STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLUOR-ASTALDI-MCM, JOINT VENTURE,

Petitioner,

vs.

DEPARTMENT OF TRANSPORTATION,

Case No. 17-5800BID

Respondent

and

ARCHER WESTERN-DE MOYA, JOINT VENTURE,

Intervenor.

/

RECOMMENDED ORDER

Administrative Law Judge Hetal Desai of the Division of Administrative Hearings conducted the final hearing in this matter in Tallahassee, Florida, on November 16, December 4 through 8, 13, 15, and 18 through 21, 2017.

APPEARANCES

For Petitioner: Brian A. Newman, Esquire

Brandice Davidson Dickson, Esquire Pennington, P.A.

Post Office Box 10095 Tallahassee, Florida 32302

Kathryn Hood, Esquire

Fuller, Johnson & Farrell, P.A.

215 South Monroe Street Tallahassee, Florida 32301

For Respondent: Donna Elizabeth Blanton, Esquire

Jeffrey L. Frehn, Esquire Brittany Adams Long, Esquire Radey Law Firm, P.A.

301 South Bronough Street, Suite 200 Tallahassee, Florida 32301

For Intervenor: William Robert Vezina, III, Esquire

Eduardo S. Lombard, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Park Avenue Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

Whether Respondent, Department of Transportation’s (“Department” or DOT”), notice of intent to award a contract to Intervenor, Archer Western De-Moya, Joint Venture (“AWD”), for a transportation project involving the design and reconstruction of federal and state roadways in Miami, Florida (“the Project”), is contrary to governing statutes, DOT’s rules, or the bid specifications; and, if so, whether the award is contrary to competition, clearly erroneous, or arbitrary and capricious.

PRELIMINARY STATEMENT

Referral from DOT

In February 2016, Respondent issued a Design-Build Request for Proposal, RFP E-6J53. The Department posted its notice of intent to award the contract to AWD on May 12, 2017.

Petitioner timely filed its second Notice of Intent to Protest the award on May 17, 2017, and a Formal Written Protest and Request for Hearing Involving Disputed Issues of Fact with

the Department on May 26, 2017. The Department referred the matter to the Division of Administrative Hearings (“DOAH”) on October 19, 2017, for assignment of an administrative law judge.

On October 25, 2017, AWD filed a Notice of Non-Waiver indicating it did not waive its right to commence a final hearing within 30 days of the filing with DOAH, pursuant to section 120.57(3)(e), Florida Statutes.

On October 25, 2017, an initial status conference was held telephonically with all the parties. Thereafter, a final hearing was noticed to commence on November 16, 2017, and to proceed during a three-week trial period between December 4 and 22, 2017.

Pre-Hearing Proceedings

The parties conducted a copious amount of discovery and took numerous depositions in a compact time period, both before the final hearing commencement date of November 16, 2017, and right up to the continuation of the remainder of the final hearing on December 4, 2017. The parties also filed a number of discovery motions. Arguments relating to these discovery motions were heard during telephonic hearings on November 9

and 15, 2017, and disposed of through written orders.

During the course of the proceedings, Petitioner filed an Amended Formal Written Protest and Request for Hearing Involving Disputed Issues of Material Fact (“Amended Protest”). AWD filed

a motion to strike certain allegations in the Amended Protest, and Petitioner agreed to withdraw certain paragraphs in the Amended Protest relating to a construction contract in North Carolina.1/ At the final hearing, Petitioner further narrowed the issues to be heard, by orally withdrawing paragraphs 56 through 76 of the Amended Protest.

Summary Motions

Prior to the final hearing, the Intervenor filed two motions to dismiss for lack of standing or alternatively, to relinquish jurisdiction based on three distinct arguments:

(1) Fluor-Astaldi-MCM, Joint Venture (“FAM”)failed to meet mandatory DOT prequalification regulations because its listed engineer of record, FIGG-WGI, LLC (“FIGG-WGI”), was a joint venture made up of FIGG Bridge Engineers, Inc. (“FIGG Engineering”), and Wantman Group, Inc. (“WGI”); (2) FAM’s designated bridge architect, Linda Figg, was not qualified to serve in that role; and (3) FAM failed to submit audited statements to meet the minimum financial requirements of the RFP. The undersigned dismissed the first and third grounds without prejudice on November 21 and 28, 2017; AWD and DOT renewed these grounds during the hearing at the close of Petitioner’s case. DOT did not join in the second ground for the motion to dismiss based on FAM’s designation of Linda Figg as FAM’s bridge architect. The undersigned denied this motion

with prejudice in the Order on Intervenor’s Second Motion to Dismiss for Lack of Standing or, Alternatively, to Relinquish Jurisdiction on November 28, 2017. The issue of standing is addressed in this Recommended Order.

Final Hearing

The final hearing in this matter commenced on November 16, 2017. The evidentiary portion of the final hearing was conducted on December 4 through 8, 13, 15, and 18 through 21,

2017.

During the hearing, Petitioner offered the live testimony of the following witnesses in support of its case: Denny Pate; Greg Schiess; Hope Grumbles; Linda Figg; Anthony Jorges; Dave Wantman; Leon Henry Corbett, III; George Biediger; Michael Madison; and Brian Smith.

Intervenor called the following witnesses in its defense of the intended bid award: John Corven; Carla Murchison Perry; Jeffery Lamptey; and Kevin McGlinchey.

The Department recalled Mr. Schiess in its case, and also presented the testimony of Javier Rodriguez.

The parties offered the deposition transcripts of a number of witnesses, portions of which have been considered.2/ Exhibits

The parties submitted 53 exhibits jointly, all of which were admitted into evidence as Joint Exhibits 1 through 53.

Petitioner’s Exhibits 1, 2, 4, 8, 9, 11, 13 through 15,

23 through 25, 33, 34, 37, 40, 43 through 45, 50 through 52, 56,

73, 83, 84, 91, 106, 107, 109 through 119, 121, 123 through 127,

134, and 136 through 139 were admitted into evidence.

Intervenor’s Exhibits 1, 2, 23, 24, 29 through 35, 43, 45,

48, 52, 56 through 59, 61, 69, 79, 86, 105 through 108, 120,

121, 140, 189, 243, 292, 361 through 385, 396 through 399, 409,

429, 430, 436, 440, 442, 444, 448, 449,3/ 453, 463, 483, 500, and

522 were admitted into evidence.

The Department’s Exhibits 9, 13, 14, 16 through 19, 21a through 21c, and 23 through 27 were admitted into evidence. Transcript and Proposed Recommended Orders (“PROs”)

The 14-volume Transcript was filed with DOAH on

January 26, 2018. The parties requested and were granted a ten- page enlargement of the 40-page limitation on PROs. See

Fla. Admin. Code R. 28-106.215. The parties also requested and were granted an extension of time to file their PROs, thereby waiving the time requirements set forth in section 120.57(3)(e). See Fla. Admin. Code R. 28-106.216(2). All parties timely filed

their PROs; all have been considered.

Unless otherwise noted, all references to the Florida Statutes and the Florida Administrative Code are to the 2016 versions.

FINDINGS OF FACT

Project, Parties & Participants

1. Respondent, DOT, is the state agency authorized by section 334.30, Florida Statutes, to issue requests for proposals to solicit competitive bids for private-public (“P3”) partnership projects. The Project was located in District VI of the Department.

2. Greg Schiess is the manager of the Strategic Initiatives Office for DOT. Mr. Schiess oversaw the Project and was the agency representative for DOT at the final hearing.

3. Nadine Chinapoo was DOT’s procurement officer who oversaw the RFP process for the Project. The RFP had strict rules of contact between bidders and any DOT employee or officer. The Department designated Ms. Chinapoo as the “single contact and source of information” for the RFP.

4. The Miami-Dade Expressway Authority (“MDX”) is a state agency created in 1994, authorized by Miami-Dade County, and funded through toll revenues. MDX has regional oversight of five expressways in Miami-Dade County, including State Road 836 (“SR 836”).

5. On February 6, 2017, DOT issued the “Design-Build Request for Proposal for SR 836/I-395 from West of I-95 to MacArthur Causeway Bridge and I-95 Pavement Reconstruction and

   
   

   I-95 Southbound to SR 836 Westbound and SR-836 from West of NW 17th Avenue to Midtown Interchange (SR-836/I-395/I-95)” (“RFP”).

6. The Department developed the RFP pursuant to section 334.30, Florida Statutes, which allows DOT to enter into a P3 to finance, design and build transportation construction and facilities.

7. No one timely filed an objection to any of the RFP specifications.

8. The RFP involves two contracts: (1) the DOT contract for federal interstates 95 (“I-95”) and 395 (“I-395”), and a portion of SR 836 leading to and from MacArthur Causeway Bridge; and (2) the MDX contract which involves another portion of

   SR 836 from Northwest 17th Avenue to the Midtown Exchange at I-95.

9. A key component of the RFP was the replacement for “Bridge No. 8/9” of I-395, which would run east to west (“Signature Bridge”). According to the RFP, the Signature Bridge would take traffic over a portion of downtown Miami to and from the MacArthur Causeway.

10. Ultimately, the winning bidder or design-build firm (“DB Firm”) would provide preliminary designs, coordinate design services with the Department to finalize the engineering and construction plans, and perform construction of the finalized designs. It would also need to self-finance the design and

    
    

    construction of the Project, because payment would be made by DOT into an escrow account and then disbursed to the selected DB Firm on periodic intervals. This form of payment was referred to as “gap financing.”

11. BCC is a private civil engineering firm based in Florida specializing in roadway projects. The Department engaged BCC to advise and draft concept plans and portions of the RFP related to roadway design, roadway geometrics and temporary traffic control (also known as maintenance of traffic (“MOT”)). Staff from BCC also represented the Department in meetings with bidders as allowed by the RFP.4/

12. The Project Selection Committee (“PSC”) was made up of three members: Javier Rodriguez, Executive Director of MDX; Gerry O’Reilly, Secretary of DOT for District IV; and Dat Huynh, District Planning and Environmental Administrator of DOT for District VI. The PSC selected the Best Value Proposer (“BVP”) based on scores given for the bidders’ Technical Proposals, contract time, price proposals, and a passing grade for the bidder’s financial health. The PSC also met publicly at various times during the RFP process.

13. The Technical Review Committee (“TRC”) was the group in the RFP process responsible for reviewing and scoring the Technical Proposal. The TRC was made up of four DOT engineers and one MDX engineer. The Technical Proposal was made up two

    
    

    volumes. Volume 1 was worth a total of 60 points and included criteria such as construction methods, MOT plans, and innovation. Volume 2 was worth up to 30 points, and addressed aesthetic criteria such as streetscapes, lighting and enhancements.

14. The Aesthetic Review Committee (“ARC”) was the group assigned to review and pass acceptable Signature Bridge options. The ARC also was responsible for reviewing and scoring Volume 2 of the Technical Proposals from each bidder. There were originally five members: four non-DOT representatives from the local community; and Brian Blanchard, the DOT assistant secretary. Mr. Blanchard withdrew from the ARC prior to the scoring of Volume 2, when his duties at DOT increased after the DOT Secretary resigned.

15. Each bidder could submit three bridge designs or options. The ARC members gave a “pass” or “fail” grade to each Signature Bridge option submitted. These pass/fail grades determined which proposals moved to the next phase of the RFP involving the technical aspects of the entire proposal. Although the ARC members also ranked each of the bidders’ options, these rankings were for “informational purposes only.”

16. Leon Corbett, the Department’s finance manager for the RFP, was responsible for overseeing the final phase of the RFP process of evaluating the financial fitness of the intended

    
    

    DB Firm. Mr. Corbett was experienced in evaluating financial proposals submitted in response to requests for proposals, and specifically had experience in evaluating bidders for proposals involving P3s. Mr. Corbett and DOT staff evaluated the financial proposal of the highest scorer on a pass/fail basis.

17. Petitioner, FAM, is a joint venture organized specifically to submit a response to the RFP. The corporate members of FAM are Fluor Enterprises, Inc. (“FEI”), Astaldi Construction Corporation and Munilla Construction Management, LLC (“MCM”). All three members of FAM are civil construction contractors that were prequalified by DOT to submit bids to the RFP. Hope Grumbles, FEI’s director of sales and infrastructure, served as the corporate representative for FAM at the hearing.

18. AWD was also organized to submit a response to the RFP. AWD is composed of Archer Western Contractors, LLC (“Archer”), and the de Moya Group, Inc. (“de Moya”), both DOT- prequalified contractors. Ultimately, DOT issued a notice of intent that AWD had been chosen as the winning proposer or DB Firm. Kevin McGlinchey, the vice-president over Florida and the Caribbean for Archer, served as the corporate representative for AWD at the hearing.

    History and Groundwork for Project and RFP

    
    

19. Planning for improvements to I-395 and the bridge to the MacArthur Causeway began in the early 1990s, but did not

    
    

    result in any renovations. Research on the project began again in 2004 with the beginning of a project development and environmental study (“PD&E”) and culminated in 2010 with the issuance of a Final Environmental Impact Statement and the Record of Decision.5/ The purpose of the PD&E study was to produce a recommendation for final designs and construction.

    Separate PD&E studies were done for the I-395 and SR 836 projects.

20. The original PD&E premise was simply to replace the bridge on I-395, but that project did not move forward because of concerns that the bridge and the construction itself may have negative impacts on the area underneath and adjacent to the bridge, including Overtown, a historic black neighborhood located adjacent to I-395.

21. At some point after the release of the PD&E studies, DOT created a Project Advisory Group which met numerous times until 2013. The Project Advisory Group consisted of representatives of numerous stakeholders in the road improvements, including governmental agencies and civic organizations from the local area.

22. Meanwhile in 2010 and early 2011, BCC, on behalf of the Department, began developing the RFP language. Although it was not involved in the original I-395 PD&E, BCC reevaluated the PD&E for factors, such as environmental and socioeconomic

    
    

    impacts, traffic issues, and right-of-way requirements. These changes were incorporated in the concept plans and procurement language for the final advertisement requesting proposals for the Project.

23. In 2013, a lawsuit filed against DOT in Miami-Dade County sought equitable relief relating to any bridge renovations by DOT. As a result, DOT agreed that any renovation or improvements by DOT to the I-395 interchange would include a “Signature Bridge” as part of the Project.

24. In furtherance of this goal and to allow local input regarding the visual impact of the bridge on the area, DOT created an Aesthetic Steering Committee to review alternatives for the “Signature Bridge” and recommend a specific bridge design to DOT. Despite meeting numerous times, however, this committee was unable to reach consensus on any one specific design. The committee disbanded, but the concept of the committee’s role was incorporated in the RFP process in the form of the ARC.

25. During this time, MDX also had plans to reconstruct portions of SR 836. DOT and MDX agreed to conduct the SR 836 renovations and the bridge replacement as part of the same project for convenience and to save resources. As a result, DOT partnered with MDX to conduct a multi-phased and comprehensive reconstruction project that would address the

    
    

    traffic and aesthetic concerns of the local citizens. The project would include three major components: (1) a “Signature Bridge”; (2) SR 836 renovations; and (3) I-395 renovations.

