STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
McGLADREY & PULLEN, LLP, and GARCIA & ORTIZ, P.A., | ) ) | ||
Petitioners, vs. | ) ) ) ) CASE NO. | 97-1714BID | |
STATE OF FLORIDA, DEPARTMENT BANKING AND FINANCE Respondent, AND SALLIE MAE SERVICING CORPORATION, Intervenor. | OF | ) ) ) ) ) ) ) ) ) |
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RECOMMENDED ORDER
Pursuant to notice, a Section 120.57(1) hearing was held in this case on May 5, 1997, in Tallahassee, Florida, before Stuart
Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: Peter R. Wallace, Esquire
Annis, Mitchell, Cockey, Edwards & Roehn, P.A.
201 South Monroe Street, Suite 200 Tallahassee, Florida 32301
For Respondent: Robert B. Beitler, Chief Counsel
Theresa G. (Terry) Walsh, Assistant General Counsel
Department of Banking and Finance The Fletcher Building, Suite 526
101 East Gaines Street Tallahassee, Florida 32399-0350
For Intervenor: Daniel H. Thompson, Esquire
Berger, Davis & Singerman, P.A.
215 South Monroe Street, Suite 705 Tallahassee, Florida 32301
J. Scott Hommer, III, Esquire Venable, Baetjer and Howard, LLP 2010 Corporate Ridge, Suite 400 McLean, Virginia 22102
STATEMENT OF THE ISSUE
Whether Petitioners' protest should be sustained?
PRELIMINARY STATEMENT
On April 9, 1997. the Department of Banking and Finance (Department) referred to the Division of Administrative Hearings (Division), pursuant to Section 120.57(3), Florida Statutes, Petitioners' formal written protest of the Department's decision to award the contract advertised in RFP No. BF11/96-97 to Sallie Mae Servicing Corporation (SMSC). In their protest, Petitioners (who identified themselves as "McGLADREY & PULLEN, LLP, and GARCIA & ORTIZ, P.A., (McGladrey & Garcia, Joint Venture)") alleged that they had submitted a "timely valid proposal to provide the services specified in the Request for Proposal" and should have been awarded the contract based upon the following "ultimate facts:"
Under Phase II.B of the Evaluation Procedure for the Request of Proposal, a maximum of 10 points may be awarded for Minority Business Participation.
The Petitioners were properly awarded 10 points for Minority Business Participation because Petitioner Garcia & Ortiz, P.A., is a registered Certified Minority Business Enterprise ("CMBE") in the State of Florida.
In its proposal in response to the Request for Proposal, SMSC asserts in Section 12.7- Minority Business Participation, that it intends to subcontract with Interim Personnel of North Florida, Inc., a CMBE, for services amounting to 10 percent of the contract value. A copy of this page from the proposal is attached hereto as Exhibit "C." Under Phase II.B of the Evaluation Procedure for the Request for Proposal, this participation would entitle SMSC to 10 percent divided by 24, times .10, or a total of 4.16 points. These points would be rounded down and included in the evaluation total as 4 points.
In its proposal in response to the Request for Proposal, SMSC also asserts in Section 12.7- Minority Business Participation, as set forth in Exhibit "C:"
"Additionally, some $500,000 in equipment purchasing will be offered to minority firms and procured from them if their prices are equal to or less than our standard prices.
We expect this to equal 3% of the contract award over the life of the contract." (Emphasis added.)
Under the specifications set forth in the Request for Proposal, SMSC is clearly not entitled to additional points for the above- quoted language. The Evaluation Procedure for the Request for Proposal, under Phase II.B, states in part:
"Each Respondent must state . . . what percentage of the total Contract price will be spent with CMBE firms who will be supplying them. The CMBE participation claimed in the technical proposal must be substantiated in the price proposal, or points assigned for the unsubstantiated CMBE participation will be withdrawn. NOTE: Not all minority business enterprises are presently certified by the State. However, only certified CMBEs will be considered in evaluating this portion of a Respondent's proposal." (Emphasis added.)
SMSC is not entitled to any additional points for the language set forth in its proposal because the purported participation by "minority firms" is purely speculative, conditioned on price, unsubstantiated, and not identified as participation by any certified CMBE. In other words, the $500,000 expenditure is simply hypothetical and cannot contribute to SMSC's points under the clear provisions of the Request for Proposal.
Moreover, even if SMSC were to be credited with the hypothetical $500,000 expenditure, it has miscalculated the impact of this expenditure in its Section 20.0- Completed Fee Schedule of its proposal by annualizing the $500,000 rather than spreading it over the life of the contract. A copy of this page from the proposal is attached hereto as Exhibit "D." The Department mistakenly adopted SMSC's
miscalculation in tabulating points under the Request for Proposal.
If SMSC's points for Minority Business Participation had been calculated in accordance with the specifications in the Department's request for Proposal, SMSC would have received 4 points instead of 9 points under Phase II.B, and a total of 85 points for its proposal.
If SMSC had correctly received a total of
85 points for its proposal, the Petitioners' proposal, having also received 85 points, would have been numerically tied with the SMSC proposal. In the event of a tie, the contract should be awarded in accordance with Section 60A-1.011, Florida Administrative Code. Under that provision, because Petitioner Garcia & Ortiz, P.A. is a certified minority owned firm, the Department is required to enter into a contract with the Petitioners.
Petitioners' formal written protest included the following statements of "disputed issues of material fact" and "issues of law:"
This proceeding involves disputed issues of material fact which include, but are not limited to, the following:
Whether, as a matter of fact, the Department followed its governing statutes, rules and policies, and the specifications set forth in the Request for Proposal in determining its proposed action.
Whether as a matter of fact, the Department's proposed action is contrary to the Request for Proposal specifications in that the points awarded to SMSC under Phase
II.B. of the Evaluation Procedure for the Request for Proposal, Minority Business Participation, were miscalculated.
Whether, as a matter or fact, an accurate calculation of the points awardable to SMSC under Phase II.B. of the Evaluation Procedure for the Request for Proposal, Minority Business Participation, would [have] resulted in a tie score, and an intended award to the Petitioners.
Such other issues of material fact that may become apparent through the course of discovery and preparation of this matter for formal hearing.
This proceeding involves issues of law which include, but are not limited to, whether the Department's proposed action is contrary to its governing statutes, rules and policies, or the specifications set forth in the Request for Proposal, and whether the action proposed by the Department was clearly erroneous, contrary to competition, arbitrary, or capricious.
Along with Petitioners' formal written protest, the Department filed with the Division a Motion to Dismiss Petitioners' Formal Written Protest. In its motion, the Department made the following arguments:
The Department respectfully requests that the Administrative Law Judge dismiss Petitioners' Formal Written Protest and issue a Recommended Order of Dismissal, or in the alternative, a Summary Final Order, because Petitioners have presented no genuine issue of fact material to the disposition of their protest. Summary dismissal is appropriate for at least four reasons:
First, Petitioners are incorrect in asserting that both SMSC's and the Petitioners' response should have received the same number of evaluation points. Even assuming, arguendo, the validity of [P]etitioners' allegation that SMSC received too many evaluation points under the certified minority business enterprise participation criteria, application of the mechanical "rounding" and "averaging" requirements set forth in the RFP results in a dissimilar number of evaluation points for the bidders because SMSC is actually entitled to receive additional evaluation points.
Second, assuming arguendo that Petitioners are correct that both SMSC and the JV Response should have received the same number of evaluation points, Petitioners are incorrect in asserting that the tiebreaker procedure applies. The two bidders did not submit "identical bids" as that term is defined within the RFP, by statute, and by rule. Further, the JV response identifies McGladrey & Garcia, Joint Venture, as a bidding entity, which joint venture does not qualify as a CMBE because only one of the two joint venturers, specifically, Garcia & Ortiz, P.A. is a CMBE. The JV Response expressly represents that Garcia & Ortiz's participation in contract performance will be only 40 percent.
The Petitioners are not McGladrey & Garcia, Joint Venture, but merely participants in the entity submitting a bid. Therefore, as a matter of law, Petitioners lack standing to protest on behalf of the entity.
Other than [P]etitioners' unfounded allegations related to supposedly identical bids, the remainder of Petitioners' Formal Written Protest should be stricken because they failed to "state with particularity the facts and law upon which the protest is based["] as required by Section 120.57(3)(b), Florida Statutes (1996).
7. For these reasons, there exists no need to incur the substantial costs of developing an administrative record through discovery, and no need to convene an evidentiary hearing on Petitioners' unfounded bid protest allegations.
On April 9, 1997, following the Department's referral of Petitioners' Formal Written Protest to the Division, SMSC filed with the Division an unopposed Motion to Intervene and a Motion to Strike and Dismiss in the instant case. In its Motion to Strike and Dismiss, SMSC argued that: paragraphs 8.a. and 8.d. of Petitioners' Formal Written Protest should be stricken because "[n]one of the allegedly disputed issues set forth in [these paragraphs] have sufficient particularity to constitute an element of a formal written protest as required under [Section 120.57(3), Florida Statutes];" "[t]he more specific allegations in the Protest do not set forth a claim upon which relief can be granted;" "Petitioners lack standing to bring this Protest;"
and "Petitioners are not entitled to consideration for a contract award because the Proposal they claim to have submitted in response to the RFP is on its face nonresponsive and therefore not entitled to award consideration."
On April 11, 1997, the undersigned issued an order granting SMSC the intervenor status requested in its Motion to Intervene and directing Petitioners to file, no later than 1:00 p.m. on April 17, 1997, a written response to the Department's Motion to Dismiss Petitioners' Formal Written Protest and to SMSC's Motion to Strike and Dismiss.
On April 16, 1997, SMSC filed a memorandum of law in support of its Motion to Strike and Dismiss.
On April 17, 1997, Petitioners timely filed a written response to the Department's Motion to Dismiss Petitioners' Formal Written Protest and to SMSC's Motion to Strike and Dismiss. In their response, in accordance with the directive in the undersigned's April 11, 1997, order that they "specify with particularity those factual assertions made in the Department's Motion to Dismiss Petitioners' Formal Written Protest and SMSC's Motion to Strike and Dismiss, if any, that they dispute[d]," Petitioners stated the following:
The disputed assertions are as follows:
The Respondent and the Intervenor allege that the Department of Banking and Finance ("the Department") properly credited Sallie Mae Servicing Corporation ("SMSC") with 9 points under the certified minority business enterprise criterion. The Petitioners assert that SMSC was entitled to only 4 points under this criterion.
