issued by agencies pursuant to Sections 287.057(1)-(3), F.S., shall be advertised by electronic posting for no less than 10 calendar days prior to the date for receipt of responses, unless the department or agency determines in writing that a shorter period of time is necessary to avoid harming the interests of the state.
Fla. Admin. Code R. 60A-1.021.
Petitioner does not address section 287.057(3)(e)11., which provides that procurement of “[c]ontracts entered into pursuant to s. 337.11” are not subject to the competitive solicitation requirements of section 287.057. Thus, the rule reference to advertising competitive solicitations issued pursuant to section 287.057 by electronic posting does not apply to DOT’s procurements of contracts under section 337.11.
Petitioner also does not address rule 60A-1.032, by which DMS has promulgated exceptions for specific transactions that are exempt from paying the fee imposed for procurements conducted on the MyFloridaMarketPlace online procurement system.
In particular, rule 60A-1.032(1)(a) establishes a transactional exemption for the following:
Procurements under Section 337.11, F.S.; provided, however, that the procuring agency may elect to conduct such procurements via MyFloridaMarketPlace and impose the Transaction Fee, in which case the agency shall ensure that such terms and conspicuously included in the solicitation documents. (emphasis added).
The clear import of this language is that DOT, as the procuring agency for procurements under section 337.11, is not required to conduct such procurements using MyFloridaMarketPlace.
The transactional exemption for procurements under section 337.11 does not exempt DOT, as an agency, from registering and using the MyFloridaMarketPlace vendor bid system for other transactions. Fla. Admin. Code R. 60A-1.032(1). Consistent with this rule, DOT conducts procurements for commodities and contractual services using the online vendor bid system.
Thus, weaving together these statutory and rule provisions, although generally the centralized internet website designated by DMS for procurement-related notices in standard procurements of commodities and contractual services under section
287.057 and other non-excepted procurement transactions is the MyFloridaMarketPlace vendor bid system at myflorida.com, DMS has promulgated exceptions to the required use of that system, pursuant to its statutory authority. One such exception is for procurements under section 337.11.
Another transactional exception to the required use of the MyFloridaMarketPlace vendor bid system is for “[p]rocurements under Section 287.055, F.S.” Fla. Admin. Code R. 60A-1.032(1)(b).
Section 287.055, known as the “Consultants’ Competitive Negotiation Act” (CCNA), addresses competitive selection of certain professional services, such as the engineering services involved in the “design” part of design-build contracts. The CCNA includes one subsection that specifically applies to design-build contracts, providing in part as follows:
APPLICABILITY TO DESIGN-BUILD CONTRACTS.—
Except as provided in this subsection, this section is not applicable to the procurement of design-build contracts by any agency, and the agency must award design-build contracts in accordance with the procurement laws, rules, and ordinances applicable to the agency.
* * *
(c) Except as otherwise provided in
s. 337.11(7), the Department of Management Services shall adopt rules for the award of design-build contracts to be followed by state agencies. Each other agency must adopt rules
or ordinances for the award of design-build contracts. (emphasis added).
§ 287.055(9), Fla. Stat.
Pursuant to section 287.055(9), DMS has promulgated Florida Administrative Code Chapter 60D-13, entitled “Procedures for Contracting for Design-Build Services.” Rule 60D-13.001 sets forth the purpose as follows: “This chapter establishes uniform rules for the procurement and administration of design-build contracts for construction projects as contemplated by Section 287.055(10)[now (9)], F.S. . . . These rules apply to agencies in the executive branch of state government except the Department of
Transportation and the State University System.” (emphasis added). The DMS “uniform rules” include public announcement procedures for design-build projects (requiring publication in the Florida Administrative Register), procedures for evaluation and competitive selection of between three and six design-build firms deemed to be the most highly qualified, and limited eligibility to submit competitive proposals or engage in competitive negotiation to the qualified firms selected in the competitive selection process.
Rather than being required to follow DMS’s “uniform rules” for design-build contract procurements, DOT has been granted specific statutory authority in section 337.11(7) to adopt its own rules of procedure.
