STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAB CONSULTANTS, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 93-4271BID

) STATE OF FLORIDA, DEPARTMENT ) OF TRANSPORTATION, )

)

Respondent, )

and )

)

C & S BUILDING MAINTENANCE )

CORPORATION, )

)

Intervenor )

)

RECOMMENDED ORDER

Pursuant to notice, Don W. Davis, a duly designated Hearing Officer of the Division of Administrative Hearings, held a formal hearing in the above-styled case on August 19-20, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Thomas Cassidy, III, Esquire.

John O. Williams, Esquire Renaissance Square

1343 East Tennessee Street Tallahassee, Florida 32308

For Respondent: Carolyn S. Holifield, Esquire

Mark D. Tucker, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwanee Street

Tallahassee, Florida 32399-0458

For Intervenor: Timothy G. Schoenwalder, Esquire

204-B South Monroe Street Tallahassee, Florida 32302-3068

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent's intent to award a contract for bridge-tending services (RFP DOT 92/93 2088 REBID) to Intervenor constitutes fraudulent, arbitrary, capricious, illegal or dishonest action.

PRELIMINARY STATEMENT

On July 2, 1993, Petitioner challenged Respondent's intent to award RFP DOT 92/93 2088 Rebid (the RFP) to Intervenor. Petitioner alleged that Respondent's action was arbitrary, illegal, fraudulent or dishonest as a result of Respondent's alleged failure to comply with certain procedures contained in the RFP and subsequent scoring accorded submitted proposals.

Following the filing of Petitioner's formal bid protest, the matter was transferred to the Division Of Administrative Hearings for conduct of formal administrative proceedings.

At the final hearing, Petitioner presented the testimony of three witnesses and had 14 exhibits admitted into evidence. No evidence or witnesses were presented on behalf of Respondent or Intervenor, although ruling was reserved upon Respondent's Motion to Dismiss.

A transcript of the final hearing was filed with the Division of Administrative Hearings on September 8, 1993. The parties requested and were granted leave to file post

filing of the transcript, and in accordance with Rule 60Q-2.031, Florida Administrative Code, waived provisions of Rule 28-5.402, Florida Administrative Code. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

The parties stipulated to findings of fact set forth in paragraphs 1.-12., below.

Stipulated Facts

1. Respondent issued the RFP for bridge-tending services on May 14, 1993.

   
   

2. Proposals submitted in response to the RFP were opened on June 16, 1993.

   
   

3. Proposals were submitted by five firms, including Petitioner and Intervenor. All proposals were determined at the time to be responsive.

   
   

4. A Technical Review Committee (TRC) was appointed to review the technical portion of the proposals. The three members of the TRC were Alan Hyman, J. L. Gillis, and Yingyong Sujjavanich. The members reviewed the technical portion of the proposals on June 17, 1993.

   
   

5. The evaluation forms completed by the TRC and a summary score sheet were delivered to Respondent's purchasing office on the morning of June 18, 1993.

   
   

6. The price proposal was evaluated by Respondent's purchasing office. The price evaluation of each proposal was performed by applying a formula which compared the submitted price quotations.

   
   

7. After the scores for the technical proposal and the cost proposals were totalled, it was determined that Intervenor's proposal had earned the highest number of points.

8. This result was presented to Respondent's District 2 Executive Committee and a recommendation was communicated by the Purchasing Director to award the RFP to Intervenor. The Executive Committee accepted the recommendation and directed that the contract be awarded to Intervenor.

   
   

9. On June 18, 1993, at 4 p.m., the bid tabs were posted noticing Respondent's intent to award the contract to Intervenor.

   
   

10. On or about July 6, 1993, Petitioner requested a meeting with Respondent's representatives regarding the RFP. That meeting was held on July 9, 1993. At the meeting, Petitioner raised an issue regarding an arithmetic error in the scoring of the technical proposals.

    
    

11. Intervenor remained the proposer with the highest number of points. However, another proposal formerly ranked as number two was lowered to number three status and Petitioner, previously ranked number three, was raised to number two rank.

    
    

12. On July 12, 1993, Respondent posted an amended bid tab indicating its intent to award the contract to Intervenor.

    
    

    Other Facts

    
    

13. Respondent chose to score the bid pricing, a non- subjective task, in Respondent's District 2 office. Technical portions of the proposals were reviewed by the TRC, comprised of members from Respondent's District 5 office. This unusual step was taken by Respondent in order to reduce prejudice to any proposal in view of previous accusations made against District 2 employees.

