STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ERM SOUTH, )
)
Petitioner, )
)
vs. ) CASE NO. 88-0996BID
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case in Tallahassee, Florida, on March 17, 1988, before Jose A. Diez-Arguelles, a duly appointed hearing officer with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Terry Cole, Esquire
M. Christopher Bryant, Esquire OERTEL & HOFFMAN, P.A.
Post Office Box 6507 Tallahassee, Florida 32314-6507
For Respondent: D. Gary Early, Esquire
Assistant General Counsel
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400 INTRODUCTION
This case arose out of a bid protest petition filed by Petitioner, ERM- South, challenging the Respondent's, Department of Environmental Regulation's, proposed limitation of qualified firms for potential award of petroleum contamination site cleanup contracts to eight firms, pursuant to Respondent's solicitation 8809. Solicitation 8809 was a Request for Statement of Qualifications (RFSOQ).
On March 2, 1988, Respondent forwarded the protest petition to the Division of Administrative Hearings and requested that a hearing officer be assigned to conduct all necessary proceedings required by law and to submit a recommended order to Respondent. By Notice of Hearing issued March 3, 1988, a final hearing was set for March 17, 1988. Copies of the Notice were sent by U.S. Mail to Petitioner, Respondent and the eight firms which Respondent had chosen as potential contract awardees. On March 4, 1988, an Amended Notice of Hearing was issued for the purpose of mailing copies of the notice to the other 34 firms which had submitted a Statement of Qualifications (SOQ) in response to Respondent's Solicitation 8809.
On March 15, 1988, Ecology & Environment, Inc., one of the eight firms chosen as a potential contract awardee, filed a Petition to Intervene. On March 16, 1988, Petroleum and Industrial Equipment Company (PIECO) also filed a Petition to Intervene. Out of the 43 firms submitting a SOQ, PIECO was ranked twentieth by Respondent. On March 16, 1988, Petitioner filed a motion opposing Ecology and Environment, Inc.'s, Petition to Intervene. At the beginning of the hearing on March 17, 1988, the parties and potential intervenors were allowed to present oral arguments on the petitions to intervene. Both petitions to intervene were denied.
Prior to the hearing, the parties filed a Pre-Hearing Stipulation whereby they agreed to certain facts. Those stipulated facts which are relevant are incorporated in the Findings of Fact portion of this Order.
At the hearing, Petitioner presented the testimony of Paul Gruber, and Petitioner's Exhibits 1-9 and 14 were accepted into evidence. Respondent presented the testimony of Douglas A. Jones, and Gwenn Godfrey, and Respondent's Exhibits 3, 4 and 7 were accepted into evidence. Also, the parties offered Joint Exhibits 1-12 which were accepted into evidence.
The parties timely filed proposed findings of fact and conclusions of law.
The proposed findings of fact are addressed in the appendix attached to this Order.
FINDINGS OF FACT
Background
On September 11, 1987, Respondent issued Solicitation 8804 for the purpose of selecting a group of contractors which could potentially be awarded contracts to clean up petroleum contamination sites.
On September 29, 1987, Respondent held a mandatory contractor's meeting to answer questions from potential contractors regarding the work being procured and the instructions for completing the SOQ. Mr. Paul Gruber attended this meeting on behalf of Petitioner.
On October 13, 1987, Respondent cancelled Solicitation 8804 in order to make changes in the solicitation package and to correct an error in the published notice of the contractor's meeting. The notice did not indicate that the meeting was mandatory.
Petitioner did not receive timely notice of the cancellation and submitted a SOQ. Respondent returned the SOQ to Petitioner unopened.
On October 23, 1987, Respondent issued Solicitation 8809, which was essentially similar to Solicitation 8804.
On November 9, 1987, Respondent held a contractors' meeting to answer questions regarding the work being procured and the preparation of the SOQ. In contrast with the contractors' meeting on Solicitation 8804, attendance at this meeting was not mandatory. Petitioner chose not to attend the meeting.
