STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SILVER EXPRESS COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5937BID

) MIAMI-DADE COMMUNITY COLLEGE, )

)

Respondent, )

and )

)

HUSTA INTERNATIONAL )

AVIATION, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January 10 and 11, 1996, in Miami, Florida, before Stuart

1. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

   
   

   APPEARANCES

   
   

   For Petitioner: Lawrence R. Metsch, Esquire

   Metsch and Metsch, P.A. Suite 416, Biscayne Building

   19 West Flagler Street Miami, Florida 33130-4458

   
   

   For Respondent: John G. Van Laningham, Esquire

   William H. Pincus, Esquire Steel Hector and Davis 1900 Phillips Point West 777 South Flagler Drive

   West Palm Beach, Florida 33401-6198

   
   

   For Intervenor: Brian L. Fink, Esquire

   Catlin, Saxon, Tuttle and Evans, P.A. 1700 Alfred I. Dupont Building

   169 East Flagler Street Miami, Florida 33131

   STATEMENT OF THE ISSUE

   
   

   Whether Miami-Dade Community College (hereinafter referred to as the "College") should sustain Petitioner's challenge to the Evaluation Committee's recommendation to award the contract advertised in Request for Proposal 956-34 ("Aviation Program Flight Training Provider, Kendall-Tamiami Executive Airport, Homestead Campus") to Intervenor, as the proposer submitting the proposal considered to be "in the best interest of the College?"

   
   

   PRELIMINARY STATEMENT

   
   

   By letter dated November 16, 1995, from its President, Thomas Shaffer, Petitioner formally protested the recommendation of the Evaluation Committee appointed to evaluate proposals submitted in response to Request for Proposal 956-34 ("Aviation Program Flight Training Provider, Kendall-Tamiami Executive Airport, Homestead Campus") to award the advertised contract to Intervenor, as the proposer submitting the proposal considered to be "in the best interest of the College." In its November 16, 1995, letter, Petitioner stated the following:

   
   

   Silver Express Co., a Florida corporation, pursuant to Section 120.53(5), Florida Statutes, and Chapter 287, Florida Statutes, hereby formally protests the recommendation of the Evaluation Committee that the above referenced contract be awarded to Husta International Aviation, Inc. ("Husta"). In support of its protest, Silver Express Co. respectfully submits that:

   1. It timely submitted a qualifying response to the above referenced proposal, which was considered by the Evaluation Committee.

   2. Husta's proposal was unresponsive to the request because it was not supported by copies of its Federal Aviation Administration ("FAA") flight certificates, known as FAR 135 and/or 141 certificates.

   3. Husta's proposal was unresponsive to the request because it disclosed that Husta does not now and will not in the future have required maintenance and parts facilities at the Kendall- Tamiami Executive Airport ("KETA"), but has them and will continue to have them only at Opa Locka.

   4. Husta's proposal was unresponsive because it disclosed neither (a) Husta's January 13, 1994, crash (an accident) of a Robinson R22B helicopter, known as NTSB Case No. MIA 94LA 051, nor (b) the incident which occurred on November 14, 1995,

      FAA ID No. 950409014809G, at Opa Locka West Airport.

   5. Husta's proposal was unresponsive to the request because it failed to disclose that the

      Dade County Aviation Department has asserted a claim against Husta for $49,370.01 in back rent

      at KETA, thereby impairing its financial condition.

   6. The aircraft which Husta proposes to use in performing the services required under the request have an average age of seventeen (17) years, while those of Silver Express have an average age of eight (8) years.

   7. Silver Express operates from permanent structures located at KTEA pursuant to a five

(5) year renewable lease, while Husta operates there from a temporary structure on a month-to- month basis.

(8) The evaluation process did not comply with Section 287.057(15),(17) and (19), Florida Statutes.

Silver Express Co. requests that the Evaluation Committee's foregoing recommendation be rejected and that a new Request for Proposal be issued.

Attached hereto as Exhibit "A" is a surety bond, in the penal sum of $5,000.00, as required by Section 3.4 of the Bid Protest Procedures For Purchasing Department, Miami-Dade Community College.

Silver Express Co. has engaged Mr. Lawrence R. Metsch, of Metsch & Metsch, P.A., Suite 416, 419 Flagler Street, Miami, Florida 33130, to represent it in this bid protest proceeding. Please direct all correspondence concerning the above referenced request for proposal to his attention.

On November 22, 1995, the College issued an order in which it directed Petitioner to "show cause, within ten days after the date of this Order, why its bid protest should not be dismissed for failure to allege a factual or legal dispute with the College that would serve as the basis for an administrative proceeding under Section 120.57, Florida Statutes." Petitioner filed its response to the College's Order to Show Cause on or about November 30, 1995. In its response, Petitioner argued that, in issuing the Order to Show Cause, the College ignored "the explicit provisions" of Article IV of the College's Bid Protest Procedures for Purchasing Department and it requested the College, in accordance with those provisions, to refer Petitioner's protest to the Division of Administrative Hearings (hereinafter referred to as the "Division") "for formal proceedings." Along with its response, Petitioner submitted various documents that it contended supported the allegations made in its Formal Protest.

On December 7, 1995, the College referred Petitioner's Formal Protest to the Division, as Petitioner had requested. The referral was made by letter from the College's attorney, which read as followed:

I represent Miami-Dade Community College ("MDCC"). Silver Express Co. ("Silver Express") has filed with MDCC a formal bid protest relating to MDCC's Request for Proposals No. 956-34.

MDCC and Silver Express have not been able to resolve the protest by mutual agreement. There- fore, in accordance with Section 120.53(5)(d) 2,

MDCC hereby refers Silver Express's protest to

the Division for proceedings under Section 120.57(1).

We respectfully request, pursuant to Rule 60Q- 2.014(2), that the hearing be held in Miami, Florida, as the place most convenient to all parties. Silver Express is a Florida corporation having its principal place of business in Miami. MDCC, too is located in Miami. Most, if not all, of the material witnesses reside in Dade County, Florida.

By copy of this letter with its enclosure, Silver Express and all other proposers are hereby notified of the protest, the ultimate

disposition of which may affect their substantial interests. The other proposers are hereby notified of their opportunity to be joined as parties of record, if warranted. Any proposer that wants to participate in this poceeding must file a petition to intervene.

Thank you for your prompt attention to this matter. Please call me if you have any questions.

The undersigned Division Hearing Officer was assigned the instant case on December 7, 1995. That same day, he issued a notice of hearing scheduling the formal hearing in this case for December 21, 1995.

On December 15, 1995, Intervenor filed a petition for leave to intervene in the instant case. In its petition, Intervenor asserted that it "was the successful bidder under Request for Proposal 956-34" and therefore "its substantial interest may be affected by the outcome of the above-styled proceedings." By order issued December 26, 1995, the petition was granted.

On December 21, 1995, the parties filed a motion jointly requesting that the final hearing in this case, which was scheduled for that day, be continued. It in their motion, the parties indicated that they had agreed "to waive the requirement, set forth in Section 120.53(5)(e), Florida Statutes, that the final hearing be held within 15 days after the filing of the formal protest." By order issued December 26, 1995, the motion was granted and the final hearing was rescheduled to commence on January 11, 1996. By subsequent order, the final hearing was rescheduled (without objection by any party) to start a day earlier (January 10, 1996).

On January 8, 1996, the College filed three motions: (1) a Motion to Relinquish Jurisdiction, in which it requested that the Hearing Officer return the instant matter to the College for the entry of a final order dismissing Petitioner's protest on the grounds that "even if [Petitioner] could prove the facts alleged in [its] formal written protest, it would not be entitled to any of the remedies available in a bid protest proceeding;" (2) a Motion in Limine to Exclude Evidence on Facts and Law Not Stated with Particularity in Silver Express' Formal Written Protest; and (3) a Motion in Limine to Exclude Evidence Relating to the Temporary Agreement with Husta.

On January 9, 1996, the College and Intervenor filed a joint proposed prehearing stipulation in which they indicated that it was their position that the "disputed issues of law and/or fact" in the instant case were limited to the following:

1. Whether Husta's proposal was responsive to the RFP.

2. Whether Silver Express' proposal was responsive to the RFP.

3. Whether Sections 287.057(15),(17) and (19), Florida Statutes, govern the College's purchasing decisions, and if so, whether the College violated any or all of these statutory provisions.