    
    

14. Bud Rosier, Respondent's employee, has overall responsibility for bridge

    determination that District 5 employees chosen as committee members were qualified to evaluate the proposals.

    
    

15. Each response to the RFP contained a technical proposal and a price proposal. Intervenor's technical proposal received 1.33 points less than Petitioner's technical proposal. The price proposals, as noted above, were scored in accordance with a mathematical formula that compares price proposals to each other and does not take any subjective factors into consideration. Intervenor was awarded 5.55 points, compared to Petitioner who received no points for a proposal more than $140,000 higher for the initial year of the contemplated contract.

    
    

16. Although members of the TRC were not given any background information by Respondent regarding the competing proposals, beyond that contained in the submitted bid packages, no information was withheld from the committee. The members were given adequate time to review the proposals and do any desired independent background checking regarding past performance of any proposer, although no requirement in the RFP mandated such a background review. At least one of the TRC members, Sujjavanich, chose not to independently research past performance of the Intervenor. No evidence was offered at hearing with regard to whether the other two members independently researched any of the proposers' past performances.

17. Even if review of past performance, apart from the materials submitted by the proposers, were required by provisions of the RFP, failure of the evaluators to accomplish that task would result only in the loss to Intervenor of the 3.66 points awarded for past performance and Intervenor, with a remaining total of 81.89 points, would remain the highest ranked proposer.

    
    

18. In view of the objective process used to arrive at the results of the evaluation of the prices of the competing proposals, there was no need to provide this information to the members of the TRC who were doing the technical proposal evaluation. Although the RFP provided that the TRC would be given such results, the failure of Respondent's personnel to provide this information to the evaluators could not have made any difference in the final result since the committee, using the objective price evaluation criteria, would have arrived at the same result as the purchasing office on cost scores. The admitted failure to provide the superfluous cost information to the TRC is inadequate to show that such omission resulted in prejudice to the final scores of any of the competing proposals and must be considered to be only a minor variation from the RFP by Respondent.

    
    

19. Contrary to Petitioner's allegations, there is no competent substantial evidence to support any finding that the members of the TRC (Hyman, Gillis, and Sujjavanich) did not possess required background, experience or professional credentials adequate for evaluating proposals for bridge-tending services.

    
    

20. All three members of the TRC were familiar with the RFP, attachments to the RFP, bridge-tending procedures and bridge-tending qualification procedures.

    
    

21. There is no competent substantial evidence to establish that Intervenor's proposal is not financially feasible. Proposed utilization of 72 bridge-tenders by Intervenor for a total price of $673,333.44 does not mean that

    72 bridge-tender positions would be established or filled, or that the positions would be paid at the rate proposed by Petitioner of $8.40 per hour. The evidence establishes that a proposer would need an optimum number of

    bridge requirements.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.53(5) and Section 120.57(1), Florida Statutes.

    
    

23. Petitioner's argument that Respondent's failure to provide members of the TRC with results of the cost evaluation of the competing proposals prevented an assessment of whether Intervenor could carry out its proposal for the price offered is unpersuasive in view of the evidence that Respondent's cost evaluation results serve only to permit Respondent's personnel to set aside funds for the expenditure, as opposed to subjectively determining whether such a bid is financially feasible. Further, no credible direct evidence was offered that the amount bid by Intervenor would dictate such a result.

    
    

24. Petitioner's concern that certain members of the TRC did not possess adequate qualification to evaluate the technical proposals is not supported by competent substantial evidence. Likewise, the complaint that the TRC failed to consider the past performance of Intervenor is not supported by competent

    substantial evidence. The TRC members evaluated the technical proposals, including submitted information from the proposers regarding past experience and performance, and may have done such other independent background research with regard to past performance of the proposers as they deemed appropriate.

    Petitioner proved only that one member of the TRC did no independent research beyond the materials reviewed by the TRC.

    
    

25. Petitioner has not met its burden of establishing entitlement to the relief sought in this proceeding. Florida Department of Transportation v. J. W.

    C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has not shown that Respondent has acted fraudulently, arbitrarily, illegally, or dishonestly. Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988)

    
    

26. It is essential to remember that the purpose of competitive bidding is to secure the lowest responsible offer, Robinson Electrical Co., v. Dade Co.,

417 So.2d 1032 (Fla. 3rd DCA 1982); Tropabest Foods, Inc. v. Department of General Services, 493 So.2d 50 (Fla. 1st DCA 1986). Respondent has achieved that goal in this case.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered granting the award of the bid in RFP DOT 92/93 2088 Rebid to Intervenor.