Solicitation 8809.
Solicitation 8809 consisted of a package which included the following: a pink cover sheet indicating where the SOQ should be submitted and containing the general conditions of the Solicitation; a transmittal letter; Attachment A, General Instructions; Attachment B, Instructions for Preparation of a SOQ; Attachment C, Conflict of Interest; Attachment D, Insurance; Attachment E, Minority Business Certificate; Attachment F, Evaluation Scoresheet; Attachment G, Standard Form 255, Attachment H, Chapter 17-70, F.A.C., Draft Petroleum Contamination Site Cleanup Criteria; Attachment I, Chapter 17-71, F.A.C., Petroleum Contamination Site Priority- Ranking Rule; and Attachment J, Air Stripping Guidelines.
Attachment B contained the instructions for preparation of a SOQ, which was to consist of two parts: (1) a transmittal letter, limited to a length of one page, and (2) the SOQ, limited to 35 pages in length.
The instructions stated that "the SOQ shall contain the following seven sections:" 1. Introduction, 2. Company Background, 3. Qualifications, 4. Project Management, 5. Personnel Assigned and Availability, 6. Past Performance, and 7. Minority Business Utilization.
The instructions for Section 6, Past Performance, required that the contractor list a minimum of ten former clients other than Respondent and provided the format for presenting the required information about former clients. Also, the instructions provided that "All FDER (Respondent) contract work shall be listed separately along with the ten clients described above."
The instructions for Section 7, Minority Business Utilization, provided, in part, that "Contractors submitting SOQs under this solicitation must identify intended minority subcontractors and estimated percentage of total contract amount to be awarded to minority firms (Attachment E)."
Attachment E is a two-page document titled "Minority Business Certificate." The document first cites the statutory and rule provisions dealing with and defining minority business, and sets forth that "certification information may be obtained by contracting the ... Department of General Services..." The document then continues with the following:
Responders shall indicate on the following form if they or proposed subcontractors are small minority businesses as described in Chapter 13- 8.005, F.A.C. and determined by the Department of General Services Office of Minority Business Enterprise Assistance. Copies of certifications should be attached, not to be included in the page count of the response package. Pending certifications should be so-noted.
I HEREBY CERTIFY that this business meets the criteria for small, minority business, category ( )
(Signature)
(Business Name)
(Address)
(Address)
ATTACHMENT E MINORITY BUSINESS CERTIFICATE
Page 2 of 2
I CERTIFY, to the best of my knowledge, the following proposed subcontractor(s) are small minority businesses domiciled in the State of Florida.
Subcontractor(s) Subcontract
Name and Address business estimate
percent of total contract
percent of total contract
Pages 8 and 9 of Attachment A to Solicitation 8809 set forth the evaluation criteria which Respondent intended to use to select the group of firms which would become eligible to receive contracts. The evaluation criteria were:
A.16 Evaluation Criteria
General
The [Respondent] reserves the right to accept or reject any or all SOQs received and reserves the right to make an award without further dis- cussion. Therefore, the SOQs should be submitted initially in the most favorable form.
Nonresponsive SOQs include, but are not limited to, those that: (1) are irregular or not in conformance with the solicitation requirements and instructions; (2) fail to utilize or complete prescribed forms; (3) are conditional, incomplete, indefinite or ambiguous; (4) are intended to accomplish only a portion or por- tions of the overall work; or
(5) have improper or undated signa- tures. A nonresponsive SOQ will not be considered.
The [Respondent] may waive informa- lities or irregularities in the SOQs received where such are merely a matter of form and not substance,
and the corrections of which are not prejudicial to other contractors.
Ranking
Each SOQ will be reviewed by a technical committee of at least three persons with technical knowledge about petroleum con- tamination site cleanup. Each of the reviewers will work independently using the outline shown in Attachment F. Past performance will be scored based on answers to a standard group of questions received from at least two of the con- tractor's former clients and the [Respondent] if applicable. Only one reviewer will contact any given reference.