26. Also as a result of the public’s concerns related to the visual impact of the Project to the surrounding areas, the Department developed an Aesthetic Manual (found at Joint Exhibit 3) for the Project. This manual focused on the Signature Bridge and area underneath the bridge. As explained in the Aesthetic Manual:

    [T]he signature bridge will be the crown jewel of the Project. The purpose of this structure is two-fold: to provide Downtown Miami with a contemporary infrastructure icon, and to improve the quality of the space below 1-395 by relieving it of obstructing piers and columns. . . .

    Irrespective of the ultimate design, the Signature bridge shall still adhere to [certain] constraints:

    
    

    1. [The] Signature bridge shall have a constant depth superstructure.

       
       

    2. The signature bridge shall be two fully independent bridges that are made to look like one form (e.g. twin basket handle bridges void of a visually unifying element will not be allowed). This structural autonomy is necessary because the EB and WB structures will be constructed sequentially, yet the stakeholders have insisted upon the appearance of one aesthetic entity.

    
    

    Concept Plans

    
    

27. To provide bidders with an established set of design objectives (i.e., an idea of what it was looking for in the

    
    

    final product), DOT created concept plans that identified the project’s physical boundaries, the scope of the interstate reconstruction and proposed layouts.

28. The RFP concept plans were developed and approved as part of the PD&E studies that were conducted for the I-395 and SR 836 projects prior to the issuance of the RFP. It is clear from the RFP itself and the testimony at the hearing that changes to the concept plans were anticipated and encouraged. A bidder’s improvements to the basic requirements and layouts to the concept plans could garner more points in the final bid score. The RFP described the purpose of concept plans.

    The Concept Plans have been developed to illustrate the work required for the Total Project. The Design-Build Firm may make use of the design in the Concept Plans as a starting point for the design. However, the Design-Build Firm is not limited to only the work identified in the Concept Plans but must stay within the constraints of the Department Commitments and the requirements of the RFP.

    
    

29. Anthony Jorges, a civil engineer and the BCC consultant working with the Department on the roadway design, geometrics and MOT requirements of the RFP, gave clear and convincing testimony. He testified the concept plans were to serve as a launching pad for the proposals.

    [The concept plans are] essentially a starting point for the design-build teams. [I]t really is a conceptual level, about a

    30 percent level design, but it gives the

    
    

    teams a point to start. It by no means is final or unmodifiable. It’s just a starting point . . . a baseline to start off with.

    
    

30. No one timely filed any protest of the concept plans.

    
    

    RFP Timing and Process

    
    

31. The procurement process took place over a year, from the date of advertisement to the selection of the DB Firm. The RFP process was broken down into four phases.

    Phase I: Short Listing

    
    

    Phase II: Aesthetic Signature Bridge Submission Pass/Fail Phase III: Technical Proposal Submissions and Scoring Phase IV: Price Proposal and Financial Proposal Submittals

32. Although addressed in detail below, in summary, prequalified bidders were first required to submit a letter of response with specific preliminary information about the bidder. DOT then created a shortlist of bidders based on review of these letters. Each shortlisted entity was then given the opportunity to submit Aesthetic Signature Bridge Proposals. Each bidder that had a passing Aesthetic Bridge submission was permitted to submit a Technical Proposal and Financial Proposal. After the Technical Proposals were scored, the scores were announced along with each bidder’s price proposal and proposed contract time. After getting a pass grade on its financial proposal from the Department, the PSC selected the BVP.

    
    

    Phase I

    
    

33. In Phase I, each proposer was to provide DOT a “Letter of Response” with general information, such as the proposer’s past projects and résumés of designated key staff positions. Specific to this protest, bidders were to designate a bridge architect and engineer of record for the Signature Bridge. Each timely Letter of Response submitted to the Department was to be evaluated on specific criteria by the PSC. DOT would then post a shortlist of bidders authorized to submit proposals.

34. Petitioner and Intervenor submitted a Letter of Response and the PSC selected both for the shortlist, thereby advancing both to the second phase of the RFP process. Phase II

35. Each proposer that was shortlisted provided a draft submittal of its Signature Bridge design or design options. These drafts were vetted by DOT through meetings that allowed the proposers and the Department to discuss any questions or concerns either had about the draft proposals. No members of PSC, TRC or ARC attended these “vetting” meetings; the meetings were solely intended to provide feedback and answer questions between DOT staff and the proposers.

36. After the “vetting” meetings, each shortlisted proposer submitted up to three final Signature Bridge options to the ARC. Each ARC member then gave each option a “pass” or

    
    

    “fail” grade. If a proposer submitted more than one option, the ARC members ranked that proposer’s options by preference. These grades and rankings were provided to the PSC for review.

37. To move to the third phase, a proposer must have received at least one “pass” rating. The RFP specifically provided the ARC’s rankings of individual options “are purely for informational purposes only, and will have no direct impact on the Pass/Fail decision or on the evaluation of the Proposer’s Technical Proposal.”

38. On August 19, 2016, DOT issued the “Aesthetic Bridge Proposals Pass/Fail Posting Notice” indicating that the PSC had reviewed the ARC’s rankings. As allowed by the RFP, the PSC determined that the bidders that received three out of five passes would move on.

39. AWD’s Signature Bridge proposal was a fountain-like design with multiple arches sprouting from a unified point.

    
    

40. FAM’s Signature Bridge design consisted of two cabled structures that were similar, but inverted. Each had an arm with a rotating disk extending into the air.

    
    

    
    

41. Ultimately, the PSC approved these submissions from FAM and AWD to proceed to the third phase of the RFP process. Phase III

42. Whereas Phase II focused on the Signature Bridge, Phase III involved the Technical Proposals from the bidders. Each Technical Proposal was made up of a Technical Volume (Volume 1) and Aesthetic Volume (Volume 2). The TRC members reviewed and scored both volumes; the ARC members only scored Volume 2.

43. According to the RFP, the technical scores were based on an “adjectival scoring system” that required each of the TRC and ARC members to review the volume or volumes of the proposals

    
    

    he or she was assigned and give each section an “excellent,” “very good,” “good,” “fair,” or “poor.”

44. These descriptive ratings were later converted to a numerical value and announced at the public meeting held on April 24, 2017, to open the contract time and price proposals. Ms. Chinapoo provided the Technical Proposals, the individual scores of the evaluators, and a spreadsheet compiling all the scores to the PSC for review prior to the April 24 public meeting.

45. Unlike the other bidder’s proposals, AWD’s Technical Proposal included a viaduct made up of two by-pass lanes in each direction on an elevated freeway along the center of the existing SR 836. The viaduct had construction and safety advantages over traditional “parallel lane” formats and would eliminate interaction between I-95 traffic and special event traffic in downtown Miami. Because this was a novel concept not addressed in the RFP or concept plans, AWD was required to get DOT’s approval before submitting the preliminary designs.

46. After the TRC and ARC members reviewed the Technical Proposals, AWD received a 53.980 out of 60 points on Volume I and 24.389 out of 30 points on Volume II; FAM received 50.180 points for Volume I and 28.656 on Volume II.

    
    

    ATC Process

    
    

47. Bidders were allowed to obtain permission to deviate from the concept plans and RFP requirements in certain aspects. The RFP outlined a process for approving requests for an Alternative Technical Concept (“ATC”), which included any deviation from a component of the technical requirements, or any proposed material or technology not addressed in the RFP. The RFP schedule anticipated that bidders would submit their ATC requests after Phase I and, if approved, incorporate them in the Technical Proposals submitted in Phase III.

48. The purpose of the ATC process was to allow “innovation, flexibility, time and cost savings on the design and construction of Design-Build Projects while still meeting the Department Commitments.”

49. The ATC process included one-on-one discussion meetings between the Department (or its representatives from BCC) with bidders “to describe proposed changes to supplied basic configurations, Project scope, design criteria, and/or construction criteria.” The purpose of these one-on-one ATC meetings was to discuss the ATC proposals, answer questions that the Department may have related to the requested deviations, review other relevant information, and establish whether the ATC proposal met the requirements for approval when possible.

    
    

50. Representatives from the bidders and/or their engineers or designers, and DOT staff were involved as needed to provide feedback on the ATC. None of the TRC, ARC, and PSC members attended ATC meetings or participated in the ATC process.

51. An ATC was deemed worthy of approval if the concept suggested was equal to or better than the existing requirements of the RFP, as determined by the Departments. ATC requests, which reduced scope, quality, performance or reliability, would be rejected. The Department retained discretion to approve or deny an ATC without a need to state justification.

52. Once approved, an ATC was treated one of two ways:

    
    

    1. with an addendum to the RFP so all proposers were aware of the deviation; or (2) without an addendum so only the proposer that submitted the ATC would be permitted to utilize the approved ATC in its design.

53. Not all concept plans or RFP requirements were modifiable; some could not be changed through an ATC. Specific to these proceedings, the RFP had “specific ATC restrictions” (or what the parties referred to as “nonmodifiables”) on the following requirements:

    • Minimum basic number of lanes [for I-395 and I-95] as shown in Attachment A-33.

      
      

    • All Signature Bridge components shall be part of the structural system that carries bridge Dead Load (DL) and Live Load (LL).

      
      

    • Minimum basic number of lanes [for SR 836] as shown in Attachment MDXA-02.

      
      

    • Minimum widths of mainline lanes and ramp lanes [for MDX].

      
      

      Preliminary Plans and Confirmation Letter

      
      

54. During Phase III, each remaining bidder was required to submit a technical proposal in which the bidder provided design concepts with preliminary plans. The RFP did not seek proposals of final designs that were ready for construction. Rather, as explicitly stated, the actual preparation of final plans and designs was to be part of the contract work being solicited, and would be performed after contract execution. As was clear from the RFP and testimony at the hearing, the goal of the procurement was not for the award recipient to provide final signed and sealed plans. Instead, it would provide plans as deliverables in the contract, submitted to DOT engineers for review, comment, and approval.

55. More precisely, the RFP and contract required the winning bidder to submit--during contract performance--60- percent plans (plans that are 60-percent complete) for DOT comment and approval, followed by 90-percent plans for further DOT review. Only after the 90-percent plans were finalized,

    
    

    were they to be signed, sealed, and submitted to DOT for construction.

56. In other words, the final design plans were to be developed by the DB Firm’s designers in collaboration with DOT’s (and MDX) staff as part of contract performance and

    deliverables--not as part of the procurement itself.

    
    

57. Because of the unique fluid nature of the proposal drawings, the RFP provided that DOT may waive minor irregularities in proposals as follows:

    Waiver of Irregularities

    The Department may waive minor informalities or irregularities in Proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other Proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department’s interest and will not affect the price of the Proposals by giving a Proposer an advantage or benefit not enjoyed by other Proposers.

    
    

    1. Any design submittals that are part of a Proposal shall be deemed preliminary only.

    2. Preliminary design submittals may vary from the requirements of the Design and Construction Criteria. The Department, at their discretion, may elect to consider those variations in awarding points to the Proposal rather than rejecting the entire Proposal.

       
       

    3. In no event will any such elections by the Department be deemed to be a waiving of the Design and Construction Criteria.

       
       

58. Because the proposal plans were merely preliminary, DOT required each bidder to submit a “Written Confirmation Letter” (“Compliance Letter”) stating that regardless of the preliminary plan, if chosen as the DB Firm, it would comply with and be bound by all requirements in the contract documents during contract performance. The winning bidder was required to fully comply with the Design and Construction Criteria and other RFP requirements for the price bid, regardless of the

    preliminary designs or if the proposal was based on a variation.

    
    

59. AWD and FAM each submitted Compliance Letters.

    
    

    Phase IV and Selection of AWD as BVP

    
    

60. In Phase IV, FAM, AWD, and two other bidders submitted their price proposal and total project calendar days. During the public meeting on April 24, 2017, price proposals from each proposer were opened. The price proposals also included each proposer’s total estimated contract time. Based on the formula set forth in the RFP, each proposal received a score for its price proposal.

61. The members of the PSC were not involved in evaluating the price proposals or the contract time. Instead, the prices and contract times were evaluated by DOT staff, who were to alert the PSC members to issues with a proposer’s price or contract time. The record established DOT staff were not concerned and did not alert the PSC members to any issues.

    
    

62. Both AWD and FAM received a score of 4.99 points for their price proposals.

63. AWD proposed a total contract time of 1,460 days; FAM proposed a total contract time of 1,825 days.

64. The RFP provided the formula for scoring the proposed contract times as: 5 x (a/b), where a = lowest number of calendar days proposed by any bidder; and b = number of calendar days proposed by that bidder.

65. Using this formula, AWD received 5.00 out of 5 points; and FAM received 4.00 points.

66. The total scores were then noticed by the Department.

    
    

    
    

    
    

67. The next step in this phase was for the Department to evaluate the financial fitness of the intended award. The Department’s finance manager for the RFP, Leon Corbett, and DOT staff evaluated the financial proposal of the highest scorer on a pass/fail basis. As noticed in the RFP, the financial review portion for this RFP was to occur after the April 24 public meeting announcing the technical scores and price proposals.

68. The RFP states that the “PSC shall select the BVP for the Total Project.” It also states that “[t]he Proposer with a

    
    

    responsive Proposal will be evaluated by the PSC for award of the I-395 Agreements as the Best Value Proposer as set forth in this RFP.” Finally, the RFP provides as follows:

    The PSC will review the evaluations of the Technical Proposal and the scores for the Proposed Contract Time and Scored Price Proposal for each Proposer and make a final determination of the highest score. The PSC has the right to correct any errors in the evaluation and selection process that may have been made. The Department is not obligated to award the I-395 Agreements and the PSC may decide to reject all Proposals. If the PSC decides not to reject all Proposals, the I-395 Agreements will be awarded to the Proposer determined by the PSC to be the Best Value Proposer.

    
    

69. Before the scheduled PSC meeting on May 12, 2017,

    
    

    Ms. Chinapoo provided each PSC member with the technical proposals submitted by the vendors, the individual scores of the evaluators, and a spreadsheet compiling the scores.

70. On May 12, 2017, the PSC met to consider the scores, as well as DOT staff’s evaluation of the AWD financial proposal. The PSC unanimously determined that AWD was the “Best Value Proposer” based on the highest technical score, the best value proposer and the best contract time.

71. One PSC member, Mr. Rodriguez, testified that before the May 12 meeting he spent about 12 hours reviewing the material before making the final decision as to which bidder would be BVP. He also testified that he considered AWD the BVP

    
    

    because “they had the best score, after they were scored, they had a compliant price, and they had the best time.”

    Mr. Rodriguez indicated he would have asked any questions at the meeting had he seen anything unusual, untoward, or problematic about the scoring of the proposals.

72. Mr. Rodriguez noted there was one anomaly in the technical scores of one ARC member who preferred the FAM’s proposal. Whereas the other members of the ARC gave AWD scores of 26.2, 24.6, and 17.80 out of 30 points for Volume 2, John Richard gave AWD a score of 7.20 points; while awarding FAM a nearly perfect score of 29.300. Mr. Richard awarded the other two proposals (not FAM or AWD) 9.00 and 2.5 points.

73. Mr. Rodriguez considered, but was not concerned about Mr. Richard’s individual scores because Mr. Rodriguez felt the scores were based on “aesthetics” and just “an opinion” about which proposal Mr. Richard thought offered the prettier bridge.

74. There is no evidence establishing the PSC failed in its responsibilities or did not follow the RFP process in selecting the BVP as described in the RFP.