The Respondent and the Intervenor allege that the Department incorrectly rounded the evaluation point scores from Phases II and
III. The Petitioners assert that the evaluation calculations were (a) consistent
with Department policy and practice and (b) as reviewed by the Department's Assistant General Counsel in the Interoffice Communications attached hereto as Exhibit "A," in "substantial compliance with the evaluation methodology set forth in the RFP."
The Respondent and the Intervenor deny that the proper calculation of evaluation points results in [a] tie, with each bidder receiving 85 points. The Petitioners assert that, when the 5 points erroneously credited to SMSC under the certified minority business enterprise criterion are deducted, the two bidders are plainly in a tie, with 85 points. The Bid/Proposal Tabulation attached to the Respondent's Motion to Dismiss Petitioners' Formal Written Protest makes this clear, as do the calculation sheet attached hereto as Exhibit "B" and the compilation sheet attached hereto as Exhibit "C."
The Respondent and the Intervenor deny that the RFP provides a methodology for determining contract award in the event that bids are tied as to evaluation points, rather than identical in price. The Petitioners assert that when the RFP, on page 37, in the midst of its description of the evaluation point methodology, states: "In the event of a tie the contract will be awarded in accordance with Section 60A-1.011, Florida Administrative Code," it is plainly establishing a methodology for breaking a tie in evaluation points between two bidders. Under the provisions of this RFP, there would be no need to break a tie between two bids that were identical in price, unless the bidders were tied under the evaluation point methodology.
The Intervenor alleges that the Petitioners proposal in response to the RFP was nonresponsive. The Petitioners assert that their proposal was fully responsive, and was determined to be responsive by the Department's evaluators.
Oral argument on the Department's Motion to Dismiss Petitioners' Formal Written Protest and on SMSC's Motion to Strike and Dismiss was held by telephone conference call on April 18, 1997. On April 21, 1997, the undersigned issued an Order on Pending Motions, which provided as follows:
To the extent that the Department's and SMSC's motions request the undersigned to enter a recommended order of dismissal or summary order of dismissal without conducting a Section 120.57(1) hearing, the motions are denied inasmuch as Petitioners' petition contains allegations which, if true, would entitle Petitioners to relief and there appear to be disputed issues of material fact that need to be resolved before a determination may be made concerning Petitioners' entitlement to such relief.1
See Bell Atlantic Business Systems Services, Inc., v. Florida Department of Labor and Employment Security, 677 So.2d 989, 992 (Fla. 1st DCA 1996); Buchheit v. Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, 659 So.2d 1220 (Fla. 4th DCA 1995); Tuckman v. Florida State University, 489 So.2d 133 (Fla. 1st DCA 1986).
To the extent that the Department's and SMSC's motions request the undersigned to strike paragraph 8.d of Petitioners' formal written protest, the motions are granted because the inclusion of this paragraph in Petitioners' protest violates the "particularity" requirement of Section 120.57(3)(b), Florida Statutes. See Optiplan, Inc., v. School Board of Broward County, DOAH Case No. 95-4560BID (Division of Administrative Hearings December 22, 1995)(Recommended Order)("[t]he statutory scheme regulating bid protest proceedings requires that all issues or reasons for the protest be stated with particularity within the statutory time frames for filing a formal protest. Section 120.53(5)(b), Florida
Statutes [renumbered Section 120.57(3)(b), Florida Statutes], does not permit material amendments or additions of new issues beyond the statutory time period for filing a formal protest").
To the extent that the Department's and SMSC's motions request the undersigned to strike any of the remaining portions of Petitioners' formal written protest, the motions are denied because, when read together, these remaining portions of Petitioners' protest provide sufficient detail to inform the Department and SMSC with reasonable certainty of the factual and legal basis of the protest. See Smith v. Department of Health and Rehabilitative Services, 555 So.2d 1254, 1256 (Fla. 3d DCA 1989); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984); Seminole County Board of County Commissioners v. Long, 422 So.2d 938, 940 (Fla. 5th DCA 1982).
Immediately prior to the commencement of the final hearing on May 5, 1997, the parties filed a Joint Prehearing Stipulation which contained, among other things, numerous stipulations of fact and the following position statements:
Petitioners' Position: The Department's proposed award of the contract to SMSC is contrary to the agency's governing statutes, rules or policies, and the Department's decision was clearly erroneous, contrary to competition, arbitrary and capricious.
Petitioners submitted a responsive proposal, and as the proposers under the RFP, they have standing to bring this protest. If the Department had not erroneously calculated SMSC's points, the bidders would have been in a tie. Under the methodology established in the RFP to break a tie, the contract should have been awarded to Petitioners, because, Garcia & Ortiz, P.A., is a certified minority business enterprise.
Intervenor's Position: The Department's initial decision to award the RFP to SMSC was not contrary to the agency's governing statutes, the agency's rules or policies, or the bid protest specifications; nor was the decision clearly erroneous, contrary to competition, arbitrary, or capricious. To the extent there were any minor irregularities or technicalities in SMSC's proposal, they were properly waived by the Department, and at any rate would not affect the outcome of the decision. Even assuming, as Petitioners contend, that the scores of the SMSC and Petitioners are a tie, [Petitioners] would not be entitled to the benefit of the tiebreaker provisions of statutes, rule or the RFP. In addition, Petitioners' protest must be dismissed because Petitioners' Proposal is nonresponsive, and Petitioners have no standing to bring this protest.
Department's Position: Same as Intervenor's position.
As noted above, the final hearing on Petitioners' protest was held on May 5, 1997. A total of five witnesses testified at the hearing: Mark Jones, a partner in McGladrey & Pullen, LLP; Jose Eduardo Del Rio, a vice president of Garcia & Ortiz, P.A., and manager of its government contract division; Peter DeVries, bureau chief of the Department's Bureau of Abandoned Property; William Huffcut, the Assistant Comptroller of the State of Florida; and Craig Ellis, a project manager with SMSC. In addition to the testimony of these five witnesses, a total of 15 exhibits (Joint Exhibits 1 through 14 and the Department's Exhibit 4) were offered and received into evidence.
During, and at the conclusion of, the evidentiary portion of the hearing, the undersigned, on the record, advised the parties
of their right to file proposed recommended orders and established a deadline (ten days following the undersigned's receipt of the transcript of the hearing) for the filing of these post-hearing submittals. The undersigned received the hearing transcript on May 8, 1997. Petitioners, the Department and SMSC timely filed their proposed recommended orders on Monday, May 19, 1997. These proposed recommended orders have been carefully considered by the undersigned.
FINDINGS OF FACT
Based upon the evidence adduced at the final hearing, the parties' factual stipulations, and the record as a whole, the following Findings of Fact are made:
The Parties
The Department is a state agency responsible for, among other things, administering the State of Florida's abandoned property program.
SMSC is a Delaware corporation authorized to do business in the State of Florida.
McGladrey & Pullen, LLP, is an Iowa limited liability partnership licensed and registered to conduct business in the State of Florida. It has 70 offices nationwide (including offices in Fort Lauderdale and West Palm Beach, Florida) from which it provides accounting and consulting services to its clients.
Garcia & Ortiz, P.A., is a Florida professional
association licensed and registered to conduct business in the State of Florida. Like McGladrey & Pullen, LLP, it provides accounting and consulting services, but does so on a smaller scale. (It has approximately ten employees working out of two offices.)
Garcia & Ortiz, P.A., is registered with the State of Florida as a certified minority business enterprise (providing "accounting, auditing, review, compilation services, tax services, management advisory services, [and] data processing services.").
On July 29, 1993, McGladrey & Pullen, LLP, and Garcia & Ortiz, P.A., by written agreement, formed a joint venture known as the "McGladrey & Garcia Joint Venture" "for the purpose of submitting bids to the Resolution Trust Corporation ('RTC') to perform various services for the RTC under one or more contracts to be issued by the RTC."
The Request for Proposals
On or about January 17, 1997, the Department issued and advertised a Request for Proposal, RFP No. BF11/96-97 (RFP), soliciting the submission of proposals "for the providing of services for the receipt and processing of unclaimed property" for the period from June 1, 1997, through May 31, 2000,2 and, "upon mutual agreement in writing," "up to three additional years."
The RFP contained the following statement of "purpose:"
The purpose of this RFP is to solicit proposals and cost data from organizations that are interested in providing the services to meet all or part of the statement of need above in a modern business environment and who shall perform some or all of the following services:
Process annual reports in various formats from holders of unclaimed property pursuant to Chapters 43.19, 402.17, 705.103, 717, 732.1101, 733.816, and 744.534, Florida Statutes and the State's vendors involved in the auditing for unclaimed property; . . .
Handle and remit funds, tangible property as necessary and securities received with the annual reports to the State;
Process inquiries from holders and distribute information to holders of unclaimed property;
Make one attempt to locate owners of unclaimed property and mail claim forms to the apparent owners;
Process inquiries from the public and distribute information to the citizens throughout the United States on unclaimed property being held by the Department;
Process claim forms received from apparent owners of unclaimed property;
Process and issue payment on approved claims to the owners;
Process the denial of claims and send the proper documentation to the State upon a request for a hearing by the claimant regarding the denial;
Provide access to the public records in accordance with the requirements of Chapter 119, Florida Statutes; . . .
Provide a security plan which protects the information on the ADPB [Abandoned
Property Database] from unauthorized access or change, and;
Assist the Department with the advertising of unclaimed property pursuant to Chapter 717.118, Florida Statutes.
Provide an accounting of funds, reports and claims to the Department's satisfaction.
The further purpose of this RFP is to set forth the criteria and the process by which the Provider will be evaluated and the basis on which the selection is to be made.
Section V.E) of the RFP set forth various "special conditions," including the following:
2. Mandatory Requirements
The Department has determined that certain mandatory requirements must be included as part of any proposal. The use of the terms "shall," "must" or "will" (except to indicate simple futurity) in this RFP indicates a mandatory condition.
The words "should" or "may" in this RFP indicates desirable attributes or conditions but are permissive in nature. Deviation from or omission of such a desirable feature will not itself cause rejection of the proposal, but may result in fewer points awarded by an evaluator.
In this proposal process alternative means of accomplishing mandatory requirements, with reasonable assurance of satisfactory results will be considered and may be accepted. Such alternatives should be clearly identified by the Respondent in any proposal.