Petitioner’s argument that the points of entry provided in the reissued RFPs were ineffective to provide a clear point of entry because they were not also posted on MyFloridaMarketPlace online procurement system at myflorida.com is rejected. The MyFloridaMarketPlace online procurement system is generally the centralized internet website designated by DMS for the purpose of notices related to procurement, particularly those under section
287.057. However, DMS has also designated a number of exceptions to the required use of that system. Procurements of design-build contracts under section 287.055(9) are excepted from using MyFloridaMarketPlace, and are instead required to follow DMS’s “uniform rules” in chapter 60D-13. DOT design-build procurements under section 337.11(7) are expressly excepted from both the DMS design-build uniform rules and the MyFloridaMarketPlace vendor bid system. Instead, as provided in section 287.055(9), for design-build projects, DOT is directed to comply “as otherwise provided in s. 337.11(7).”
The exceptions codified in the above-referenced statutes and DMS rules cannot be ignored in construing what is meant by “electronic posting” as defined in section 287.012(10) and incorporated by reference in section 120.57(3) and the uniform rules of procedure. Otherwise, these recognized statutory and DMS rule exceptions would be meaningless.
To accept Petitioner’s argument would mean that not only the points of entry at issue in this case, but every point of entry provided by DOT in every design-build procurement (and every road/bridge procurement under section 337.11) would have been ineffective to provide a clear point of entry. All design- build contracts, including those awarded to Petitioner, would be rendered vulnerable to protests at any point in time--protests to the public announcement provisions, protests to the ELOI scoring, protests to the final RFP, as amended by each addendum, and protests to the contract award--because none of these are posted on the MyFloridaMarketPlace vendor bid system on myflorida.com.
Of course, if DOT were not expressly excused from conducting its procurements under section 337.11 using MyFloridaMarketPlace (per DMS rule 60A-1.032(1)(a)), and if DOT were not expressly given statutory authority to adopt its own rules of procedure for design-build procurements, which were followed in this case, then the fact that a parade of horrible consequences would follow would not preclude a determination that DOT’s points of entry were ineffective. But that is not the case
here.
Petitioner offers a single administrative Recommended
Order as authority for its argument that section 120.57(3) and the uniform rules of procedure require electronic posting of all procurement-related notices, which Petitioner contends means,
exclusively and in all contexts, posting on the MyFloridaMarketPlace online procurement system. MIC Dev., LLC v. Dep’t of Transp., Case No. 05-3815BID (Fla. DOAH Apr. 20, 2006);
related to MIC Dev., LLC v. Dep’t of Transp., Case No. 06-1916BID (Fla. DOAH Jan. 18, 2007; FDOT Feb. 21, 2007).
As Petitioner acknowledges, the MIC proceeding did not involve a design-build procurement pursuant to section 337.11(7), nor does Petitioner contend that MIC involved a procurement of
any kind of road/bridge construction contract pursuant to section 337.11.10/ Accordingly, MIC is not germane to the foregoing
analysis. No consideration was given to the sort of statutory and rule exceptions discussed above that apply to DOT when procuring the particular kind of contract at issue in this proceeding--design-build contracts pursuant to section 337.11(7).
Petitioner argues that MIC must be followed, as a matter of administrative finality. Petitioner has confused the concept of administrative precedent with administrative finality. The latter is a res judicata-like principle, whereby parties cannot re-litigate the same matter that was finally decided between them in a prior administrative proceeding. See Thomson v. Dep’t of Envtl. Reg., 511 So. 2d 989, 991-992 (Fla. 1989). In
contrast, the concept of administrative precedent requires that administrative agencies act consistently with their prior practice, absent an adequate explanation. See § 120.68(7)(e)3.,
Fla. Stat. This concept has application when the facts and context of two separate cases are so similar that a similar result should be expected, absent a reasonable explanation.
See Amos v. Dep’t of Health & Rehab. Servs., 444 So. 2d 43, 47 (Fla. 1st DCA 1983) (inconsistent results based on similar facts, without a reasonable explanation, violates the standard of review now in section 120.68(7)(e)3., as well as equal protection guarantees).