75. After the PSC determined the intended award, the Federal Highway Administration was required to concur, the DB Firm was required to submit final financial documents, and the parties would then execute the contracts.

    
    

    DOT’s Scoring

    
    

76. In the Amended Protest, FAM asserts the bid award should be rejected because the Department used the wrong methodology for assigning the technical scores for Volume 2. DOT took all of the reviewers’ scores, added them together and divided them by the number of reviewers. FAM claims that correct methodology would be to take the ARC members’ individual scores and average them to one score (x); take the TRC members’ individual scores and average them to another score (y); and then average x and y to arrive at a technical score for

    Volume 2.

    
    

77. Although the RFP was specific as to what criteria the ARC and TRC members were to use in grading the technical proposals, and how those grades were converted to numbers, it was silent as to how the individual reviewers’ scores would be combined to come up with one score for Volume 2.

78. As explained previously, all members from the TRC and the ARC used an “adjectival scoring system” that required individual evaluators to rate portions of the proposals as “excellent,” “very good,” “good,” “fair,” or “poor.” Consistent with the RFP, non-reviewers (Mr. Schiess and a DOT in-house attorney) assigned numerical equivalents to the adjectival scores.

    
    

79. These individual numerical conversions were delivered to Ms. Chinapoo, who kept them secure until the scores of all proposers were presented in a spreadsheet during a public meeting on April 24, 2017.

80. As established by the evidence at the hearing, typically in DOT procurements there are technical reviewers scoring the technical part of proposals. In that situation all of the reviewers’ scores are averaged (i.e., added all together

    and divided by the total number of reviewers). Unlike other procurements that are based only on technical components and price, this RFP involved an additional component relating to aesthetics. Therefore, in this RFP process there were two separate scoring committees, ARC and TRC, each starting out with five members each.

81. Mr. Rodriguez testified the method used by DOT-– calculating the final score by adding up the scores from the individual reviewers and then dividing it by the number of reviewers--was common practice. Theoretically, under this typical method, for the Aesthetic volume of the Technical Proposals, DOT would have added the scores from each of the ten committee members and divided by ten to reach the technical score.

    
    

82. During the course of the procurement, however, one of the members, Brian Blanchard (the sole DOT representative on the ARC) resigned from the committee, and was not replaced.

83. The RFP is silent as to how the absence of a committee member should be treated.

84. DOT addressed the reduction in ARC membership by notifying the proposers that Mr. Blanchard was no longer on the ARC; and explaining the “scoring of your Technical Volume 1 will be done by the five-member Technical Review Committee (TRC), who will also score your Aesthetic Volume 2, along with the four remaining members of the ARC.” It did not clarify how the individual scores would be used to arrive at a total score.

85. As reflected in Joint Exhibit 46, DOT converted the adjectival description provided by each ARC and TRC member and then calculated the scores of each of the reviewers to reach a total sum, which was then divided by the number of reviewers for each volume of the technical proposal.

86. The language in DOT’s notice announcing

    
    

    Mr. Blanchard’s departure from the ARC is ambiguous. The fact, however, that the Department did not provide a formula (as it did for scoring the price proposal or contract time scores) and that it mentioned the “members,” and not the committees, supports the use of the typical averaging methodology, averaging scores of all nine evaluators.

    
    

87. As Mr. Schiess testified, this is the way an evaluator’s scores would be treated in any other procurement.

    Q.: Do you know who made the decision on how to average those numbers?

    
    

    A.: The decision to average the scores has been something the Department has been doing. That’s just common practice.

    
    

    Q.: And what is the common practice?

    
    

    A.: To average the scores of the evaluators.

    
    

    Q.: Just take a straight average, add up all the evaluators and divide the scores by the number of evaluators?

    
    

    A.: Correct.

    
    

88. Similarly, the testimony of the PSC members established this was common practice. Mr. Rodriquez testified that he has served on numerous DOT project selection committees over the years and that scores of evaluators are typically averaged. Dat Huynh, another PSC member, described the process as “regular averaging” as “just combining the number and dividing by the number of people that were in participation.” The testimony established any contrary method would need to have been clearly spelled out in the RFP.

89. At the May 12 public hearing, FAM’s representatives raised the issue of the scoring and claimed it defeated the public’s role in the process. The evidence, however, established the public did have a key role in the selection of

    
    

    the Signature Bridge. The ARC’s role was to provide public input. In addition to scoring Volume 2, the ARC evaluated the Signature Bridge design proposals on a Pass/Fail basis and served as the “gate-keeper” keeping any designs it did not approve from moving further in the process.6/

90. John Morris, president of the third-place proposer, also indicated at the May 12 public meeting that based on his experience the process was not unusual:

    My team came in third in that process. And I’m not really here representing my joint venture team. I’m really more here as someone who has done a great deal of work with the Department of Transportation and bid on a lot of design-build projects over the last 20 years, and as far as I’m concerned, the DOT followed the process that they laid out in the RFP.

    
    

91. Additionally, a plain reading of the RFP indicates it was the weight of the individual ARC members, not the ARC as a whole, that was valued. For example under the section titled “Aesthetic Signature Bridge Proposals Pass/Fail,” the RFP stated in relevant part:

    Each ARC member will independently pass or fail each option submitted. Each ARC member will also rank the options provided by a Proposer against the other options provided by the same Proposer against the other options provided by the same Proposer.

    * * * Although the ARC members will rank the

    different options . . . these rankings are

    
    

    purely for information purposes only, and will have no direct impact on Pass/Fail decision or on the evaluation of the Proposer’s Technical Proposal.

    
    

    * * *

    
    

    [T]he PSC will recalculate the options based on “passing” being lowered to three (3) out of five (5) passes from the ARC members. (RFP at 20)(emphasis added).

    
    

92. There is also support for using individual scores in the RFP section titled “Final Selection Process,” which provides that at the public meeting where the price proposals are opened, “the Department will announce the adjectival scores for each

    member of the TRC and ARC, by category, for each Proposer.” (emphasis added).

93. This interpretation makes sense given that the previous form of the ARC, the Aesthetic Steering Committee, could not come up with a consensus regarding a style or appearance for the Signature Bridge.

94. Moreover, given that it was the DOT’s representative and not a public member that resigned, it cannot be said that the method used by DOT undermined the public’s participation in the process.

95. There is no evidence that the method put forth by FAM is supported by the RFP, any rules or by any industry or departmental precedent; nor is there evidence that the ARC and TRC were to contribute to the scoring process equally.

    
    

96. There is no evidence that the averaging methodology used by DOT is contrary to any statute or rule.

97. The Department’s deriving the total score for Volume 2 by averaging all the evaluator’s scores was not clearly erroneous, contrary to competition or arbitrary and capricious. AWD’s Contract Time

98. As stated previously, the RFP provided the formula for scoring the proposed contract times as: 5 x (a/b), where a = lowest number of calendar days proposed by any bidder; and b = number of calendar days proposed by that bidder. Additionally, the RFP noted: “The Proposed Contract Time should incorporate and set forth an aggressive but realistic time frame for the required completion of the Total Project.” According to the RFP, any time more than 1,825 days would be nonresponsive.

99. AWD’s Proposed Contract Time was 1,460 days; FAM’s Proposed Contract Time was the maximum provided by the RFP-– 1,825 days. This comes out to be a 365-day or a one-year difference. As a result, using the formula in the RFP, AWD achieved a score of 5.0 out of 5 points for its contract time, and FAM achieved a score of 4.0 points.

100. FAM challenges AWD’s contract time, claiming it was not realistic. FAM argues the 1,460 days proposed by AWD was unrealistic and insinuates this number was done solely to

     
     

     manipulate the scoring. AWD counters, not only was it realistic, it was aggressive, as requested by the RFP.

101. There is no evidence of collusion or that AWD knew the individual technical scores before it came up with its proposal or that there was any kind of unethical or improper conduct relating to the contract time.

102. Rather there was competent and convincing evidence that AWD’s shorter time proposal was realistic given its resources and experience. Kevin McGlinchey, who was involved in developing AWD’s contract time, testified the calculation of AWD’s contract time was an on-going process and was not finalized until a short time before the price and time submission was due. The evidence established AWD’s joint members had previous experience with DOT and P3/design-build projects.

103. In addition, AWD was a very large contractor in the state with access to adequate local labor. Archer employs 1,300 workers in the area; de Moya employees up to 300 workers in the area. For example, depending on equipment availability AWD could have five eight-hour shifts, five ten-hour shifts, or six eight-hour shifts; or AWD could increase the number of crews working each shift. This access to labor afforded AWD the ability to increase its crews and shifts, thereby reducing the length of total work time.

     
     

104. AWD also reduced its contract time over the procurement process by changes in its construction plan that allowed it to overlap construction phases and work on more than one segment of the Project concurrently, instead of running consecutively as originally anticipated when it submitted preliminary design documents and MOT plans.

105. Mr. Schiess testified that he and a DOT bridge expert reviewed AWD’s Proposed Contract Time to determine whether it was realistic. This review was conducted between the time the scores were publicly released on April 24, 2017, and the PSC meeting on May 12, 2017. Mr. Schiess testified “based on our experience in Florida and other projects [with] these contractors [Archer and de Moya], that [1,460 days] was not an unrealistic time.”

106. Because there was competent evidence AWD had the resources and a plan to complete the Project in the 1,460 days, its contract time proposal was aggressive, realistic, and responsive to the RFP.

     AWD’s Financial Proposal

     
     

107. FAM also challenges the “Pass” grade DOT awarded AWD on its Financial Proposal. It argues (1) DOT failed in not reviewing FAM’s financial proposal; (2) AWD’s original financial proposal was non-responsive; and (3) DOT improperly allowed AWD to supplement information to its original financial proposal.

     
     

108. Section VI, M., of the RFP addresses the financial requirements of the RFP and the documentation that must be provided by bidders. The financial evaluation is a two-step process with an initial Financial Proposal to be submitted on the due date for the price proposals. After the PSC chose a BVP, Mr. Corbett and his staff was also responsible for reviewing a final letter of commitment or credit provided by the DB Firm, which was due 15 days following the Department’s posting of its Intent to Award.

109. Mr. Corbett and his staff conducted the initial financial review for this procurement after the public meeting, announcing the technical scores, price proposals and contract times. The Department was to give the highest scoring bidder either a pass/fail grade, which was relayed to the PSC to make its final decision.

110. During this period, the RFP specifically allowed Mr. Corbett to obtain additional financial information. It

     states:

     
     

     The Department’s evaluation of a Financial Proposal is solely for the benefit of the Department and not for the benefit of the Design-Build Firm, any entity related thereto, the public or any member thereof, nor create for any third party rights. . . .

     The Departments evaluation of each Financial Proposal will be on a pass/fail basis.

     Analysis of the Design-Build Firm’s

     
     

     Financial Proposal by the Department will include, but not be limited to the following:

     
     

     * * *

     
     

     d. Review of the Lender Letter(s) of Commitment or Demonstration of Line(s) of Credit to determine if it meets the financing needs established in the Project Financial Plan.

     
     

     * * *

     
     

     The Department reserves the right to request any additional information or pursue other actions required to meet its obligations to complete the financial due diligence.

     
     

     (RFP at 70.)

     
     

111. As an initial matter, although Mr. Corbett did not conduct a concurrent pass/fail review of the financial proposal submitted by FAM (or the other bidders who made it to

     Phase IV), nothing in the RFP required the Department to review and assess the financial proposals of all the bidders. FAM asserts by failing to have its financial proposal evaluated, the PSC was deprived of the option of awarding the contract to FAM. However, if the PSC had opted not to award the contract to AWD despite its status as the highest scoring bidder, nothing in the RFP would have precluded the Department from initiating a pass/fail review of the FAM financial proposal at that point to assess FAM’s financial viability for the contract award.

     
     

112. The Department did not err in evaluating only the highest scoring bidder, AWD.

113. Regarding AWD’s responsiveness to the financial requirements of the RFP, AWD timely submitted its financial proposal to DOT on August 24, 2017, which included a preliminary letter of commitment (“PLOC”) from BankUnited. According to the RFP, the PLOC was required to contain the following information at a minimum:

     • The lender was interested in providing financial support for the project;

       
       

     • The lender had reviewed the financial requirements of the RFP;

       
       

     • The amount of financial support the Lender intended to provide (no minimum amount was required by the RFP);

       
       

     • Any special conditions to the PLOC.

       
       

114. After AWD was ranked as the highest scoring bidder, Mr. Corbett and his staff conducted DOT’s initial review of AWD’s financial proposal. There is no dispute that DOT had the right to request any additional information or pursue other actions required to meet its duty of due diligence.

115. The evidence established the original financial proposal met the minimum requirements of the RFP, but DOT requested additional assurances and clarification regarding its PLOC, which AWD provided.

     
     

116. As Mr. Corbett explained, AWD’s Financial Proposal was responsive to the RFP requirements, but he had questions relating to the PLOC.

     Q.: And so this determination of responsiveness was made after you had the original financial proposal, Archer Western- de Moya, the first supplemental proposal and a second supplemental proposal that we just went over, correct?

     
     

     A.: So I mean, there is responsiveness and there is pass/fail, and I think that’s where we have to explore a little bit more. The letter states responsive, meaning it meets the minimum requirements. And then there is the pass/fail, which I don’t know why I didn’t address pass/fail, why I didn’t say it’s a pass in the letter. But the pass came at that point, too, yes.

     
     

     * * *

     
     

     So my answer is it wasn’t an additional proposal, it was--the original proposal was what was evaluated for responsiveness. We asked for additional assurances to make sure they were headed towards a path of getting the resources necessary to finance the project. So the determination was made after receiving all that information.

     
     

117. It is evident on the face of the BankUnited PLOC that it is responsive, as it complies with the following minimum RFP requirements.

     • BankUnited confirmed “its interest in providing financing” for the project.

       
       

     • BankUnited stated it “has taken careful consideration to review and understand the financial elements of the Project.”

       
       

     • BankUnited specified it was “prepared to provide a credit facility up to” $125 million; and the $125 million credit facility consists of $75 million from BankUnited and another $50 million from other participating banks. It is this reference to “other participating banks” that triggered Mr. Corbett to request further information.

       
       

     • Attached to the PLOC was a term sheet from BankUnited that sets forth the conditions for its $125 million credit facility.

       
       

118. Although FAM contends that the BankUnited PLOC is nonresponsive because BankUnited is only committing to provide

     $75 million of the $125 million credit to AWD, the evidence at the hearing established BankUnited was proposing to provide a single credit facility totaling $125 million, some of which BankUnited may obtain through group or a “pool” of lenders.

     The financial proposal was that BankUnited would be the lead arranger of multiple banks participating in the “lending pool.”

119. Nothing in the RFP prohibited this type of “pool,” and the testimony at the hearing established DOT has accepted this kind of loan structure in the past. Where a single credit facility in the form of a loan pool is being proposed, there is nothing in the RFP that precluded BankUnited, as the lead arranger, from submitting the PLOC on behalf of all of the lenders that are or would be participating in the credit facility.