The final hearing in this case commenced, as scheduled, on January 10, 1996. Immediately prior to the commencement of the hearing on that date, Petitioner submitted to the Hearing Officer a Prehearing Catalogue. In its Prehearing Catalogue, Petitioner stated that it was its contention

that the proposed award of the contract to Husta International and the temporary contract between MDCC and Husta International should be set aside on the following grounds:

1. MDCC violated Section 5.4 of RFP 956-34 when it failed to respond to Silver Express' October 17, 1995, request for modification and clarification.

2. RFP 956-34 was legally insufficient because it did not include a numerical scale to be used by MDCC's Evaluation Committee in rating the competing proposals.

3. The list appearing in Section 6.4 of RFP 956-34 was legally insufficient because it was not that of criteria, but of categories.

   ("Category" is defined as "one of the fundamental or ultimate classes of entities, a general class

   to which a logical predicate belongs, or a division within a system of classification." "Criterion"

   is defined as "a standard on which a judgment or

   decision may be based.")

4. RFP 956-34 was legally insufficient because it failed to prescribe the procedures to be followed in evaluating the competing responses to RFP 956-34.

5. Husta International's proposal was unrespon- sive to RFP 956-34 in the following respects:

   1. it presented uncertified financial informa- tion concerning Husta International's flight school division, rather than certified financial informa- tion concerning Husta International in its entirety, thereby violating Section 4.7 of RFP 956-34;

   2. it misrepresented that Husta International, since its formation in May, 1995, had operated at

      a profit, thereby violating Section 4.7 of RFP 956-34;

   3. it misrepresented that Husta Aviation, Inc., and Husta International were a single corporation;

   4. it misrepresented that Husta International was the lessee of the trailer located at Kendall- Tamiami Executive Airport ("KTEA);

   5. it misrepresented that Husta International was the lessee of real property within KTEA;

   6. it misrepresented that, as of October 26, 1995, Husta International held a Part 141 Certifi- cate issued by the Federal Aviation Administration;

   7. it failed to provide a maintenance facility at KTEA and promised to provide maintenance only Monday to Friday of each week, rather than the seven (7) days per week required by Section

      7.3.1.3.1 of RFP 956-34; and

   8. it misrepresented that Husta International had provided flight instruction to students of Universidad Aerovias pursuant to a direct contract with Universidad Aerovias.

6. The procedures employed by MDCC's Evaluation Committee in evaluating the competing responses to

   RFP 956-34 were arbitrary, capricious and unreasonable.

7. MDCC violated Section 120.53(5)(d), Florida Statutes, and its own Bid Protest Procedures For Purchasing Department, Article IV, when, instead of providing an opportunity to resolve Silver Express' protest by mutual agreement among the

   parties, it issued an Order to Show Cause challenging the legal sufficiency of Silver Express' protest.

8. The Evaluation Committee's "minutes" of its deliberations were legally insufficient and no stenographic or magnetic record of those delibera- tions were made.

9. MDCC violated Article I, Section 24, Florida Constitution (1968), and Section 286.011, Florida Statutes, when its Evaluation Committee met in secret to consider the competing responses to RFP 956-34

10. MDCC violated Section 120.53(5)(c), Florida

    Statutes, when it entered into the temporary contract with Husta International without making the requisite factual findings.

11. Had MDCC made the factual findings concerning the temporary contract required by Section 120.53(5)(c), Florida Statutes, they would not have been supported by competent evidence.

At the outset of the final hearing, the Hearing Officer heard argument on the three motions (the Motion to Relinquish Jurisdiction and the two motions in limine) that the College had filed two days earlier. During such argument, counsel for Petitioner indicated that Petitioner was abandoning the argument it had made in its Formal Protest that "[t]he evaluation process did not comply with Section 287.057(15),(17) and (19), Florida Statutes."

After hearing argument on the three motions, the Hearing Officer announced that, "in an abundance of caution," he was denying the College's Motion to Relinquish Jurisdiction, to the extent that the motion requested that he return the matter to the College without conducting a formal hearing. He added, however, that, in the Recommended Order that he would issue after the formal hearing and after the parties had the opportunity to file their proposed recommended orders, he would "address the legal issues .

. . raised in [the College's] Motion to Relinquish Jurisdiction." With respect to the two motions in limine that the College had filed, the Hearing Officer advised that he "tend[ed] to agree with the [C]ollege that the issues should be limited to those that are specified . . in the notice of formal protest." He indicated, though, that, again "acting in an abundance of caution," he would nonetheless receive evidence relating to all of the issues enumerated in Petitioner's Prehearing Catalogue, including those not raised in its Formal Protest, and he would, in his Recommended Order, address the question of "the appropriate scope of the issues to be [resolved] in this matter." The Hearing Officer "encourage[d] the parties in their proposed recommended orders to present further argument regarding" this question.

During the evidentiary portion of the final hearing, Petitioner presented the live testimony of the following witnesses: Joseph Husta, Intervenor's President; Professor Marilyn Kern- Ladner, the Associate Dean of the College's Department of Aviation; and Thomas Shaffer, Petitioner's President. In addition to the testimony of these witnesses, Petitioner offered, and the Hearing Officer received, 31 exhibits (Petitioner's Exhibits 1 through 10, 10A, and 11 through 30) into evidence.

At the close of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised the parties of their right to submit post-hearing submittals and established a deadline (10 days from the date of the Hearing Officer's receipt of the transcript of the hearing) for the filing of these submittals.

The Hearing Officer received the hearing transcript on January 31, 1996. On Monday, February 12, 1996, the College filed a proposed recommended order. The following day, February 13, 1996, Petitioner filed a proposed recommended order, accompanied by a cover letter from Petitioner's attorney, which read as follows:

We represent Petitioner Silver Express Co., a Florida corporation, in the above styled bid protest proceeding.

Enclosed is Petitioner's Proposed Findings of Fact, Conclusions of Law and Recommended Order in this matter.

Petitioner Silver Express hereby withdraws its claims in the above styled proceeding that:

1. Respondent Miami-Dade Community College ("MDCC") violated Section 120.53(5)(c), Florida Statutes, when it entered into the "Temporary Contract" with Intervenor Husta International Aviation, Inc. ("Husta"), and

2. the MDCC Evaluation Committee violated Article I, Section 34(b), Florida Constitution, and Section 286.011, Florida Statutes, when it met in non-public session to consider the responses to RFP 956-34.

In its proposed recommended order, Petitioner argued that Husta International's proposal was unresponsive

to RFP 956-34 because:

1. its supporting financial statements purported to reflect the financial condition of a non-existent entity, the Husta Aviation Flight School, rather than Husta International;

2. it failed to disclose the two [safety- related] incidents described in paragraph 8, supra; and

3. it failed to disclose that, as of October 26, 1995, Husta International did not possess the required FAA Part 141 Certificate.

Because its proposal was unresponsive to RFP 956-34, Husta International should not be awarded the contract envisioned therein.

Petitioner's proposed recommended order contained none of the other claims that it had made in its Prehearing Catalogue.

The College's and Petitioner's proposed recommended orders have been carefully considered by the Hearing Officer. They each contain what are labelled as "findings of fact." These "findings of fact" proposed by the parties are specifically addressed in the Appendix to this Recommended Order. To date, Intervenor has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. The College offers an academic program of flight instruction to its students.

   
   

2. Such instruction is provided by independent contractors under contract with the College.

   
   

3. Petitioner, a Florida corporation, provided such instruction from January 1, 1992, to December 31, 1995, pursuant to an agreement with the College that was executed on November 26, 1991, and amended July 28, 1995. 1/

   
   

4. Through Request for Proposal 956-34, entitled "Aviation Program Flight Training Provider, Kendall-Tamiami Executive Airport, Homestead Campus" (hereinafter referred to as the "RFP"), the College requested the submission of proposals from prospective providers interested in providing students of the College with flight training instruction at Kendall-Tamiami Executive Airport.

   
   

5. The College's Director of Purchasing, Linda Pagliaro, sent the following letter to prospective providers along with the RFP:

   
   

   The College is accepting proposals from flight training providers to provide flight training instruction to students of Miami- Dade Community Colleges's Aviation Program.

   This proposal shall be submitted on the form(s) which are included in this package and returned in the enclosed envelope. The

   College shall evaluate all proposals submitted and shall award the contract for the proposal which the College determines to be in its best interest.

   The completed proposal shall be submitted to the Purchasing Dept., Room 9254, Miami-Dade Community College, 11011 S.W. 104 Street, Miami, FL 33176, before opening time of 3:00 p.m. on October 26, 1995. Proposals received after

   this opening time will be returned to the vendor unopened.