Petitioner contends that MIC “conclusively” establishes what constitutes an “electronic posting” for purposes of chapter
120 procurement protests. (Petitioner’s memorandum opposing Motion to Relinquish at 13 n. 10). While MIC might be persuasive
in resolving similar cases, this is not such a case. The fact that MIC did not involve a design-build procurement pursuant to
section 337.11(7), and thus was not exempt from competitive procurement requirements in section 287.057, was not exempt from DMS uniform design-build rules for state agencies, and was not exempt by DMS’s own rules from conducting procurements using the MyFloridaMarketPlace vendor bid system on myflorida.com, renders MIC completely dissimilar to this case.
As Petitioner acknowledges, MIC does not blaze new
trails regarding clear point of entry doctrine in bid protest proceedings; instead, the clear point of entry cases cited in MIC
were Northrop and Capital Copy, supra, both 1988 cases applying
the predecessor bid protest statute in section 120.53(5). As noted above, these cases do not demand strict compliance with procedural requirements, but rather, apply a materiality or prejudicial error standard.
The undersigned concludes that it is legally significant that Petitioner admits to having actual knowledge of the RFP specifications it seeks to belatedly challenge, actual knowledge of the protest rights that plainly inform of the right to file notices of protest with bonds, and formal written protests, as well as the time limits for doing so. Petitioner also admits to not knowing what, if anything, related to this procurement may have been posted on MyFloridaMarketPlace.
Based on these undisputed facts, Respondent has established that Petitioner knowingly waived clear points of entry to challenge the RFP specifications as amended by Addenda 3, 4, and 5. Petitioner chose to proceed with what it now alleges was a flawed process, in the hope of receiving the contract award following that allegedly flawed process.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner’s Formal Written Protest be DISMISSED.
DONE AND ENTERED this 20th day of November, 2015, in Tallahassee, Leon County, Florida.
S
ELIZABETH W. MCARTHUR
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 20th day of November, 2015.
ENDNOTES
1/ Citations to Florida Statutes are to the 2015 codification, for ease of reference, unless otherwise specified. It is noted that none of the statutory provisions in chapters 120, 287, and
337 that are discussed herein were amended in 2015, hence these laws were no different when the procurement at issue began in the fall of 2014.
2/ The current rules include amendments effective as of March 24, 2015, but the applicability of these rules is not disputed. As was discussed during the telephonic hearing on October 20, 2015, Petitioner recently appeared before the undersigned as an intervenor aligned with DOT to defend the validity of the proposed amendments, which were described by both Ranger and DOT as the codification of DOT’s actual practice for design-build procurements that had been in place for several years. See Munilla Constr. Mgmt., LLC v. Dep’t of Transp. and The DeMoya Group, Inc., Ranger Constr. Industries, Inc., et al.,
Case No. 14-6134RP (Order Closing File Feb. 23, 2015). The proposed rule challenge was voluntarily dismissed by petitioner Munilla after the final hearing and after submittal of proposed final orders that reflect the parties’ positions.
3/ The RFP for ASDB projects serves a different purpose than more traditional RFPs, such as those issued for procurements of commodities and contractual services under section 287.057, Florida Statutes. The more traditional RFP serves as the solicitation, in that it is directed to all potential vendors that might want to submit proposals. In contrast, for ASDB projects, the ELOI/shortlisting process winnows the field of interested firms to only those determined to be qualified for the project and who will be submitting proposals.
4/ For example, addenda were issued in all five design-build projects shown on DOT’s Contracts Administration page for District Four design-build projects, including the Kanner Highway Project. Only one project had a single addendum; one project had four addenda; two projects (one of which is the Kanner Highway Project) had six addenda; and one project had eight addenda.
5/ A typographical error in Petitioner’s price proposal incorrectly identified the date on which Addendum 3 was received as March 27, 2015; Petitioner acknowledges that the date should have been April 27, 2015, as confirmed by the DOT email transmittal of the Addendum 3 material and Petitioner’s email acknowledging receipt of that email transmittal.
