STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACOBS ASSOCIATES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-5831BID

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held pursuant to notice by Stephen F. Dean, Administrative Law Judge of the Division of Administrative Hearings, in Tallahassee, Florida on January 7, 1997.

APPEARANCES

For Petitioner: Eugene A. Jacobs, President

Jacobs Associates, Inc. 8119 Oakleigh Road

Baltimore, Maryland 21234

For Respondent: Daniel Te Young, Esquire

Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-1500

STATEMENT OF THE ISSUE

Whether the Department of Corrections’ proposed award of RFP Number 96-DC-6902 to Cini-Little International, Inc. (Cini- Little) is contrary to the agency’s governing statutes, the agency’s rules or policies, or the bid or proposals specifications. Specifically, whether Cini-Little's proposal was responsive to material provisions in the request for proposal.

PRELIMINARY STATEMENT

On of about July 26, 1996, the Department of Corrections (the Department) issued a Request for Proposal (RFP) for a Feasibility Study of the Advanced Food Production system, RFP 96- DC-6902. Proposals were submitted by a number of parties including Cini-Little and the Petitioner, Jacobs Associates, Inc. (Jacobs). Both Cini-Little’s and Jacobs’ proposals were determined to be responsive, and on or about November 18, 1996, the Department notified Jacobs of its intent to award the contract to Cini-Little. Jacobs timely filed a Notice of Intent to Protest and subsequently a formal written protest.

The Department forwarded the protest to the Division of Administrative Hearings, and a formal hearing was set for January 7, 1997 by notice published December 16, 1996. Cini-Little was afforded notice of the protest and notice of the proceedings, but did not intervene in the case. The parties entered into a prehearing stipulation on January 3, 1997 and the case was heard as noticed on January 7, 1997.

At hearing, Petitioner called Eugene A. Jacobs, Robert Jacobs, and Jim Mixon to testify, and introduced seven exhibits into evidence, one filed after the conclusion of the hearing.

The Department called Karin Morris to testify, and introduced eight exhibits, two filed after the conclusion of the hearing. The transcript was filed on February 11, 1997, and both parties timely filed proposed findings in the form of recommended orders

which were read and considered. In this order, citations to paragraphs, for example Paragraph 1.1.1.1, refer to the numbered portions of the RFP unless otherwise indicated.

FINDINGS OF FACT

1. On July 26, 1996, the Department issued a request for proposals for RFP Number 96-DC-6902, a Feasibility Study of a Advanced Food Production system for the Department.

2. The study was to consider costs benefits of a centralized food production system for the Department which would cook and freeze or chill foods in a central food plant and ship pre-packaged foods to the Department’s institutions where the food would be reheated and served. This process would replace the current “cook and serve” method of preparing meals used in the Department. The Department projects it will serve 330,000 meals per day to its inmates and staff in the year 2001. The study was to consider the best and most economical technology for a state of the art comprehensive food service program employing advanced food production methods.

3. No protest of the terms and conditions of the RFP was filed.

4. Certain of the provisions were deemed mandatory requirements, generally by the use of “shall”, “must” or “will”, and failure to meet those provisions was grounds for rejection of a proposal. See Paragraph 1.4. Paragraph 4.3.6.1 of the RFP

   provided as follows regarding rejection of mandatory requirements:

   The department has established certain requirements with respect to proposals to be submitted by proposers. The use of “shall”, “must” or “will” (except to indicate simple futurity) in this Request for Proposal indicates a requirement or condition from which a material deviations may not be waived by the department. A deviation is material if, in the department’s sole discretion, the deficient response is not in substantial accord with this Request for Proposal’s requirements, provides an advantage to one proposer over other proposers, has a potentially significant effect on the quantity or quality of items proposed, or on the cost to the department. Material deviations cannot be waived.

5. Six companies submitted proposals, including the Jacobs and Cini-Little. The proposals of three of the six companies were determined to be non-responsive and were not assessed further.

6. Scoring of the RFP was based on a 1,000 point scale with

   
   

   500 points awarded for technical evaluation and 500 points awarded for costs.

7. The technical evaluation assigned 200 points for corporate qualifications, 100 points for project staff, and 200 points for service delivery and approach.

8. Corporate qualifications included consideration of the items listed under Paragraph 5.1.2 of the RFP.

9. Paragraph 5.1.2 of the RFP provided in pertinent part that the proposer shall supply the information indicated

   thereafter for his own firm and for any subcontractors. Paragraph 5.1.2.1 requested financial statements; Paragraph

   1. requested details of corporate background; Paragraph

      
      

   2. requested corporate experience; and Paragraph 5.1.2.4 requested corporate references. This information was required to be provided, and was a mandatory requirement.