120. Regardless, even if BankUnited’s PLOC is treated as offering a credit facility in the amount of $75 million rather

     
     

     than the full $125 million, this does not render the AWD financial proposal nonresponsive since the RFP merely requires that the PLOC state the “amount the Lender intends to lend,” and does not require what amount that should be. The RFP only states that the commitments “should meet the required amount [of gap financing] identified in the Project Financial Plan.” Obviously, the goal was to ensure the winning bidder had the ability to secure preliminary commitments equaling the amount it may have to put forward for completion of the Project because DOT would be making period payments, but not until after the

     DB Firm had incurred the expenses.

     
     

121. Given BankUnited’s PLOC meets the minimum requirements of the RFP, AWD’s financial proposal was responsive.

122. Moreover, the RFP allowed DOT to look beyond the bare minimum requirements of the RFP to obtain a higher level of assurance before finalizing a “passing” grade. Mr. Corbett also wanted the information in anticipation of questions that the PSC members may have.

123. Specifically, the evidence established that on April 25, 2017, Ms. Chinapoo’s requested AWD to provide

     additional information regarding the proposed pooling loan being offered by BankUnited. In particular, Mr. Corbett sought “additional assurances” that BankUnited would be able to obtain

     
     

     the balance of the “pool” financing from other participating banks.

124. On April 27, 2017, AWD responded to DOT’s request for additional assurances. In this response, AWD reaffirmed that BankUnited was committed to provide the Final Letter of Commitment that was required under DOT’s RFP. Because AWD’s compliance with the request for information was provided prior to the agency’s announcement that it intended to award the contract to AWD, these additional documents did not violate section 120.57(3)(f).

125. On April 28, 2017, AWD also confirmed to DOT that it had taken steps toward finalizing the $125 million pooling credit facility described in the BankUnited PLOC. AWD also provided another PLOC from Private Bank indicating Private Bank also had an interest in participating in the BankUnited credit facility. Private Bank’s PLOC proposed that it would participate in BankUnited’s credit facility (rather than offering its own credit facility) and that its proposed $50 million loan to the $125 million pool would be the same as the conditions set forth in BankUnited’s term sheet.

126. AWD’s April 28 response also advised that it was continuing to explore the possibility of having BankUnited provide a credit facility for the entire $125 million in gap financing needed. The details regarding this alternative credit

     
     

     facility were described in a letter from BankUnited that was attached to AWD’s April 28 response.

127. Mr. Corbett admitted he considered the additional information received from AWD before announcing his final decision to “pass” the AWD financial proposal; and this information solidified his decision to give AWD a passing grade. Although hypothetically it is possible that had AWD provided different information, Mr. Corbett would have not been assured and may have reached a different result, this is not evidence of an error. Rather it is the essence of conducting “due diligence.”

128. It is also true the additional information BankUnited provided included information that was not contained in AWD’s April 24 financial proposal. Based on this, FAM argues that the April 27 and April 28 responses constitute modified or amended financial proposals that were submitted after the RFP’s financial proposal deadline in violation of section 120.57(3)(f). However, FAM’s position must be rejected for several reasons.

129. First, the RFP expressly authorized DOT “to request any additional information or pursue other actions” in furtherance of its financial due diligence. This clearly is broad authority that does not limit DOT’s inquiry to information that merely clarifies the financial proposal. Having failed to

     
     

     challenge this “due diligence” language in the RFP provision within the time permitted by section 120.57(3)(b), FAM has waived any objection to DOT’s use of this provision.

130. Further, in both its April 27 and 28 responses, AWD reaffirmed that it was prepared to move forward with the BankUnited credit facility proposed in AWD’s April 24 financial proposal. Although AWD’s April 28 response included information from Private Bank, this information did not propose a new or different credit structure, it simply provided additional information regarding the pool structure expressed originally by BankUnited. Because the BankUnited credit facility indicates that there would be other lenders participating in its credit facility, the identification of Private Bank is consistent with, rather than amending or modifying, the financing plan presented in AWD’s financial proposal.

131. Again, the purpose of the Financial Proposal and PLOC was not to obtain a final commitment from the DB Firm to a particular financing arrangement with a particular lender. Instead, the RFP only required the proposer to present its “preliminary” or possible financing plans so that DOT could evaluate the likelihood that the final award would go to a proposer that had the financial resources necessary to finish the project on time. Only after the contract was awarded would AWD be required to present DOT with its final financing plan in

     
     

     the form of a final letter of commitment. Nothing in the RFP required that this final financing plan be identical to the preliminary financing plan that was presented in AWD’s initial Financial Proposal.

132. As such, the Department’s request for and consideration of the information from AWD regarding the BankUnited PLOC and the pooling credit structure did not violate section 120.54(3)(f), and was not clearly erroneous, contrary to competition or arbitrary and capricious.

133. FAM also argues the Preliminary Term Sheet (“PTS”) attached to the BankUnited PLOC conflicts with the RFP, which specifies the circumstances under which money paid under the proposed contract may be assigned to a lender as security for a loan. The RFP provision at issue, referred to by the parties as the “Assignment Clause,” states in relevant part, as follows:

     Reimbursement shall be made to the Design- Build Firm by warrant mailed to the Project Specific Escrow Account [“PSEA”] using a unique vendor number sequence. The

     Design-Build Firm may, with the express written consent of the Surety(ies) and the Lender(s) Financier(s), sell assign or pledge any monies paid into the Project Specific Escrow Account by the Department in favor of third parties and including but not limited to the Design-Build Firm’s Surety(ies) and Lender(s)/Financier(s); however, any such sale, assignment or pledge must only attach to payments made by the Department after such funds have been paid by warrant mailed to the Project Specific Escrow Account, and no sale, assignment or

     
     

     pledge of any receivable from the Department is authorized nor will be permitted by the Department. (RFP at 63)(emphasis added).

     
     

134. AWD submitted with its Financial Proposal the BankUnited PLOC, which had an attachment with the following relevant language:

     Seller [AWD] proposes to sell the right of certain future [DOT] payments . . . to one or more Purchasers in order to finance the Project.

     
     

135. As established by Mr. Corbett and Department e-mails, the intent of the Assignment Clause was to make “each [contract] payment payable to the vendor/contractor executing the agreement.” In this regard, the RFP treats the deposit of funds into the PSEA as payment to the contractor. The assignment is permitted under the RFP’s Assignment Clause if AWD’s assignment of a contract payment to a lender does not divert DOT’s payments away from the PSEA to BankUnited. In other words, there is no violation if the funds continue to be deposited into the PSEA. If, however, the assignment gives BankUnited the right to receive payments from DOT before the payments are mailed to the escrow account, it violates the RFP’s Assignment Clause.

136. There is no dispute that the BankUnited PTS purports to assign certain rights held by AWD to the BankUnited as collateral for the proposed credit facility. The terminology used to describe the assignment is non-specific and creates

     
     

     ambiguity as to what the particular right is that is being assigned or sold. For instance, there is language in the PTS indicating that AWD is selling or assigning its “right to payment from DOT” without describing what that right is.

137. In order to know what “right to payment” is being assigned, it has to be determined what right to payment AWD would actually have under its DOT contract since AWD cannot sell or assign contract rights that it does not have. See Cole v.

     Angora Enters., Inc., 403 So. 2d 1010 (Fla. 4th DCA 1981).

     
     

138. As established by the RFP and testimony at the hearing, AWD will have no right under the DOT contract to receive payments directly from DOT; rather, payments from DOT will first be deposited into the PSEA, which will then be available for disbursement to the DB Firm. Because AWD will have no right to direct payment from DOT (as opposed to indirectly through disbursement from the PSEA), AWD cannot assign or sell a right to direct payments from DOT to any lender, including BankUnited. Stated differently, the only “right to payment” that AWD can assign is its right to payment from the PSEA.

139. Moreover, the plain meaning of the PTS establishes AWD does not intend to assign or sell to BankUnited the right to receive payments from DOT before the payments are deposited into

     the Project Specific Escrow Account. The PTS states as follows:

     
     

     The Seller [AWD] shall establish a project specific escrow account (the “Project Specific Escrow Account”) with the Escrow Agent. All payments payable by DOT under the Department Contract will be deposited into the Project Specific Escrow Account. (emphasis added).

     
     

     Consistent with this directive, the PTS requires the parties, including BankUnited, to execute the “DOT Project Specific Escrow Account Form” as part of their financing transaction.

140. As established by the Department’s exhibits, the purpose of DOT Project Specific Escrow Account Form, which must be signed by both the bidder and lender (or in this case AWD and BankUnited), is to “irrevocably” request, authorize and direct DOT “to process, issue and transmit any and all future payments otherwise payable directly to [the DB Firm] to now be processed, issued and transmitted using DB Firm’s Project Specific Escrow Account . . . in lieu of DB Firm’s regular vendor

     account. . . .” This irrevocable request to DOT would be made in the name of AWD as the DB Firm contracting with DOT. As the lender, BankUnited’s signature on the form would indicate its consent and agreement “to be so bound by the entirety of the terms of [AWD’s] Request for Specific Escrow Account ”

141. In other words, by signing this form, BankUnited will be agreeing to be bound by AWD’s irrevocable request to have all DOT payments deposited into the Project Specific Escrow Account. This means that, in accordance with the RFP’s Assignment Clause,

     
     

     BankUnited will be irrevocably agreeing not to receive payments

     
     

     from DOT before payments are deposited into the Project Specific Escrow Account.

142. The arrangement between AWD and BankUnited does not violate the Assignment Clause and is, therefore, responsive. AWD’s Technical Proposal

143. FAM challenges a number of aspects of AWD’s technical plan as being non-responsive to the RFP. Specifically, it claims AWD’s proposal violates the non-modifiable requirements for the number of lanes on certain portions of the Project and the lane width requirements.

     Basic/Continuous Lane Requirements for I-395 (Attachment A-33)

     
     

144. As described earlier, AWD made substantial changes to the RFP’s concept plans for I-395 and SR 836 by proposing a two- tiered road formation made up of a two-lane viaduct on an upper level and a collector road system on the lower level. In order to pursue this design, AWD submitted an ATC proposal which was eventually approved as “ATC 12C”.

145. The proposed viaduct would have two continuous lanes in each direction between the two major highway systems, SR 836 and I-395, without being impeded by local SR 836 traffic. The local traffic would be carried on a lower roadway or Collector- Distributor (“CD”) road underneath the viaduct. This lower CD

     
     

     road would also have one continuous lane in each direction, for a total of three continuous lanes in each direction.

146. DOT determined that the viaduct concept and changes were an improvement over the RFP concept plan. As explained by Anthony Jorges, a traffic roadway engineer for BCC:

     First with the viaduct, by separating the traffic, it provides you unimpeded access to and from Miami Beach to the east, so it improves the emergency evacuation and improves access for emergency services.

     This addresses the event traffic issue that I brought up earlier. While you have events that may cause backups on the lower level for local traffic, we do have a separate level for the mainline that’s going to carry through. So you have those two lanes on top free at all times. So that was a significant advantage that we were looking at. And in addition to that, there is also the additional lane on the westbound to northbound--I am sorry, the eastbound to northbound movement, and that is taking it from the one lane that was in the RFP concept to the two lanes that Archer Western de Moya provided.

     
     

     That provides significant improvements to the operations of the mainline. It also provides safety benefits because now traffic that was queuing up on this ramp back on to the mainline is separated. Whatever traffic queues up here is separate from the mainline, and you won’t have the possibility for the speed differential, which contributes significantly to accidents.

     
     

147. FAM contends that DOT erred in approving a technical proposal ATC 12C, because the number of continuous basic lanes on the highway was a non-modifiable requirement of the RFP.

     
     

148. According to the testimony at the hearing and American Association of State Highway and Transportation Officials Policy on Geometric Design of Highways and Streets (“AASHTO Manual”), highway lanes can be grouped into two categories: basic lanes and auxiliary lanes.7/ A basic lane is essentially one that is designated and maintained over a significant length of a route, irrespective of changes in traffic volume and lane balance needs. The parties also referred to a “basic lane” as a “continuous” lane-–one that allows traffic to move over a “significant length of route” without having to change lanes.

149. An auxiliary lane is essentially all lanes other than the basic lanes. It is defined as “the portion of the roadway adjoining the through lanes for speed change, turning, storage for turning, weaving, truck climbing and other purposes that supplement through-traffic movement.”

150. As part of the 2010 I-395 PD&E, DOT found that I-395 lacks sufficient capacity “for system linkage” with SR 836 and other roadways due, in part, to the fact that it has only one continuous lane in each direction while the linking roadways have three. One continuous lane on I-395 was inadequate to provide the necessary access or linkage to the other road systems.

     
     

151. Initially, the Federal Highway Authority (“FHWA”) approved a plan to address I-395’s deficiencies which added one additional continuous lane in each direction. On June 15, 2015, however, the FHWA approved the Final Re-Evaluation (completed by BCC) for the I-395 PD&E. This version included a design change allowing “three (3) continuous lanes in each direction to match 836 on the west and MacArthur Causeway on the east.” (emphasis

     added).

     
     

152. DOT noted that this design change was supported by AASHTO design principles, including the basic lane concept. A concept plan for the I-395 project, which included the three continuous lanes and later became the RFP concept plan, was attached to the Final Re-Evaluation.

153. Section VI of the Final Re-Evaluation addressed DOT’s commitments for the I-395 project, including commitment

     number 14: “[m]aintain and enhance continuity between

     
     

     SR 836/I-95 facility on the west and the MacArthur Causeway on the east.” DOT concluded on page 18 of the Final Re-evaluation that the addition of the third continuous lane on I-395 was necessary to support this commitment, stating:

     STATUS: [ ] Design Changes No. 1 and No. 7 describe the need to add an additional lane in each direction and widen a portion of the westbound MacArthur Causeway Bridge in order to accommodate the changes to the ingress and egress points of the Port of Miami Tunnel. These changes allow the I-395

     
     

     project to be compatible with both roadways to the east and west and provide system continuity.

     
     

     DOT also noted that the I-395 project would be constructed concurrently with the SR 836 project, which was the subject of a separate PD&E that was completed in 2011. The SR 836 PD&E Study noted on page 6:

     More specific improvements potentially involve the provision of a minimum of six continuous (i.e., 3 directional) mainline lanes and the provision of parallel collector distributor facilities to separate the system to system traffic from the local to system traffic.

     
     

     This language establishes MDX also intended that there be three continuous lanes in each direction as proposed by DOT for the

     I-395 project.

     
     

154. In short, DOT’s intent was to have three continuous lanes that would extend from the western boundary of SR 836 to the eastern boundary of I-395. This would allow a driver in any of these lanes to travel from one end of the project to the other without having to change lanes.

155. As a result of the re-evaluation of the PD&E, BCC developed the language for the RFP that related to continuous lane requirements also found in Attachment A08. This language states, in relevant part:

     The Department has prepared a set of Reference Documents, which include Concept Plans. These plans convey an established

     
     

     set of design objectives to which the Design-Build Firm is required to accomplish in [the I-395] component of the project.

     The Department’s design objectives include:

     
     

     * * *

     
     

     • Provide 3 continuous through lanes to the I-395 Mainline in the Eastbound and Westbound direction.

     
     

156. The RFP also provided “[t]he Design-Build Firm shall

     
     

     not modify the following requirements with an ATC Proposal . . .

     
     

     Minimum basic number of lanes shown in Attachment A-33.”

     
     

     Mr. Jorge’s testimony was that the purpose of this language was to be consistent with the objective to provide three continuous lanes in each direction on I-395 to and from the Signature

     Bridge.