The [Respondent's] project to be evaluated will be the most recent comprehensive project which is most closely related to petroleum contamination site cleanup.
Satisfactory performance for the [Respon- dent] will score no points; but unsatis- factory performance will score negative points. In this way, contractors which have not worked for [Respondent] or which
have had satisfactory performance are not penalized.
Minority Business Utilization will be evaluated on the percentage of the total contract amount estimated to be awarded to minority business as noted in the contractor's Minority Business Certifi- cate (Attachment E).
Each reviewer will use the total point scores to rank the contractors and a mean rank for each contractor will be calculated. The mean rank scores, without accompanying contractor names, will be presented to the chairman of the selection committee who will deter- mine the competitive range.
Those contractors in the competitive range will be invited to participate in discussions with the selection committee. Following the discussions the committee will recommend approxi- mately six contractors to the [Respon- dent's] Secretary for contract award.
Attachment F to Solicitation 8809 sets forth the scoresheet used by the Respondent's evaluators. A firm could receive a maximum of 132 points from each evaluator.
Attachment F provided that a maximum of 13 points could be received for Minority Business Utilization.
As set forth in the evaluation criteria, supra, Attachment F provided a maximum score of 0 for Past Performance on a contract with Respondent. Also, Attachment F indicated that "a score of minus 14 can be given for this item" (past performance on a contract with Respondent).
Respondent's Evaluation of SOQs
Respondent received SOQs from 43 firms in response to Solicitation 8809.
Prior to forwarding the SOQs to the members of the Respondent's technical review committee for their evaluation, Ms. Gwenn Godfrey, a Grant Specialist Supervisor II with Respondent's Contract Office and Mr. Douglas A. Jones, Administrator with Respondent's Bureau of Waste Cleanup and chairman of Respondent's Technical Review Committee for Solicitation 8809, counted the pages of each SOQ to determine compliance with the 35-page limitation. On SOQs which exceeded the 35-page limitation, a large "X" was drawn on page 36. The information provided beyond page 35 was not considered by the Technical Review Committee members.
Respondent intended that the instructions for Section 7, Minority Business Utilization, would result in contractors submitting information on minority business utilization on Attachment E and including Attachment E within
the 35-page SOQ. Upon receiving the SOQs, it became clear that some of the contractors which submitted minority business information had interpreted the instructions differently than intended. Some contractors submitted SOQs which complied with the instructions like Respondent intended. Others, rather than using Attachment E, simply listed the names of the minority businesses they intended to use and the percentage of proposed utilization within Section 7 of their SOQs. Still others included information on minority business in sections of their SOQs other than Section 7. Finally, some contractors, including Petitioner used Attachment E, but did not include it within the 35-page limit. Faced with this, Respondent decided that the different methods of reporting minority business utilization constituted minor irregularities of form and not substance, so long as the information on minority business utilization was provided within the 35-page limit. Contractors which identified the minority business contractors and the percentage of utilization anywhere within the 35- page SOQ were given the same number of points they would have received if they had used Attachment E to provide the information.
