vs.
Case No. 18-4208BID
Intervenor.
A final hearing was held in this case on September 5, 2018, in Tallahassee, Florida, before Suzanne Van Wyk, Administrative Law Judge for the Division of Administrative Hearings (“Division”).
Messer Caparello, P.A. 2618 Centennial Place
Richard E. Shine, Esquire Department of Transportation Mail Station 58
Whether the Florida Department of Transportation’s (“Respondent” or “Department”) intended award of a contract for integrated corridor management modeling software to Aimsun, Inc. (“Intervenor” or “Aimsun”), is contrary to the Department’s governing statutes, rules, policies, or the solicitation specifications; and, if so, whether the decision was clearly erroneous, contrary to competition, arbitrary, or capricious.
On February 22, 2018, the Department issued RFP-DOT-17-18- 5011-ICMM (“the RFP”) seeking proposals from contractors to provide integrated corridor management modeling software. On April 23, 2018, the Department posted its Notice of Intent to award the contract to Aimsun. Petitioner, PTV America, Inc. (“Petitioner” or “PTV”), timely submitted its Notice of Intent to protest the award of the RFP. On June 11, 2018, PTV timely filed its Amended Formal Written Protest (“Petition”), which was referred to the Division on August 10, 2018, along with Aimsun’s Notice of Intervention, and assigned to the undersigned for scheduling a final hearing.
The undersigned conducted a telephonic scheduling conference with the parties on August 15, 2018, and the final hearing was scheduled for September 5 and 6, 2018, in Tallahassee, Florida.
The final hearing commenced as scheduled. At the outset, the undersigned heard argument on a Motion in Limine (“Motion”) filed by Aimsun on the morning of the final hearing. The Motion sought to prohibit testimony and documentary evidence regarding allegations in the Petition as either irrelevant or untimely. The undersigned granted, in part, the Motion, striking paragraphs 34 through 38 of the Petition and prohibiting documentary evidence and testimony in support of those allegations.
Petitioner presented the testimony of its Vice President, Shaleen Srivastava, but offered no exhibits in evidence. The Department presented the testimony of Michelle Sloan, the Department’s District 5 Procurement Manager; Ayman Mohamed, District 5 Traffic Design Engineer; Jason Lerned, District 5 Travel Demand Model Coordinator; and Jeremy Dilmore, a Transportation Engineer. The Department introduced Exhibit R1, which was admitted in evidence. Intervenor offered the testimony of Pascal Volet, its Principal Transportation Modeler, and introduced Exhibits I1 and I5, which were admitted
in evidence. Joint Exhibits J1 through J13 and J15 through J17 were also admitted in evidence.
The two-volume Transcript of the final hearing was filed on September 21, 2018. On September 24, 2018, Petitioner filed a Motion for Extension of Time to File Proposed Recommended Orders, which was unopposed, and was granted. By the undersigned’s Order Granting Extension of Time, proposed recommended orders were due on or before October 8, 2018.
The parties timely filed Proposed Recommended Orders which have been considered in the preparation of this Recommended Order.
Except as otherwise provided, all Florida Statutes references herein are to the 2017 version.
The Department is the state agency responsible for coordinating and planning a safe, viable, and balanced transportation system serving all regions of the state, and to assure the compatibility of all components of the system. See
§ 334.044, Fla. Stat. (2018).
The RFP
On February 22, 2018, the Department posted the RFP to the state vendor bid system, seeking vendors that could provide Integrated Corridor Management Modeling (“ICMM”) software.
There were no challenges to the terms, conditions, or specifications contained in the RFP.
The RFP describes the overall goal to acquire ICMM for the Central Florida Regional Integrated Corridor Management System (“ICMS”), which is initially centered on the I-4 Corridor and its “influence area,” including the interstate, a commuter- rail line, transit bus service, park-and-ride lots, major regional arterial streets, toll roads, and other transportation facilities. While the ICMS project focuses on the Orlando region initially, the goal of the Department is to develop a modular approach to ICMS which will be scalable to District 5 in its entirety. As summarized by Shaleen Srivastava, Petitioner’s Vice President, the Department is building a “model of the actual traffic situation [in the I-4 corridor] in the virtual world.”