     
     

     The reason the word “minimum” was included in there was we wanted to make sure that we were getting at least three lanes in each direction, and that is the intent behind having the word “minimum.” We did understand that there would be a possibility for changes. But we wanted to make sure that we had at least three lanes in each direction.

     
     

157. Attachment A-33 is titled, “I-395 Lane Schematic” and includes information relating to the number of “basic lanes,” “auxiliary lanes,” and the “direction of lanes” at various points of entry via connector roads and ramps onto I-395.

     
     

158. For the Signature Bridge, Attachment A-33 has a footnote that states, “The Signature Bridge Shall Accommodate a Minimum of Four 12’ Lanes in Each Direction[.]”

159. The plain reading of Attachment A-33 in the context of the RFP is that the three continuous or basic lane requirements applied to the roadways, but that the Signature Bridge was required to have four continuous lanes.

160. On its face, Attachment A-33 is a schematic drawing that shows all of the lanes in the RFP concept plan for I-395. Although four of the lanes depicted in Attachment A-33 are identified as auxiliary lanes, the rest are identified as basic lanes. However, absent is any indication of some “minimum” number of basic lanes that must be maintained and that cannot be altered through the ATC process, except at one location, which

     is at the Signature Bridge. For that specific location, Attachment A-33 states that there must be a “minimum of four 12’

     lanes in each direction.” (emphasis added).

     
     

161. The fact that a minimum is specified at one location on Attachment A-33, but not others, is an indication that DOT did not intend to establish a minimum for other locations on the schematic. Indeed, if DOT had intended for all basic lanes depicted at each location to be the minimum number of lanes for that location, then there would have been no point to including

     
     

     a specific note to express that the number of lanes at the Signature Bridge location was a minimum of four lanes.

162. Mr. Jorges confirmed that this language requiring four lanes in each direction in Attachment A-33 applied only to the Signature Bridge.

     Q.: And what is the minimum number of basic lanes that there need to be at that [the Signature Bridge] location?

     
     

     A.: Four.

     
     

     Q.: And is a minimum number of basic lanes indicated on attachment A-33 at any other location?

     
     

     A.: No, it’s not.

     
     

     Q.: Can you explain how indicating a minimum number of lanes at the signature bridge is consistent with the PD&E?

     
     

     A.: The PD&E called for three lanes in each direction of I-395, so at the signature bridge, you have 16 a situation where you have the three lanes from I-395 plus the one lane from the eastbound connector, and that’s how we arrived at the four.

     
     

     Like I mentioned before, it was beyond the minimum three that we were expecting, and that’s why we felt it was necessary to identify minimum for that specific location.

     
     

     * * *

     
     

     Q.: Do you have a view or an opinion as to whether or not it would make sense to have a minimum basic number of lanes at every location that’s depicted on A-33?

     
     

     A.: Well, if every lane there was designated as a minimum requirement, there would be no room for any sort of modification or changes by the team, so it essentially eliminates any possibility for innovation and really negates the design- build process.

     
     

     Q.: Can you explain whether or not that would be consistent or inconsistent with the objective of the RFP?

     
     

     A.: It’s--the attachment is consistent with the objectives. One of the key objectives was to have three lanes in each direction.

     And there is other objectives stated, but they are not specific as to the number of lanes.

     
     

163. Although Petitioner’s roadway engineer offered its own interpretation of the Attachment A-33 and the RFP language regarding continuous lanes, Mr. Jorges’ testimony was more reliable and convincing. Mr. Jorges was familiar with the history of “continuous lane” requirements and the reasons for including that requirement in the RFP. He and others from BCC were involved in drafting the concept plans and the RFP language that included the “three continuous-lane” requirement in the

     RFP.

     
     

164. In reality, while the RFP stated the proposals were

     
     

     to “adhere to the number of lanes” in the concept plans, each bidder also had the option of pursuing an ATC that would allow it to deviate from this requirement. The purpose of the ATC process was to encourage the proposers to offer innovative

     
     

     solutions or an approach that was equal to or better than the RFP concept plans or other requirements in the RFP.

165. The viaduct design offered by AWD was found to be “equal to or better” to the concept plan and thus meets the standard for issuing an ATC because (1) AWD’s ATC proposal does not preclude DOT from “meeting the Department Commitments,” which are defined to include the ones “listed in the PD&E, FEIS/ORS and any Reevaluations attached” and (2) AWD’s ATC proposal did not violate the Specific ATC Restrictions set forth in the RFP.

166. Attachment A-33 plainly states there must be a minimum number of basic lanes at the Signature Bridge location only. FAM’s argument that every basic lane identified on Attachment A-33 should be treated as a “minimum” continuous lane that cannot be modified is rejected.

167. The Department did not violate the RFP by issuing ATC 12C, and AWD’s proposal with this ATC is responsive to the RFP.

     Basic Lane Requirements for SR 836 (Attachment MDXA-02)

     
     

168. FAM also challenges the number of lanes proposed by AWD for the MDX’s portion of SR 836 of the Project, which are established by attachment MDXA-02. Specifically, FAM argues AWD’s plan is “one basic lane short of the four basic lanes required by the RFP from Northwest 10th Avenue going eastbound

     
     

     through to I-395.” (FAM’s PRO, p. 16 at para. 45) The issue to be determined is whether the RFP and MDXA-02 requires four continuous lanes for this portion of the Project.

169. Unlike Attachment A-33, Attachment MDXA-02 is not a schematic of all the lanes on the SR 836 concept plan. Instead, Attachment MDX-A02 contains only “typical sections” or a view of a cross-section (not a linear) of the roadway at a particular location. It is not possible to determine from only a cross- section view of a segment of the roadway whether any of the lanes are continuous over a significant length of SR 836. Thus, Attachment MDX-A02 does not reveal which lanes on SR 836 are basic or continuous.

170. Although Mike Madison, FAM’s roadway engineer, testified it was “possible” by reference to the typical sections “to determine what the basic lane requirements are for State Road 836 even if they are not identified as basic lanes on those typical sheets,” he did not rely on (or even refer to) Attachment MDX-A02. Instead, he relied on the RFP concept plan and the industry definition of “basic lane.”

171. The RFP’s SR 836 concept plan referenced by

     
     

     Mr. Madison does identify which lanes are continuous. Again, the concept plans were to serve as reference documents for proposers to build off of and improve. The SR 836 concept plan

     
     

     serves as “general information only,” except as “specifically set forth in the body of” the RFP.

172. Regardless, both parties offered evidence that AWD’s SR 836 proposal includes three basic or continuous lanes.

     Mr. Jorges’ testimony established the SR 836 concept plan has three basic lanes on the mainline and no basic lanes on the adjacent collector ramp. Instead, the fourth lane that FAM claims was necessary and non-modifiable was actually an auxiliary lane, not a basic lane.

173. The evidence established the “fourth lane” in question is a CD road. Although a CD road can be a continuous lane, here it was not. In the concept plan, the CD road merely collects traffic from Northwest 12th Avenue, which it then distributes to I-395 without providing any access to or from

     SR 836. Because the CD road on the concept plan does not serve

     
     

     traffic that originates from SR 836, the concept plan’s CD road does not serve the function of a continuous or basic lane for SR 836.

174. Further, the alleged “fourth lane” on the RFP concept plan’s CD road is not continuous and, thus, cannot be considered a “basic” lane. Mr. Madison admitted the concept plan’s CD road does not originate at the western boundary of the SR 836 project. Instead, the concept plan’s CD road originates at Northwest 12th Avenue, nearly halfway between the Project’s

     
     

     western and eastern boundaries. Thus, traffic cannot navigate the length of the SR 836 project on this fourth lane without changing lanes as required by the PD&E.

175. Hypothetically, as explained by Mr. Jorges, a driver would not have access to a continuous lane on the concept plan’s CD road; on the concept plan, a driver entering the

     CD road via the northbound Northwest 12th Avenue entrance cannot reach the interchange and I-395 without shifting to another lane. After the interchange, this same driver would be forced to shift to another lane again to reach the MacArthur Causeway. By contrast, a driver accessing AWD’s CD road at the western boundary of SR 836 would be able to reach the MacArthur Causeway with no lane changes.

176. Finally, as noted above, the Final Re-Evaluation for the I-395 PD&E proposed the addition of a third continuous lane to I-395 so that I-395 would have “three continuous lanes to match 836 on the west.” (emphasis added). The goal of the

     I-395 project was therefore symmetry in the number of basic lanes to improve linkage between the I-395 and SR 836 systems.

177. The RFP required three basic or continuous lanes for the MDX portion of SR 836. AWD’s proposal was responsive to this basic lane requirement.

     
     

     Minimum Lane Width Requirements

     
     

178. FAM next contends AWD’s proposal is non-responsive because it reduces the lane width for the lane and ramps for the SR 836/I-95 interchange. There is no dispute AWD’s lanes were reduced by an ATC from 12 feet to 11 feet at the ramp in question, but at issue is whether the ramp is in the I-95 portion of the Project, which is modifiable (i.e., not subject

     to the ATC restrictions); or is in the MDX portion of the Project, which is non-modifiable.

179. The RFP states that “services performed by the Design-Build Firm shall be in compliance with” DOT’s Plans Preparation Manual (“PPM”). (RFP at 77.) Included in the PPM is a 12-foot lane-width requirement. For that portion of the roadwork within the scope of the MDX project, the RFP states that the winning bidder “shall not modify” through the ATC

     process the “[m]inimum widths of mainline lanes and ramp lanes.” (RFP at 84.) However, pursuant to Addendum 11, this ATC restriction was removed from the RFP for roadwork that is part of DOT’s I-395 project.

180. In ATC 12C, AWD indicated it would be reducing the lane width of the SR 836 west-north connector from 12 feet to 11 feet starting at the physical gore. A “gore” is the area where a ramp joins the mainline or where two streams of traffic converge. Although there was testimony about a “theoretical

     
     

     gore” as opposed to a “physical gore,” engineers use the physical gore to mark the point where the ramp ends and the highway begins.

181. In this case, AWD, through ATC 12C, sought to narrow the width of the traffic lanes at the point where the northbound ramp physically joins and transitions onto I-95. According to FAM’s roadway engineer, this reduction in the lane width is necessary because this ramp connects eastbound SR 836, which has 12-foot lanes, with northbound I-95, which has 11-foot lanes.

182. The evidence establishes the portion of the connector road at issue is not part of the MDX project because it is owned and maintained by DOT, not MDX. This is confirmed by the fact that DOT owns the Northwest 17th Street Bridge (Bridge ID 870369), which is on the connector road to the south of the

     lane-width reduction area. DOT’s ownership of the lane-width reduction area is also consistent with DOT’s I-395/I-95 maintenance map, which shows that DOT (and not MDX) maintains this part of the roadway.

183. FAM does not rely on the jurisdictional or maintenance maps, but rather relies on two documents in AWD’s ATC 12C application in which AWD referred to “836” as the applicable “State Road Number” and “MDX” as the “Approving Agency” for the proposed lane-width reduction. FAM also noted that AWD used station markers referring to SR 836 to identify

     
     

     the lane-width reduction area. However, as confirmed by the attachments to the RFP, including the DOT maintenance maps and DOT’s bridge inspection report, AWD was mistaken that MDX owned this segment of the roadway. This does not make DOT’s granting of the ATC erroneous.

184. Moreover, FAM offered no document prepared by either DOT or MDX, including the RFP itself, which established MDX’s jurisdiction over this portion of the roadway.

185. Here, the lane-width reduction occurs north of the physical gore, which is the point where the lanes originating from the ramp become physically connected to the lanes on the existing highway, I-95, via pavement that lies between the converging lanes. For safety purposes, according to the AASHTO Manual, once a roadway becomes physically connected to the highway, it is good engineering practice to design the roadway to match the criteria for the highway (e.g., 11-foot lanes)

     rather than to continue using the ramp criteria (e.g., 12-foot

     
     

     lanes).

     
     

186. Even FAM’s roadway engineer acknowledged that, at some point before reaching I-95, the lanes joining I-95 from the connector road must transition from 12 feet to 11 feet to match the I-95 lanes, and that good engineering practice requires that this transition be done gradually rather than “suddenly.” He conceded that the lane-width transition proposed by AWD was

     
     

     reasonable, but disagreed whether the ramp ended at the physical or theoretical gore point.

     Q.: Right. You agree with me that at some point the lanes that are coming in to I-95 have to transition from 12 to 11 to match?

     
     

     A.: They would have to at some point.

     
     

     Q.: You can’t just go from 12 and all of a sudden have an 11-foot lane, right, that’s bad engineering practice?

     
     

     A.: Yes.

     
     

     Q.: As a matter of fact, the PPM won’t let you do it that way and AASHTO, too, you’ve got to have a transition?

     
     

     A.: Correct.

     
     

     Q.: Okay. So we are not questioning the reasonableness of having a transition?

     
     

     A.: Reasonableness, no.

     
     

     Q.: Okay. So I think to figure out the disconnect again, do you think the ramp doesn’t end at the gore?

     
     

     A.: No, it ends north of the gore, the other side of the gore point.

     
     

     Q.: But you just said there are two points. A.: Theoretical gore points.

     Q.: You believe the ramp ends at the theoretical gore point?

     
     

     A.: Yes.

     
     

187. At the same time, FAM offered no evidence to show that it would still be possible to comply with the gradual

     
     

     transition requirement in the PPM and AASHTO if the lane reduction were delayed until after the theoretical gore when there is no longer any pavement separating the 12-foot lanes from the connector road and the existing 11-foot I-95 lanes.

188. Because MDX neither owns nor maintains that part of the roadway where the lane is narrowed to 11 feet, this road segment is not within MDX’s portion of the Project or jurisdiction. Because the portion of AWD’s proposed lane narrowing for the ramp to I-95 was in the Department’s I-95 jurisdiction, it was modifiable.

189. Therefore, AWD’s ATC proposal with the lane-width reduction was responsive and also a reasonably safe way to transition traffic to I-95.

     FAM’s Proposal

     
     

190. Prior to and at the hearing, AWD argued FAM’s proposal was non-responsive to the RFP and to DOT’s regulations in a number of ways: (1) FAM’s engineer of record, FIGG-WGI, was a joint venture and, as such, could not work on the Project;

     1. FAM’s bridge architect, Linda Figg, was not qualified to serve in that capacity; (3) FAM’s Financial Proposal lacked the requisite audited financial statements; and (4) FAM’s technical proposal was inconsistent with the RFP requirements.

        
        

        FIGG-WGI, Inc.

        
        

191. First, AWD claims FAM’s designation of FIGG-WGI as an engineer of record violates Florida Administrative Code Rule 14- 75.003(2), which states as follows:

     (2) The Department shall not recognize joint ventures for purposes of qualifying consultants to work for the Department. Each individual or firm will be annually qualified based upon individual or firm capability.

     
     

192. FAM designated in its Letter of Response both “FIGG Bridge Engineers, Inc.,” and “Wantman Group, Inc.” as two subcontractors as part of the FAM team. Later, however, FAM designated FIGG-WGI as FAM’s “Lead Design Firm.”

193. Prior to submitting its Letter of Response, David Wantman asked DOT what information a design joint venture needed to submit to receive DOT approval to participate in this procurement.