   Vendors may attend a pre-proposal conference, to be held October 17, 1995, at 9:00 a.m., at the Kendall Campus, 11011 S.W. 104 Street, Room 9254, Miami, Florida.

   The College reserves the right to accept any proposal deemed to be in the best interest of the College, to waive any irregularities in any proposal, and may reject any and all proposals.

   Any questions regarding this proposal may be directed to Mr. Edward Vasquez, Buyer, at (305) 237-2231.

   
   

6. The College's "intent" in issuing the RFP was explained as follows in Section 1.0 of the RFP:

   
   

   1. The intent of this Request for Proposal is to obtain an agreement with a flight training provider to provide flight training instruction at the Kendall-Tamiami Executive Airport for students of Miami-Dade Community College. Provider must currently at at least one location possess a FAAR Section 141 Pilot School Certifi- cate for Flight and Ground (see Section 7.4.4).

   2. The term of the Contract shall be for an initial period of two years. By written agreement of the parties, the agreement may be extended for three additional one year terms.

   3. Flight training providers may propose service for Kendall-Tamiami Executive Airport only. Another provider has already been recom- mended to provide service at Opa-Locka Airport. It is anticipated that approximately 75 percent of the flight training hours will be flown from Kendall-Tamiami Executive Airport.

   4. The successful proposer shall enter into an agreement acceptable to the College to provide Flight Training Instruction for Miami-Dade

   Community College Students "Contract," the minimum terms of which are incorporated into this Request for Proposal document. (see Section 7.0.)

7. Section 3.0 of the RFP informed prospective providers that they had the opportunity (but were not required) to attend a pre- proposal conference at which they would be able to "ask questions regarding the College's requirements as contained in this Request for Proposal."

   
   

8. Section 4.0 described, as follows, the "required information" that had to be provided to the College:

   
   

   1. Vendors submitting proposals must completely fill in all information requested on the attached PROPOSAL COVER SHEET (ATTACHMENT "A").

   2. Vendors submitting proposals must completely fill in all information requested on the attached PROPOSAL SCHEDULE OF FEES (ATTACHMENT "B").

   3. Providers submitting proposals must supply a brief history of the firm/organization submitting the proposal. This history should

      include:

      1. How long the company has been in business under the present management/ownership.

      2. Identity and background of the principals, including the position/title of each principal.

      3. Current number of employees.

      4. Certification(s) currently held by proposer. List and attach copies.

      5. Description and location of all current facilities operated by proposer.

      6. List of at least five customers, preferably public or governmental organizations, for which you have provided a similar service. List must include reference name, address, telephone number, contact person, and a description of the service provided. In addition, the College reserves the right to contact current or former customers of the proposer not provided as part of the proposal. Label this part of the proposal Response to Section 4.3.

   4. Providers submitting proposals must supply

      a list of all aircraft which will be made available for performance of the Contract. This list must include the make, model number and equipment included in each aircraft proposed. The Provider should also indicate if the aircraft is leased or owned and the age of the aircraft. Label this part of the proposal Response to Section 4.4.

   5. Proposers submitting proposals must supply a narrative description of the flight training program proposed for each location. This descrip- tion must include:

      1. Number of flight training instructors and other personnel (by category) available for per- formance of the contract, including re[l]e[v]ant experience, certificates, qualifications and ratings held.

      2. Proposed facilities to be made available for performance of the contract, including maintenance and repair facilities, classrooms and offices.

      3. Description of the intended flight training curriculum for the four courses indicated in Attachment "B." The description of the flight training curriculum must include, but is not limited to, course outlines or training stages, lesson objectives, and evaluation criteria. The College prefers the Jeppesin Sanderson ground and flight training curriculum. If the provider intends to use the Jeppesin Sanderson curriculum, only a brief statement of that fact is necessary. Label this part of the proposal Response to Section 4.5.

   6. Providers submitting proposals must provide a narrative description of their safety record, including a list of all safety violations, incidents/accidents, fines, penalties, investi- gations, suits, claims and judgments, which have occurred during the last three years, or which

      are pending. Label this part of the proposal Response to Section 4.6.

   7. Providers submitting proposals must supply

      a financial statement audited by a public accountant certified by the State of Florida, or by the provider's financial officer, for the most recent fiscal or calendar year. Label this part of the proposal Response to Section 4.7.

   8. In addition to the required information noted in Sections 4.1 through 4.7, providers submitting proposals may include any additional information which may be helpful to the College in analyzing the vendor[']s ability to provide the service described in the Request for Proposal documents. Label this part of the proposal Response to Section 4.8.

   
   

9. Section 5.3 of the RFP established 3:00 p.m. on October 26, 1995, as the deadline for the submission of responses to the RFP.

   
   

10. Sections 5.4 and 5.5 discussed the subject of prospective providers' questions concerning the RFP. These sections of the RFP provided as follows:

    
    

    1. Any questions concerning this Request for Proposal shall be directed to Mr. Edward Vasquez,

       (305) 237-2231, and not to any other person or department at the College. Contacting other members of the Evaluation Committee will result in vendor disqualification. The Purchasing Department will determine whether an addendum should be issued as a result of any questions

       or other matters raised. If issued, the addendum will be incorporated into the Request for Proposal and will become part of the purchase agreement.

    2. The last date for vendors to submit written questions relative to this Request for Proposal will be October 18, 1995, (see Tentative Time Schedule). Questions must be received in the Purchasing Department by 3:00 p.m. and shall be sent to Mr. Edward Vasquez. Questions may also

    be submitted via facsimile machine, (305) 237-2895.

    
    

11. Section 6.0 of the RFP described the proposal evaluation and recommendation process. It provided as follows:

    1. An Evaluation Committee will review and evaluate all proposals received and will recommend award to the provider(s) whose proposal is

       considered to be in the best interest of the College.

    2. Providers may be asked to meet with members of the Evaluation Committee for the purpose of clarifying or expanding upon any information contained in their proposal. In addition, the Evaluation Committee may require a visit to the proposer's current place of business for the purpose of observing the business operation, specifically as it relates to the proposed aircraft and maintenance facilities.

    3. The College reserves the right to accept any proposal deemed to be in the best interest of the College, to waive any irregularities in any proposal, and to reject any all proposals.

    4. The criteria to be used for evaluation shall include the following (not necessarily in order of importance): 2/

       1. Cost

       2. Vendor Experience

       3. Available Aircraft

       4. Proposed Training Program

       5. Vendor Safety Record

       6. Vendor Financial Condition 3/

    5. Notices of decision or intended decision to recommend or reject proposals shall be posted in the Purchasing Department on November 3, 1995. In the event that an unsuccessful bidder desires to protest the College's notice of intended decision to award or reject proposals, the adversely affected bidder shall be required

    to comply with Miami-Dade Community College Bid Protest Procedures, a copy of which is available from the Purchasing Department, including, without limitations, filing a notice of protest with the Director of Purchasing in writing within seventy-two (72) hours after the posting or, in the case of a

    mailing or hand delivery, within 72 hours after receipt of the notice of intended decision, and filing a formal written protest within 10 calendar days after the date the notice of protest is filed. Failure to file a protest within the time prescribed herein, which complies with Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes.

12. According to Section 2.1 of the RFP, the "[e]valuation of [p]roposals" would take place "October 27-November 2, 1995."

13. Article I of the College's Bid Protest Procedures for Purchasing Department (which procedures were referenced in Section

    6.5 of the RFP) addresses the subject of "protest of invitations to bid and requests for proposal." It provides as follows:

    
    

    1. All bidders and proposers are required thoroughly to review invitations to bids and requests for proposals ("RFP's") within a reasonable time after receipt. Any concerns or comments relating to the bidding or RFP documents shall be brought to the attention of

       the Director of Purchasing, Miami-Dade Community College (the "College"), or a designated person in the Purchasing Department, in writing promptly

       after receipt; provided, however, that should the bidder or proposer desire to protest the bid solicitation or RFP, or any of the bidding or RFP documents, including without limitation, the specifications, requirements or procedures thereof, the bidder or proposer shall (i) file a Protest Notice (in accordance with Article III of these Procedures) with the Director of Purchasing of

       the College, within 72 hours after the initial date (set forth in the public advertisement by the Board) in which the bidding or RFP documents, as the case may be, shall be made available to the bidders or proposers, or, in the case where the bidding or RFP documents are mailed to the bidders or proposers, within 72 hours after the bidding or RFP documents are received by the applicable bidder or proposer (provided that in the case where such documents are mailed, failure to receive such documents shall not be cause for

       rejection of all bids or proposals and rebidding); and (ii) file a Formal Protest (in accordance with Article III of these Procedures) with the Director of Purchasing of the College within 10 days after the date the Protest Notice is filed. The failure to comply with the foregoing procedures shall be a waiver by the bidder or proposer of any right to later protest on the basis of the form, content and substance, including without limitation, the specifications, requirements or procedures, of

       the bidding or RFP documents.