10. Paragraph 5.1.2.3 regarding corporate experience provided:

    Details of corporate experience with the last three (3) years relevant to the proposed contract specifically current historical experience of designing for a minimum of four (4) facilities of similar size and scope to this project. (Emphasis supplied.)

    
    

11. Paragraph 5.1.2.4 regarding corporate references provided as follows:

    1. The proposer shall furnish at least three

       (3) corporate references with his proposal (Attachment 1). The references shall included the company name, contact person and their telephone number. The reference shall describe where services similar in magnitude and scope to that requested in the Request for Proposal were provided. Employees of the Department of Corrections may not be used as corporate references. The department reserves the right to contact references not listed in the proposal.

       
       

    2. In order to insure current expertise, projects utilized as client references shall have been completed within 36 months preceding the issuance date of this RFP. (Emphasis supplied.)

12. One of the interested companies poised the following question, to which the following answer was provided in the addendum to the RFP:

    Q: Does “facilities” mean Feasibility Studies of the nature as described in the RFP, actual physical facilities, or a combination of both?

    
    

    A: Feasibility studies that were not implemented are not acceptable. One feasibility study as reference to a completed physical facility may be included and both together will count as two references. Two additional physical facility references will also be required. (Emphasis supplied.)

    
    

    tabular form: Project Name	Date	Facility
    		design/built
    Maryland DOC	1992	No/No

13. In response to the requirement to list its corporate historical experience of designing four facilities of similar size and scope, Cini-Little listed the following projects. Information regarding the date of the project together and whether a facility was designed and constructed is summarized below in

    
    

    1.

    2. NY,NY DOC		1993	No/No
    		1989 Ongoing 1990	Yes/Yes Yes/No No/No
    6. Hillsborough	Co	1988	No/No
    7. NY,NY DOC		Current	No/No
    8. Mecklenburg Co		1992	No/No
    9. NY State		no date	No/No
    10. Eastern Corr.		1989	No/No
    11. Pa. FCI		1991	Yes/Yes
    12. Md. FCI		1991	No/No
    13. Montgomery, Md.		1992	No/No

    1. Fla Hospital

    2. Missouri DOC

    3. Dade County

14. Of the projects listed by Cini-Little evidencing

    corporate experience, the majority did not fall within the required time frame of three years prior to the issuance of the RFP. The dates of the ninth project in the table above done for New York State was not provided. Only the second, fourth and seventh projects were done during the required time period.

15. Eugene Jacobs testified concerning these projects. He also was involved with bidding these projects and was familiar with the dates and nature of them. Regarding the second project above, it was a cost analysis and feasibility study of converting existing kitchens to receive pre-prepared meals which were to be prepared by a central kitchen located outside of New York City. It has not been implemented.

16. Regarding the fourth project above, it is an on-going study for the State of Missouri. A portion of the work is completed; however, it involves a cook and serve dining hall. This is contrary to the nature of the Department’s RFP which is moving away from cook and serve. The remainder of the project involves a facility of the nature of the Florida study; however, design of this facility has not been completed and the project has not been implemented. See Cini-Little’s description contained in its proposal.

17. Regarding the seventh project above, it is a follow up to the other study done for New York City discussed above. This study considered how to improve meal service using existing facilities given the lack of implementation of the previous

    study. It did not involve advanced food preparation methods, but related to cook and serve facilities. The size of the project is not specifically provided; however, a kitchen capable of serving 15,000 meals daily is referenced. See Cini-Little’s description contained in its proposal.

18. The Department’s proposed order reflects consideration of Cini-Little’s projects for Mecklenburg County and Montgomery County under corporate references. These projects were completed in 1992, and while they may be considered by the Department, they do not count towards meeting the RFP’s requirement to list four projects of similar size and scope completed within the three years prior to the issuance of the bid.

19. Cini-Little’s proposal listed three corporate references: Maryland DOC 15 year plan, New York City Department of Correction’s Feasibility Study, and Florida Hospital Center Feasibility Study. The work on the Maryland project was completed in 1992, and the work for Florida Hospital Center was completed in 1989. Neither project was completed within 36 months preceding issuance of the RFP. Only the current work for the New York City is within the required time period, and it has not resulted in the approval of a plan for the construction of a facility of the size and scope envisioned in the Department’s RFP.

20. The requirement to list similar projects completed in the three years prior to issuance to the RFP to establish

    corporate experience is mandatory. Further, it is a material requirement. By establishing a requirement that a proposer perform a certain quantity of work of a particular size within a finite time, the requirement establishes the ability of a consultant to perform projects of the size of the Department’s project.

21. The requirement for client references is mandatory, and the RFP explains this requirement by stating, “In order to ensure current expertise, projects utilized as client references shall have been completed within the 36 months preceding the issuance date of this RFP.” Cini-Little only gave one reference within the required period.