194. Carla Perry, a DOT procurement manager, was responsible for the prequalification process for this RFP. She informed FIGG-WGI engineering joint ventures “are not recognized” and that WGI would need to be designated as the engineering firm instead of the joint venture. She suggested the following:

     The foreign firm could sub to the Construction JV (or to Wantman), but the Engineering JV you referenced below would not be recognized for purposes of fulfilling

     
     

     the technical qualification in the engineering work types, and would be found non-responsive. . . .

     
     

195. FAM’s position at final hearing and in its PRO was that FIGG–WGI was not a “legal joint venture.” This position is contrary to the evidence in FAM’s technical proposal noting FIGG–WGI was “organized as a fully integrated, single-purpose entity, which is the engineering firm of record” and the testimony at the hearing establishing FIGG-WGI was formed for legal reasons to insulate its members (Figg Engineering and Wantman) from third-party liability on large construction projects.

196. FIGG-WGI is a joint venture and its participation in the Project, had FAM been chosen, would have violated DOT’s rules regarding what type of business structures can work on DOT projects.

197. The violation, however, was curable. The RFP allows changes in designated key personnel and “teaming arrangements” subject to the Department’s approval. Approval of changes would be based on “whether or not the proposed substitutions in Partner/Teaming Arrangements are comparable to the Partner/Teaming Arrangements identified in the Letter of Response and/or Technical Proposal.”

198. Here, the evidence establishes that the members of the joint venture are both individually prequalified to do work

     
     

     for DOT. In reality, their employees are the same employees of the joint venture which would have been working on the Project had FAM been chosen as the BVP. Moreover, the testimony at the hearing established that if FAM was chosen, both Figg Bridge Engineers, Inc., and Wantman Group, Inc., would have individually contracted with FAM in whatever corporate form would have been required by DOT.

199. The RFP “Waiver or Irregularities” also provides FDOT may waive irregularities in proposals “where such is merely a matter of form and not of substance, and the correction . . . of which is not prejudicial to other Proposers.”

200. Here, AWD failed to sufficiently establish how it suffered (either potentially or actually) from FAM’s designation of FIGG-WGI, LLC. Nor was there any evidence of how AWD would have been prejudiced if FAM was allowed to substitute the individual members of the joint venture, if FAM had been chosen to be the BVP.

201. Any error in designating FIGG-WFI, LLC, as its lead designer and engineer of record was a curable minor irregularity that would not have made FAM’s proposal non-responsive.

     Linda Figg

     
     

202. Second, AWD makes the same arguments regarding Linda Figg’s designation as “Bridge Architect” as it did in its pre- hearing motions as to why FAM’s proposal was non-responsive:

     
     

     the RFP required bidders to designate a bridge architect; and Linda Figg, the person designated by FAM, is not an architect.

203. FAM designated Ms. Figg in its Letter of Response as its “Lead Bridge Architect.”

204. Ms. Figg is not licensed as an architect with the State of Florida under chapter 481, Florida Statutes, (Architecture, Interior Design, and Landscape Architecture) nor is she licensed in any other state.

205. The RFP is silent as to the qualifications of a bridge architect. Nothing in the RFP indicates the designated bridge architect must be registered or licensed; nor does it require the designated bridge architect to meet specific educational or other qualifications.

206. No evidence was provided at the hearing as to how the Department defined “bridge architect.” In fact, FDOT did not join with AWD in this argument. Nor was there evidence at the hearing establishing the industry standard for defining a “bridge architect.”

207. Merriam-Webster defines “architect” as “a person who designs buildings and advises in their construction.” Architect, Merriam-Webster Online (2017), https://www.merriam- webster.com/dictionary/architect (accessed on February 23, 2017).

     
     

208. Ms. Figg meets this definition of “architect.”

     
     

209. Moreover, Figg Engineering is prequalified by DOT and has available professional staff (other than Ms. Figg) who are licensed architects and/or professional engineers.

210. As such, FAM’s designation of Ms. Figg as its Lead Bridge Engineer did not make its proposal non-responsive. FAM’s Bridge Design – Load

211. AWD also asserts FAM’s Signature Bridge proposal violates the RFP’s non-modifiable requirement that “[a]ll Signature Bridge components shall be part of the structural system that carries bridge Dead Load (DL) and Live Load (LL).”

212. “Dead load” is the actual weight of the bridge structure; “live load” is the added weight of the traffic traveling on the bridge.

213. As explained at the hearing, “components” are the necessary parts of the bridge: superstructure (what cars drive on); substructure (pylons or columns); and foundation (what the pylons and columns are set on). In contrast, railings are safety devices and considered “appurtenances” as opposed to “components.”

214. FAM’s bridge design contained two rotating disks, each on top of an extended arm.

     
     

215. Bridge components that do not serve a purpose or carry any weight were not allowed by the RFP, and bidders could not obtain an ATC to change this requirement.

216. FAM’s own bridge engineer, Denny Pate, testified that nonstructural parts of the bridge were prohibited by the RFP.

     Q.: Can you give the judge an example of a nonstructural bridge component that would be noncompliant under the RFP?

     
     

     A.: The RFP requirement, obviously, is--in my opinion, is saying: We don’t want fake bridge components. For example, there is a project development over here just west of Port St. Joe on the coast there called WindMark. And as part of their entrance to their development, they have a very standard short-span girder bridge, but they have put up steel, fake steel trusses along the sides that basically add interest to the bridge, make it visually more unique, but they don’t do anything. They are not structural.

     
     

217. Mr. Pate went on to testify that the rings on the tops of FAM’s proposed bridges do not carry any live load. They were not necessary and could be removed without any effect on the bridge’s structural integrity.8/

218. This was consistent with the testimony of John Corven, AWD’s bridge engineering expert. Mr. Corven explained the loads in FAM’s Signature Bridge proposal picked up by the cables into the pylon did not find their way into the single arm with a rotating disc and, thus, the arm and disc would not be part of the load-carrying capability of the bridge.

     
     

219. The inclusion of non-load bearing components was more than a minor irregularity. One could imagine a scenario where an aesthetic design may compromise safety concerns. More importantly, failure to adhere to the restriction requiring only load-carrying components had the potential of prejudicing other bidders who complied with this requirement from coming up with more eye-pleasing bridge designs. Mr. Corven testified:

     Q.: As an engineer, what would be the impact if that restriction were lifted in terms of the work you are doing from an engineering standpoint, meaning if you no longer had to worry about dead and live load components, how does that impact how you go about designing a structure?

     
     

     A.: Well, I think it would free the engineer to more artistic and aesthetic expressions for elements that might capture a visual appeal but not be functional structurally.

     
     

220. Although the rotating ring may have been aesthetically and architecturally interesting, it was prohibited by the RFP. As such, FAM’s Signature Bridge design with the arm and rings was non-responsive.

     Twin Structures

     
     

221. AWD also asserted FAM’s Signature Bridge proposal violated the RFP’s prohibition against “twin structures” found in the Aesthetic Manual for the RFP which states:

     The signature bridge shall be two fully independent bridges that are made to look like one form (e.g. twin basket handle

     
     

     bridges void of a visually unifying element will not be allowed). This structural autonomy is necessary because the EB and WB structures will be constructed sequentially, yet the stakeholders have insisted upon the appearance of one aesthetic entity.

     
     

     Elsewhere the RFP notes, the bridge proposals must adhere to the following minimum requirements: “No twin structures.”

222. The common sense meaning of “twin structures” is two bridges that are identical or exact duplicates. Simply looking at the design, FAM’s proposal’s eastbound and westbound structures are not identical, but rather inversely similar. Moreover, as established by Mr. Pate’s unrefuted testimony, there were a number of “non-twinning” aspects of FAM’s Signature Bridge proposal.

     • The westbound bridge runs straight, whereas the eastbound bridge contains a horizontal curve.

       
       

     • The towers are mirrored so that the features are not in the same direction.

       
       

     • The features on the two structures are staggered.

       
       

     • There are a different number of spans in the overall length of the structures.

       
       

     • The overall structures are different lengths:

     Bridge 8 (eastbound) has a signature bridge length of 980 feet and 1,432 feet of overall length between the spans; and Bridge 9 (westbound) has 977 feet for the Signature Bridge and 1,207 feet in overall length.

     
     

223. FAM’s proposed Signature Bridge design did not contain twin structures prohibited by the RFP requirements.

     
     

     Constant Girder Depth

     
     

224. AWD also challenges FAM’s Signature Bridge as being non-responsive to the Aesthetic Manual’s requirement “the signature bridge shall have a constant depth superstructure.” The language of the RFP does not include this reference, but does require “[g]irder depth on each side of the expansion joints shall be the same, i.e., no steps allowed.”

225. As explained at the hearing “girder depth” is “basically what your eye sees as the distance from the top to the bottom of the roadway surface.”

226. Both AWD’s and FAM’s bridge engineering experts testified the girder depth on each side of the expansion joint was the same in FAM’s Signature Bridge design and complied with the RFP language requiring equal girder depth on each side of the expansion joint.

227. FAM’s Signature Bridge was responsive to the RFP’s girder depth requirement.

     MOT Plan

     
     

228. Next, AWD contends FAM’s MOT plans are non-responsive because (1) the plans do not illustrate pedestrian access;

     (2) the plans do not have the requisite number of traffic lanes; and (3) the plans contain two reverse curves without a tangent.

     
     

229. The RFP requires the following:

     
     

     The Construction Phasing/Sequencing Plan shall provide information regarding Traffic management for Total Project . . . [and] shall include a narrative describing the means by which the Design Build Firm will move vehicular, bicycle and pedestrian traffic along the Project Limits.

     
     

230. The evidence established FAM provided a narrative description of pedestrian access in its technical proposal and submitted MOT plans that allow for the same level of pedestrian access as exists in the present condition.

231. As such, FAM met the pedestrian access requirements of the RFP, and its MOT was responsive to the pedestrian access requirements.

232. AWD next contends that the RFP requires that three lanes of traffic be maintained during all MOT phases because that is what exists in the present condition. However, DOT clarified in writing during the Q&A phase that proposers need only provide the same number of lanes shown in the RFP concept plans during MOT.

233. The evidence at the hearing established FAM provides the same number of traffic lanes shown in the Concept Plans, and as such its MOT plans are responsive to this requirement.

234. Finally, AWD contends FAM’s MOT plans are deficient because one of the ramps (Ramp D1) contains two reverse curves without a tangent. A tangent is the straightaway leading a

     
     

     driver in a certain direction when he or she comes around the curve.

235. Although the testimony surrounding the curves in the MOT plan was highly technical, Mr. Madison, FAM’s roadway engineer, convincingly explained that the two reverse curves in FAM’s MOT are not super-elevated or abnormally cross-sloped. A cross-slope is the pitch of the roadway from one side to the other; a normal cross-slope is two percent.

236. The testimony at trial established FAM’s MOT plan contains two curves that are two percent in one direction at all times and meet industry safety standards. Thus, they do not require a tangent.

237. Regardless, even if the curves required a tangent, there was no evidence that failure to include this tangent put other bidders at a disadvantage.

238. Finally, if Ramp D1 required a tangent, the plans AWD complains about are preliminary in nature. During the Q&A phase, DOT notified FAM that its Ramp D1 design needed a tangent between two curves or otherwise needed to be redesigned to meet the standards. FAM agreed to do so.

239. Because this was a “modifiable” aspect of the MOT, had the PSC selected FAM as BVP, adjustments and corrections to Ramp D1 could be achieved per FAM’s commitment to comply with the RFP in its Confirmation Letter.

     
     

240. FAM’s MOT plans were responsive to the RFP, and any need for an adjustment to include a tangent could have been provided in the final plans as allowed and anticipated by the RFP.

     Audited Financial Statements

     
     

241. AWD argues FAM’s Financial Proposal was non- responsive because it did not contain audited financial statements from one of the members of its joint venture.

242. The winning bidder was required to self-finance portions of its work as it would not receive full payment from DOT until after it had incurred costs for design and construction. This type of structure is often referred to as “gap financing.”

243. The RFP required each bidder to submit a Financial Proposal “so the Department can be assured that the Design-Build Firm has sufficient financial resources to construct the Department Project within the allotted Contract Time, based on the Cash Availability Schedule.” To satisfy itself that the entity who would ultimately design and build the Project was able to finance the labor and construction costs, the Department required each bidder to provide a financial proposal that contained, among other things, audited financial statements.

244. The RFP required the following in the Financial Proposals:

     
     

     The minimum required documents the Design- Build Firm must submit to the Department as part of the Design-Build Firm’s Financial Proposal shall include, but may not be limited to, the following: . . . Financial Statements of members of the Design-Build Firm or any partners of the joint venture that make-up [sic] the Design-Build Firm that will be responsible for the repayment of financial support related to the Department Project or directly provides financial support related to the Department Project. Lenders that are not members of the Design-Build Firm or partners of the joint venture that make up the Design-Build Firm are not required to provide Financial Statements. Financial Statements shall include:

     
     

     1. For the most recent two (2) fiscal years in which audited Financial Statements are available, audited Financial Statements prepared in accordance with U.S. Generally Accepted Accounting Principles. Required Financial Statements shall include:

        
        

        1. Opinion Letter (Auditor’s Report);

           
           

        2. Balance Sheet;

           
           

        3. Income Statement;

           
           

        4. Statement of Retained Earnings or Changes in Stockholders Equity;

           
           

        5. Statement of Cash Flows; and

           
           

        6. Notes to Financial Statements.

        
        

        * * *

        
        

     2. If audited Financial Statements are unavailable for the most recently completed fiscal year, unaudited Financial Statements, prepared in accordance with U.S. Generally Accepted Accounting Principles, shall be provided for such fiscal year. An

     
     

     affirmative statement shall be provided indicating that the Financial Statements for the most recently completed fiscal year are still being audited. These unaudited Financial Statements shall be certified as true, correct and complete by the Chief Financial Officer or treasurer of the entity. Requirements for unaudited Financial Statements are the same as for audited Financial Statements, except an Opinion Letter (Auditor’s Report) is not required.

     
     

     (RFP at 67–68.)

     
     

245. As described in the RFP, the RFP required a joint- venture bidder to submit the audited financial statements of each of its members in accordance with U.S. Generally Accepted Accounting Principles (GAAP); if a partner of a joint-venture member would provide financial support for the project, that partner’s audited financial statements were required to be submitted as well.

246. There is no dispute FAM did not and could not include any audited financial statements for one of its members, FEI, because FEI is not audited.

247. There is also no dispute that FEI will be responsible for the repayment of financial support related to the Project or would directly provide financial support related to the Project.

248. FAM did not qualify for the alternative included in the RFP for providing audited financial statements when such statements are unavailable for the most recent fiscal year.

     
     

249. Moreover, it was clear from the testimony put on by FAM that such audited statements could not have been provided in a timely matter, even if the Department had allowed FAM to supplement its financial proposal. Brian Smith, the assistant corporate controller for Fluor Corporation, testified if FAM had been selected BVP and the Department had requested the audited financial statements for FEI, it could not have provided them until well after the May 18, 2017, date set forth in the RFP for selecting the BVP.

     Q.: Had you been asked by DOT for an FEI audited financial statement for 2016 back in April of 2017, what is the soonest that FEI could have provided that information to DOT?

     
     

     A.: An audit of this nature would generally take four to six weeks, on an expedited basis, probably four weeks.