    2. For the purposes of the procedures contained herein, the capitalized term "Bidder" shall refer to a bidder or proposer and the capitalized term

    "Bid" shall refer to a bid or proposal as applicable.

14. Article III of the College's Bid Protest Procedures sets forth "bid protest filing requirements."

    
    

15. Section 3.1 of Article III provides as follows:

    Any bidder adversely affected by the decision or intended decision to award, recommend or reject Bids of the College shall file a notice of protest (the "Protest Notice") in writing with the Director of Purchasing of the College, within seventy-two

    (72) hours after the posting of the Bid tabulation or receipt of written notice of the intended decision (if such written notice is given), and shall file a formal written protest (the "Formal Protest") with such person within ten (10) calendar days after the date the Protest Notice was filed. The failure to file a Protest Notice or failure to file a Formal Protest within the time periods specified above shall constitute a waiver of proceedings under Chapter 120, Florida Statutes.

16. Section 3.2 of Article III provides as follows:

    
    

    Except as otherwise expressly provided herein, in calculating time periods if the last day of

    the period is a Saturday, Sunday or legal holiday (as designated in Section 110.117, Florida Statutes) or any other day on which the College is closed, the period will run until the close of business on the next day which is not a Saturday, Sunday, legal

    holiday or on which the College is open for business. A Protest Notice or Formal Protest which is not received within the time periods specified in this Article III shall not be valid, and the failure to

    so file a Protest Notice and/or Formal Protest in accordance with these time periods shall constitute a waiver of proceedings under Chapter 120, Florida Statutes.

17. Section 3.3 of Article III provides as follows:

    
    

    A Protest Notice or Formal Protest shall be effective and deemed filed upon receipt by the Director of Purchasing of the College. Accordingly, a Notice of Protest or Formal Protest is not valid and shall not be considered unless it is received by such a person within the times specified in Section

    3.1 above.

    
    

18. Section 3.5 of Article III prescribes the contents of a Protest Notice. It provides as follows:

    
    

    A Protest Notice shall at least contain the following information: (i) the Project Number or other Bid identification and a brief descrip- tion of the Bid solicitation involved, (ii) the protesting Bidder's name, address and telephone

    number, (iii) the name of the authorized repre- sentative of the protesting Bidder to whom all communications should be directed, and (iv) a

    brief factual summary of the bases for the protest.

    
    

19. Section 3.6 of Article III prescribes the contents of a Formal Protest. It provides as follows:

    
    

    A Formal Protest shall state with particularity the facts and law upon which the protest is based and shall contain the following information: (i) the Project Number or other Bid identification and a brief description of the Bid solicitation

    involved, (ii) a clear and comprehensive statement explaining the grounds for the protest, (iii) the applicable statutes, rules, regulations and other legal authority supporting the protest, and (iv) the relief sought by the protesting Bidder.

20. Section 4.1 of Article III provides that "[w]ithin seven

    (7) calendar days following receipt of the Formal Protest (excluding Saturdays, Sundays, legal holidays or days [o]n which the College is closed), the College shall provide an opportunity to resolve the protest by mutual agreement between the parties."

    
    

21. Section 4.3 of Article III provides that "[w]hen a protest cannot be resolved by mutual agreement in accordance with the provisions of Section 4.1 above within such 7-day period and if there is a disputed issue of material fact, then the matter shall be referred to the Florida Department of Administration, Division of Administrative Hearings, 4/ for formal proceedings in accordance with Section 120.57(1), Florida Statutes, and Chapter 22I-6 [now Chapter 60Q-2] and 28, Florida Administrative Code, unless the parties agree by written stipulation to resolve the dispute by informal proceedings as provided herein."

    
    

22. The pre-proposal conference referenced in Section 3.0 of the RFP was held, as scheduled, on October 17, 1995. Petitioner sent a representative to the conference. Intervenor did not.

    
    

23. At the conference, Petitioner's representative, Juan Naranjo, delivered a letter from Petitioner's President and sole shareholder, Thomas Shaffer, to the College's contact person (as designated in Sections 5.4 and 5.5 of the RFP), Edward Vasquez. The letter read as follows:

    
    

    After a thorough review of the aforementioned RFP, we hereby submit the following requests for modification and clarification of the terms contained therein:

    Section 7.3.1.1.8(d)

    Not all Silver Express Flight Instructors are "employees" as defined by the Internal Revenue

    Service. Some are employed as independent contractors.

    
    

    Section 7.3.1.1.8(f)

    Not all Flight Instructors have an Associate's Degree.

    
    

    Section 7.3.1.1.9(a) and (g)

    Mike Smithers, Chief Instructor of Silver Express does not have either an ATP rating, or an Associate's Degree.

    
    

    Section 7.3.1.2.1(a), (iii)

    Although appendix C(7) requests the number or percentage of aircraft to incorporate an ADF receiver, the above referenced section specifies that all aircraft shall contain an ADF. Nine of our 14 aircraft are so equipped.

    
    

    Section 7.3.3.1(a)

    Silver Express is insured for $1,000,000.00 under our commercial lines policy and $1,000,000.00/

    $100,000.00 per seat for the aircraft liability. The coverage you request is not available to the company.

    
    

    Section 7.5.2

    Include cost of living increases; and Silver Express offers aircraft that fall outside of the fee schedule as set forth in Appendix D. Should a student choose to fly one of the more expensive aircraft, the Board will not deny payment of invoices for such services.

    
    

    Section 7.5.2.1

    1. Clarify (duplication of records).

    2. Specifically list the software and equipment required.

       
       

       Include as Section 7.5.2.2

       The Board shall provide Contractor with real time access to Student account balances via electronic link on a seven day per week basis.

       
       

       If you have any questions, please feel free to call.

       
       

24. Shaffer arrived at the conference site as the conference was ending. He did not sign the conference sign-in sheet.

    
    

25. After the conference, Shaffer met with Vasquez, at Vasquez's invitation, to discuss in detail the contents of the

    letter Nananjo had delivered earlier that day on Shaffer's behalf. At the end of the meeting, Vasquez suggested that Shaffer include in Petitioner's proposal the issues raised in the letter.

    
    

26. Four prospective providers submitted proposals in response to the RFP: Avionics Parts and Service Corporation (hereinafter referred to as "Avionics"); 5/ Florida Institute of Technology (hereinafter referred to as "FIT"); Petitioner; and Intervenor. 6/

    
    

27. On the "proposal cover sheet" ("Attachment A"), which was referenced in Section 4.1 of the RFP, Intervenor indicated that the "legal name of the entity" submitting its proposal was "Husta International Aviation, Inc."

    
    

28. In its response to Section 4.3a. of the RFP, Intervenor stated the following in its proposal:

    
    

    The Joe Husta Aircraft Corporation was formed in September 1986. Later on the company was renamed Husta Aviation, Inc. Due to the relocation from Kendall Tamiami Executive

    Airport to the Opa Locka Airport on May 8, 1995, the company is now known as Husta International Aviation. The flight school and charter service are currently doing business as Husta Aviation, Inc. The entire time the company has been owned by Joseph Husta.

    
    

29. In its response to Section 4.3d. of the RFP, Intervenor stated the following in its proposal:

    
    

    Currently Husta International Aviation holds a Part 135 charter certificate and a Part 141 Flight school certificate. Photocopies of these certificates are contained in the back of this section.

    
    

30. The Part 141 certificate to which Intervenor referred in its response to Section 4.3d. of the RFP (Certificate Number MNLS307B) was actually issued to Joe Husta Aircraft Corporation, the entity which, according to Intervenor's response to Section 4.3a. of the RFP, was later renamed Husta Aviation, Inc.

    
    

31. Husta International Aviation, Inc., and Husta Aviation, Inc., are now, and were at the time Intervenor submitted its proposal, separate and distinct corporate entities. 7/ The two corporations are "in the process" of merging, but the merger has not yet been finalized.