The ICMS is composed of three main systems, the relevant one being the Decision Support System (“DSS”). The DSS will be developed to provide a system to review and evaluate the current and predicted conditions of the Central Florida transportation network in order to help operators make smart decisions in managing both recurring and non-recurring congestion conditions.
The DSS components are an Expert Rules Engine (“ERE”), a Predictive Engine (“PRE”), and an Evaluation Engine (“EVE”)
that will build and select response plans to be evaluated, model the predicted outcomes of the selected response plans, evaluate and score the plans, coordinate with operators and local agency maintainers, and invoke the approved response plan actions.
Through the RFP, the Department seeks a vendor to supply a Commercial Off-the-Shelf (“COTS”) software product which will be the core of the PRE.
The RFP Exhibit A contains the scope of services for the project and describes in detail the requirements for the PRE. The PRE is envisioned to provide predictions of the network performance 30 minutes into the future. The PRE will have three main functions that must be met by the COTS software:
1) maintenance, 2) evaluation, and 3) offline signal simulations. The third role of the PRE is to simulate and provide measures of effectiveness for the optimized signal timing plans and coordination that will be developed by the signal optimization tool that will be part of the ICMS.
The PRE is an integral component of, and must interface seamlessly with, the DSS.
All of the technical requirements for the PRE/COTS are listed in Exhibit A, Table 2. The proposer must verify that its software is demonstrated to meet each of the 55 requirements.
The RFP incorporates a number of required forms, including a Proposed Staffing and Availability worksheet
(“staffing worksheet”), which directs proposers to provide the following information for up to 10 core staff members:
List the Key Personnel, including job titles, of the Team that will be involved with this contract. Include the number of years of experience each person has in the specific job title and the type of experience they have, as well as any certifications and education. List the availability for each team member in percentage of hours per year.
According to the RFP, proposals may be found to be
irregular or non-responsive if they do not utilize or complete prescribed forms.
Processing of Responses
Both PTV and Aimsun are potential vendors which submitted timely proposals to the District 5 Procurement Unit in response to the RFP.
The Procurement Unit opened the technical proposals on April 10, 2018, then distributed the proposals to the members of the Technical Review Committee (“TRC”), who evaluated and scored the technical proposals.
The TRC was composed of District 5 staff with technical expertise relevant to traffic management: Traffic Design Engineer Ayman Mohamed, Transportation Modeler Jason Learned, and Freeways Engineer Jeremy Dilmore.
TRC members evaluated and scored the technical proposals on a scoresheet template provided by the Procurement
Unit. The template was divided into three sections, which correspond with the three sections of the RFP: Software Description and Functionality, Support and Integration Approach, and Software Deployment/Project History. The maximum score for each section was 35 points.
TRC members completed their evaluation and scoring and returned their evaluation, and summaries thereof, to the Procurement Unit on April 17, 2018. Aimsun received a total score of 93 for its technical proposal. PTV received a total score of 78.67. Following opening of the price proposals, Aimsun was selected to receive the ICMM contract. Responsiveness of Aimsun’s Proposal
Petitioner’s first contention is that the Department’s intended award to Aimsun is contrary to the bid specifications because Aimsun did not include the staffing worksheet, which rendered Aimsun’s proposal non-responsive.
It is undisputed that the Aimsun proposal considered by the TRC did not include the required staffing worksheet.
According to the Procurement Supervisor, the TRC is responsible for determining responsiveness of proposals.1/
In scoring section 2, Support and Integration Approach, Mr. Mohamed noted, “Aimsun provided general description of their supporting staff. Aimsun did not provide staffing plan showing key staff members and their availability
toward the project.” Mr. Mohamed gave Aimsun 31 out of 35 possible points on this section.
Mr. Learned gave Aimsun 30 out of a possible 35 points on this section. Mr. Learned noted, “Has staffing plan, but does not show availability – staff has worked on projects listed in the project history. Support staff housed in NYC office, which will facilitate communication with FDOT.”
Mr. Dilmore gave Aimsun 33 out of a possible 35 points on this section. Mr. Dilmore noted, “Aimsun’s product requires development. It is unclear about availability of staff.”