5. Non-Valid Proposals, Non-Responsible Respondents
Proposals not meeting all mandatory requirements of this RFP or that fail to provide all required information, documents or materials will be rejected as non-valid.
Respondents whose proposals, past performance or current status do not reflect the capability, integrity or reliability to fully and in good faith perform the requirements of the RFP may be rejected as non-responsible.
The Department reserves the right to determine which proposals meet the material requirements of the RFP and which respondents are responsible.
Legal Requirements
Applicable provisions of all federal, state, county and local laws and administrative procedures, regulations, or rules shall govern the development, submittal and evaluation of all proposals received in response hereto and shall govern any and all claims and disputes which may arise between persons submitting a proposal hereto and the Department. Lack of knowledge of the law or applicable administrative procedures, regulations or rules by any Respondent shall not constitute a cognizable defense against their effect.
14. Assignment of Contract
The Contract cannot be assigned or subcontracted except with the prior written approval of the Department. Monies which become due thereunder are not assignable except with the prior written approval of the Department, and the concurrence of the Comptroller of the State of Florida. In the event of such approval, the terms and conditions hereof shall apply to and bind the party or parties to whom the Contract is assigned as fully and completely as the Provider is thereunder bound and obligated.
No assignment, if any, shall operate to release the Provider from its liability for the prompt and effective performance of its obligations under the Contract.
Section VI. of the RFP addressed the subject of the "evaluation of proposals." Its prefatory paragraph read as follows:
The contract will be awarded to the Respondent at the sole discretion of the Department, whose proposal is determined to be the most advantageous to the Department and the people of Florida. The Respondent must demonstrate through the proposal that that it possesses the expertise and capabilities to perform the services specified herein; has the staff that possesses the experience that closely aligns with the expertise needed by the Department; and that has the integrity, honesty and responsibleness to complete all requirements of the RFP.
Section VI.A) was entitled "Award Notice" and provided as follows:
Notice of intent to award contract as a result of this Request for Proposals shall be posted in Room 250D of the Fletcher Building,
101 East Gaines Street, Tallahassee, Florida on the date and time shown on the Calendar of Events. Issuance of this Request for Proposals does not oblige the State to select a Respondent or to award a contract.
Section VI.B) was entitled "Legal Requirements for Proposals" and provided as follows:
Applicable provisions of all Federal, State and County regulations shall govern development, submission and evaluation of all proposals received in response hereto and shall govern any and all claims and disputes that may arise between persons submitting a proposal hereto and the Department, by and through its employees or authorized representatives. Lack of knowledge by any Respondent shall not constitute a recognizable defense against the legal effect thereof. All corporations seeking to do business with the State shall at the time of submitting a proposal in response hereto, be registered with the Department of State in accordance with the provisions of Chapter 607, Florida Statutes. To be eligible for consideration, each corporation shall include
as part of their required documentation, their corporate charter number, or if appropriate, have attached to their proposal a signed statement that said corporation is exempt from the requirements of Chapter 607, Florida Statutes. Similarly, partnerships seeking to submit a proposal shall have complied with the applicable provisions of Chapter 620, Florida Statutes.
Section VI.C) was entitled "evaluation team" and provided as follows:
The evaluation team will be established to assist the Department in selecting the best Provider for the services set forth in this RFP. The evaluation team will have a minimum of five members. At least two of the members will be from outside the Department. The team will be responsible for proposal evaluation including reference checks and other verifications as required.
Section VI.D) was entitled "Evaluation Sheet" and provided as follows:
The evaluation sheet to be used by each evaluator may be found in Appendix I. The evaluation sheet lists evaluation criteria and the specific indicators of criteria [that] will be used to assess the degree to which the Respondent's proposal meets the criteria identified in Section VII. Evaluation sheets will be weighted so that each response to the RFP can be numerically valued and the results compared.
The "evaluation sheet . . . found in Appendix I" listed
the following awards:" | "evaluation criteria" and | "possible [point] |
ITEM | POSSIBLE AWARD | |
1) | References | 2 |
2) | Experience of Principals | 2 |
3) | Financial Statements | 1 |
TECHNICAL SUBMISSION
Notification of Holders
and Holder Seminar 2
Holder Information 2
Annual Reports 2
Penalties and Extensions 2
Holder Information
and Inquiries 2
Receipt of Reports & Reconciliation 3
Record Retention of Reports 2
Contacting Apparent Owners 1
Handling Inquiries 2
Origination of Claims 1
Receipt of Claims 1
Initial Processing of Claims 2
Processing and Payment
of Claims 3
Exceptions 1
Tracking 1
Records 2
Automation 4
Security Plan 3
Implementation Plan 2
Disaster Recovery Plan 2
Reports Processing Flow Chart and
Narrative Procedures 3
Section VI.E) of the RFP described the "evaluation procedure" that the Department would follow in assessing proposals. It provided as follows:
The evaluation process will take place in five phases:
Phase I- Meeting of mandatory requirements Phase II- Technical evaluation of proposals Phase III- Oral Presentation
Phase IV- Public Opening and Evaluation of Fee Schedules
Phase V- Posting of Final Results
Phase I Mandatory Documentation Worth 0 Points Total
During Phase I of the evaluation process the Contract Manger will carefully evaluate all the proposals to ensure that all mandatory documents have been submitted. Failure of any organization or entity to submit all mandatory items will result in that proposal being withdrawn from further consideration. Upon completion of Phase I of the evaluation process each evaluation team member will be provided the proposals to evaluate.
Phase IIA. Technical Evaluation Worth 50 Points Total
During Phase II of the evaluation process the evaluators will rate selected criteria from each proposal in regard to the RFP.
Each area specified on the evaluation sheet will be given a subjective score based on how well the proposal answers the minimum specifications, on the innovativeness and clarity of the response and on any extra benefit to the State where responses exceed minimum specifications. After each evaluator has independently completed his evaluation sheet (see Appendix I) [t]he total assigned points for each proposal will be averaged across all five evaluators.
B. Minority Business Participation Worth 10 Points Total
If twenty-four percent or more of the Contract value- 10 points.
If less than 24 percent, proposed percentage divided by twenty-four, times []103
No participation by Certified Minority Business Enterprises (CMBEs), no points
The Department of Banking and Finance wishes to encourage award of the Contract, or subcontracting of portions of the Contract to, or purchase of good[s] and services from, State of Florida CMBEs. Each Respondent must state whether or not Respondent is a CMBE, and if not, what percentage of the total Contract price will be spent with CMBE firms who will be supplying them. The CMBE participation claimed in the technical
proposal must be substantiated in the price proposal, or points assigned for the unsubstantiated CMBE participation will be withdrawn. NOTE: Not all minority business enterprises are presently certified by the State. However, only certified CMBEs will be considered in evaluating this portion of a Respondent's proposal. The Issuing Officer has a directory of CMBEs which is available for review upon request. Respondents may also obtain information of CMBEs by contacting:
Minority Business Advocacy and Assistance Office
107 Gaines Street
Tallahassee, Florida 32399-0950
Telephone (904) 487-0915
The Contract Manager will average the points for each respondent upon completion of Phase II.
Phase III Oral Presentations Worth 10 Points Total
An oral presentation is required in accordance with the Calendar of Events. Respondents must address/discuss advantages/strengths of its proposal including but not limited to any of the following areas:
Vendor Qualifications
(Project experience/project team qualifications)
Scope of Solution (Equipment/Software/Installation/Maintenance/ Training/Project Management and Liaison)
The presentation will be allowed a maximum of four hours per Respondent and will be given to the assembled evaluation team who shall independently award points for the presentation. Presentations will be given in Room 547 of the Fletcher Building, Tallahassee, Florida. Points will be averaged across the evaluation team members.
Phase IV Worth 30 Points Total
The Fee Schedule must be submitted in a separate and sealed envelope and must be labeled "Request for Proposal for the Providing of Services for the Receipt and Processing of Unclaimed Property, RFP BF11/96-97."
When Phases II and III have been completed and the scores averaged, the Purchasing Agent in accordance with the Calendar of Events will open the Fee Schedules. The Purchasing Agent will evaluate the fee schedules. The lowest cost proposal will be awarded a maximum of 30 points based on lowest overall cost (Block G on the Fee Schedule (Schedule J)).
The instructions for filling out the form are as follows:
The Abandoned Property Program has three easily measured outputs. The Department proposes to pay the Provider based on these three measurable outputs. Production under the contract may exceed anticipated levels in one output area but not in another. For that reason, Respondents are requested to estimate cost for each area of effort that is separately depicted on the Fee Schedule. The planned number of units for each area;
16,000 reports, 320,000 inquiries made by telephone, and 160,000 claims processed are the anticipated levels of effort for Fiscal Year 1997-98. The projected cost per unit in each area must include items that are ancillary or support functions associated with that portion of process.
For example: The inquiries cost will be a per unit cost based on 320,000 transactions. For the inquiries section of the effort the measurable transaction will be defined as an incoming phone call on the 1-888/1-800 line. Ancillary or support services that must also be provided in the inquiries portion of the process would include, but not be limited to, such things as answering e-mail or surface mail inquiries, maintaining an Internet site, the amortized cost of the equipment placed in the public access spaces in Tallahassee, and
the proportional cost of equipment, supplies and maintenance.
The cost of inquiries support services will have to be figured into the gross cost of maintaining the inquiries section and then divided by 320,000 to arrive at a per unit cost. The gross cost of operating the inquiries unit must be entered into block D of the Fee Schedule. The per unit cost must be entered into block C. This procedure must be repeated for each of the three sections.
The Provider will invoice the Department and be paid based upon performance of units performed in each area and the cost per unit. Costs under the contract may overrun the target amount in Block B or D or F but in no case shall the Provider without prior and specific written permission from the Department's Contract Manager exceed the block G amount.
It is the responsibility of the Provider to keep the Contract Manager apprised of the status of the payments and to alert the Contract Manager as early as possible to the possibility that block B, D or F amounts may be exceeded.
Add blocks B, D and F to get the total cost of the contract. Enter this figure in block G.
Comparison between Respondent[]s will take place at the bottom line (Block G)
Enter the annual cost of the equipment in the public records room (four workstations) and the proportional cost of the T-1 line into block H. The cost of the equipment and line identified in block H is for Departmental use only. The cost must included as an ancillary cost in block D.