    
    

32. On November 20, 1995, Certificate Number MNLS307B was reissued to Intervenor in anticipation of the merger.

33. In its response to Section 4.3e. of the RFP, Intervenor stated the following in its proposal:

    
    

    The facilities currently in use by Husta Inter- national Aviation at our Kendall-Tamiami Executive facility located at 14160 S.W. 129th Street, Miami, Florida 33186, include an establishment of approximately 1440 square feet. The facilities

    are located at the departure end of runway 9R, immediately next to the United States Customs office. This allows quick access to the runway, meaning shorter taxi times for students. There are four private briefing areas, in addition to a large lounge and dining areas.

    
    

    Maintenance will be available on an on call basis from our Opa Locka based maintenance staff.

    
    

    (Intervenor made this very same statement in its response to Section 4.5B. of the RFP.)

    
    

34. The "establishment" at Kendall-Tamiami Executive Airport referred to in Intervenor's response to Section 4.3e. of the RFP was leased from Metro-Dade County by Husta Aviation, Inc., not by Intervenor.

    
    

35. In its response to Section 4.3f. of the RFP, Intervenor stated, in pertinent part, the following in its proposal:

    
    

    f. List of Customers . . .

    5. Universidad Aerovias

    Contact: Ricardo H. Schoer Diestal, Flight School Director

    AV Tahel Esq. Ruiz Cortines S/N Col Pensador Mexicano

    15520 Mexico, D.F.

    Miami phone (305)362-1493

    From January 1993 through August 1994, Husta Aviation provided Initial, Instrument, Commercial, and Multiengine Instruction to over 100 University of Mexico Graduates.

    
    

36. The instruction to which Intervenor referred in its response to Section 4.3f. of the RFP was actually provided to students from Aeromexico. The instruction was provided at the Universidad Aerovias.

    
    

37. In its response to Section 4.6 of the RFP, Intervenor stated the following in its proposal:

    
    

    During the past three years at Husta Aviation, Inc., there has been only one safety related incident. On July 15, 1994, an Universidad

    Aerovias student pilot, during a crosswind landing, hit the wingtip on a C-152. The total damage to the aircraft was less than $12,000.

    During the last three years at Husta Aviation, Inc., there have been no other safety violations, incidents/accidents, fines, penalties, investiga- tions, suits, claims, and judgments levied against Husta Aviation, Inc.

    
    

38. In its response to Section 4.7 of the RFP, Intervenor provided, as part of its proposal, a Statement of Operations (including revenue and costs, as well as expenses) for the period from May 8, 1995 through August 31, 1995, of the Husta Aviation Flight School, and a Balance Sheet reflecting the assets and liabilities of the Husta Aviation Flight School as of August 31, 1995. These documents were prepared, but not certified, by Intervenor's chief financial officer.

    
    

39. Petitioner, in its response to Section 4.7 of the RFP, advised the College of the following:

    
    

    Audited financial statements are unavailable for the fiscal year ending May 31, 1995. The enclosed statements are uncorrected and intended to be used as a reference only.

    
    

40. In its response to 4.8 of the RFP, Intervenor stated the following in its proposal:

    
    

    INTRODUCTION

    Husta Aviation, Inc. was formed in September

    1986 and commenced operations in 1987. The company was originally formed to sell single and twin engine propeller driven aircraft out of the Kendall Tamiami Executive Airport. The Company has expanded opera- tions to include sales of corporate jets and other business aircraft, a Part 141 F.A.A. and V.A. approved flight school and provides rental and

    Part 135 F.A.A. approved charter services on demand. With the acquisition of a Fixed Base Operation (Terminal 1) at Opa Locka Airport, the Company has added a quality maintenance facility, fuel sales

    and aircraft tie-down rentals. As of May 8, 1995, the Company is now known as Husta International Aviation, Inc. 8/

    The sale and maintenance of corporate business jets and projects will fill a growing demand at

    Opa Locka Airport. Single and twin-engine aircraft, representing 80 percent to 90 percent of the general aviation fleet in the United States, are utilized for business travel and recreation and together

    with other aircraft are regulated by the F.A.A. These regulations cover all aspects of general

    aviation, from aircraft operation to aircraft maintenance [and o]perational general air safety.

    1. maintenance requirements include periodic engine and airframe inspection by F.A.A. authorized inspectors.

       Because Cessna and some of the other aircraft manufacturers are no longer manufacturing piston powered aircraft, the size of the fleet has dwindled in the past several years. Companies such as Husta Aviation, Inc. are helping to maintain this fleet by selling these aircraft and providing other related services.

       Finally the fixed base operation enable[s] the Company to add quality and capacity to the airport's maintenance capability.

       Market Niche

       As previously noted, the Company has expanded its scope of operations and presently generates revenues from the following sources:

       1. Sales

       2. Flight School

       3. Rentals and Charter

       4. Maintenance

       5. Fuel Sales

       6. Aircraft management and

       7. Aircraft Tie-Down

    
    

    Flight School

    The flight school was opened in 1989 and presently includes eight (8) full time instructors. Plans are to add additional instructors and aircraft in the very near future. The school is averaging approximately 450 hours of flight training per

    month with plans to increase this to 500 hours per month by this year end.

    The flight school, which is a Part 141 F.A.A. approved program, provides ground school training, provides pilot training, multi-engine pilot training, commercial pilot training, instrument rating and certified flight instructor training among others.

    With a certification of completion provided to students, they are then able to apply with the F.A.A. for one or more of the foregoing category of licenses. The Company presently has a fleet of sixteen (16) propeller driven aircraft available for flight training, flight simulation equipment, audio visual equipment and classroom facilities plus a staff of

    F.A.A. certified flight instructors.

    By increasing the number of trained pilots in the area the Company helps promote jobs, increases tax revenues and increases flight services to the community under the auspices of the F.A.A.

    Rentals and Charters

    The Company is Part 135 F.A.A. approved for charter and provides charter services throughout the continental United States, the Bahamas, and Caribbean destinations. Rental services are provided throughout the continental United States.

    
    

    History

    The Company, owned and operated by Joseph Husta, began in 1987 with one aircraft, 500 square feet of leasable space and two employees at Ken[d]all Tamiami Executive Airport. It has grown to include a fleet of sixteen (16) aircraft, forty-six (46) employees and is presently leasing 400,000 square feet of combined office space, aircraft hangar, and aircraft tie-down at Opa Locka Airport.

    The Company has participated in the annual Airport Open House, sponsored by the Dade County Aviation Department, for the past several years. During this annual event, the Company makes its facilities available for tours, provides an information booth, and offers discounted air rides.

    Husta Aviation, Inc. participates in the Anti-Drug Consortium, which is approved by the F.A.A. Under this program the consortium provides pre-employment drug testing for all prospective employees and also randomly tests all current employees at least twice a year. Test results are transmitted to both the

    F.A.A. and top management.

    Management/Employees

    The Company presently employes 46 individuals including eight (8) instructors, eight (8) mechanics, twelve (12) line service technicians. Company President and Chief Executive Officer Joe Husta has been involved in the aircraft industry for over 17 years. Mr. Husta, a licensed single and multi- engined pilot, also graduated from the George T.

    Baker Aviation Maintenance Technical School. He has been an active member of the Greater Miami Aviation Association for approximately six (6) years and he has served on its Board of Directors.

    Government Regulation

    As previously noted, the Company is certified and regulated by the F.A.A. for both flight

    training and charter services. The F.A.A. requires extensive recordkeeping and periodic inspection to insure safety of operations for both aircraft users and the community. Inspections occur on a semi- annual basis with annual re-certification.

    The Company is also VA approved and can accept

    benefits from the federal government for G.I. Bill recipients for commercial and other types of flight instruction.

    
    

41. Intervenor's proposal, as well as the other three proposals that had been submitted in response to the RFP, were forwarded to the Evaluation Committee, which consisted of the following members: Edward Vasquez, who had been designated in the RFP as the College's "contact" person; Professor Marilyn Kern- Ladner, the Associate Dean of the College's Department of Aviation; Professor Loyanne Leiblie, chairperson of the College's Department of Aviation and its chief instructor; 9/ Professor Gilbert Delaney, who teaches in the College's professional piloting program; Leighton Anthony Spence, a budget administrator with the College; and Larry Ploucha, a lawyer in private practice in Broward County who serves as an advisor to the College's Department of Aviation.

