0. AY a 72," (4 &y Florida Department of Transportation 40fs fy © hy yi ores is iia by CHARLIE CRIST 605 Suwannee Street ee . GOVERNOR Tallahassee, FL 32399-0450 Bg Ne February 23, 2007 Diane Cleavinger, Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 DIALIGHT CORPORATION DOAH CASE NO.: 06-4287 DOT CASE NO.: 06-127 Dear Ms. Cleavinger: Enclosed is a copy of the Final Order, filed February 23, 2007, in the above-styled case. Sincerely, eC ' a, James C. Myers Clerk of Agency Proceedings (850) 414-5393 jem:m Attachment(s) www.dot.state.fl.us STATE OF FLORIDA Op. il - D DEPARTMENT OF TRANSPRTATION Fp. Haydon Burns Building oy Py I 605 Suwannee Street 4 OM Sioy ; Tallahassee, Florida as ‘ 4h ig Ve S DIALIGHT CORPORATION, ~ Petitioner, vs. DOAH NO.: 06-4287 DOT CASE NO.: 06-127 DEPARTMENT OF TRANSPORTATION, Respondent. / FINAL ORDER This proceeding was initiated by Petitioner, DIALIGHT CORPORATION (hereinafter DIALIGHT), filing a notice of intent to protest on October 27, 2006, in response to the Respondent’s, DEPARTMENT OF TRANSPORTATION (hereinafter DEPARTMENT), posting its Notice of Intent to Award ITB-DOT-06/07-7012RM for the provision of Countdown Pedestrian Modules in District VII to Temple, Inc. FINDINGS OF FACT 1. The Invitation to Bid was initially posted on October 4, 2006. 2. The ITB’s Specifications called for “Model PS7-CFF1-01A-18, Gelcore, LED, Countdown Pedestrian 16” Signal Modules.” The Bid Sheet requested “Bids as Specified or Approved Equivalent.” Page 1 of 7 3. On October 13, 2006, Transportation Control Systems, Inc., a DIALIGHT supplier, submitted the following technical question: 1. Will the Dialight countdown pedestrian 16” signal module be considered an approved equivalent to the specified model number called for on the bid sheet (Page 2)? 4. On October 17, 2006, the DEPARTMENT issued Addendum No. 1 in response to the technical question submitted by Transportation Control Systems. The DEPARTMENT removed “or approved equivalent” from its Bid Sheet. Notice of this change to the solicitation was electronically posted on October 17, 2006, on www.myflorida.com. 5. Bids were due October 23, 2006, at 9:30 AM. DIALIGHT did not submit a bid package. | 6. On October 24, 2006, the DEPARTMENT’S Notice of Intent to Award the contract to Temple, Inc., was posted. 7. On October 27, 2006, DIALIGHT filed its Notice of Intent to Protest and accompanying bond. 8. On November 3, 2006, DIALIGHT filed its Formal Written Protest and Petition for Formal Administrative Proceedings, challenging “both bid specifications published by the Department and a decision to award a contract to a sole source.” 9. On November 7, 2006, the matter was referred to the Division of Administrative Hearings (DOAH). 10. On November 20, 2006, DOAH issued an Order Closing File in response to the Department’s Motion to Strike Formal Written Protest and Petition for Formal Administrative Hearing or, in the Alternative, Motion to Relinquish Jurisdiction filed on November 14, 2006. Page 2 of 7 11. On November 22, 2006, the DEPARTMENT issued an Order of Dismissal identifying deficiencies in DIALIGHT’S Formal Written Protest and Petition for Formal Administrative Proceedings and allowing DIALIGHT twenty-one (21) days to correct the identified failures. 12. On December 13, 2006, DIALIGHT filed its Amended Petition for Formal Administrative Proceedings, which contains the same deficiencies as the original Petition. 13. On January 12, 2007, the parties participated in a settlement conference. Despite good faith settlement efforts, no resolution was reached. CONCLUSIONS OF LAW 1. Section 120.57(3), Florida Statutes, provides that any person who is adversely affected by the DEPARTMENT’S decision or intended decision shall file with the DEPARTMENT a notice of protest in writing within seventy-two (72) hours after the posting of the notice of intended decision or decision, 2. Rule 60A-1.021, Florida Administrative Code, provides that all agency decisions (as defined in Rule 28-110.002, Florida Administrative Code) shall be electronically posted on www.myflorida.com. The Rule 18-110.002(a), Florida Administrative Code, definition of “[dJecision or intended decision” includes “the contents of a solicitation, including addenda.” 3. Thus, with respect to a protest of the terms, conditions, and specifications contained in a solicitation, the notice of protest shall be filed in writing within seventy-two (72) hours after the electronic posting of the contents of a solicitation, including addenda, on www.myflorida.com. § 120.57(3)(b), Fla. Stat. (2006); Rule 60A-1 .021, Fla. Admin. Code. Page 3 of 7 4. When a bidder fails to timely challenge a procurement document’s specifications, it waives the right to do so, and is prohibited from raising any such issue during a later protest. Consultech of Jacksonville, Inc. v. Dep't of Health, 876 So. 2d 731 (Fla. 1st DCA 2004) (affirming the Department’s final order rejecting untimely protest of RFP’s specifications); Optiplan, Inc. v. Sch. Bd. of Broward County, 710 So. 2d 569 (Fla. 4th DCA 1998) (bidder waived right to challenge School Board’s state evaluation criteria by failing to bring protest within seventy-two (72) hours of publication of the bid solicitation); Capeletti Brothers, Inc. v. Dep’t of Transp., 499 So. 2d 855 (Fla. Ist DCA 1986) (holding bidder waived right to protest bid solicitation specifications when it failed to bring challenge within seventy-two (72) hours of receipt of project plans). 