The purpose of this particular cost breakdown is to document contractor performance against measures of success. If activity in one area of the contract is significantly out of tolerance in comparison to expectation and it
is evident that available funding will degrade performance, the Department may request increased spending authority based on performance to date.
The Lowest Cost (LC) proposal block G divided by the Proposal being Considered (PC) block G cost will be multiplied by 30 to determine point value comparison.
LC/PC x 30 = points for fee schedule
In the event the result is not an integer, the values below .50 will be rounded down to the nearest integer. Values of .50 and above will be rounded up. The points awarded from the fee schedule evaluation will be added to the averaged scores of the evaluation team and used to determine the selection of a Provider.
In the event of a tie the contract will be awarded in accordance with Section 60A-1.011, Florida Administrative Code (see Appendix K)
The instructions for filling out the form are as follows:
Example:
Respondent A bids $3.0 M (block G) and Respondent B bids $4.0 M (block G) Respondent A gets: $3M/$3M x 30 = 30 points Respondent B gets: $3M/$4M x 30 = 23 points
Phase V Posting
Upon completion of Phase IV the intent to award will be posted at Room 250D of the Fletcher Building, 101 East Gaines Street, Tallahassee, Florida 32399-0350
Section VII. of the RFP listed the "documents required in submitting proposal." It provided as follows:
For purposes of uniformity among proposals, documents must be arranged in this order.
Original Form- PUR 7033
State of Florida- Request for Proposal Contractual Services Acknowledgment
Designated Spokesperson for RFP
The Respondent must designate, in writing, the official of the organization authorized to sign all applicable documents in this RFP.
Proof of Legal Entity
Respondent must provide evidence that the organization is a legal entity. Incorporated Respondents must provide either a copy of the corporation[']s[] most recent annual report on file with the appropriate state agency, or, if incorporated within the last 12 months, a copy of the corporation[']s[] Articles of Incorporation and Charter Number assigned by the appropriate agency.
Businesses that are not incorporated must provide a copy of their business or occupational license. Partnerships must submit documentation of compliance with the applicable provisions of Chapter 620, Florida Statutes.
The proposal must include a sworn and signed statement that the Respondent will comply with all the terms and conditions of the RFP and applicable addenda.
Conflict of Interest
This contract is subject of Chapter 112, Florida Statutes regarding conflict of interest. The proposal must include a signed statement that the Respondent has no conflict of interest. The Respondent must disclose the name of any State employee who owns directly or indirectly, an interest of five percent (5%) or more in the Respondent's firm or any of its subsidiaries. This shall be an ongoing requirement for the life of the contract and failure to comply will subject the contract to cancellation.
Designated work site within Florida. The Respondent shall include the geographic location of the site where the processing of reports and claims will take place.
The Respondent must include a minimum of three references on the integrity and honesty and responsibility of the firm and their
experience in processing data, handling inquiries and processing claims for payment. Include satisfaction with services provided, and the ability of the contractor to adapt and adjust to changing requirements in an innovative and positive manner.
The Respondent must include a chart of the organization, indicating how the Respondent's staff will fit into the total organization.
The Respondent must include a resume/vita for each principal of the business who will perform professional services for the proposed project.
Financial Statements- The Respondent must provide evidence of sufficient financial resources and stability to provide the short term financing needed by the State of Florida. At a minimum this evidence must include financial statements audited by a certified public accountant that includes balance sheets and income statements for the Respondent's two most recent fiscal years. These documents should break out subsidiary data if the Respondent is part of a larger entity.
Technical submission in response to Section II Scope of Services of the RFP, organized in response to each subheading in Section II.
Security plan
Implementation plan in accordance with Appendix E
Disaster recovery plan
Reports and receipts processing flow chart and narrative procedures. Depict separation of duties.
Claims processing and payment flow chart and narrative procedures. Depict separation of duties.
Proof of insurability to $1,000,000.00 per employee theft or malfeasance.
Drug Free Workplace Certification
Preference for Offerors with Drug-free Workplace Program: Pursuant to Section 287.087, Florida Statutes, preference must be given to offerors which certify having a
drug-free workplace whenever two or more proposals which are equal with respect to price, quality, and service are received. Offerors must sign and return Appendix L with the proposal to qualify for this preference.
Completed Fee Schedule- Sealed in a separate envelope marked "Fee Schedule for RFP BF11/96-97"
Addendum Acknowledgment Forms
Appendix L to the RFP (reference to which was made in Section VII.R.) read as follows:
IDENTICAL TIE PROPOSALS- Pursuant to Section 287.087, Florida Statutes, preference shall be given to businesses with drug-free workplace programs. Whenever two or more proposals which are equal with respect to price, quality, and service are received by the State for the procurement of commodities and contractual services, a proposal received from a business that certifies it has implemented a drug-free workplace program shall be given preference in the award process. Established procedures for processing tie proposals will be followed if none of the offerors have a drug-free workplace program. In order to have a drug- free workplace program, a business shall:
Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace and specifying actions that will be taken against employees for violations of such prohibitions.
Inform employees about the dangers of drug abuse in the workplace, the business's policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations.
Give each employee engaged in providing the commodities or contractual services that are under proposal a copy of the statement specified in paragraph 1.
In the statement specified in paragraph 1., notify the employees that, as a condition of working on the commodities and contractual services that are under proposal, the employee will abide by the terms of the statement and will notify the employer of any conviction of, or plea of guilty or nolo contendre to, any violation of Chapter 893, Florida Statutes, or of any controlled substance law of the United States or any state, for a violation occurring in the workplace no later than five (5) days after such conviction.
Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if such is available in the employee's community, by any employee who is so convicted.
Make a good faith effort to continue to maintain a drug-free workplace through implementation of this program.
In order to qualify for this tie proposal preference, this certification must be completed and submitted with the proposal.
As the person authorized to sign the statement, I certify that the offeror complies fully with the above requirements.
Offerors's Name: Signature
Name- Typed or Printed Date
Bidders' Conference
A bidders' conference was conducted by the Department on February 4, 1997.
Among those in attendance at the conference were representatives of SMSC and State Street Bank & Trust Company (State Street).4
Neither McGladrey & Pullen, LLP, nor Garcia & Ortiz, P.A., sent a representative to the conference.
The following discussion concerning the subject of subcontracting took place at the conference:
Q: Page 30, Part V, Section 14: Does this section prohibit any subcontracting, or only subcontracting for those tasks specifically addressed by the RFP?
Only those specifically addressed with Department approval.
Q: Bill Gavin [one of State Street's representatives at the conference]- If Provider is considering sub-contracting during the relationship of the proposed bid, what does the Provider do for approval?
Peter DeVries [bureau chief of the Department's Bureau of Abandoned Property]- Spell out the parts of the contract that are anticipated to be subcontracted. This is to protect us from someone who is not a corporate entity coming in and saying that he can do the whole job and we find out he is not doing anything. He is using subcontractors and trying to manage them as a shell corporation. It should be part of the proposal.
SMSC's Proposal
SMSC submitted one of the two proposals the Department received in response to the RFP.5
SMSC's proposal contained the following statement concerning "minority business participation:"
SMSC is not a Florida Certified Minority Business Enterprise (CMBE). However, SMSC intends to subcontract with Interim Personnel of North Florida, Inc., a CMBE. They are already performing on an existing contract with SMSC in our Panama City Servicing Center. Their certification is shown below.
The participation of Interim Personnel is reflected in the completed fee schedule in Section 20. They will provide at least 10 percent of the contract value. They will provide employees who will be located in our Panama City Servicing Center.
Additionally, some $500,000 in equipment purchasing will be offered to minority firms and procured from them if their prices are equal or less than our standard prices. We expect this to equal 3% of the contract award over the life of the contract.
The completed Fee Schedule (Appendix J) that SMSC submitted as part of its proposal reflected (in Block G) a "total annual cost" of $4,800,000.00 and (in Blocks J and K) "total annual CMBE purchases" of $980,000.00, amounting to 20.42% of the "total annual cost."
The Other Proposal
The cover page of the other proposal that the Department received in response to the RFP, which hereinafter will be referred to as the "MGS Proposal," indicated that it was
"[p]resented by McGladrey & Garcia, Joint Venture [and] State Street Bank & Trust Company."6
Printed at the bottom of various pages of the MGS Proposal were "McGladrey and Garcia, Joint Venture/State Street Bank & Trust Company."
The MGS Proposal contained an introductory letter signed by Mark Jones of McGladrey & Pullen, LLP, J. Edward Del Rio of Garcia & Ortiz, P.A., and William Gavin of State Street, which read, in part as follows:
McGladrey & Garcia, JV, with its subcontractor, State Street Bank & Trust, is pleased to present its response to RFP BF11/96-97: Services for the Receipt and Processing of Unclaimed Property. The McGladrey/State Street team is exceptionally well qualified to assume responsibility for administering the State of Florida's Abandoned Property program. Our team brings the following experience and resources to this contract: . . .
Experience of the Team: McGladrey & Garcia JV is a joint venture between McGladrey & Pullen LLP, and Garcia & Ortiz, PA. . .
McGladrey & Pullen is the nation's 7th largest accounting and consulting firm. . . .
Garcia & Ortiz is one of the largest independent accounting and consulting firms in the State of Florida. . . .
State Street Bank & Trust is one of the leading servicers of financial assets in the world. . . .
Section A. of the MGS Proposal contained a completed Original Form PUR 7033. Typed in under "vendor name" on the form were "McGladrey & Pullen, LLP[,] Garcia & Ortiz, P.A. and State
S[t]reet Bank." The form included the following certification, which was signed by Mark Jones in his capacity as "[p]artner:"
I certify that this proposal is made without prior understanding, agreement, or connection with any corporation, firm, or person submitting a proposal for the same contractual services, and is in all respects fair and without collusion or fraud. I agree to abide by all conditions of this proposal and certify that I am authorized to sign this proposal for the proposer and that the proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements. In submitting a proposal to an agency of the State of Florida, the proposer offers and agrees that if the proposal is accepted, the proposer will convey, sell, transfer to the State of Florida all rights, title and interest in and to all causes of action it may now or hereafter acquire under the Anti-trust laws of the United States and the State of Florida for price fixing relating to the particular commodities or services purchased or acquired by the State of Florida. At the State's discretion, such assignment shall be made and become effective at the time the purchasing agency tenders final payment to the proposer.