Despite the absence of the staffing worksheet from Aimsun’s proposal, Mr. Mohamed was satisfied Aimsun could support the COTS product identified in this proposal. In arriving at his conclusion, Mr. Mohamed considered the information contained in Section 2.4 of Aimsun’s proposal, which listed each staff member who would support the project, as well as each component of the project which they would support.
Both Mr. Learned and Mr. Dilmore also relied upon the staffing information contained in Section 2.4 of Aimsun’s proposal in arriving at their scores of 30 and 33, respectively.
Despite the absence of the required staffing worksheet, each evaluation committee member was satisfied that Aimsun demonstrated the ability to support the COTS software solution proposed.
The record does not support a finding that Aimsun’s failure to include the required staffing form gave Aimsun a competitive advantage or benefit over PTV.
Arbitrary Scoring
Petitioner next contends that the Department scored its proposal arbitrarily, or otherwise in error, compared to its scoring of Aimsun.
Staff Availability
Petitioner cites, as the most egregious example, the TRC scores it received for section 2. This section requires the proposer to discuss how they will support the implementation of the modeling software as part of the ICMS development and deployment, as well as a description of how the proposer supports software integrations, application development, and general modeling support. This is the section which required the inclusion of the staffing worksheet.
On this section, Petitioner received a 10 out of a possible 35 points from Mr. Dilmore. Mr. Dilmore noted, “The development staff generally has low availability. Their approach to training is 4 week courses. The implementability will be difficult [but] is generally acceptable. PTV takes exception to the SLAs [which] are part of the contract.”
PTV takes umbrage at Mr. Dilmore’s severe deduction of points for perceived “lack of staff availability” when Aimsun
received only minor point deductions, even though it wholly failed to include the required form detailing its staff availability.
While PTV’s proposal does, in fact, propose low availability of staff,2/ that shortcoming was not the sole basis for the low score Mr. Dilmore’s assigned. As Mr. Dilmore noted on his score sheet, and explained at final hearing, in addition to availability issues, his score reflected concerns with PTV’s failure to agree to the Department’s Service Level Agreement (“SLA”), proposed approach to training, and issues with implementing the software.
Department SLA
The Department’s SLA sets the required timeframes for response to, and repair of, system maintenance requests and system failures. For example, the SLA sets a maximum response time of 15 minutes, during normal operating hours, for priority one failures. Likewise, the SLA sets a maximum repair time of one hour for such failures during normal operating hours.
Rather than agreeing to the Department’s SLA, PTV stated that it “adopts its own standard [SLA] terms,” and explained that it is “open to discussion” on the content and terms of a final agreement. PTV did not include a copy of its standard SLA for review by the Department, but instead noted that it could be “provided upon request.”
The SLA is critical to the Department. If a vendor does not agree to the Department SLA, the Department is not assured that the failures in the PRE software function, which drives the DSS, will be repaired timely.
The SLA is so critical that it includes a liquidated damages clause for damages caused by the vendor’s failure to comply with the required timeframes.
In contrast to PTV, Aimsun took no exception to the Department’s SLA and agreed to comply with it.
The Department’s scoring of PTV’s proposal was reasonable, especially in light of the importance of the Department’s SLA.
Training
The vendor is required to operate, maintain, and support the COTS software system for two years after its deployment.
The vendor must provide at least two training courses on the DOT premises in the use of the planning aspects of the software. Additionally, the vendor must provide administrator training for the PRE on Department premises after the integration with ICMS is complete.
Mr. Mohamed gave PTV a 32 out of 35 points on this section. Mr. Mohamed’s concern was with PTV’s approach to training of Department staff.
PTV proposed two separate training sessions for Department staff, each lasting four weeks. Mr. Mohamed commented that the trainings “could be unfeasible for most of the essential senior staff.”
Mr. Learned gave PTV a 25 out of 30 points on this section. He also noted that the proposed trainings were not optimal and that the preferred approach was tiered training based on the Department staff member’s “level of use,” meaning that the amount of training should correlate with the staff member’s responsibilities related to the software.
In contrast to PTV, Aimsun proposed two tiers of training: a first-level training for staff to master all the basic concepts of the software, and a second level which includes a detailed walk-through of the methodology and workflow for modelers who have previous practical experience.
The Department’s scoring of PTV’s proposal on this issue was reasonable based on the level of training proposed.