    
    

42. The Evaluation Committee met on October 30, 1995, to review and evaluate the four proposals. There were no prospective providers in attendance at the meeting. Prospective providers were not invited to, nor did any prospective provider ask to, attend the meeting. 10/

    
    

43. At the meeting, Vasquez, the Evaluation Committee chair, provided each member of the committee with printed Evaluation Sheets to be used in scoring the proposals. Each sheet had the following printed on it:

    
    

    EVALUATION SHEET RFP NO.: 956-34

    TITLE: AVIATION PROGRAM FLIGHT TRAINING PROVIDER, HOMESTEAD CAMPUS

    
    

    OPTION NO.: CATEGORY:

    CRITERIA WEIGHT SCORE(1-100) WEIGHTED

    POINTS SCORE X WEIGHT

    1. COST .30

       
       

    2. VENDOR

       EXPERIENCE.15

       
       

    3. AVAILABLE

       AIRCRAFT .15

    4. PROPOSED TRAINING

       PROGRAM .15

       
       

    5. VENDOR SAFETY

       RECORD .15

       
       

    6. VENDOR FINANCIAL

    CONDITION .10

    
    

    EVALUATOR DATE

    
    

    Vasquez assigned the "weights" reflected on the Evaluation Sheet for each evaluation criterion after consulting with Kern-Ladner and Leiblie on the matter.

    
    

44. Vasqez explained the evaluation process to the members of the Evaluation Committee, instructing them to score each proposal, criterion by criterion, on a scale of 1 to 100. He advised the committee members to exercise their discretion in determining whether, for each criterion, they should give a perfect score (100 points) to the proposal that best fulfilled the College's needs with respect to the criterion under review, or whether they instead, for each criterion, should measure the proposals against an "ideal" proposal, with the possibility that none of the proposals submitted, including the one that best met the College's needs with respect to the criterion in question, would receive a perfect score of 100 for that criterion. Vasquez cautioned the committee members that, regardless of which of these scoring options they selected, they should "always be consistent" in their scoring.

    
    

45. Before the committee discussed any of the proposals, Kern-Ladner, with the agreement of the other committee members,

    withdrew as a voting member of the committee. She felt that it was inappropriate for her to serve in such a capacity inasmuch as, at Petitioner's request, she had supplied the committee with a reference on Petitioner's behalf. Kern-Ladner nonetheless remained at the meeting, serving as a "resource" for the other committee members.

    
    

46. The remaining five voting members of the Evaluation Committee (hereinafter referred to as the "evaluators") thereafter unanimously voted to reject Avionics's proposal on the ground that it was non-responsive to the RFP. According to the minutes of the meeting, 11/ Avionics' proposal was determined to be non- responsive for the following reasons:

    
    

    1. There was no financial statement.

    2. There was no 141 Certificate.

    3. There were no references.

    4. There was no information on co-bidder.

    5. There were not enough copies submitted.

    6. The specifications were incomplete (i.e. no identification of aircraft).

    
    

47. The evaluators then engaged in a general discussion of the strengths and weaknesses of the three remaining proposals, after which they specifically addressed each criterion and individually scored each of the proposals, criterion by criterion.

    
    

48. For each proposal, the evaluators' individual raw scores (from 1 to 100) for each criterion were added together and divided by five (the number of evaluators) to produce an average, unadjusted score (still between 1 and 100) for each criterion. Each proposal's average per-criterion score was then multiplied by that criterion's assigned weight (as set forth on the Evaluation Sheet) to produce a weighted per-criterion score (from 10 to 30 points, depending on the weight) for each proposal. The sum of a proposal's weighted per-criterion scores equaled its total score (once again from 1 to 100).

    
    

49. In scoring the proposals, the evaluators relied upon the information that the prospective providers had submitted in response to the RFP without making any effort to verify the accuracy of the information that had been provided.

    
    

50. The results of the scoring were as follows: Intervenor-

    90.05 total points; FIT- 81.65 total points; and Petitioner- 74.00 total points.

    
    

51. The evaluators voted five to zero to recommend that Intervenor, which had the highest total score of the three prospective providers who had submitted responsive proposals, be awarded the contract advertised in the RFP, subject to an on-site inspection "to verify [Intervenor's] facilities."

    
    

52. Such an on-site inspection was conducted later that week. Intervenor's facilities were determined to be satisfactory by the committee members who conducted the inspection.

    
    

53. On November 3, 1995, the Evaluation Committee posted notice of its decision to recommend that Intervenor receive the contract award.

    
    

54. Petitioner's President, Thomas Shaffer, saw the notice the same day it was posted. After viewing the notice, he went to Vasquez's office and "went over" the proposals with Vasquez. Later that afternoon, Shaffer formally requested, in writing, that the College supply him with copies of certain documents that the College had in its possession pertaining to the evaluation process. The College complied with Shaffer's request on November 9, 1995.

    On that date, it produced for Shaffer, in compliance with his request, copies of Intervenor's proposal, portions of Avionics' and

    FIT's proposals, and the documents generated by the members of the Evaluation Committee during the evaluation process.

    
    

55. On November 6, 1995, Shaffer delivered a letter to the College's Director of Purchasing, which read as follows:

    
    

    Please accept this communication as notice that Silver Express will submit a written protest of the decision to recommend Husta Aviation for RFP 956-34, within the 10 days prescribed by Section 120.53(5), Florida Statutes.

    
    

    If you have any questions, please feel free to call.

    
    

56. Petitioner submitted such a formal written protest ten days later, on November 16, 1995.

    
    

    CONCLUSIONS OF LAW

    
    

57. The College is one of the 28 community/junior colleges in the State Community College System. Section 240.3031(16), Fla. Stat.

    
    

58. It is "locally based and governed . . . with statutory and funding ties to state government." Section 240.301(1), Fla. Stat.

    
    

59. Its "primary mission and responsibility . . . is responding to community needs for post-secondary academic education and degree career education." Section 240.391(3), Fla. Stat.

    
    

60. The Miami-Dade Community College District (hereinafter referred to as the "District") is "an independent, separate, legal entity created for the operation of [the College]." Section 240.313(1), Fla. Stat. Pursuant to Section 240.317, Florida Statutes, it constitutes a "political subdivision of the state.".

    
    

61. The District is operated by a body corporate, the District Board of Trustees of Miami-Dade Community College (hereinafter also referred to as the "Board"). Section 240.315,

    240.317 and 240.319, Florida Statutes. The Board is an "agency," as that term is used in Chapter 120, Florida Statutes, (also known as the "Administrative Procedures Act"), and defined in Section 120.52(1)(b), Florida Statutes. Cf. Sublett v. District School Board of Sumter County, 617 So.2d 374, 377 (Fla. 5th DCA 1993)("[a] county school is a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders").

    
    

62. The Board "constitutes the contracting agent of the [College]." Section 240.319(3)(c), Fla. Stat.

    
    

63. In exercising its contracting authority, the Board is subject to the "minimum standards" that the State Board of

    Education has prescribed pursuant to Section 240.325(2), Florida Statutes, which provides as follows:

    
    

    The State Board of Education shall prescribe minimum standards, definitions, and guidelines for community colleges which will assure the quality of education, systemwide coordination, and efficient progress toward attainment of the community college mission. At a minimum, these rules must address: . . .

    (2) Contracting.

    
    

64. The "minimum standards" prescribed by the State Board of Education pursuant to Section 240.325(2), Florida Statutes, are found in Rule 6A-14.0734, Florida Administrative Code, which provides as follows:

    
    

    1. Boards of trustees [of community colleges] shall request bids from at least three (3) sources when purchasing services or commodities exceeding ten thousand dollars ($10,000). Boards may adopt smaller amounts beyond which to require bidding. Boards may reject bids and request new bids.

       When accepting bids, boards shall accept the lowest or best bid. If other than the lowest bid meeting specifications is accepted, the board shall enter the justification in its minutes.

    2. Exceptions to the three-bid requirement are:

       1. Purchases under Section 946.515 and 946.519, Florida Statutes.

       2. Educational tests, textbooks, printed instructional materials, films, filmstrips, video tapes, disc or tape recordings or similar audio- visual materials, computer-based instructional software.

       3. Library books, reference books, periodicals, and other library materials and supplies.

       4. Purchases at the unit prices in county contracts, district school board contracts, state university system cooperative bid agreements, cooperative contracts with other community colleges, and bid agreements of other community colleges.

       5. Food.

       6. Noncompetitive items available from one source, items for resale, and used books.

       7. Professional services, including, but not limited to, attorneys, auditors, management consultants, architects, engineers, and land surveyors. Services of architects, engineers,

          and land surveyors shall be selected and negotiated according to Section 287.055, Florida Statutes.

       8. Information technology resources as defined

       in Section 282.303(10), Florida Statutes. Acquisitions of data processing equipment or software shall be in accordance with the college's long-range Information Resource Technology plan.

    3. The executive director may waive bidding requirements in emergencies when requested and justified by the board of trustees.