Section B. of the MGS Proposal contained the following statement:
Designated Spokesperson for RFP
Mark A. Jones, a Partner of McGladrey & Pullen is authorized to negotiate and sign all applicable documents in the RFP, and any contractual documents that are party to this contract between the State of Florida and McGladrey & Pullen, LLP and Garcia & Ortiz, P.A.7
In Section C. of the MGS Proposal (dealing with "proof of legal entity"), reference was made to "the members of our
team, including McGladrey & Pullen, Garcia & Ortiz, and State Street Bank." No mention was made of the McGladrey & Garcia Joint Venture, nor was any proof of the joint venture's existence as a legal entity included (along with the documentation that was provided relating to McGladrey & Pullen, LLP, Garcia & Ortiz,
P.A. and State Street), in this section of the proposal.
The following witnessed, but unsworn, statement, signed by Mark Jones (and the witness), constituted Section D. of the MGS Proposal:
Compliance With Terms and Conditions of RFP
I, Mark A. Jones, Partner of McGladrey & Pullen, LLP, acknowledge and agree that we will comply with all terms and conditions of the RFP and applicable addenda.
Section E. of the MGS Proposal consisted of an unsigned statement regarding "conflict of interest," which read, in part, as follows:
Conflict of Interest
Conflicts
We understand that this contract is being awarded subject to the provisions of Chapter 112, Florida [S]tatutes.
We affirmatively state that no officer, director, employee or agency of McGladrey & Pullen, LLP; Garcia & Ortiz, PA; or State Street Bank is also an officer or an employee of the Department, the State of Florida, or any of its agencies.
We affirmatively state that no state officer or any employee owns, directly or indirect[ly], an interest of five percent
(5%) or more of McGladrey & Pullen, LLP; Garcia & Ortiz, PA; or State Street Bank.
We affirmatively state that neither McGladrey & Pullen, LLP; Garcia & Ortiz, PA; or State Street Bank paid, or will pay, any compensation to any employee, agent, lobbyist, previous employee of the Department or any other person who has registered or is required to register under Section 112.3215, Florida Statutes, in seeking to influence the actions of the Department in connection with this procurement.
Litigation
McGladrey & Pullen, LLP: . . .
Garcia & Ortiz, PA: . . .
State Street Bank: . . .
The McGladrey and Garcia Joint Venture was not mentioned in this section of the MGS Proposal.
Section F. of the MGS Proposal discussed a "designated work site within Florida." It read as follows:
Designated Work Site Within Florida
We propose to house our Unclaimed Property Processing operation in Tallahassee. We have identified seven suitable sites within a five mile radius of the Fletcher Building, and we will make our final selection upon notification of contract award.
Although McGladrey & Pullen and its network affiliates have 10 offices in Florida that could house the Unclaimed Property Processing Function, the advantages of establishing our facility in Tallahassee are compelling.
Our outsourcing experience has conclusively shown us that physical proximity is essential. Technology is wonderful, but nothing is an effective substitute for personal communication. We fully expect that
during the transition period we will be meeting several times each week with the Department's oversight people, and there will routinely be the need to meet on short notice to resolve issues or special situations.
Driving one or two hours to accomplish these meetings places an unnecessary roadblock to success.
Further, we anticipate that the need for close, personal communication will continue throughout the term of the contract. The RFP refers to a number of future initiatives in technology, operations, and outreach. Close coordination between the Department and us is required; this will be greatly facilitated by placing our operation in Tallahassee.
In addition, ongoing contract oversight and issues resolution (either holders or claimants) will be made much easier with a Tallahassee location.
Finally, we will be seeking selected staff of the State's Unclaimed Property Bureau who will lose their jobs as a result of the outsourcing contract. We have successfully done this on other outsourcing contracts to the mutual benefit of us, the displaced employees, and client. Maintaining the operation in Tallahassee will greatly enhance our ability to attract good people to a career opportunity with our firm.
In Section G. of the MGS Proposal, the qualifications of the "McGladrey/State Street team" were described. The McGladrey & Garcia Joint Venture, McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street were all mentioned in this section of the proposal.
Individuals expected to play key roles in the delivery of services under the contract, if awarded, were identified in Section H. of the MGS Proposal.
The resumes of these individuals, who included employees of the McGladrey & Garcia Joint Venture, McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street, were set forth in Section I. of the MGS Proposal.
Section J. of the MGS Proposal contained unaudited financial statements for McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street Boston Corporation (identified in Section
J. as "a division within State Street Bank & Trust Company.")8
In Section Q. of the MGS Proposal, written proof of the insurability of McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street Boston Corporation was provided.
Section R. of the MGS Proposal consisted of a completed, signed (by Mark Jones) and dated (February 25, 1997) "Certification of Drug-Free Workplace Program" (Appendix L). Typed in on the line where the "[o]fferor's [n]ame" was to be indicated were "McGladrey & Pullen, LLP, Garcia & Ortiz, P.A. and State Street Bank."
Section S. of the MGS Proposal contained a completed Fee Schedule (Appendix J), which reflected (in Block G) a "total annual cost" of $7,520,000.00. Attached to this completed Fee Schedule was the following written statement:
The firm or Garcia & Ortiz, P.A. is a certified Minority Business Enterprise (CMBE), certified by the Florida Minority Business Advocacy and Assistance office. Attached is a copy of the certification. Forty percent of the contract value will be spent with Garcia & Ortiz, P.A.
Evaluation of the SMSC and MGS Proposals
Both SMSC's proposal and the MGS Proposal were deemed to be responsive to the RFP. Copies of the two proposals, along with copies of the RFP, were submitted to the evaluation team on March 3, 1997.
Phase IIA.
A team of five evaluators evaluated the two proposals submitted in response to the RFP for technical merit.
SMSC's proposal received scores of 23, 48, 49, 50 and
47 from the evaluation team members for a point total of 217, which, when "[a]veraged across all five evaluators," in accordance with the "evaluation procedure" set forth in Section VI.E) of the RFP, yields a score of 43.4 for Phase IIA. ("Technical Evaluation") of the "evaluation procedure."
The MGS Proposal received scores of 50, 45, 50, 50 and
44 from the evaluation team members for a point total of 239, which, when "[a]veraged across all five evaluators," yields a score of 47.8. for Phase IIA.
Although the "evaluation procedure" set forth in Section VI.E) of the RFP made no provision for "rounding" the "averaged scores of the evaluation team," the Department, in determining the amount of points to be awarded for Phase IIA., "rounded down" the SMSC score (of 43.4) to 43 and "rounded up" the MGS score (of 47.8) to 48.
Phase IIB.
In calculating the number of points to award SMSC's proposal for Phase IIB. ("Minority Business Participation") of the "evaluation procedure" set forth in Section VI.E) of the RFP, the Department used the "proposed percentage" of "Annual Contract to CMBE" (20.42) indicated in Block K of the completed Fee Schedule (Appendix J) that SMSC submitted as part of its proposal. The "proposed percentage" reflected participation by Interim Personnel of North Florida, Inc., ("10 percent of contract value," which, on an annual basis, would amount to
$480,000.00) and, in addition, the "$500,000 in equipment purchasing" that SMSC represented in its proposal would "be offered to minority firms and procured from them if their prices [we]re equal or less than [SMSC's] standard prices." Dividing SMSC's "proposed percentage" by 24 and multiplying the result by
10 yields a score of 8.508, which the Department "rounded up" to 9, notwithstanding that Phase IIB. of the "evaluation procedure" set forth in Section VI.E) of the RFP made no provision for "rounding."
If SMSC had received "Minority Business Participation" credit only for Interim Personnel of North Florida, Inc.'s, proposed participation in the project (and not for the "$500,000 in equipment purchas[es]" it indicated it would make, under certain conditions, from "minority firms" (hereinafter referred to as the "Minority Equipment Purchases"), it would have received, in accordance with the provisions of Section VI.E) of
the RFP, 4.16 points for Phase IIB.
Because the MGS Proposal provided for "Minority Business Particiapation" in excess of 24% of the "contract value," it was awarded the maximum number of points (10) for Phase IIB.
Phase III
Oral presentations were made (to the evaluation team) in support of each of the two proposals submitted in response to the RFP.
The oral presentation made in support of SMSC's proposal received scores of 6, 10, 9, 5 and 10 from the evaluation team members for a point total of 40, which, when "[a]veraged across the evaluation team members," in accordance with the "evaluation procedure" set forth in Section VI.E) of the RFP, yields a score of 8 for Phase III. ("Oral Presentations ") of the "evaluation procedure."
The oral presentation made in support of the MGS Proposal received scores of 10, 5, 8, 10 and 5 from the evaluation team members for a point total of 38, which, when "[a]veraged across the evaluation team members," yields a score of 7.6 for Phase III.
Although the "evaluation procedure" set forth in Section VI.E) of the RFP made no provision for "rounding" the "averaged scores of the evaluation team," the Department, in determining the amount of points to be awarded for Phase III,
"rounded up" the MGS score (of 7.6) to 8.
Phase IV
Of the two proposals submitted in response to the RFP, SMSC's proposal was the "lowest cost (LC)." Accordingly, in accordance with the provisions of Section VI.E) of the RFP, it was awarded the maximum number of points (30) for Phase IV of the "evaluation procedure."
Dividing the amount in Block G on SMSC's completed Fee Schedule (Appendix J) by the amount in Block G on the completed Fee Schedule submitted as part of the MGS Proposal and multiplying the result by 30 yields a score of 19.148, which the Department "rounded down" to 19 in accordance with the provisions of Phase IV of the "evaluation procedure" set forth in Section VI.E) of the RFP, which, unlike the provisions of Phases II and III, provide for "rounding" when "the result is not an integer" ("down," in the case of "values below .50," and "up," in the case of "[v]alues of .50 and above.")
Total Points for Phases IIA., IIB., III and IV
According to the Department's calculations9 (which were determined, in writing, by its Office of the General Counsel, to have been "in substantial compliance10 with the evaluation methodology set forth in the RFP"), SMSC's point total for Phases IIA., IIB., III and IV combined was 90, compared to 85 for the MGS proposal.
Had the Department not used the "rounding" provisions
of Phase IV to calculate the points awarded for Phases IIA., Phase IIB. and Phase III, and had it determined (as Petitioners allege it should have) that the only CMBE participation for which SMSC was entitled to receive "Minority Business Participation" credit was the proposed ("10 percent of the contract value") participation of Interim Personnel of North Florida, Inc., SMSC would have received 85.56 total points for Phases IIA., IIB., III and IV combined, compared to 84.40 for the MGS proposal.