     
     

250. FAM counters it provided equivalent information and thus there was no effective harm. The RFP, however, specifically requires audited financial statements, not the information in those statements. This seems especially prudent given the size of the Project and when, as in this case, the bid was awarded as a public–private transportation facility under section 334.30, Florida Statutes, which emphasizes the financial health of bidders.

251. Moreover, the failure to submit audited financial statements has been found to render a proposal non-responsive

     
     

     when such statements are required by an RFP. See Jani-King Gulf

     
     

     Coast Region v. Escambia Cnty. Sch. Bd., Case No. 16-2762BID, RO at 23 (Fla. DOAH Aug. 26, 2016) (explaining the importance of audited financial statements, noting they “provide a much higher level of assurance as to the validity of the financial information presented,” than unaudited statements).

252. Nor can FAM satisfy the requirement for audited statements from FEI simply by submitting such statements from FEI parent corporation. See Consultec, Inc., d/b/a Gen. Am. Consultec, Inc. v. Fla. Dep’t of Admin., Case No. 91-5950BID,

     RO at 29 (Fla. DOAH Nov. 25, 1992) (finding submission of financial information from parent company failed to satisfy RFP requirement to provide audited financial statements and thus proposal was non-responsive). As explained in Consultec, FAM

     would have had an advantage had it not been required to provide such statements.

     Succinctly, . . . its failure to comply with the audited financial statement requirement of the RFP gave it an advantage not enjoyed by other bidders since by submitting the balance sheet of its parent company, as opposed to its own financial statements, HCPP effectively precluded any assessment of its own financial soundness.

     
     

     Id.

     
     

253. As such, FAM’s failure to include the audited financial statements of FEI renders its Financial Proposal non- responsive.

     CONCLUSIONS OF LAW

     
     

254. The Division of Administrative Hearings has jurisdiction pursuant to sections 120.569, 120.57(1), and 120.57(3), Florida Statutes (2017).

     Standing

     
     

255. As an initial matter, AWD and DOT challenge FAM’s standing to bring this action. Standing is a jurisdictional, threshold issue in a chapter 120 administrative proceeding. Generally, standing is not a dependent on the merits of a party’s case, but rather the equivalent of assessing subject- matter jurisdiction. See, e.g., Abbott Labs. v. Mylan

     Pharmaceuticals, Inc., 15 So. 3d 642, 651 n.2 (Fla. 1st DCA 2009); Palm Beach Cty. Envtl. Coal. v. Fla. Dep’t of Envtl.

     Prot., 14 So. 3d 1076, 1078 (Fla. 4th DCA 2009) (explaining

     
     

     question of whether party has standing is different from question of whether party will be able to prove its case).

256. DOAH lacks jurisdiction to reach the merits of a petition unless and until the petitioner affirmatively establishes standing. See, e.g., § 120.569(1), Fla. Stat. (2016); Westinghouse Elec. Corp. v. Jacksonville Transp. Auth.,

     491 So. 2d 1238, 1240–41 (Fla. 1st DCA 1986). “To have standing

     
     

     to challenge the proposed award of a public contract, an applicant must have a substantial interest to be determined in the case.” Preston Carroll Co. v. Fla. Keys Aqueduct Auth.,

     400 So. 2d 524, 525 (Fla. 3d DCA 1981); see § 120.57(3)(b), Fla.

     
     

     Stat. (2016). The second lowest bid establishes that substantial interest because if the lowest bid is disqualified, the second lowest bid may receive the award.” Madison

     Highlands, LLC v. Fla. Hous. Fin. Corp., 220 So. 3d 467, 473

     
     

     (Fla. 5th DCA 2017) (emphasis added).

     
     

257. Here, Petitioner not only was ranked second by the PSC, it was separated from the winning bidder by less than half of a point. Under the traditional standing test announced in Agrico Chemical Co. v. Department of Environmental Regulation,

     406 So. 2d 478, 479 (Fla. 2d DCA 1981), FAM has a substantial interest that the bid protest procedures are designed to protect.

258. AWD, however, argues FAM lacks standing because FAM’s proposal was ultimately found to be non-responsive and, thus, FAM would not be entitled to an award of the contract if FAM were to prevail on its arguments. As determined above, FAM’s proposal has been found to be non-responsive in two relevant and material ways: (1) the financial proposal lacked audited financial statements as required by the RFP; and (2) the FAM Signature Bridge design contained non-load bearing components

     
     

     contrary to the Aesthetic Manual. AWD cites to a number of cases for the proposition that a non-responsive bidder lacks standing. These cases, however, can be distinguished from the situation in this matter.

259. For example, in Intercontinental Properties, Inc. v.

     
     

     State Department of Health & Rehabilitative Services, 606 So. 2d

     
     

     380 (Fla. 3d DCA 1992) (AWD’s PRO at 45), the Third District did not address the issue of standing, but rather dealt with the question of whether DOAH could review the responsiveness of the petitioner in a bid protest. There, as here, the agency referred the bid protest to DOAH and an administrative hearing officer conducted an evidentiary proceeding. In the Recommended Order, the ALJ concluded that both bids were unresponsive and recommended that both bids be rejected; the agency did so. Id.

     at 381. Contrary to finding the petitioner lacked standing, the appellate court found the issue of the petitioner’s responsiveness was squarely before the ALJ. Regarding the petitioner, the court explained, “a party protesting an award to the low bidder must be prepared to show not only that the low bid was deficient, but must also show that the protestor’s own bid does not suffer from the same deficiency. To rule otherwise

     is to require the State to spend more money for a higher bid which suffers from the same deficiency as the lower bid.”

     Id. at 384. (emphasis added). This last sentence indicates the

     
     

     court did not find the ALJ lacked jurisdiction. Instead, the court was focused on the merits and ultimate relief. In fact, the court affirmed the agency’s action in rejecting all bids.

260. This is also not a situation where the petitioner was not next in line behind the winning bid or had a significantly lower score than the winning bid. Compare Preston Carroll

     Co. v. Fla. Keys Aqueduct Auth., 400 So. 2d at 525 (holding

     
     

     petitioner, as third low bidder, “was unable to demonstrate that it was substantially affected; it therefore lacked standing to protest the award of the contract to another bidder.”) (See AWD

     PRO at 45).

     
     

261. Nor is FAM’s position similar to the petitioner in Westinghouse Electric Corporation v. Jacksonville Transportation Authority, 491 So. 2d at 1241 (AWD’s PRO at 45-48), which was

     deemed a “non-bidder” after it failed to submit a bonded price proposal. Here, unlike in Westinghouse, the agency found FAM

     prequalified and a true bidder, moving it ahead at each step and ultimately scoring its Signature Bridge submissions, Technical Proposal, Contract Time, and Price proposal. Compare also Fort

     Howard Co. v. Dep’t of Mgmt. Servs., 624 So. 2d 783 (Fla. 1st DCA 1993) (finding lack of standing of petitioner, who did not submit a bid, but rather was the listed supplier of materials for two vendors who had submitted bids).

     
     

262. Also unlike the issues raised in the cases cited by AWD, here FAM not only challenges AWD’s responsiveness, but also the fundamental fairness of the procurement process in a number of ways: DOT’s approval of AWD’s ATC 12C proposal; the scoring process used when Mr. Blanchard withdrew from the ARC; and the Department’s request for and consideration of financial information not part of the AWD’s original financial packet.

     FAM has standing to bring this protest because it has asserted the Department’s procurement process was so fundamentally flawed that even if its proposal is not found responsive, a rejection of all bids would be required. See Fairbanks, Inc. v. Dep’t of Transp., 635 So. 2d 58, 61 (Fla. 1st DCA 1994) (distinguishing

     both Westinghouse and Fort Howard and applying the 2-pronged Agrico test to determine standing).

263. In Fairbanks, the court held that in narrow circumstances non-bidders could establish standing. In doing so, the court discussed the intent of providing meaningful administrative review of agency procurement actions as a matter of public policy:

     The courts of this state have held on numerous occasions that the legislative intent behind such statutes is protection of the public. E.g., Department of Transportation v. Groves-Watkins Constructors, 530 So. 2d 912 (Fla. 1988); Hotel China & Glassware Co. v. Board of Public Instruction, 130 So. 2d 78 (Fla. 1st DCA 1961). Given such an intent, such

     
     

     statutes “should be construed to advance their purpose and to avoid their being circumvented.” Marriott Corp. v.

     Metropolitan Dade County, 383 So. 2d 662, 665 (Fla. 3d DCA 1980).

     
     

     * * *

     
     

     [In] Groves-Watkins the court concluded that, notwithstanding the broad discretion invested in the Department by the legislature, because of the manifest overriding concern for the integrity of the competitive bidding process, bidders are entitled to some administrative review of the Department’s decisions. Therefore, it concluded, further, that bidders are entitled to a formal section 120.57 hearing in certain circumstances. However, “the scope of the inquiry is limited to whether the purpose of competitive bidding has been subverted. In short, the hearing officer’s sole responsibility is to ascertain whether the [Department] acted fraudulently, arbitrarily, illegally, or dishonestly.” Id. at 914.

     
     

     Fairbanks, 635 So. 2d at 60 (footnotes omitted).

     
     

264. Here, as in Fairbanks, even if FAM were considered a

     
     

     non-bidder, it had standing to proceed with the bid protest. Id.; see also NTI Group, Inc. v. Dep’t of Educ., Case

     No. 06-4449BID (Fla. DOAH Jan. 9, 2007; Fla. DOE Jan. 31, 2007);

     
     

     Vertex Standard v. Fla. Dep’t of Transp., Case No. 07-0488BID

     
     

     (Fla. DOAH Apr. 30, 2007; Fla. DOT May 30, 2007).

     
     

265. Ultimately, FAM had standing to contest the bid award to AWD, and DOAH had jurisdiction to ascertain whether the award was contrary to the Department’s governing statutes, rules,

     
     

     policies or the RFP specifications; or that the award was clearly erroneous, arbitrary, capricious, or contrary to competition.

     Standard and Burdens for Bid Protest

     
     

266. This bid protest is a “de novo” proceeding to determine whether the Department’s notice of intent to award the contract to AWD was contrary to the Department’s governing statutes, rules, or the RFP specifications. Although there is mention in the PROs that this procurement is “not a traditional request for proposals under chapter 287, Florida Statutes” (AWD PRO at n.3), the review of the award occurs pursuant to section 120.57(3)(f), which provides:

     [T]he burden of proof shall rest with the party protesting the proposed agency action. In a competitive-procurement protest, the administrative law judge shall conduct a de novo proceeding to determine whether the agency’s proposed action is contrary to the agency’s governing statutes, the agency’s rules or policies, or the solicitation specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious.

     
     

267. A “de novo hearing” in the bid protest context is used to describe a form of review to evaluate the action taken by the agency. The judge may receive evidence, as with any formal hearing under section 120.57(1), but the object of the proceeding is to evaluate the action taken by the agency. State

     
     

     Contracting & Eng’g v. Dep’t of Transp., 709 So. 2d 607, 609

     
     

     (Fla. 1st DCA 1998).

     
     

268. The burden of proof rests with Petitioner, FAM, to prove by a preponderance of the evidence a violation of the governing statutes, rules, policies, or procurement documents; and to prove the award was clearly erroneous, contrary to competition, arbitrary, or capricious. See § 120.57(3)(f),

     Fla. Stat.; AT&T Corp. v. State, Dep’t of Mgmt. Servs., 201 So.

     
     

     3d 852, 854 (Fla. 1st DCA 2016).

     
     

269. Although a bid containing a material deviation from the procurement documents is unacceptable, not every deviation is material. Procacci Commer. Realty v. Dep’t of Health &

     Rehab. Servs., 690 So. 2d 603, 606 n.7 (Fla. 1st DCA 1997). A deviation is material “if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition.” Id.; see also Harry Pepper & Assocs.,

     Inc. v. City of Cape Coral, 352 So. 2d 1190, 1193 (Fla. 2d DCA

     
     

     1977).

     
     

270. Moreover, in conducting a review of an agency’s decision in a procurement process, an agency’s interpretation of the requirements is afforded great deference and can only be overruled where it is clearly erroneous. See Consultech of Jacksonville, Inc. v. Dep’t of Health, 876 So. 2d 731, 734 (Fla.

     1st DCA 2004) (citing Fla. Dep’t of Ins. & Treas. v. Bankers

     
     

     Ins. Co., 694 So. 2d 70 (Fla. 1st DCA 1997) (finding that an

     
     

     agency’s interpretation of a statute it administers is entitled to deference); Dep’t of Nat. Res. v. Wingfield Dev. Co., 581 So.

     2d 193 (Fla. 1st DCA 1991) (finding that only upon a determination that an agency’s interpretation is clearly erroneous will such an interpretation be overturned on appeal).

271. An agency’s action is “clearly erroneous” if the agency’s interpretation conflicts with the plain and unambiguous intent of the law. See Colbert v. Dep’t of Health, 890 So. 2d 1165, 1166 (Fla. 1st DCA 2004). Conversely, an award or agency decision is not clearly erroneous if its construction falls within the permissible range of interpretations. Id.

272. “An action is arbitrary if it is not supported by logic or the necessary facts, and capricious if it is adopted without thought or reason or is irrational.” Hadi v. Liberty Behavioral Health Corp., 927 So. 2d 34, 38-39 (Fla. 1st DCA

     2006). An agency decision is neither arbitrary nor capricious if that action is justifiable under any analysis that a reasonable person would use to reach a decision of similar importance. Further, “[w]hether [an agency] acted arbitrarily is generally controlled by a determination of whether [the agency] complied with its own proposal criteria as outlined in the [RFP or procurement materials].” Emerald Corr. Mgmt. v. Bay

     
     

     Cnty. Bd. of Cnty. Comm’rs, 955 So. 2d 647, 653 (Fla. 1st DCA

     
     

     2007).

     
     

273. As explained by Judge John Van Laningham, the “contrary to competition” standard is unique to bid protests. See R.N. Expertise, Inc. v. Miami-Dade Co. Sch. Bd., Case

     No. 01-2663BID, RO at 56-58 (Fla. DOAH Feb. 4, 2002; Miami-Dade

     
     

     Co. Sch. Bd. Mar. 13, 2002). Whether an agency action is contrary to competition must be determined on a case-by-case basis. Id. Examples of such actions include those which: “(a) create the appearance of and opportunity for favoritism;

     (b) erode public confidence that contracts are awarded equitably and economically; (c) cause the procurement process to be genuinely unfair or unreasonably exclusive; or (d) are unethical, dishonest, illegal, or fraudulent.” Id.; see also

     Harry Pepper & Assoc., 352 So. 2d at 1192 (noting purpose of the competitive bidding process is to eliminate opportunity for collusion, favoritism and unfair advantage, thereby securing the best selection for the public).

274. As explained in Scientific Games, Inc. v. Dittler

     
     

     Brothers, Inc., 586 So. 2d 1128 (Fla. 1st DCA 1991), an agency has wide discretion in awarding a contract at the end of the bidding process.

     The Hearing Officer need not, in effect, second guess the members of evaluation committee to determine whether he and/or

     
     

     other reasonable and well-informed persons might have reached a contrary result. [A] public body has wide discretion in the bidding process and its decision, when based on an honest exercise of the discretion, should not be overturned even if it may appear erroneous and even if reasonable persons may disagree. The hearing officer’s sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly.