    
    

65. It has been said on more than one occasion that competitive bidding requirements, such as those imposed upon community college district board of trustees pursuant to Rule 6A- 14.0734, Florida Administrative Code, have as their purpose and object the following:

    
    

    [T]o protect the public against collusive contracts; to secure fair competition upon equal terms to all bidders; to remove not only collusion but temptation for collusion and opportunity for gain at public expense; to close all avenues to favoritism and fraud in various forms; to secure the best values for the [public] at the lowest possible expense;

    and to afford an equal advantage to all desiring to do business with the [government], by affording an opportunity for an exact comparison of bids.

    
    

    Wester v. Belote, 103 Fla. 976, 138 So. 721, 723-24 (Fla. 1931); Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So.2d 1190, 1192 (Fla. 2d DCA 1977).

    
    

66. In soliciting and accepting competitive bids or proposals, a community college district board of trustees has wide discretion. See D.O.T. v. Groves-Watkins Constructors, 530 So.2d 912, 913 (Fla. 1988); Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982).

    
    

67. Its discretion with respect to these matters, while broad, is not unbridled. It must exercise its discretion in a manner that is not illegal, dishonest, fraudulent, arbitrary, unreasonable, capricious or in any other way that would subvert or undermine the purpose and object of competitive bidding. See

    D.O.T. v. Groves-Watkins Constructors, 530 So.2d 912, 913-14 (Fla. 1988); Caber Systems v. Department of General Services, 530 So.2d 325, 336 (Fla. 1st DCA 1988); Couch Construction Company, Inc. v. Department of Transportation, 361 So.2d 172, 175 (Fla. 1st DCA 1978); Wood-Hopkins Contracting Company v. Roger J. Au & Son, Inc., 354 So.2d 446, 450 (Fla. 1st DCA 1978). It may not, for instance, accept a bid or proposal that is materially at variance with the specifications set forth in the invitation for bids or request for proposals. "[A]lthough a bid [or proposal] containing a material variance is unacceptable, not every deviation from the [bid or proposal specifications] is material. It is only material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition." Tropabest

    Foods, Inc. v. Department of General Services, 493 So.2d 50, 52 (Fla. 1st DCA 1986). If it does not provide the bidder with such a palpable competitive advantage, it constitutes a minor irregularity that should be waived by the agency. See Robinson Electrical Co., Inc. v. Dade County, 417 So.2d 1032, 1034 (Fla. 3d DCA 1982).

    
    

68. An unsuccessful bidder or proposer may protest a community college district board of trustees' decision to make a contract award to another bidder or proposer, but only if the would-be protester has a "substantial interest to be determined by the [board]" entitling it to a Section 120.57 hearing on the matter. If it would gain nothing even if the award was overturned

    on the grounds alleged in its protest, it lacks standing to protest the award. See Brasfield & Gorrie General Contractor, Inc. v. Ajax Construction Company, Inc., of Tallahassee, 627 So.2d 1200, 1202-03 (Fla. 1st DCA 1993); Fort Howard Company v. Department of Management Services, 624 So.2d 783, 785 (Fla. 1st DCA 1993); Westinghouse Electric Corporation v. Jacksonville Transportation Authority, 491 So.2d 1238, 1240-41 (Fla. 1st DCA 1986); Preston Carroll Company, Inc. v. Florida Keys Aqueduct Authority, 400 So.2d 524, 525 (Fla. 3d DCA 1981).

    
    

69. In the case of a protest of an award made by the District Board of Trustees of Miami-Dade Community College, the College's Bid Protest Procedures (the pertinent portions of which are set out in the "Findings of Fact" section of this Recommended Order) 12/ must be followed. 13/ See Buffa v. Singletary, 652 So.2d 885, 886 (Fla. 1st DCA 1995)("[a]n agency must comply with its own rules"); Decarion v. Martinez, 537 So.2d 1083, 1084 (Fla. 1st DCA 1989)("[u]ntil amended or abrogated, an agency must honor its rules"); Hulmes v. Division of Retirement, Department of Administration, 418 So.2d 269, 270 (Fla. 1st DCA 1982)("[a]n administrative rule or regulation is operative and binding on those coming within its terms from its effective date until it is modified or superseded by subsequent legislation or by subsequent regulations adopted in compliance with duly ordained standards or administrative procedure, and it expires with the repeal of the statute from which it gains its life"). Pursuant to these Bid Protest Procedures, any protest grounds not stated in a timely filed Formal Protest are waived and will not be considered by the College.

70. With respect to those matters that have been timely raised by a protesting bidder or proposer, "the scope of inquiry is limited to whether the purpose of competitive bidding has been subverted." "[T]he hearing officer's sole responsibility is to ascertain whether the [College] acted fraudulently, arbitrarily, 14/ illegally, or dishonestly." D.O.T. v. Groves-Watkins Constructors, 530 So.2d 912, 914 (Fla. 1988); Fort Howard Company

    v. Department of Management Services, 624 So.2d 783, 784 (Fla. 1st DCA 1993). See also Moore v. Department of Health and Rehabilitative Services, 596 So.2d 759, 761 (Fla. 1st DCA 1992)(inappropriate "for the hearing officer [in a bid protest

    proceeding] to make a de novo evaluation of the bids;" "[d]e novo consideration is ordinarily appropriate in a section 120.57(1) hearing, as the proceeding is used to formulate, rather than to review, agency action. However, in Groves-Watkins the supreme court established a different procedure for a competitive bidding dispute.")

    
    

71. "The Hearing Officer need not, in effect, second guess the members of the evaluation committee to determine whether he and/or other reasonable and well-informed persons might have reached a contrary result. Rather, a 'public body has wide discretion' in the bidding process and 'its decision, when based on an honest exercise' of the discretion, should not be overturned 'even if it may appear erroneous and even if reasonable persons may disagree.'" Scientific Games, Inc. v. Dittler Brothers, Inc., 586 So.2d 1128, 1131 (Fla. 1st DCA 1991); see also City of Cape Coral

    v. Water Services of America, Inc., 567 So.2d 510, 513 (Fla. 2d DCA 1990)("[e]ven where a public entity makes an erroneous decision over which reasonable persons may disagree, the exercise of its discretion in soliciting and accepting bids should not be interfered with absent a showing of dishonesty, illegality, fraud, oppression or misconduct").

    
    

72. Under Groves- Watkins, the burden is on the protester to prove by a preponderance of the record evidence that the College's decision should be overturned on the grounds set forth in the protester's Formal Protest (and which the protester, since the filing of the Formal Protest, has not abandoned). Cf. Board of Trustees of the Internal Improvement Trust Fund v. Levy, 656 So.2d 1359, 1363 (Fla. 1st DCA 1995)("[t]he burden of proving abuse of agency discretion is upon the challenger of the rule, who must meet that burden with a preponderance of the evidence").

    
    

73. In the instant case, Petitioner, in a timely filed Formal Protest, has requested that the Evaluation Committee's recommendation that Intervenor be awarded the contract advertised in the RFP "be rejected and that a new Request for Proposal be issued" on the following grounds (hereinafter referred to as the "protest grounds"): 15/

    
    

    1. It [Petitioner] timely submitted a qualifying response to the above referenced proposal, which was considered by the Evaluation Committee.

    2. Husta's proposal was unresponsive to the request because it was not supported by copies of its Federal Aviation Administration ("FAA") flight certificates, known as FAR 135 and/or 141 certificates.

    3. Husta's proposal was unresponsive to the request because it disclosed that Husta does not now and will not in the future have required maintenance and parts facilities at the Kendall-

       Tamiami Executive Airport ("KETA"), but has them and will continue to have them only at Opa Locka.

    4. Husta's proposal was unresponsive because it disclosed neither (a) Husta's January 13, 1994, crash (an accident) of a Robinson R22B helicopter, known as NTSB Case No. MIA 94LA 051, nor (b) the incident which occurred on November 14, 1995,

       FAA ID No. 950409014809G, at Opa Locka West Airport.

    5. Husta's proposal was unresponsive to the request because it failed to disclose that the Dade County Aviation Department has asserted a claim against Husta for $49,370.01 in back rent at KETA, thereby impairing its financial condition.

    6. The aircraft which Husta proposes to use in performing the services required under the

       request have an average age of seventeen (17) years, while those of Silver Express have an average age

       of eight (8) years.