Software Description and Functionality
The Department also reasonably deducted points from PTV’s proposal in section 1, Software Description and Functionality.
Mr. Mohamed, Mr. Learned, and Mr. Dilmore scored PTV’s proposal 32, 30, and 30 out of 35, respectively, on section 1.
PTV failed to verify that its software met all of the technical requirements for the PRE/COTS listed in Exhibit A, Table 2. Of the 55 requirements, PTV indicated that its COTS was only partially compliant with seven of the technical requirements.
Further, PTV’s proposed software, DATEX2, is a European data format, which will require conversion to interface with the Department’s U.S. data format.3/
Mr. Learned testified that these conversions would require the Department to incur additional costs--both monetary and temporal. It also raised the questions of whose task it would be to complete the conversion and when conversion would take place. In addition, since the PRE is the driver of, and a critical interface with, the DSS, the necessity for conversion is not advantageous to the Department.
In comparison to PTV’s proposal, Aimsun’s proposal verified that its COTS complied with all 55 technical requirements.
The Department’s scoring of PTV’s proposal was reasonable and supported by the importance of the interface between the PRE and the DSS.
Software Deployment/Project History
PTV also received lower scores than Aimsun on section 3, Software Deployment/Project History. Mr. Mohamed,
Mr. Learned, and Mr. Dilmore assigned scores of 27, 25, and 25, respectively.
PTV has not previously deployed DATEX2 anywhere in the United States. All of its prior deployments were in Europe and the Middle East. This is significant because traffic operations (i.e., signal systems) and driver behavior are significantly different in North America than in Europe and the Middle East.
By contrast, Aimsun’s project history includes two prior U.S. deployments, along with its European and
Australian experience. The most relevant project is that of the San Diego I-15 ICMS, where Aimsun’s COTS was deployed successfully in 2013 and serves as the real-time modeling tool for the DSS in the San Diego interstate corridor ICMS project.
That project is the exact model the Department is seeking to construct for the I-4 Corridor ICMS.
Aimsun is currently involved in ongoing maintenance of the San Diego project.
The Department did not arbitrarily score PTV’s proposal regarding section 1. Aimsun’s experience was the most relevant and demonstrated success with deployments interfacing with the DSS to support an ICMS.
Scoring Contrary to RFP Criteria
In scoring the proposals on availability, the TRC members also considered that most of the key PTV staff are not
located in the United States. Only two key staff members, Shaleen Srivastava and Chetan Joshi, are located in the U.S., and those two members were proposed to devote to the project
15 percent and 30 percent of their annual work hours, respectively.
TRC members expressed concern that international time zone differences would affect the responsiveness and availability of PTV to support the project, especially in the event of system failures.
PTV posits that, in deducting points for the location of its staff outside of the U.S., the Department applied criteria that were not contained in the RFP. PTV argued that if the Department only wanted U.S.-based staff, it must have included that in the RFP criteria.
Mr. Srivastava testified that someone on his staff, not necessarily someone listed on the worksheet, would be available 24 hours a day to take the Department’s calls and address any maintenance or failure issues.
While Mr. Srivastava’s testimony was credible, it does not erase the Department’s reasonable concern with the availability of key staff. Mr. Srivastava conceded that the key staff listed on the worksheet would not always be available to the Department because of differences in international time zones. That, coupled with PTV’s lack of commitment to the
Department’s SLA, justifies the TRC members’ deductions on section 2 of PTV’s proposal.
The Department did not impose criteria which were
outside of the RFP.
CONCLUSIONS OF LAW
The Division has jurisdiction over the subject matter and the parties to this action. §§ 120.569 and 120.57(3), Fla. Stat. (2018).
Petitioner has the burden to prove, by a preponderance of the evidence, the Department’s intended award of the RFP to Aimsun is contrary to the agency's governing statutes, rules, or policies; or the ITN specifications. § 120.57(3)(f), Fla. Stat.
Although section 120.57(3) provides that this is a de novo proceeding, it is not a “de novo” proceeding in the
traditional sense. See State Contracting & Eng’g Corp. v. Dep’t of Transp., 709 So. 2d 607, 609 (Fla. 1st DCA 1998). That is,
this is not a forward-looking proceeding to formulate agency action, and the Division may not substitute its judgment for that of the Department. See Intercont’l Props., Inc. v. State
Dep’t of HRS, 606 So. 2d 380, 386 (Fla. 3d DCA 1992); R.N.