22. Cini-Little did not meet the requirement to list four projects of similar scope and size completed within three years prior to the issuance of the RFP, and did not meet the requirement to list three references relating to projects of similar scope and size completed within the 36 months prior to the issuance of the bid.

23. By failing to disqualify Cini-Little’s bid for failing to meet these two mandatory requirements, the Department did not follow the requirements of its own RFP regarding these material requirements which go directly to the competence of the bidder to complete work of the size and scope covered in the RFP.

24. The Cini-Little’s proposal received a total of 907 points, 407 points on its technical evaluation and 500 points for its cost of $148,600.

25. Jacobs’ proposal received a total of 811 points, 482 points on its technical evaluation, and 329 points for its cost of 225,000. Jacobs’ proposal met all the requirements of the RFP. (However, it was not established that Jacobs was the next lowest bidder.)

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, pursuant to Section 120.57(3), Florida Statutes (Supp. 1996), which provides that the Administrative Law Judge is to determine whether the proposed award is contrary to the agency’s governing statutes, the agency’s rules or policies, or the bid or proposal specification. The standard of proof is whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious. See Section 120.57(3)(f), Florida Statutes.

27. The burden of proof in this case is on the Petitioner.

    
    

28. The Petitioner alleges that the Department erred when it failed to disqualify Cini-Little’s proposal as non-responsive because the information which Cini-Little provided did not meet the criteria provided in the RFP.

29. The proposal contains several mandatory requirements. The two mandatory requirements which are specifically involved in this dispute are Paragraphs 5.1.2.3 and 5.1.2.4 of the RFP.

    These provisions are cited in the findings above and require corporate experience involving designing four facilities in the three years immediately preceding the issuance of the RFP and three references from corporations for whom the bidder has done projects which were completed within the 36 months preceding issuance of the RFP of a size and scope similar to the Department’s project. These requirements are material conditions because they establish a proposer’s ability to perform work of the size and scope of the Department’s project.

30. The facts reveal that Cini-Little only listed three projects to show corporate experience. The 1993 project for New York City was not implemented. The portion of the Missouri project which is completed involves a facility which is not of the type or size involved in the Departments project; and the remainder of the project has not been completed and implemented. The current New York City contract is not of similar scope and size to the Department’s project

31. While the question of whether a project is within the discretion of the Department to consider, the portion of the Missouri project which has been implemented, a cook and serve facility for 1200 inmates, is clearly not within the scope and size of the Department’s project which involves an advanced food

    preparation facility capable of preparing 330,000 meals a day.

    
    

32. The addendum to the RFP, quoted in the findings above, specifically excludes from consideration for experience purposes feasibility studies which were not implemented. The RFP provides for four such references. Cini-Little’s proposal contains only one which is of similar size and scope within the required time period, the current New York City project. Cini-Little’s proposal did not meet the requirements of Paragraph 5.1.2.3 of the RFP.

33. Cini-Little listed Maryland, New York City, and the Florida Hospital Center as its three corporate references. The Florida Hospital Center project was completed in 1989, seven years prior to the issuance of the RFP in the summer of 1996. The Maryland study was completed in the 1992, four years before the issuance of the RFP. Two of Cini-Little’s three corporate

    references are not related to projects completed within 36 months of issuance of the RFP.

34. The terms of the RFP are clear and specific, and require three corporate references relating to projects performed within 36 months of the issuance of the RFP. This is a mandatory requirement. Cini-Little’s proposal did not meet the requirements of Paragraph 5.1.2.3 of the RFP.

35. Cini-Little was aware that its references did not meet the three year criteria and made reference to this fact in its forwarding letter. Cini-Little’s failure to list references

    complying with the terms of the RFP was purposeful. It must be assumed that it did not have such references.

36. The provisions of Paragraphs 5.1.2.3 and 5.1.2.4 to go the essence of the envisioned contract which was the ability of the proposer to handle a project of the size and scope envisioned by the Department. These mandatory provisions were material provisions of the RFP. The Department improperly considered

Cini-Little’s proposal which was not responsive and should have been rejected. The Department’s action was clearly erroneous.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED:

That the Department enter a final order finding that the proposal of Cini-Little International, Inc., is not responsive.

DONE and ENTERED this 4th day of March, 1997, in Tallahassee, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1997.

COPIES FURNISHED:

Eugene A. Jacobs, President Jacobs Associates, Inc.

8119 Oakleigh Road

Baltimore, Maryland 21234

Daniel Te Young, Esquire Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-1500

Harry K. Singletary, Secretary Department of Corrections

2601 Blair Stone Road Tallahassee, Florida 32399-1500

Louis A. Vargas, Esquire Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-1500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-005831BID

Orders for Case No: 96-005831BID