The Technical Review Committee consisted of five persons and each reviewed the 43 SOQs. Each reviewer ranked the 43 SOQs from 1 to 43, with the firm receiving the most points being ranked number 1. For each firm, the rankings received from the five evaluators were added together and divided by five to produce an overall "mean rank score." The firm with the lowest mean rank score was ranked number 1. The mean rank score and ranking of the top 16 firms were:
Mean | Rank | Score | Ranking |
2.6 | 1 | ||
2.8 | 2 | ||
3.2 | 3 | ||
3.4 | 4 | ||
3.6 | 5 | ||
6.6 | 6 | ||
7.6 | 7 | ||
8.8 | 8 | ||
11.1 | 9 | ||
11.9 | 10 | ||
12.8 | 11 | ||
13.0 | 12 | ||
14.0 | 13 | ||
14.6 | 14 | ||
15.0 | 15 | ||
16.2 | 16 |
By memorandum dated February 5, 1988, Mr. Douglas Jones provided the Respondent's Assistant Secretary with a graph plotting the mean rank score of each firm which submitted a SOQ. The memorandum stated that:
Since approximately six contracts will be awarded and a large point difference exists between the eighth and ninth ranked firms..., we recommend
inviting the top eight to participate in oral presentations. If time constraints are not severe and more choice is desired, we would recommend inviting the top twelve Although a larger
break exists [between the firms ranked
14 and 15] than [between 12 and 13], we feel inviting fourteen firms would be too cumbersome.
This recommendation was followed, and the top eight firms were selected as being within the competitive range.
Petitioner's SOQ 8809
Petitioner's SOQs in response to Solicitation 8804 and 8809 were prepared under the direction and supervision of Mr. Paul Gruber.
Mr. Gruber attended the contractors' meeting held on Solicitation 8804, but did not attend the meeting held in Solicitation 8809.
Within the first couple of days after receiving Solicitation 8809, Mr. Gruber and another employee of Respondent each made a page-by-page comparison of Solicitation 8804 and Solicitation 8809 to make sure they understood the differences between the two Solicitations. Mr. Gruber determined that both Solicitations were essentially the same and noted that Attachment E had been changed. He also believed he understood what all the instructions meant.
Mr. Gruber decided not to attend the contractor's meeting held in Solicitation 8809, since Solicitation 8804 and Solicitation 8809 were essentially the same and the Solicitation 8809 meeting was not mandatory. He felt comfortable that Petitioner could respond adequately without attending the meeting.
Approximately a week before the SOQs had to be submitted to Respondent, Petitioner had prepared a draft of the SOQ. At this point, Mr. Gruber felt that there was some ambiguity in the instructions for Section 6, Past Performance, and Section 7, Minority Business Utilization, of the SOQ, and he was not sure how to present this information.
Mr. Gruber was confused with the instructions for Section 7, Minority Business Utilization, because the instructions appeared to provide that Minority Business Utilization was to be included within the 35-page limit. However, the instructions referenced Attachment E, which was titled "Minority Business Certificate", and-among other things, provided that "Copies of certifications should be attached, not to be included in the page amount of the response package." Therefore, Mr. Gruber did-not know whether Attachment E should have been included within the 35 pages or could have been provided outside the 35 pages.
Mr. Gruber's confusion about Section 6, Past Performance, was due to information which had been provided by Respondent at the contractors' meeting on Solicitation 8804. At the contractors' meeting a question came up about how to provide information on prior contracts with Respondent. At that meeting, it had been decided that contractors with prior contracts with Respondent only had to identify the project's title and did not have to provide all the other information required for other contracts. However, the written instructions for Section 6 in Solicitation 8809 were identical to those in Solicitation 8804 and indicated that prior contracts with Respondent should be listed in the same manner as any other contracts. Therefore, Mr. Gruber was unsure as to how to include prior contracts with Respondent in the SOQ.
In order to get answers to his questions, Mr. Gruber made a telephone call to (904) 487-4831, the telephone number listed on the front page of Solicitation 8809 as being the number where Ms. Gwenn D. Godfrey could be reached. The telephone call was made at 2:18 p.m., on December 1, 1988.
Mr. Gruber believes he spoke with Ms. Godfrey, because he asked for her. However, Ms. Godfrey cannot recall speaking with Mr. Gruber or with anyone from Petitioner's company. Mr. Gruber cannot recall if the female person he spoke with identified herself, and it is Ms. Godfrey's practice to identify herself every time she picks up the telephone. Mr. Gruber can remember little of the actual conversation, except for the decisions he made based on the conversation. There is sufficient evidence to support a finding that the telephone conversation took place, but not enough to find that Mr. Gruber spoke with Ms. Godfrey.