6/ The parties agreed to the suggested bifurcation of this proceeding during the telephonic hearing on October 20, 2015. Counsel for Petitioner agreed to limit depositions to the issues to be determined in the first part of the bifurcated proceeding, so long as an opportunity for depositions would be provided if the issues in the first part of the proceeding were resolved in Petitioner’s favor. Despite these agreements, and despite the fact that Petitioner obtained comprehensive document discovery from Respondent, Petitioner complains in the proposed Second Amended Petition that if it had been allowed to take full depositions, it might have come up with “additional” grounds to challenge the intended award. As suggested by Respondent and Intervenor in their responses in opposition to this amended motion and proposed Second Amended Petition, this complaint is disingenuous.
7/ The three team members involved in the April 29, 2015, email string objecting to Addendum 3 were all intervenors in the Munilla proposed rule challenge, in which they defended the DOT design-build procedural rule amendments codifying the long- standing practice of DOT that had evolved with the industry’s participation. See Endnote 2, supra.
8/ Petitioner argues in its Memorandum of Law opposing the Motion to Relinquish that the motion must be denied solely because the Petition alleges disputed issues of material fact and DOT referred the Petition to DOAH for a formal hearing. While that argument may have sufficed in a test of the Petition’s facial sufficiency, such as when Respondent referred the Petition to DOAH and when the undersigned denied Respondent’s motion to dismiss, Petitioner’s argument fails in the context of a motion to relinquish jurisdiction, as recognized in the Conservation Alliance Final Order.
9/ In the face of the deposition testimony by Petitioner’s president that he was aware of the protest rights provision in each reissued RFP, it is surprising that Petitioner would compromise its credibility by arguing in its memorandum opposing the Motion to Relinquish that the notice of protest rights is “buried” in the RFP.
10/ There is no indication in either Recommended Order in MIC that the project at issue was a procurement under section 337.11. Although never recited in either Recommended Order, according to the Formal Written Protest on DOAH’s dockets, it appears that the procurement at issue was pursuant to section 337.251(3)(lease of property for joint public-private development), which would seem to fit the project description in the Recommended Orders. See Formal Written Protest at 2, n.1 (filed on October 14, 2005, in Case No. 05-3815BID). The DMS rules do not contain a transactional exemption from using MyFloridaMarketPlace for procurements under section 337.251.
COPIES FURNISHED:
William Robert Vezina, Esquire Vezina, Lawrence and Piscitelli, P.A.
413 East Park Avenue Tallahassee, Florida 32301 (eServed)
Eduardo S. Lombard, Esquire
Vezina, Lawrence and Piscitelli, P.A.
413 East Park Avenue Tallahassee, Florida 32301 (eServed)
Megan S. Reynolds, Esquire
Vezina, Lawrence and Piscitelli, P.A.
413 East Park Avenue Tallahassee, Florida 32301 (eServed)
Bryan Lee Capps, Esquire
Moye, O'Brien, Pickert & Dillon, LLP 800 South Orlando Avenue
Maitland, Florida 32751 (eServed)
Sean M. Dillon, Esquire
Moye, O'Brien, Pickert & Dillon, LLP 800 South Orlando Avenue
Maitland, Florida 32751 (eServed)
C. Denise Johnson, Esquire Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0458 (eServed)
Paul Martin, Esquire Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0458 (eServed)
James C. Boxold, Secretary Department of Transportation
Haydon Burns Building, Mail Station 57 605 Suwannee Street
Tallahassee, Florida 32399-0450 (eServed)
Tom Thomas, General Counsel Department of Transportation
Haydon Burns Building, Mail Station 57 605 Suwannee Street
Tallahassee, Florida 32399-0450 (eServed)
Andrea Shulthiess
Clerk of Agency Proceedings Department of Transportation Haydon 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
10 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 20, 2015 | Recommended Order | Petition is an untimely specifications challenge; Petitioner knowingly waived clear points of entry to protest RFP specifications as amended by addenda; posting RFP/addenda on MyFloridaMarketPlace not required because of statutory and rule exceptions. |
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