    7. Silver Express operates from permanent structures located at KTEA pursuant to a five (5) year renewable lease, while Husta operates there from a temporary structure on a month-to-month basis. 16/

    
    

    The College has challenged Petitioner's standing, as the third- ranked proposer (behind Intervenor and FIT), to bring such a protest. After having given the matter careful consideration, the Hearing Officer agrees with the College on this standing issue.

    
    

74. Even if the allegations made by Petitioner in the protest grounds set forth in its Formal Protest were all true and it was determined that the Evaluation Committee should have rejected Intervenor's proposal because the proposal was materially non- responsive, Petitioner still would not be entitled to the relief it has requested in its Formal Protest. The appropriate action to take under such circumstances would be, not to issue "a new Request for Proposal" as Petitioner has requested, but to award the contract to the second-ranked proposer, FIT, whose proposal Petitioner has not challenged 17/ and whose ranking (by the Evaluation Committee) ahead of Petitioner has not been shown to be the product of anything other than an honest exercise of the evaluators' discretion. Inasmuch as Petitioner would gain nothing if the Evaluation Committee's recommendation to award the contract to Intervenor was overturned on the protest grounds alleged in Petitioner's Formal Protest, Petitioner lacks standing to protest the recommendation on these grounds. See Preston Carroll Co., Inc.

    v. Florida Keys Aqueduct Authority, 400 So.2d 524 (Fla. 3rd DCA

    1981) ("[i]n order to contest the award of a public contract to an apparent low bidder, appellant was required to establish that it had a 'substantial interest' to be determined by the agency[; a]

    second lowest bid establishes that substantial interest;" "Preston Carroll, as third low bidder, was unable to demonstrate that it was substantially affected; it therefore lacked standing to protest the award of the contract to another bidder").

    
    

75. Accordingly, Petitioner's Formal Protest should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the College enter a final order dismissing, for lack of standing, Petitioner's protest of the Evaluation Committee's recommendation that the contract advertised in Request for Proposal 956-34 be awarded to Intervenor.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of February, 1996.

STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 1996.

ENDNOTES

1/ The major portion of Petitioner's business involves providing flight training services.

2/ The RFP did not prescribe the weight or "importance" that the evaluators were to ascribe to each of these "criteria."

3/ Each of these criteria corresponded to information that prospective providers were required, pursuant to Section 4.0 of the RFP, to submit to the College as part of their proposal.

4/ The Department of Administration no longer exists. Pursuant to Section 120.65, Florida Statutes, the Division is now "within the Department of Management Services."

5/ Avionics filed a petition for leave to intervene in the instant case on January 5, 1996, but subsequently withdrew its petition before there was any final ruling on its request.

6/ Of the four proposals submitted, only FIT's proposal was not offered into evidence at the final hearing in the instant case.

7/ Both are Florida corporations, controlled by Joseph Husta, that have their principal place of business in Dade County.

8/ This was an inaccurate statement. As noted above, Husta International Aviation, Inc., and Husta Aviation, Inc., were, at the time Intervenor submitted its proposal, and they remain, separate and distinct corporate entities.

9/ Leiblie is Kern-Ladner's subordinate.

10/ Although the RFP had notified all prospective providers that the Evaluation Committee would meet between October 27 and November 2, 1995, it did not indicate the specific date, time and place of the meeting.

11/ These minutes were released on November 6, 1995.

12/ The Board adopted these Bid Protest Procedures pursuant to the rulemaking authority granted it in Section 240.319(2), Florida Statutes. The procedures meet the minimum requirements of Section 120.53(5), Florida Statutes, (which specifies the contents of bid protest rules that must be adopted by agencies that enter "into a contract pursuant to the provisions of ss. 282.3030-282.313, chapter 255, chapter 287, or chapters 334-349") and they apply to all contracts entered into by the College except those "exempt from competitive bidding by Florida Statutes."

13/ Section 6.5 of the RFP advised that, "[i]n the event that an unsuccessful bidder desires to protest the College's notice of intended decision to award or reject proposals, the adversely affected bidder shall be required to comply with Miami-Dade Community College Bid Protest Procedures, a copy of which is available from the Purchasing Department."

14/ "An arbitrary decision is one not supported by facts or logic, or despotic." Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978). "If an administrative decision is justifiable under any analysis that a reasonable person would use to reach a decision of similar importance, it would seem that the decision is [not] arbitrary." Dravo Basic Materials Company, Inc., v. Department of Transportation, 602 So.2d 632, 634 n.3 (Fla. 2d DCA 1992).

15/ Although Petitioner has subsequently attempted to raise additional grounds in support of the relief it has requested, pursuant to the College's Bid Protest Procedures, these and all other grounds not raised in its Formal Protest have been waived and cannot be considered.

16/ Petitioner also argued in its Formal Protest that "[t]he evaluation process did not comply with Section 287.057(15),(17) and (19), Florida Statutes," but it later indicated that it was abandoning this argument.

17/ FIT's proposal was not offered into evidence at the final hearing.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-5937BID

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by Petitioner and the College in their post-hearing submittals:

Petitioner's Proposed Findings

1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

2. Last sentence: Accepted and incorporated in substance; Remaining sentences: Rejected as findings of fact because they are more in the nature of conclusions of law than findings of fact.

3. Accepted and incorporated in substance.

4. First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: To the extent that this proposed finding states that the agreement was extended to December 31, 1994 (rather than December 31, 1995), it has been rejected because it lacks sufficient evidentiary/record support.

5-6. Accepted and incorporated in substance.

1. Last sentence: Not incorporated in this Recommended Order because, even if entirely true, it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.

2. First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because, even if entirely true, it would add only unnecessary detail to the factual findings made by the Hearing Officer.

9-17. Accepted and incorporated in substance.

1. First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Accepted and incorporated in substance.

3. First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

4. Accepted and incorporated in substance.

The College's Proposed Findings

1-9. Accepted and incorporated in substance.

10. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Accepted and incorporated in substance.

11-42. Accepted and incorporated in substance.

COPIES FURNISHED:

Lawrence R. Metsch, Esquire Metsch & Metsch, P.A.

Suite 416, Biscayne Building

19 West Flagler Street Miami, Florida 33130-4458

John G. Van Laningham, Esquire William H. Pincus, Esquire Steel Hector & Davis

1900 Phillips Point West 777 South Flagler Drive

West Palm Beach, Florida 33401-6198

Brian L. Fink, Esquire

Catlin, Saxon, Tuttle and Evans, P.A. 1700 Alfred I. Dupont Building

169 East Flagler Street Miami, Florida 33131

Linda Pagliaro, Director of Purchasing Miami-Dade Community College

District Administration 11011 Southwest 104th Street Miami, Florida 33176-3396

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 of time 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.

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

DISTRICT COURT OPINION

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

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

THIRD DISTRICT

JANUARY TERM, A.D. 1997

SILVER EXPRESS COMPANY, etc.,

Appellant,

vs. CASE NO. 96-848

LOWER TRIBUNAL

THE DISTRICT BOARD OF CASE NO. MDCC 95-956-34 TRUSTEES OF MIAMI-DADE DOAH CASE NO. 95-5937BID COMMUNITY COLLETE, et al.

Appellees.

/

Opinion filed March 19, 1997.

An administrative appeal of a final order from the District Board of Trustees of Miami-Dade Community College.

Metsch & Metsch and Lawrence R. Metsch, for appellant.

Steel Hector & Davis LLP and John G. Van Laningham (West Palm Beach), for appellees.

Before NESBITT, FLETCHER, and SHEVIN, JJ. PER CURIAM.

Affirmed. Preston Carroll Co. Inc. v. Florida Keys Aqueduct

Auth., 400 So. 2d 524 (Flat 3d DCA 1981).

M A N D A T E

DISTRICT COURT OF APPEAL OF FLORIDAA THIRD DISTRICT

DCA# 96-848

SILVER EXPRESS COMPANY, etc.

vs.

THE DISTRICT BOARD OF TRUSTEES OF MIAMI DADE COMMUNITY COLLEGE,

et al.

This cause having been brought to this Court by appeal, and after due consideration the Court having issued its opinion.

YOU ARE HEREBY COMMANDED that further proceedings be had in said cause in accordance with the opinion of this Court attached hereto and incorporated as part of this order, and with the rules of procedure and laws of the State of Florida.

Case No. DOAH #95-5937BID DEPT.

WITNESS, The Honorable Alan R. Schwartz

Chief Judge of said District Court and seal of said Court at Miami, this 9th day of May, 1997.

(SEAL) LOUIS J. SPALLONE, Clerk

District Court of Appeal of Florida, Third District

Docket for Case No: 95-005937BID

Orders for Case No: 95-005937BID