During the telephone conversation, Mr. Gruber was not specifically told that Attachment E could be outside the 35-page limit; he was told something in the nature of "follow the instructions in the RFSOQ." After further conversation, he came away from the telephone conversation with the general interpretation that placing Attachment E beyond the 35th page was acceptable to Respondent.
Mr. Gruber came away from the telephone conversation with less assurance about his questions regarding Section 6, Past Performance, than about the questions regarding Section 7, Minority Business Utilization. While he ended the telephone call without having all his questions answered, he provided his own interpretation of the conversation and prepared the SOQ based on that interpretation.
Mr. Gruber's notes from the telephone conversation were as follows: DER Projects - include in page count?
List all info separately? Yes
MBE Certificate - Follow instructions Attachment "E" not counted.
Based on the telephone conversation and his understanding, of the instructions, Mr. Gruber prepared and submitted Petitioner's SOQ listing prior contracts with Respondent on page 36. Page 37 consisted of Attachment E from Solicitation 8804, certifying that one of Petitioner's subcontractors was a small, minority business. Page 38 consisted of page 1 of Attachment E from Solicitation 8809, certifying that another of Petitioner's subcontractors was a small minority business. Page 39 consisted of page 2 of Attachment E to Solicitation 8809 and indicated that each of the two minority business subcontractors would receive 10 percent of the total contract.
Respondent's evaluation of Petitioner's SOQ
Page 36 of Petitioner's SOQ was marked with a large "x" and with the notation "exceeded page limit." The information on pages 36-39 was not considered. Petitioner was given 1 point for having listed the use of two minority business subcontractors in Section 2 of its SOQ. Petitioner was given minus 14 points for failing to list the prior contracts with Respondent within the SOQ.
Respondent ranked Petitioner ninth.
If Petitioner's proposed minority business utilization set forth in pages 37-39 of its SOQ had been considered by Respondent, Petitioner would have received an additional 6 points from each evaluator.
If Respondent had considered information on minority business utilization provided outside the 35-page limit for all SOQs, the rankings of the top 16 firms would have been as follows:
Mean Rank Score Ranking
2.6 1
2.8 2
3.2 3
3.6 4
4.1 5
5.3 6
7.4 7
9.2 8.5
9.2 8.5
12.2 10
12.3 11
13.4 12
13.8 13
15.4 14
16.3 15
16.6 16
The nine firms ranked 1-8.5 are the eight firms, Respondent determined to be within the competitive range, plus Petitioner.
ISSUE
Whether information Petitioner provided on pages 36-39 of its SOQ should be considered by the Respondent and, if considered, whether Petitioner should be included in the group of firms within the competitive range?
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sections 120.53(5) and 120.57(1), Florida Statutes.
Petitions to Intervene
Rule 22I-6.010, Florida Administrative Code, provides that Petitions to Intervene must be filed at least five days before the final hearing. Ecology and Environment's, Inc.'s, Petition to Intervene was filed on March 15, 1988, two days before the date of hearing. PIECO's Petition to Intervene was filed on March 16, 1988. In accordance with Rule 22I-6.010, Florida Administrative Code, both petitions were denied as untimely.
Additionally, PIECO's Petition to Intervene was denied because it had missed its point of entry into these proceedings. As a bidder who was not selected, PIECO had 72 hours after the bid tabulations were posted within which to file a notice of protest. Section 120.53(5), Florida Statutes. PIECO failed to do so.
During oral argument on the Petitions to Intervene, PIECO argued that Respondent had failed to comply with Rule 22I-6.006, Florida Administrative Code, which provides that an agency shall provide a copy of the formal protest to all other bidders. Therefore, PIECO argued, since it did not receive timely notice of the protest, its Petition should not be denied as untimely. The Notice of Hearing mailed out on March 3, 1988 placed PIECO on notice that a bid protest had been filed and cured any defect which may have been created by Respondent's failure to comply with Rule 22I-6.006, Florida Administrative Code.