DONE AND ENTERED this 4th day of October, 1993, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4271BID

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings. 1.-12. Accepted.

13.-16. Rejected, relevancy.

17. Accepted.

18.-19. Rejected, relevancy.

20.-25. Accepted.

26.-27. Rejected, cumulative.

28. Rejected, credibility. 29.-33. Rejected, relevancy. 34.-35. Accepted.

36.-37. Rejected, argumentative and mischaracterization. 38.-46. Rejected, subordinate to HO findings.

47.-51. Rejected, relevancy. Intervenor's Proposed Findings.

1.-2. Rejected, cumulative.

3.-4. Accepted.

5.-6. Rejected, unnecessary.

1. Rejected, cumulative.

2. Rejected, unnecessary.

3. Rejected, argumentative. 10.-11. Rejected, unnecessary. 12.-13. Adopted by reference.

14.-16. Accepted, but not verbatim. 17.-22. Adopted by reference.

23. Rejected, unnecessary.

24.-30. Adopted, but not verbatim.

31. Rejected, narrative. 32.-35. Rejected, cumulative.

Respondent's Proposed Findings.

COPIES FURNISHED:

Thomas Cassidy, III, Esquire. John O. Williams, Esquire Renaissance Square

1343 East Tennessee Street Tallahassee, Florida 32308

Carolyn S. Holifield, Esquire Mark D. Tucker, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwanee Street

Tallahassee, Florida 32399-0458

Timothy G. Schoenwalder, Esquire 204-B South Monroe Street Tallahassee, Florida 32302-3068

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

Thornton J. Williams General Counsel

Department of Transportation Haydon Burns Building # 562 605 Suwannee Street

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

PAB CONSULTANTS, INC.,

Petitioner,

vs. CASE NO. 93-4271BID

DOT CASE NO. 93-0405

STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION,

Respondent,

and

C & S BUILDING MAINTENANCE CORPORATION,

Intervenor.

/

FINAL ORDER

PAB CONSULTANTS, INC., (PAB) filed a formal Bid Protest challenging the DEPARTMENT OF TRANSPORTATION'S (DEPARTMENT) decision to award RFP DOT 92/93 2088

Rebid, a contract for bridge tending services in District Two to C & S BUILDING MAINTENANCE, INC., (C & S). The DEPARTMENT referred the matter to the Division of Administrative Hearings.

A hearing was held in this matter on August 19 - 20, 1993. The Hearing Officer entered his Recommended Order on October 4, 1993. (Copy attached to and made a part of this Order.)

Intervenor, C & S, filed three exceptions to the Recommended Order. On December 7, 1993, C & S withdrew its third filed exception. No exceptions were filed by other parties to this proceeding.

RULINGS ON EXCEPTIONS OF C & S

Counsel for Intervenor, C & S, filed exceptions, most of which urge that the Hearing Officer erred in rejecting certain of his proposed findings of fact. Exceptions to the Hearing Officer's findings of fact should state which findings of fact are not supported by competent, substantial record evidence. When an exception is so stated, the Agency head can review the entire record to see if the exception has merit. But when counsel couches his exceptions in the form of error on the part of the Hearing Officer in rejecting his proposed findings of fact, he in effect asks the Agency head to become a finder of fact, which the law prohibits. The Hearing Officer adequately states his reasons for rejecting C & S's proposed findings of fact. Accordingly, exceptions 1 and 2 are rejected.

FINDINGS OF FACT

Based on a review of the record in its entirety, the DEPARTMENT hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

Based on the foregoing findings of fact and the record as it exists, the DEPARTMENT hereby adopts and incorporates by reference the Conclusions of Law set forth in the Recommended Order.

IT IS THEREFORE ORDERED that the Bid Protest of PAB is DISMISSED for RFP DOT 92/93 7088.

DONE AND ORDERED this 9th day of December, 1993.

BEN G. WATTS, P.E.

Secretary

Florida Department of Transportation

Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399

NOTICE OF RIGHT TO APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY RESPONDENT PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULE 9.110, 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 DISTRICT COURT OF APPEAL, ACCOMPANIED BY 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:

Thomas Cassidy, III, Esquire John O. Williams, Esquire Renaissance Square

1343 East Tennessee Street Tallahassee, Florida 32308

Carolyn S. Holifield, Esquire Mark D. Tucker, Esquire

Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Timothy G. Schoenwalder, Esquire 204-B South Monroe Street Tallahassee, Florida 32302-3068

Docket for Case No: 93-004271BID

Orders for Case No: 93-004271BID