Expertise, Inc. v. Miami–Dade Cnty. Sch. Bd., Case No. 01-
2663BID (Fla. DOAH Feb. 4, 2002; MDCSB Mar. 13, 2002)
(explaining the Division’s role in procurement-protest proceedings). Instead, the Division engages in a form of
“inter-agency review” in which the ALJ makes findings of fact about the action already taken by the Department. See State Contracting, 709 So. 2d at 609. The Division does not evaluate
the Department’s decision anew; instead the Division looks to see if the Department followed its governing statutes, its rules, and the RFP specifications during the procurement process. See R.N. Expertise, DOAH Case No. 01-2663BID.
Agencies enjoy wide discretion when it comes to soliciting and accepting proposals, and an agency's decision, when based upon an honest exercise of such discretion, will not be set aside even where it may appear erroneous or if reasonable persons may disagree. Baxter's Asphalt & Concrete, Inc. v.
Dep’t of Transp., 475 So. 2d 1284, 1287 (Fla. 1st DCA 1985); Capeletti Bros., Inc. v. State Dep’t of Gen. Servs., 432 So. 2d
1359, 1363 (Fla. 1st DCA 1983). Section 120.57(3)(f)
establishes the standard of proof: whether the proposed action is clearly erroneous, contrary to competition, arbitrary or capricious.
Responsiveness
Aimsun’s proposal did not include the staffing worksheet, which is a required form. However, the Department did not reject Aimsun’s proposal as non-responsive. Instead, each TRC member scored the proposal and deducted some points in section 2 for failure to include the staffing worksheet.
Not all irregularities in bid submissions or deviations from the terms of an invitation to bid are considered material enough to require rejection of a bid submittal. Tropabest Foods,
Inc. v. Dep’t of Gen. Servs., 493 So. 2d 50 (Fla. 1st DCA 1986); see also Fla. Admin. Code R. 60A-1.002(13). A deviation from the
requirements of an invitation to bid “is only material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition.” Tropabest Foods,
493 So. 2d at 52; see also Robinson Elec. Co. v. Dade Cnty., 417 So. 2d 1032, 1034 (Fla. 3d DCA 1982).
In Florida, the following two criteria are applied to determine whether a deviation is material:
whether the effect of a waiver would be to deprive the [Department] of its assurance that the contract will be entered into, performed and guaranteed according to its specified requirements, and [2] whether it is of such a nature that its waiver would adversely affect competitive bidding by placing a bidder in a position of advantage over other bidders or by otherwise undermining the necessary common standard of competition.
Robinson Electric, 417 So. 2d at 1034.
The First District Court of Appeal has found that, by definition, anything affecting the price of a bid is not a minor irregularity and may not be waived by the agency. Rather, a deviation affecting price is material and may not be waived by
the agency. Mercedes Lighting & Elec. Supp., Inc. v. Fla. Dep’t
of Gen. Servs., 560 So. 2d 272, 278 (Fla. 1st DCA 1990).
The parties introduced no evidence regarding whether Aimsun’s failure to include the staffing worksheet affected the price Aimsun proposed for the project. Petitioner noted in its proposed recommended order that the Department “did not proffer any evidence that Aimsun’s failure to provide a ‘staffing plan’ was a minor irregularity.”4/ However, Petitioner bears the burden of proof, not the Department. Here, Petitioner made no effort to identify a competitive advantage Aimsun received by failing to include the staffing worksheet.
Petitioner seems to imply that because the Department never took the position that failure to include the staffing worksheet was a minor irregularity, that fact cannot be found. The undersigned disagrees. The undersigned, having found that Aimsun’s proposal was non-responsive, is compelled to make a finding on the issue of materiality.
Regardless of whether the Department took an express position at final hearing regarding the materiality of the staffing worksheet, its representative, the TRC, waived the irregularity by scoring Aimsun’s proposal in the absence of the worksheet. The TRC members assumed the staffing worksheet was not submitted and determined the irregularity was immaterial.