Bid Protest
Petitioner argues that Respondent should have considered information provided by Petitioner in its SOQ, even though the information was provided beyond the 35-page limit applicable to the SOQ. Specifically, Petitioner would like Respondent to consider the information provided in pages 36-39 of its SOQ, dealing with past performance on contract with Respondent and with proposed minority business utilization.
In cases such as this, Petitioner carries the burden of demonstrating that the agency's action was arbitrary, capricious, or unreasonable. Capeletti Brothers, Inc. v. State, Department of General Services, 432 So.2d 1359, 1363-64 (Fla. 1st DCA 1983). At the same time, the agency is awarded "wide discretion in soliciting and accepting bids for public improvement, and its decision, where based on an honest exercise of this discretion, decision, where based on an honest exercise of this discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree." Liberty County v. Broker's Asphalt and Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982). However, bidding specifications must be "clear and precise." Cf. Aurora Pump, Division of General Signal Corporation v. Goulds Pump, 424 So.2d 70, 75 (Fla. 1st DCA 1982)(rebid ordered due to "unwritten" rules). If there is ambiguity in the specifications or instructions, the ambiguity should be resolved against the agency. Id.
Finally, this is not a case where the agency's action is being reviewed. This is a de novo proceeding-intended to formulate final agency action. Capeletti Brothers, Inc., supra.
Past Performance
Petitioner argues that its past performance on contracts with Respondent should have been considered because the requirement that these contracts be identified was ambiguous. The ambiguity, Petitioner asserts, arises out of statements made by Respondent during the contractors' meeting in Solicitation 8804 and during the telephone conversation on December 1, 1987. At the contractors meeting on Solicitation 8804, Respondent indicated that past performance on contracts with Respondent could be identified by project title in Section 7, and additional information on the contracts did not have to be provided. Mr. Gruber did not know if this instruction was also applicable to Solicitation 8809. Therefore, Mr. Gruber made the telephone call to Respondent. Mr. Gruber could not recall exactly what was said during the telephone conversation on the issue of past performance; in fact, he admitted he came away from the telephone conversation with questions still unanswered. Nevertheless, he included the information outside the 35 pages based on "his own interpretation of the telephone conversation." Petitioner chose to follow the least clear of all the instructions. The written instructions were clear. The instructions provided at the contractors' meeting on Solicitation 8804 were also
clear. However, Petitioner chose to follow his own interpretation of an admittedly unclear telephone conversation. Respondent cannot be faulted for Petitioner's decision in this issue.
Even if the instructions given to Petitioner during the telephone conversation had been clear and unequivocal, Petitioner would have relied on them at his peril. Pages 2 of the cover sheet of Solicitations 8804 and 8809 contain the statement that "no interpretations shall be considered binding unless provided in writing by the State of Florida." Also, page 3 of the General Instructions to Solicitation 8809 provides that:
[the contractors' meeting] will be the only opportunity ... to have technical, legal or administrative
questions answered. Clarifications made at the meeting will not be available in any other format. Substantive changes, if any, will be sent by first class mail to prospective contractors immediately following the meeting.
Therefore, Petitioner had been placed on notice that oral communications outside the contractors' meeting were not to be relied on.
Finally, Petitioner argues that the possibility of receiving a score of minus 14 points for not listing prior contracts with Respondent in the SOQ was not revealed in the Solicitation nor in the contractors' meeting. Therefore, Petitioner argues that it should not be penalized for not providing the information within the 35-page limit or, alternatively, that it should be given a score of minus 4, the score it would have received had the information been considered by Respondent. This argument is without merit. Attachment F clearly states that "a score of minus 14 can be given for this item." As Mr. Gruber admitted during cross-examination, it is reasonable to assume that the minimum number of points will be received for failure to provide the required information.