Notice of Intended Award
On March 18, 1997, the Department posted a bid/proposal tabulation sheet indicating its intent to award SMSC a contract pursuant to the RFP.
The bid/proposal tabulation sheet reflected that the combined point totals for SMSC's proposal and the MGS Proposal were 90 and 85 points, respectively.
Petitioners' Protest
On March 20, 1997, Petitioners filed their Notice of Protest with the Department. The notice was filed within 72 hours after posting of the bid/proposal tabulation sheet.
On March 28, 1997, (which was within ten days after the filing of the notice), Petitioners filed their formal written protest challenging the intended award of the contract advertised in the RFP to SMSC.
CONCLUSIONS OF LAW
With certain exceptions not applicable to the instant
case, state agencies (including the Department) must purchase commodities and contractual services through the solicitation of competitive sealed bids or proposals. Section 287.057, Fla.
Stat.
It has been said on more than one occasion that competitive bidding/proposing requirements, such as those imposed upon state agencies, 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 and Associates, Inc. v. City of Cape Coral, 352 So.2d 1190, 1192 (Fla. 2d DCA 1977).
In soliciting and accepting competitive bids or proposals, a state agency has wide discretion. See D.O.T. v. Groves-Watkins Constructors, 530 So.2d 912, 913 (Fla. 1988); Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982).
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/proposing. 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 and Son, Inc., 354 So.2d 446, 450 (Fla.
1st DCA 1978).
A state agency, like the Department, that seeks to obtain commodities or services through the solicitation of competitive sealed proposals must comply with the requirements of Section 287.057, Florida Statutes, which provides, in pertinent part, as follows:
Unless otherwise authorized by law, all contracts for the purchase of commodities or contractual services in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO11 shall be awarded by competitive sealed bidding. An invitation to bid shall be issued which shall include a detailed description of the commodities or contractual services sought; the date for submittal of bids; and all contractual terms and conditions applicable to the procurement of commodities or contractual services, including the criteria which shall include, but need not be limited to, price, to be used in determining acceptability of the
bid. . . .
When an agency determines in writing that the use of competitive sealed bidding is not practicable, commodities or contractual services shall be procured by competitive sealed proposals. A request for proposals12
which includes a statement of the commodities or contractual services sought and all contractual terms and conditions applicable to the procurement of commodities or contractual services, including the criteria, which shall include, but need not be limited to, price, to be used in determining acceptability of the proposal shall be issued. If the agency contemplates renewal of the commodities or contractual services contract, it shall be so stated in the request for proposals. The proposal shall include the price for each year for which the contract may be renewed. Evaluation of proposals shall include consideration of the total cost for each year as quoted by the offeror. To assure full understanding of and responsiveness to the solicitation requirements, discussions may be conducted with qualified offerors. The offerors shall be accorded fair and equal treatment prior to the submittal date specified in the request for proposals with respect to any opportunity for discussion and revision of proposals.
The award shall be made to the responsible
offeror13 whose proposal is determined in writing to be the most advantageous to the state, taking into consideration the price and the other criteria set forth in the request for proposals. The contract file shall contain the basis on which the award is made.
When the purchase price of commodities or contractual services exceeds the threshold amount provided in s. 287.017 for CATEGORY TWO, no purchase of commodities or contractual services may be made without receiving competitive sealed bids or competitive sealed proposals . . .
(8) An agency shall not divide the procurement of commodities or contractual services so as to avoid the requirements of subsections (1), (2), and (3). . . .
(10) If two equal responses to an invitation to bid or request for proposals are received and one response is from a certified minority business enterprise,14 the agency shall enter
into a contract with the certified minority business enterprise. . . .
(15) For requests for proposals, a selection team of at least three employees who have experience and knowledge in the program areas and service requirements for which contractual services are sought shall be appointed by the agency head to aid in the selection of contractors for contracts of more than the threshold amount provided in s.
287.017 for CATEGORY FOUR.15 . . .
(17) Each agency shall establish a review and approval process for all contractual services contracts costing more than the threshold amount provided for in s. 287.017 for CATEGORY THREE16 which shall include, but not be limited to, program, financial, and legal review and approval. Such reviews and approvals shall be obtained before the contract is executed.
The agency must also comply with all applicable rules adopted by the Division of Purchasing of the Department of Management (DMS) pursuant to the authority granted in Section 287.042, Florida Statutes.
Among these rules adopted by DMS is Rule 60A-1.011, which is entitled "Identical (Tie) Bids/Proposals, Commodities/Contractual Services" and provides as follows:
Award of Identical (Tie) Bids -- Whenever identical bids17 are received, preference shall be given to the bid certifying a drug- free workplace has been implemented in accordance with Section 287.087, F.S. Award shall be determined by using the number of valid vendor complaints on file or by lot; except that if two equal responses to an invitation to bid or request for proposals are received and one response is from a certified minority-owned firm or company, the agency shall enter into a contract with the certified minority-owned firm or company,
and; except that the bid/proposal which relates to commodities manufactured within this State shall be given preference and the bid of any foreign manufacturer with a factory in the State employing over 200 employees working in the State shall have preference over the bid of any other foreign manufacturer.
Another DMS rule is Rule 60A-1.002(15), Florida Administrative Code, which provides as follows:
Right to Waive Minor Irregularities for Commodities/Contractual Services- The agency shall reserve the right to waive any minor irregularities in an otherwise valid bid/proposal. Variations which are not minor cannot be waived.
A "minor irregularity," as used in Chapter 60A-1, Florida Administrative Code, is defined in Rule 60A-1.001(16), Florida Administrative Code, as "[a] variation from the invitation to bid/request for proposal terms and conditions which does not affect the price of the bid/proposal or give the bidder or offeror an advantage or benefit not enjoyed by other bidders or offerors, or does not adversely impact the interests of the agency." See also Air Support Services International, Inc., v. Metropolitan Dade County, 614 So.2d 583, 584 (Fla. 3d DCA 1993)("[p]ublic bid requirements may not be materially altered subsequent to the submission of bids"); Intercontinental Properties, Inc., v. Department of Health and Rehabilitative Services, 606 So.2d 380, 386 (Fla. 3d DCA 1992)("there is a very strong public interest in favor of saving tax dollars in awarding public contracts;" "[t]here is no public interest, much less a
substantial public interest, in disqualifying low bidders for technical deficiencies in form where the low bidder did not derive any unfair competitive advantage by reason of the technical omission"); Tropabest Foods, Inc., v. Department of General Services, 493 So.2d 50, 52 (Fla. 1st DCA 1986)("although a bid containing a material variance is unacceptable, not every deviation from the invitation to bid is material;" "[i]t is only material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition").
An unsuccessful bidder/proposer may file a protest with the soliciting state agency challenging the agency's contract award or, if no award has been made, the agency's decision to reject all bids/proposals. The protest must be resolved in accordance with the rules adopted by the agency pursuant to Section 120.57(3), Florida Statutes, which provides, in part, as follows:
An agency which enters into a contract pursuant to the provisions of . . . chapter
287 . . . shall adopt rules specifying procedures for the resolution of protests arising from the contract bidding process. Such rules shall at least provide that:
(a) The agency shall provide notice of its decision or intended decision concerning a bid solicitation or contract award as follows:
1. For a bid solicitation, notice of a decision or intended decision shall be given by United States mail or by hand delivery.
* * *
3. For any other agency decision, notice of a
decision or intended decision shall be given either by posting the bid tabulation at the location where bids were opened or by certified United States mail or other express delivery service, return receipt requested.
The notice required by this paragraph shall contain the following statement: "Failure to file a protest within the time prescribed in s. 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes."
Any person who is adversely affected by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after filing the notice of protest. With respect to a protest of the specifications contained in an invitation to bid or in a request for proposals, the notice of protest shall be filed in writing within 72 hours after the receipt of notice of the project plans and specifications or intended project plans and specifications in an invitation to bid or request for proposals, and the formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter. The formal written protest shall state with particularity the facts and law upon which the protest is based.
* * *
1. The agency shall provide an opportunity to resolve the protest by mutual agreement between the parties within 7 days, excluding Saturdays, Sundays, and legal holidays, after receipt of a formal written protest.
If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and legal
holidays, after receipt of the formal written protest, and if there is no disputed issue of material fact, an informal proceeding shall be conducted pursuant to subsection (2) and applicable agency rules before a person whose qualifications have been prescribed by rules of the agency.
If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and legal holidays, after receipt of the formal written protest, and if there is a disputed issue of material fact, the agency shall refer the protest to the [D]ivision [of Administrative Hearings] for proceedings under subsection (1).18
Upon receipt of a formal written protest referred pursuant to this subsection, the director of the [D]ivision shall expedite the hearing and assign an administrative law judge who shall commence a hearing within 30 days after the receipt of the formal written protest by the [D]ivision and render a recommended order within 30 days after the hearing or within 30 days after receipt of the hearing transcript by the administrative law judge, whichever is later. Each party shall be allowed 10 days in which to submit written exceptions to the recommended order. A final order shall be entered by the agency within 30 days of the entry of a recommended order. The provisions of this paragraph may be waived upon stipulation by all parties.
In a competitive-procurement protest, no submissions made after the bid or proposal opening amending or supplementing the bid or proposal shall be considered. Unless otherwise provided by statute, the burden of proof shall rest with the party protesting the proposed agency action. In a competitive- procurement protest, other than a rejection of all bids, the administrative law judge shall conduct a de novo proceeding to determine whether the agency's proposed action is contrary to the agency's governing statutes, the agency's rules or policies, or the bid or proposal specifications. The standard of
proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious. In any bid-protest proceeding contesting an intended agency action to reject all bids, the standard of review by an administrative law judge shall be whether the agency's intended action is illegal, arbitrary, dishonest, or fraudulent.
Subsection (3)(f) of Section 120.57, Florida Statutes, represents: (1) a codification of the holding in D.O.T. v. Groves-Watkings Constructors, 530 So.2d 912, 913 (Fla. 1988) that, where a state agency's decision to reject all bids/proposals is challenged, "the hearing officer's19 sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily,20 illegally, or dishonestly" in making its decision; and (2) a rejection of the view (expressed in such post-Groves-Watkins cases as Moore v. Department of Health and Rehabilitative Services, 596 So.2d 759, 761 (Fla. 1st DCA 1992)) that, in bid/proposal protest cases not involving the rejection of all bids/proposals, the scope of inquiry is similarly limited and that "[d]e novo consideration" is inappropriate.