     
     

     Id. at 1131 (citations and quotation marks omitted).

     
     

275. The Department’s exercise of its discretion with regard to competitive bids for a public contract “cannot be overturned absent a finding of illegality, fraud, oppression or misconduct, or is contrary to competition.” See Jackson-Shaw Co. v. Jacksonville Aviation Auth., 510 F. Supp. 2d 691, 723

     (M.D. Fla. 2007) (citing Groves-Watkins, 530 So. 2d at 913). So long as the agencies act in good faith, even though they “may reach a conclusion on facts upon which reasonable men may differ, the courts will not generally interfere with their judgment, even though the decision reached may appear to some persons to be erroneous.” Id. (noting the “strong judicial deference accorded to an agency’s decision in competitive bidding situations”).

     The Procurement and Award

     
     

276. Here, FAM argued both that AWD’s was non-responsive to the RFP and procurement documents, and that DOT’s process was flawed. As reflected in the findings of fact, there was

     
     

     insufficient credible evidence establishing a violation of the governing statutes, rules, policies or RFP by AWD. Nor can it be said the Department’s interpretation of the procurement documents or decisions regarding the process were clearly erroneous, arbitrary, capricious or contrary to competition.

277. The parties also debated the importance of the case of The Middlesex Corporation v. Department of Transportation,

     Case No. 15-3082BID (Fla. DOAH Dec. 7, 2015; DOT Jan. 5, 2016).

     
     

     FAM cited Middlesex for the proposition that the deviations proposed by AWD were unacceptable and the Confirmation Letter signed by the parties did not cure any inconsistencies with the concept plans and RFP requirements. Although AWD’s has been found to be responsive, a brief discussion of the applicability of Middlesex is warranted.

278. In Middlesex, the rejected bidder successfully argued the intended awardee’s proposal contained deviations and was therefore unresponsive. The intended awardee indicated, during the protest, that it would cure any deficiencies after receiving the contract, if required to do so. Middlesex, RO at 63. The

     ALJ concluded it was impermissible, under section 120.57(3)(f), for DOAH to consider during the protest any changes or supplementations to a proposal that were not part of what was received by the agency during the procurement. Id. DOT adopted

     this conclusion in its final order, disagreeing but conceding it

     
     

     lacked substantive jurisdiction to modify or reject the conclusion. Id.; FO at 22, 27.

279. Middlesex is inapplicable and distinguishable for a

number of reasons. First, as stated previously, there has been no finding of non-responsiveness on the part of AWD.

288. Second, unlike Middlesex, the two AWD deviations FAM asserts were improper (lane width and number of lanes) were approved by DOT in ATC 12C.

1. Third, the Middlesex solicitation contained no provision for submitting a Written Confirmation Letter as the RFP did here.

2. FAM essentially argues that the RFP provision requiring Written Confirmation Letters is superfluous. Middlesex was decided shortly before this procurement was

   advertised. Compare, Id. at 26, with RFP at 9. In fact, here, there was evidence at the hearing the Department’s intent in requiring an assurance in writing from all bidders before the

   final selection was to avoid the issue in Middlesex of post- procurement submissions restricted by section 120.57(3)(f).

3. The Confirmation Letter served a purpose to allow bidders to submit innovative technical proposals that varied from the RFP, concept plans and Design and Construction Criteria, while at the same time ensuring the DB Firm would

   
   

   comply with the requirements of the procurement documents if required by the Department.

4. The interpretation of a solicitation is a question of law. See Nassau Cnty. v. Willis, 41 So. 3d 270, 278 (Fla. 1st DCA 2010); Dixon v. City of Jacksonville, 774 So. 2d 763, 765

   (Fla. 1st DCA 2000). As a matter of law, the RFP allowed a bidders to submit technical proposals that varied from the Design and Construction Criteria as long as it promised–-before submitting the price proposal-–that it would comply with the procurement requirements.

5. Fourth, no bidder here received a competitive advantage, as all bidders were on notice that designs were preliminary and all bidders were required to submit the Confirmation Letters. There was equal opportunity for the bidders to propose alternative design concepts that deviated from the procurement documents as long as they were “modifiable.” AWD did not receive any competitive advantage over the other bidders.

6. Finally, the Middlesex solicitation was issued

   
   

   pursuant to section 337.11, Florida Statutes. Middlesex, Case No. 15-3082BID, RO at 59. This RFP was issued pursuant to section 334.30. Section 334.30 does not contain the same restrictions as section 337.11, which traditionally applies to contracts for construction and maintenance of roads.

   
   

7. During the course of this proceeding the parties also debated the importance and effects of certain unique aspects of this procurement, including the fact this was a P3 project.9/ Unlike a traditional request for proposals issued under other procurement laws, this solicitation was issued under DOT’s unique P3 statute, section 334.30, which states in relevant part:

   Public-private transportation facilities.—

   
   

   * * *

   
   

   1. The department may receive or solicit proposals and, with legislative approval as evidenced by approval of the project in the department’s work program, enter into agreements with private entities, or consortia thereof, for the building, operation, ownership, or financing of transportation facilities. Before

      approval, the department must determine that the proposed project:

      
      

      1. Is in the public’s best interest;

         
         

      2. Would not require state funds to be used unless the project is on the State Highway System;

         
         

      3. Would have adequate safeguards in place to ensure that no additional costs or service disruptions would be realized by the traveling public and residents of the state in the event of default or cancellation of the agreement by the department.

      
      

      § 334.30, Fla. Stat.10/

      
      

8. Section 334.30 was created because the Legislature determined that “there is a public need for the rapid

   
   

   construction of safe and efficient transportation facilities for the purpose of traveling within the state, and that it is in the public’s interest to provide for the construction of additional safe, convenient, and economical transportation facilities.”

   § 334.30, Fla. Stat. In comparison, section 337.11 provides: “The department may award the proposed construction and maintenance work to the lowest responsible bidder, or in the instance of a time-plus-money contract, the lowest evaluated responsible bidder.” § 337.11(4), Fla. Stat.

9. Furthermore, by its concerns to “not require state funds,” and to ensure “no additional costs . . . in the event of default,” section 334.30 clearly emphasizes a concern about the financial stability of the award winning bidder. Because this is a P3 project pursuant to section 334.30, the financial strength of the selected bidder is of utmost importance. For this reason, it was essential that the Department set minimum financial requirements, such as requiring audited rather than unaudited statements. It also supports the finding that the Department behaved prudently in exercising its flexibility to request and consider additional financial information from the BVP.

10. In summary, unlike the RFP in this case, there was no requirement in Middlesex that bidders submit an official Written

Confirmation Letter stating that they would comply with all

requirements in the contract documents for the price bid, regardless of any deviations the bidder proposed. AWD, FAM, and all other bidders were on notice that the drawings and designs were preliminary and could vary from the Design and Construction Criteria as long as the final project complied with all RFP requirements for the price quote provided by that bidder. The requirement for the Written Confirmation was not challenged, and the Department’s intent to utilize these letters to ensure ultimate compliance with its requirements for the Project was not erroneous.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Petitioner Fluor-Astaldi-MCM, Joint Venture’s Amended Formal Written Protest, and affirming Respondent Florida Department of Transportation’s Notice of Intent to award to Intervenor Archer Western-de Moya, Joint Venture.

DONE AND ENTERED this 10th day of April, 2018, in Tallahassee, Leon County, Florida.

S

HETAL DESAI

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 10th day of April, 2018.

ENDNOTES

1/ FDOT filed a Motion to Strike Allegations of Amended Formal Written Protest Petition, which was heard on November 22, 2017, and denied by written Order on November 27, 2017.

2/ FAM also proffered the deposition testimony of Jim Whitmer, FAM’s Director of Estimating for Infrastructure in North America. Mr. Whitmer was to provide opinion testimony as to the amount AWD financially benefited from its alleged modification of a non-modifiable component of the RFP -- reducing the number of lanes for part of the Project. AWD filed a Motion in Limine to exclude Mr. Whitmore’s testimony on this subject based on FAM’s failure to turn over underlying data related to

Mr. Whitmer’s opinion testimony (“Whitmer Motion in Limine”).

On December 4, 2017, the undersigned heard argument from all parties on the Whitmer Motion in Limine. Based on the findings summarized below and for the same legal reasons cited in the Order granting Petitioner’s Second Motion to Compel Responses to Production of Documents Authored by FDOT’s Expert Anthony Jorges rendered on November 16, 2017, the undersigned granted the Motion in Limine as to Mr. Whitmer. Subsequently,

FAM filed a Motion for Reconsideration on December 5, 2017, and was allowed to make further argument and proffer the deposition into the record.

The undersigned found that during Mr. Whitmer’s deposition on November 28, 2017, FAM disclosed for the first time

Mr. Whitmer would be providing opinion testimony as to the financial advantage AWD may have received by allegedly having fewer lanes than required by the RFP. During that deposition, AWD’s counsel asked Mr. Whitmer for the underlying data he reviewed for reaching his opinion. This information was also requested in a more general interrogatory during the course of discovery in these proceedings. Mr. Whitmer refused to answer questions at his depositions about the underlying data, but based the figures on FAM’s proprietary information and a “HeavyBid Report.” AWD’s counsel then asked how the data was kept and whether it was easily printable.

At the hearing, the parties disputed whether AWD’s counsel properly requested the underlying cost information or meaningfully conferred with FAM before filing the Whitmer Motion in Limine. At no time, however, between the completion of the deposition and the time FAM’s motion for rehearing was heard did FAM provide the underlying cost information relied upon by

Mr. Whitmer. For the same reasons cited on the record, the undersigned denied the Motion for Rehearing, affirmed the granting of the Motion in Limine, and has not considered the deposition testimony of Mr. Whitmer regarding this limited issue.

3/ Although unclear from the record, AWD’s Exhibit 449 was admitted over objection.

4/ Although not argued as a ground for challenging the intended bid award to AWD, FAM implies BCC’s relationship with the members of AWD on other projects unrelated to this RFP gave AWD an unfair advantage. There is no evidence of any improper or unethical conduct by BCC or any party in this action. To the contrary, the RFP contained strict rules of contact which would have prohibited communications between BCC and AWD outside of the meetings allowed through the RFP process. Although BCC had provided services and had working relationships with AWD, it provided services to both public and private clients all over Florida. In fact, BCC had a similar relationship with Munilla Construction Management, LLC (“MCM”), a member of FAM. Most importantly, at no time did FAM object to BCC’s involvement in the development of the RFP or its participation in the process,

nor did it file an objection to any of the procedures or requirements in the RFP. There was nothing nefarious about BCC’s involvement in the RFP process.

5/ The PD&E is required to satisfy federal requirements for road projects. For example, prior to the design-build phase of a road improvement project, the National Environmental Policy Act requires that a PD&E be conducted to determine the location and conceptual design of feasible build alternatives. 23 C.F.R.

§ 771.109. A PD&E is finalized when the Federal Highway Administration (“FHWA”) accepts DOT’s selection of a location and design concept. 23 C.F.R. § 771.1113 & 23 C.F.R. § 771.125.

6/ The public’s own opinion about the ARC’s role as representing the public was an issue of debate at the May 12 hearing. An attorney representing the group who sued DOT over the bridge project in 2013, claimed the aesthetic aspect of the proposal was to be scored only by the ARC; and the ARC was to be made up of only “one FDOT representative, one county representative, and one city representative.” In reality, a county commissioner and assistant city manager served on the ARC. Another speaker (who described herself as a representative of “some of the most prominent citizens” and leaders from local museums, arenas, and art centers) indicated that any deviation from the “mutually agreed upon” five-person ARC was a breach of public trust.

Alternatively, members representing Overtown business and community groups commended AWD for speaking directly with them regarding the design and development of its proposal, and for not focusing on appeasing the ARC members. At least one public speaker noted he believed the ARC had too much influence, since his company’s bridge submission was rejected by the ARC and he was not allowed to move on in the process.

7/ The RFP incorporates by reference a number of governing regulations and reference documents including, the AASHTO Manual.

8/ That is because FAM’s proposed bridge utilized a cable system which transferred the load from the superstructure (i.e., the bridge) to the substructure (pylons), and then to the foundation (the ground or underground support).

9/ The term “public-private partnership” or “P3” describes the contractual scenario in which the government partners with a private entity to complete a project that will benefit the public. P3 projects differ from traditional procurement

contracts in several respects. “They are typically large, long- term endeavors over which the private partner holds a significant amount of control and inherits greater risk.” See Vincent Napoleon et al., The Use of Public-Private Partnerships as a Model for the Delivery of Goods and Services to the Government--Is this a New Concept in Government Contracting?,

35 J.L. & COM. 119, 122 (2017).

10/ Neither party has cited any case involving this section, nor could the undersigned find any administrative decision relating to a bid protest of a P3 procurement award.

COPIES FURNISHED:

C. Denise Johnson, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 (eServed)

Brian A. Newman, Esquire Pennington, P.A.

Post Office Box 10095 Tallahassee, Florida 32302 (eServed)

Donna Elizabeth Blanton, Esquire Radey Law Firm, P.A.

Suite 200

301 South Bronough Street Tallahassee, Florida 32301 (eServed)

Brittany Adams Long, Esquire Radey Law Firm, P.A.

Suite 200

301 South Bronough Street Tallahassee, Florida 32301 (eServed)

Jeffrey L. Frehn, Esquire Radey Law Firm, P.A. Suite 200

301 South Bronough Street Tallahassee, Florida 32301 (eServed)

Kathryn Hood, Esquire

Fuller, Johnson & Farrell, P.A.

215 South Monroe Street Tallahassee, Florida 32301 (eServed)

Barry L. Davis, Esquire Clyde & Co US LLP

Suite 1600

1221 Brickell Avenue

Miami, Florida 33131 (eServed)

Daniel R. Lever, Esquire Clyde & Co US LLP

Suite 1600

1221 Brickell Avenue

Miami, Florida 33131 (eServed)

David C. Ashburn, Esquire Greenberg Traurig, P.A.

101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32301 (eServed)

Jon Swergold, Esquire Greenberg Traurig P.A. Suite 2000

401 East Las Olas Boulevard Fort Lauderdale, Florida 33301

Eduardo S. Lombard, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Park Avenue Tallahassee, Florida 32301 (eServed)

William Robert Vezina, III, Esquire Vezina, Lawrence and Piscitelli, P.A.

413 East Park Avenue Tallahassee, Florida 32301 (eServed)

Megan S. Reynolds, Esquire

Vezina Lawrence & Piscitelli, P.A.

413 East Park Avenue Tallahassee, Florida 32301 (eServed)

Michael E. Riley, Esquire Gray, Robinson, P.A.

Post Office Box 11189 Tallahassee, Florida 32302 (eServed)

Edward Baird, Esquire Baird Law, PLLC

Suite 100

841 West Morse Boulevard Winter Park, Florida 32789 (eServed)

Brandice Davidson Dickson, Esquire Pennington, P.A.

Post Office Box 10095 Tallahassee, Florida 32302 (eServed)

Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation

Haydon Burns Building

605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0450 (eServed)

Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building

605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0450 (eServed)

Michael J. Dew, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street, MS 57

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.

Docket for Case No: 17-005800BID

Orders for Case No: 17-005800BID