Minority Business Utilization
Petitioner argues that the information it provided on pages 37-39 of its SOQ should have been considered by Respondent because the instructions on how to present this information were ambiguous and because of the information received during the telephone conversation on December 1, 1988.
As to the argument based on the information given during the telephone conversation, the discussion of the effect of the telephone conversation set forth on page 19, supra, is equally applicable here. Also, Petitioner's understanding of the informal and imprecise instructions given during the telephone conversation is insufficient to overcome the Solicitation's written instructions. Cf. Xerox v. Department of Professional Regulation, 489 SO.2d 1230,1231 (Fla. 1st DCA 1986)(oral communications insufficient to override final agency action letter).
Petitioner's argument that the written instructions for Minority Business Utilization were ambiguous and could have been reasonably interpreted in the manner Petitioner has merit.
The ambiguity was created by the sentence, "Copies of certifications should be attached, not to be included in the page count of the response package." A person knowledgeable in the area of minority business certification in Florida reading Attachment E would have understood that the certifications referred to in the quoted sentence were the letters of certification issued by the Department of General Services. However, a lay person could have interpreted the sentence to mean that the word "certification" meant the same thing as "certificate" (the title of Exhibit B). See, e.g., Webster's Third New International Dictionary (1976 Ed.) Therefore, a lay person reasonably could have concluded that information provided on Attachment B could be outside the
35-page limit and that the information so provided would be considered.
A review of the SOQs filed by other contractors reveals that the methods used to report minority business utilization varied widely. Respondent, in evaluating the SOQs, considered information on minority business utilization even though it was not provided in Attachment E nor provided in Section 7, so long as the information was provided within the 35-page limit. While reporting in this manner was not in conformity with a strict reading of the instructions, nor in conformity with Respondent's however, decided that if the same information was provided beyond the 35-page limit it would not be considered.
Respondent argues strongly that considering information beyond the 35- page limit would have given those exceeding the 35-page limit an informational advantage. These firms would have more than 35 pages in which to provide information, thus gaining an advantage over those who complied with the 35-page limit. In general, this argument is valid. However, given the facts in this case, the validity of the argument is outweighed by the harm sustained by Petitioner due to the ambiguity in the instructions. Also, the informational advantage is not necessarily so large. If, like Petitioner, a contractor chose to use Attachment E to provide the information, it would have lost 2 or more pages within the 35 pages. However, under the method ultimately used by Respondent to evaluate the SOQs, a contractor could also have used less than
one-quarter of a page to list minority firms and their percentage, and the contractor would have received full credit.
In view of the ambiguity in the instructions created by Attachment B, the agency should exercise its discretion and consider information provided in Attachment B, even if this information is outside the 35-page limit. Given the facts of this case, this result does not give an undue advantage to any contractor.
If information provided outside the 35-page limit dealing with minority business utilization had been considered by Respondent, Petitioner would have had a mean rank average score.
If information provided outside the 35-page limit dealing with minority business utilization had been considered by Respondent, Petitioner would have had a mean rank average score of 9.2 and would have been tied with one of the firms within the competitive group, with a ranking of 8.5. See Finding of Fact 39, supra. Additionally, the break between Petitioner and the firm ranked 10th is of sufficient magnitude that, following the reasoning behind Respondent's initial decision, the competitive range would have included the eight firms initially chosen by Respondent, plus Petitioner.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order finding Petitioner to be
within the competitive group.
DONE and ORDERED this 29th day of March, 1988, in Tallahassee, Florida.
JOSE A. DIEZ-ARGUELLES
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0996BID
The parties submitted proposed findings of fact which are addressed below.
Paragraph numbers in the Recommended Order are referred to as "RO ." The Petitioner's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number Reason for Rejection
Accepted. RO7
Irrelevant.