In the instant case, Petitioners are challenging the Department's decision to award the contract advertised in RFP No. BF11/96-97 to SMSC. They have alleged (in their formal written protest) that the decision was clearly erroneous inasmuch as it was the product of SMSC having received evaluation points (for the Minority Equipment Purchases) to which it was not entitled under Phase IIB. ("Minority Business Participation") of the
"evaluation procedure" set forth in Section VI.E) of the RFP.
Pursuant to Section 120.57(3)(f), Florida Statutes, the burden was on Petitioner (at the Section 120.57(1) hearing held in this case) to prove (by a preponderance of the evidence21) its allegation that the Department's contract award decision was clearly erroneous (for the reason asserted in its formal written protest) and therefore should be overturned.
Petitioners failed to meet their burden of proof.
Even assuming (without deciding) that the Department erred in awarding SMSC evaluation points for the Minority Equipment Purchases, the error was harmless in that it did not impair either the fairness of the selection process or the correctness of the Department's contract award decision. Had SMSC not been awarded these points, its point total for Phases IIA. IIB., III and IV combined (calculated in accordance with the "evaluation procedure" set forth in Section VI.E) of the RFP) would still have been higher than the MGS Proposal's combined point total (calculated in the same manner). To conclude otherwise and find that there would have been a tie score under such circumstances (as Petitioners have contended), the undersigned would have to construe the "evaluation procedure" set forth in Section VI.E) of the RFP as including, in Phases IIA., IIB. and III thereof, language (with respect to "rounding") which was not placed there by the Department and clearly appears to have been omitted intentionally (particularly when Phases IIA.,
IIB. and III are compared with Phase IV, which, unlike Phases IIA., IIB. and III, specifically provides for "rounding"). This neither he, nor the Department, can do. Cf. Leisure Resorts, Inc., v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (Fla.
1995)("we assume that the legislature intended the plain and obvious meaning of the words used in the statute;" [w]hen the legislature has used a term, as it has here, in one section of the statute but omits it in another section of the same statute, we will not imply it where it has been excluded"); In re Order on Prosecution of Criminal Appeals by the Tenth Judicial Circuit Public Defender, 561 So.2d 1130, 1137 (Fla. 1990)("[l]egislative intent is the polestar by which we must be guided in interpreting these statutory provisions;" "[t]he best evidence of the intent of the legislature is generally the plain meaning of the statute;" "[c]ourts should not add additional words to a statute not placed there by the legislature"); Chaffee v. Miami Transfer Company, Inc., 288 So.2d 209, 215 (Fla. 1974)(the Florida Supreme Court may not "add words to the statute not placed there by the Legislature"); Royal Oak Landing Homeowner's Association v.
Pelletier, 620 So.2d 786, 788 (Fla. 4th DCA 1993)("the intentions of the parties to a contract govern its construction and interpretation;" "[w]hen determining intent, the best evidence is the plain language of the contract;" "[t]he language being construed should be read in common with other provisions of the contract"); Martin L. Robbins, M.D., P.A., v. I.R.E. Real Estate
Fund, Ltd., 608 So.2d 844, 846 (Fla. 3d DCA 1992)("[t]he
intention of the parties, as reflected by the language used and objects to be accomplished is a polestar of contract interpretation;" "[w]here a contract is silent as to a particular subject, a court should not, under the guise of construction, impose on parties contractual duties which they themselves omitted when entering into the contract"); Acceleration National Service Corp. v. Brickell Financial Services Motor Club, Inc., 541 So.2d 738, 739 (Fla. 3d DCA 1989)("it is well settled that the actual language used in the contract is the best evidence of the intent of the parties, and the plain meaning of that language controls"); Tropabest Foods, Inc., v. Department of General Services, 493 So.2d 50, 51-52 (Fla. 1st DCA 1986)("[w]ords in an instrument should be given their natural or most commonly understood meaning"); Ware v.
Money-Plan International, Inc., 467 So.2d 1072, 1073 (Fla. 2d DCA 1985)("the words found in a contract are to be given meaning and are the best possible evidence of the intent of the contracting parties"); Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515, 518 (Fla. 1st DCA 1984)("[t]he legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended"); Bared v. Cobo, 379 So.2d 666, 668 (Fla. 3d DCA 1980)("[i]t is apodictic that the main, indeed the only, issue really involved in the construction of contracts is
the determination of the intention of the parties, as primarily reflected in the specific language which they themselves adopted"); Mount Vernon Fire Insurance Company v. Editorial America, S.A., 374 So.2d 1072, 1073 (Fla. 3d DCA 1979)("it was long ago established that one part of an agreement may be resorted to for the explanation of the meaning of the language of another part;" "[a]ll parts of a contract are to be compared, used and construed with reference to each other"); Flowers v.
Miskoff, 233 So.2d 201, 205 (Fla. 4th DCA 1970)("[a] specific provision [in a contract] will normally be construed as eliminating the unspoken, the general, and the unclear"); Anemaet v. Martin-Senour Company, 114 So.2d 23, 25 (Fla. 2d DCA
1959)("[p]roper construction is plainly a matter of intent of the particular instrument").
Accordingly, even if the award of evaluation points for the Minority Equipment Purchases was clearly erroneous and contrary to the provisions of the RFP, the same cannot be said about the decision to award the contract to SMSC, the proposer with the highest combined point total, with or without these disputed evaluation points. Reversal of the Department's contract award decision based upon the Department's award of evaluation points for the Minority Equipment Purchases is therefore not warranted. Cf. Department of Business Regulation, Division of Pari-Mutuel Wagering v. Hyman, 417 So.2d 671 (Fla. 1982)(agency's failure to issue its final order in compliance
with the time requirements prescribed in Chapter 120, Florida Statues, did not render the final order that was ultimately issued by the agency unenforceable, where "the untimely rendition of the final order did not result in the impairment of either the fairness of the proceedings or the correctness of the action and
. . . Hyman was not prejudiced by the delay"); Freeman v. Department of Health and Rehabilitative Services, 436 So.2d 964, 965 (Fla. 3d DCA 1983)("[s]ince, moreover, the petitioners could not for that reason have compelled the enactment of their proposal [to initiate rulemaking] in any case, it follows that if there were in fact a procedural error by the agency in considering the 'data' question- an issue we do not decide- it could not have been 'material' to the ultimate result and thus could not require reversal or remand"); Polk v. School Board of Polk County, 373 So.2d 960, 962-63 (Fla. 2d DCA 1979)("[w]e read this section [the predecessor of Section 120.68(7)(c), Florida Statutes] to mean that even though an agency has committed a procedural error, we must affirm the agency's action unless the error renders the ruling unfair or incorrect;" "[i]n other words, the section is actually a statutory harmless error rule").
In view of the foregoing, Petitioners' protest should be denied.22
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Department enter a final order denying Petitioners' protest of the Department's decision to award the contract advertised in RFP No. BF11/96-97 to SMSC.
DONE AND ENTERED this 30th day of May, 1997, in Tallahassee, Florida.
STUART M. LERNER
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 30th day of May, 1997.
ENDNOTES
1 In a footnote, the undersigned observed:
While the Department and SMSC may have evidence that, in their opinion, clearly demonstrates that these factual disputes should be resolved against Petitioners, Petitioners nonetheless must be afforded the opportunity (at a Section 120.57(1) hearing) to attempt to counter such evidence and persuade the Department that Petitioners' view of the facts should be accepted.
2 The RFP was subsequently amended to provide for an initial five year contract term (June 1, 1997, to May 31, 2002).
3 It appears from the factual stipulations set forth in the parties' Prehearing Stipulation (specifically stipulations 17, 18, 19 and 20) that the parties agree that, in accordance with the provisions of Section VI.E) of the RFP, as reasonably construed, if a provider proposed "less than 24 percent" "Minority Business Participation," to determine the number of points to award for such participation, it would be necessary to multiply the quotient of the ”proposed percentage divided by 24" by 10, not .10 as inadvertently indicated in the RFP. The
undersigned has accepted this reasonable construction of Section VI.E) of the RFP.
4 Prior to the proposal submission deadline, Bill Gavin of State Street telephoned the Department's Peter DeVries and told DeVries that State Street would "not be able to bid" on the contract, but that it had a "teaming arrangement with a company called McGladrey & Pullen, "which was "going to assume some of the risk that State Street Bank was not willing to assume in a partnering arrangement." According to Gavin, under the arrangement, McGladrey & Pullen, LLP, "would provide the people and the real estate that was needed to set up the office" and "State Street would provide management, and technical support and the computer system."
5 In response to the requirement of Section VII.Q. of the RFP that "proof of insurability to $1,000,000.00 per employee theft or malfeasance" be submitted, SMSC included the following statement in its proposals:
SMSC shall supply a certificate of insurance evidencing the insurance required by this RFP prior to commencement of any work.
The Department determined that this response was insufficient to meet the requirement of Section VII.Q. of the RFP, but that such insufficiency was a minor irregularity that could be waived if corrected by SMSC prior to the conclusion of the evaluation process (which it apparently was). The propriety of this determination, however, is not an issue that Petitioners raised in their formal written protest.
6 At hearing, Petitioners, through their representatives, testified about what Petitioners intended to convey, through the MGS Proposal, concerning Petitioners' proposed roles (as prime contractors sharing equally in revenues from the contract) and State Street's proposed role (as a subcontractor) in the project; however, "'[t]he test of the true interpretation of an offer or acceptance is not what the party making it thought it meant or intended it to mean, but what a reasonable person in the position of the parties would have thought it meant.'" See Med-Star Central, Inc., v. Psychiatric Hospitals of Hernando County, Inc., 639 So.2d 636 (Fla. 5th DCA 1994); Jackson v. Investment Corporation of Palm Beach, 585 So.2d 949, 950 (Fla. 4th DCA 1991).