Absent any evidence that Aimsun obtained a competitive advantage by failing to include the staffing worksheet, there can be no determination that the omission was material under the second prong of the Robinson Electric decision.
The first prong of the Robinson Electric inquiry is
whether the irregularity would deprive the Department of its assurance that the contract will be entered into, performed, and guaranteed according to its specified requirements.
Each of the TRC members testified, credibly, that, despite the absence of Aimsun’s staffing worksheet, they were satisfied, based on other staffing information included in the body of Aimsun’s proposal, that Aimsun had the staff expertise, knowledge, and availability to support the project. The TRC members’ conclusions are bolstered by Aimsun’s acceptance of the SLA, which requires specific response and repair timeframes and carries significant penalties for damages caused by failure to comply.
Absence of the staffing worksheet in Aimsun’s proposal did not deprive the Department of assurances the contract would be entered into, performed, and guaranteed according to the specifications of the RFP.
Failing to include the staffing worksheet with Aimsun’s proposal was a minor irregularity which the Department had the discretion to,5/ and did, waive.
Scoring
Petitioner next contends that the Department’s scoring of its proposal was arbitrarily low, especially on section 2, and contrary to the bid specifications.
A decision is considered to be clearly erroneous when, although there is evidence to support it, after review of the entire record, the tribunal is left with the definite and firm conviction that a mistake has been committed. U.S. v. U.S. Gypsum Co., 333 U.S. 354, 395 (1948). An agency action is
capricious if the agency takes the action without thought or reason, or irrationally. Agency action is arbitrary if it is not supported by facts or logic. See Agrico Chem. Co. v. State Dep’t of Envtl. Reg., 365 So. 2d 759, 763 (Fla. 1st DCA 1978).
An agency decision is contrary to competition if it unreasonably interferes with the objectives of competitive bidding. See Wester v. Belote, 138 So. 721, 723-24 (1931).
Based on the Findings of Fact contained herein, the Department’s scoring of all three sections of PTV was supported by both facts and logic. The fact that PTV did not agree to the SLA was a logical basis for the TRC to determine PTV’s proposal was less advantageous than Aimsun’s in terms of response to maintenance and repair requests. The overseas location of most key PTV staff members was a logical basis to conclude that availability of staff might be less advantageous to the
Department than Aimsun’s proposal. Further, TRC staff members had enough factual information about Aimsun’s staffing from section 2.4 of its proposal to effectively score the proposal on that issue. Finally, the Department, in deducting points from PTV’s proposal because its staff resided, in the majority, overseas, did not apply criteria which were not incorporated in the RFP. Instead, the Department applied the facts to the criteria--availability and response times--to determine the most advantageous decision for the Department.
In summary, PTV did not prove that the Department’s intended action to award the RFP to Aimsun contravenes the Department’s governing statutes, rules, policies, or the RFP specifications, or was clearly erroneous, contrary to competition, arbitrary, or capricious.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order dismissing PTV America, Inc.’s Petition.
DONE AND ENTERED this 2nd day of November, 2018, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2018.
1/ The parties introduced evidence and made arguments regarding whether Aimsun’s staffing worksheet was actually received by the Department, thus complete and “responsive.” In light of the finding that the TRC was responsible for determining responsiveness, it is irrelevant whether (or when) the Procurement Unit received Aimsun’s staffing worksheet. The TRC never received it and scored the Aimsun proposal as if that form was not submitted.
2/ PTV’s staffing worksheet indicates four staff members would devote only five percent of their annual work hours to this project. The majority of the staff would devote 30 percent or less of their annual work hours to the project. Only one staff person was proposed to spend more than half of his annual work hours to the project. Of the software developers PTV proposed to assign to the project, more than half were proposed to devote less than a quarter of their annual work hours to the project.
3/ On his score sheet, Mr. Learned noted that several of the technical aspects of the PTV software “will require configuration.”
4/ The Department’s position was that the staffing worksheet was submitted with Aimsun’s proposal, although not provided to the TRC because of an internal scanning error, thus the proposal was complete and responsive.
Bryan Duke, Esquire Messer Caparello, P.A. 2618 Centennial Place
Richard E. Shine, Esquire Department of Transportation 605 Suwannee Street
Michael J. Dew, Secretary Department of Transportation Haydon Burns Building
Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building
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.