Accepted. RO2
Accepted. RO4,5
Accepted. RO2,3
Accepted. RO6
Accepted generally. RO6
Accepted generally. RO6
Irrelevant.
Accepted generally. RO10
Accepted RO9, 11, except for the last
13 words which are rejected; how this information was to be submitted is the issue in this case.
Accepted. RO13
Accepted. RO13
Generally accepted. RO8
Irrelevant.
First sentence is irrelevant. Second sentence accepted. RO23
Accepted. RO27
Accepted generally. RO29
Accepted generally, except that use of the word "contradiction" is rejected; this is a conclusion. RO28
Accepted. RO12
Accepted. RO12
Accepted generally, except that finding that Mr. Gruber spoke with Ms. Godfrey is rejected. RO30, 31
Generally accepted as set forth in RO31-34.
Accepted. RO17, 35
Accepted. RO35
Irrelevant.
Accepted. RO20
Accepted. RO18
29-33. Supported by the evidence but unnecessary for the decision.
First sentence irrelevant; second- sentence accepted. RO16, 36.
Rejected. Attachment F clearly stated that a score of minus 14 could be received for this item. See RO16 and Conclusions of Law.
Accepted. RO16
Generally accepted. RO20
Generally accepted. RO21
Supported by the evidence, but unnecessary for the decision
Generally accepted. RO21
Last phrase accepted. RO37. Rest is irrelevant.
Supported by the evidence, but unnecessary for the decision.
Irrelevant.
Irrelevant.
Irrelevant and argumentative.
Irrelevant.
47-48. Subordinate to RO39.
49-51. Generally accepted. RO39
Irrelevant.
Irrelevant.
54-56. Irrelevant.
57-60. Supported by the evidence, but unnecessary.
61-63. Irrelevant.
64-65. Supported by the evidence, but unnecessary.
The Respondent's Proposed Findings of Fact
1-3. Rejected, not a Finding of Fact
Second and third sentences generally accepted; first and fourth sentences irrelevant.
Generally accepted. RO1 and 2
Accepted. RO2-4
Accepted RO5, 10, 11
Generally accepted.
Generally accepted. RO25
First and second sentences accepted. RO6. Third and fourth sentences are irrelevant.
Accepted. RO17 and 18
12-13. Supported by the evidence, but unncessary.
14-15. Generally accepted. RO14, 20
16. Generally accepted. RO21. Last sentence is rejected as not a fact.
17-27. Rejected as not being findings of fact; they are arguments, conclusions or recitations of testimony.
28. Generally accepted. RO9 and 10. Last sentence rejected as a conclusion.
29-30. Rejected as argument and conclusion.
Generally accepted. RO19
Generally accepted. RO12
Addressed in Conclusion of Law portion of RO.
34-41. ; 43-45,
49-60. Rejected as recitation of testimony.
42. Argument and conclusions.
Generally accepted
Generally accepted. Last sentence is irrelevant.
First sentence accepted. Last sentence rejected to extent it states that a telephone conversation did not take place. Rest of paragraph is irrelevant.
Rejected as conclusion and argument.
COPIES FURNISHED:
Terry Cole, Esquire
M. Christopher Bryant, Esquire OERTEL & HOFFMAN, P.A.
P. O. Box 6507
Tallahassee, Florida 32314-6507
Gary Early, Esquire Assistant General Counsel
State of Florida Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Dale Twachtmann, Secretary
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Daniel H. Thompson, Esquire General Counsel
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Barrett Johnson, Esquire Post Office Box 1308 Tallahassee, Florida 32302
William D. Preston, Esquire Thomas M. DeRose, Esquire Post Office Box 6526
420 First Florida Bank Building Tallahassee, Florida 32314
| Issue Date | Proceedings |
|---|---|
| Apr. 29, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 24, 1988 | Agency Final Order | |
| Apr. 29, 1988 | Recommended Order | Petitioner was found to be within competitive group because the agency should have considered information outside their prescribed page limit. |