7 Such authorization was given to Jones orally.
8 Following the oral presentation in support of the MGS proposal, Peter DeVries of the Department approached Mark Jones and asked him if audited financial statements were available. Jones told DeVries that "the firm had never had audited financial statements" and that "no accounting firm had audited financial
statements." DeVries requested that Jones provide him with a written statement to that effect. In compliance with DeVries' request, on March 12, 1997, Jones sent the Department the following letter from Clifford Newman, the controller of McGladrey & Pullen, LLP:
McGladrey & Pullen, LLP has submitted financial statements for its fiscal years ended April 30, 1996 and 1995. The statements, as required by our Partnership Agreement, have been prepared in accordance with Generally Accepted Accounting Principles and have been presented to the State of Florida in connection with the submission of our bid to perform Abandoned Property administration.
McGladrey & Pullen, LLP is the eighth largest firm of Certified Public Accountants and Consultants in the United States. The large accounting firms in the United States are all partnerships, not publicly held, and we are not aware of any having audited financial statements. To do so would subject internal information to their primary competitors.
Our firm currently has a $32 million line of credit agented by Wachovia Bank of North Carolina and they have accepted our internally prepared financial statements for their credit granting purposes.
Please let me know if I may be of further assistance.
9 The Department employee who made these calculations for the Department was Peter DeVries, the designated Contract Manager for the RFP and its author.
10 The Office of the General Counsel verbally advised that there had not been strict compliance with the requirements of the RFP inasmuch as the Phase IIA., Phase IIB. and Phase III scores had been erroneously "rounded," but that correcting these "rounding" errors would not change the outcome of the evaluation process since SMSC's proposal would still have a higher point total than the MGS Proposal even if the Phase IIA., Phase IIB. and Phase III scores were not "rounded."
11 "[T]he threshold amount provided in s. 287.017 for CATEGORY TWO" is $15,000.00.
12 A "request for proposals," as used in Chapter 287, Part I, Florida Statutes, is described in Section 287.012(15), Florida Statutes, which provides as follows:
"Request for proposals" means a written solicitation for competitive sealed proposals with the title, date, and hour of the public opening designated. The request for proposals is used when the agency is incapable of specifically defining the scope of work for which the commodity, group of commodities, or contractual service is required and when the agency is requesting that a qualified offeror propose a commodity, group of commodities, or contractual service to meet the specifications of the solicitation document. A request for proposals includes, but is not limited to, general information, applicable laws and rules, functional or general specifications, statement of work, proposal instructions, and evaluation criteria. Requests for proposals shall state the relative importance of price and any other evaluation criteria.
13 A "responsible offeror, as used in Chapter 287, Part I, Florida Statutes, is defined in Section 287.012(13), Florida Statutes, as "a person who has the capability in all respects to perform fully the contract requirements and has the integrity and reliability which will assure good faith performance."
14 Pursuant to Section 287.012(12), Florida Statutes, "minority business enterprise," as used in Chapter 287, Part I, Florida Statutes, "has the same meaning as that provided in s. 288.703," subsection (2) of which provides as follows:
"Minority business enterprise" means any small business concern as defined in subsection (1) which is organized to engage in commercial transactions, and which is at least 51-percent owned by minority persons who are members of an insular group that is of a particular racial, ethnic, or gender makeup or national origin, which has been subjected historically to disparate treatment due to identification in and with that group resulting in an underrepresentation of commercial enterprises under the group's control, and whose management and daily operations are controlled by such persons. A minority business enterprise may primarily involve the practice of a profession.
15 "[T]he threshold amount provided in s. 287.017 for CATEGORY FOUR" is $60,000.00.
16 "[T]he threshold amount provided in s. 287.017 for CATEGORY THREE" is $20,000.00.
17 "Identical (tie) bids," as used in Chapter 60A-1, Florida Administrative Code, are described in Rule 60A-1.001(5), Florida Administrative Code, as "two or more responsive bids which are equal in price." There is no description in Chapter 60A-1, however, of what constitute "equal responses to [a] request for proposals."
18 Pursuant to 120.57(3), Florida Statutes, an agency should refer a formal bid protest to the Division (for the assignment of an administrative law judge to conduct a Section 120.57(1) hearing and issue a recommended order) only if the protest is legally sufficient and there are disputed issues of material fact. Referring to the Division a protest that, on its face, is legally insufficient or does not involve any disputed issues of material fact results in unnecessary delay. When an agency is presented with a facially insufficient bid protest or one not involving any disputed issues of material fact, it should, in keeping with the intent of the Legislature (expressed in Section 120.57(3), Florida Statutes), that bid protests be resolved expeditiously, act swiftly to dispose of the protest and not seek a recommendation from the Division before deciding what action to take. See D.A.B. Contractors, Inc., v. Department of Transportation, 656 So.2d 940, 942 (Fla. 1st DCA 1995).
19 Pursuant to Chapter 96-159, Laws of Florida, the title of the undersigned and of all other Hearing Officers of the Division was changed to Administrative Law Judge, effective October 1, 1996.
20 "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).
21 "'As a general rule the comparative degree of proof by which a case must be established is the same before an administrative tribunal as in a judicial proceeding- that is, a preponderance of the evidence. It is satisfied by proof creating an equipoise, but it does not require proof beyond a reasonable doubt.'" Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 415 (Fla. 4th DCA 1974); see also Section 120.57(1)(h), Fla. Stat.("[f]indings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as
otherwise provided by statute"); 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").
22 It is unnecessary to, and therefore the undersigned will not, address the issues raised by the Department and SMSC concerning Petitioners' standing to bring the instant protest and the responsiveness of the MGS Proposal.
COPIES FURNISHED:
Peter R. Wallace, Esquire
Annis, Mitchell, Cockey, Edwards & Roehn, P.A.
201 South Monroe Street, Suite 200 Tallahassee, Florida 32301
Robert B. Beitler, Chief Counsel
Theresa G. (Terry) Walsh, Assistant General Counsel Department of Banking and Finance
The Fletcher Building, Suite 526
101 East Gaines Street Tallahassee, Florida 32399-0350
Daniel H. Thompson, Esquire Berger, Davis & Singerman, P.A.
215 South Monroe Street, Suite 705 Tallahassee, Florida 32301
J. Scott Hommer, III, Esquire William L. Walsh, Jr., Esquire Venable, Baetjer and Howard, LLP 2010 Corporate Ridge, Suite 400 McLean, Virginia 22102
Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350
Harry Hooper, General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 10 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.
| Issue Date | Proceedings |
|---|---|
| May 30, 1997 | Recommended Order sent out. CASE CLOSED. Hearing held 05/05/97. |
| May 19, 1997 | Petitioner`s Proposed Recommended Order; Disk filed. |
| May 19, 1997 | (Respondent) Proposed Recommended Order; Disk ; Copies of GAO cases filed. |
| May 19, 1997 | (Sallie Mae Servicing) Proposed Recommended Order (for Judge signature); Disk ; Cover Letter filed. |
| May 05, 1997 | CASE STATUS: Hearing Held. |
| May 05, 1997 | (From R. Beitler) Notice of Appearance filed. |
| May 05, 1997 | Notice of Service of Department`s Response to First Set of Interrogatories Propounded by Petitioner; Petitioners` First Set of Interrogatories to Respondent State of Florida, Department of Banking and Finance filed. |
| May 05, 1997 | Parties` Joint Prehearing Stipulation filed. |
| May 02, 1997 | Notice of Service of Department`s Response to First Set of Interrogatories Propounded By Petitioners (filed via facsimile). |
| May 02, 1997 | (From P. Wallace) Affidavit in Opposition to Motion for Protective Order filed. |
| May 02, 1997 | (Respondent) Motion for Protective Order (filed via facsimile). |
| May 01, 1997 | (Robert Beitler) Notice of Appearance (filed via facsimile). |
| Apr. 30, 1997 | (From D. Thompson) Notice of Taking Deposition Duces Tecum; Petitioners` First Set of Interrogatories Propounded Upon Intervenor, Sallie Mae Servicing Corporation; Response to Request for Production of Documents filed. |
| Apr. 29, 1997 | Petitioners Response to Request for Production of Documents; Intervenor Sallie Mae Servicing Corporation`s First Set of Interrogatories Propounded Upon Florida Department of Banking and Finance filed. |
| Apr. 29, 1997 | Petitioners` First Set of Interrogatories to Respondent State of Florida, Department of Banking and Finance; Petitioners` First Set of Interrogatories Propounded Upon Intervenor, Sallie Mae Servicing Corporation filed. |
| Apr. 29, 1997 | (From P. Wallace) Notice of Taking Deposition Duces Tecum; Response to Request for Admissions; (2) Certificate of Service of Interrogatories; Request for Production of Documents filed. |
| Apr. 28, 1997 | (From D. Thompson) Request for Admissions filed. |
| Apr. 23, 1997 | Letter to P. Wallace from T. Walsh Re: Your public records request of 4/22/97 filed. |
| Apr. 21, 1997 | Order on Pending Motions sent out. |
| Apr. 17, 1997 | Petitioners` Response to Respondent`s Motion to Dismiss Petitioners` Formal written Protest and to Intervenor`s Motion to Strike and Dismiss (filed via facsimile). |
| Apr. 16, 1997 | Sallie Mae Servicing Corporation`s Memorandum in Support of its Motion to Strike and to Dismiss filed. |
| Apr. 11, 1997 | Notice of Hearing sent out. (hearing set for 5/5/97; 9:15am; Tallahassee) |
| Apr. 11, 1997 | Order sent out. (ruling on motions, telephone conference call set for 4/18/97, 1:30 PM) |
| Apr. 10, 1997 | Applicant for Intervention Sallie Mae Servicing Corporation`s Motion to Permit Foreign Attorneys to Appear filed. |
| Apr. 09, 1997 | Notice of Posting Cashier`s Check in Lieu of Bond; CC: Check for $5,000 (Ck# 2000998572) filed. |
| Apr. 09, 1997 | Agency Referral Letter; Letter to D. Thompson from T. Walsh (re: intervention); Formal Written Protest (1 expando folder of exhibits to petition TAGGED) filed. |
| Apr. 09, 1997 | (Respondent) Motion to Dismiss Petitioners` Formal Written Protest (w/att`s 1-9) filed. |
| Apr. 09, 1997 | (Sallie Mae Servicing Corp.) Motion to Intervene; Motion to Expedite; Motion to Strike and to Dismiss; request for Production of Documents; Certificate of Service of Interrogatories filed. |
| Issue Date | Document | Summary |
|---|---|---|
| May 30, 1997 | Recommended Order | Protest should be denied where alleged error in awarding points for Certified Minority Business Enterprise (CMBE) participation could not have affected outcome of selection process. |
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