5. Because DIALIGHT failed to file a protest to the terms and conditions of the solicitation within seventy-two (72) hours from the posting of Addendum | on www.myflorida.com as required by law, its belated attempt to challenge the award to Gelcore on this basis must fail. 6. Specification challenges under Section 120.57(3), Florida Statutes, are intended to allow an agency to correct or clarify plans and specifications prior to accepting bids in order to save expense to the bidders and to assure fair competition among them. See Optiplan, Inc. v. Sch. Bd. of Broward County, 710 So. 2d 569 (Fla. 4th DCA 1998); Capeletti Bros., Inc. v. Dep't of Transp., 499 So. 2d 855 (Fla. Ist DCA 1986). 7. DIALIGHT’S argument that the October 24, 2006, posting of the award should serve as the point of entry for the specification challenge seventy-two (72) hour deadline contradicts past interpretations of Section 120.57(3), Florida Statutes. A challenge to the Page 4 of 7 specifications of a solicitation at the posting of the award does not allow the agency to correct or clarify plans and specifications prior to accepting bids. Moreover, a specification challenge is the appropriate procedure to raise concerns that the solicitation hindered fair competition. 8. Further, in order to challenge a decision or intended decision of an agency or department, a party must have a substantial interest in the outcome of the administrative proceeding and suffer an injury in fact, and those interests must be of the type that the proceeding is designed to protect. Agrico Chem. Co. v Dep’t of Envil. Regulations, 406 So. 2d 478, 482 (Fla. 2d DCA 1981). 9. If a protestor would not be in a position to be awarded the contract if it prevailed on a protest, it does not have a sufficient substantial interest to support a protest. See Preston Carroll Co. v. Florida Keys Aqueduct Auth. , 400 So. 2d 524 (Fla. 3d DCA 1981). 10. The interests of non-bidders are too remote or speculative to confer standing in Section 120.57(3), Florida Statutes, proceedings. See Westinghouse Electric Corp. v. Jacksonville Transp. Auth. , 491 So, 2d 1238 (Fla. Ist DCA 1986); Fort Howard Co. v. Dep't of Mgmt. Servs., 624 So. 2d 783 (Fla. Ist DCA 1993); Brasfield & Gorrie Gen. Contractor, Inc. v. Ajax Constr. of Tallahassee, 627 So. 2d 1200 (Fla. 1st DCA 1993). 11. The legal authority cited by DIALIGHT in its Amended Petition for Formal Administrative Hearing is insufficient to support its claim for standing. 12. In Accela, Inc. v. Sarasota Co., 901 So. 2d 237, 238 (Fla. 2d DCA 2005), plaintiffs were found to have standing as “potential competitors” where the county awarded a contract without first obtaining competitive bids or proposals. In the present case, the Page 5 of 7 DEPARTMENT sought competitive bids and posted its solicitation, but DIALIGHT failed to challenge the terms of the solicitation which precluded it from bidding. 13. In Fairbanks, the intended awardee included in its bid proposal a product manufactured by Fairbanks where the DEPARTMENT’S specifications required the product of Fairbanks’ competitor. Fairbanks, Inc. v. Dep’t of Transp. , 635 So, 2d 58 (Fla. lst DCA 1994). It was this decision to reject Fairbanks’ equipment after the contract was entered into with the intended awardee which entitled Fairbanks to a Section 120.57(1) hearing. Fairbanks, as a manufacturer, was not entitled to a bid protest. Fairbanks, 635 So. 2d at 61. 14. Inshort, DIALIGHT cites to no authority which extends standing under Section 120.57(3), Florida Statutes, to a potential competitor that did not meet the terms of a properly posted solicitation, failed to file a specification challenge, and failed to submit a bid. ORDER Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the notice of intent to protest filed by Petitioner, DIALIGHT CORPORATION, with the Respondent, DEPARTMENT OF TRANSPORTATION, on October 27, 2006, is hereby dismissed. DONE AND ORDERED this 2 day of February, 2007. STETIANT KOPELOUSOS Interim Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399 Li:6 WY €2 G33 L002 yusto “Lod dad Page 6 of 7 NOTICE OF RIGHT TO APPEAL THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY ANY PARTY PURSUANT TO SECTION | 120.68, FLORIDA STATUTES, AND RULES 9.110 AND 9.190, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(d), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT’S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET, M.S. 58, TALLAHASSEE, FLORIDA 32399- 0458, WITHIN THIRTY (30) DAYS OF RENDITION OF THIS ORDER. Copies Furnished to: Katie S. Buchanan, Esquire Assistant General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Diane Cleavinger Administrative Law Judge Division of Administrative Hearings _ The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Robert Keller District VH.Contractual Services Manager Department of Transportation 11201 North Malcolm McKinley Drive Tampa, Florida 33612 Seann M. Frazier, Esquire Greenberg Traurig, P.A. 101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32302 Page 7 of 7

Docket for Case No: 06-004287BID