STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GTECH CORPORATION, )
)
Petitioner, )
)
vs. ) Case No. 97-4369BID
)
STATE OF FLORIDA, )
DEPARTMENT OF LOTTERY, )
)
Respondent, )
)
and )
)
AUTOMATED WAGERING )
INTERNATIONAL, INC., )
)
Intervenor. )
)
RECOMMENDED ORDER
Notice was provided and on October 22 through 24, 27 through
31 and November 5 and 6, 1997, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing location was Tallahassee, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.
APPEARANCES
For the Petitioner, GTECH Corporation:
Thomas F. Panza, Esquire Mark A. Emanuele, Esquire Deborah S. Platz, Esquire
PANZA, MAURER, MAYNARD and NEEL, P.A.
3600 North Federal Highway
Third Floor, NationsBank Building Fort Lauderdale, Florida 33308
John R. Beranek, Esquire AUSLEY & MCMULLEN
Post Office Box 391 Tallahassee, Florida 32302
For Respondent, State of Florida, Department of Lottery:
William H. Roberts, Esquire
W. Eugene Gandy, Esquire Office of the Attorney General The Capitol, Plaza Level 01
Tallahassee, Florida 32399-1050
Louisa H. Warren, Esquire Department of Lottery
250 Marriott Drive Tallahassee, Florida 32301
For Intervenor, Automated Wagering International, Inc.:
Martha Harrell Chumbler, Esquire Michael P. Donaldson, Esquire CARLTON, FIELDS, WARD, EMANUELE,
SMITH AND CUTTLER, P.A.
Post Office Drawer 190 Tallahassee, Florida 32302
STATEMENT OF ISSUES
This is a proceeding brought by the Petitioner GTECH Corporation (GTECH) challenging the results of a reevaluation of select responses to RFP No. 95/96-001/R (the RFP) made by GTECH and its competitor, Automated Wagering International, Inc. (AWI). The RFP is a product of the State of Florida, Department of Lottery, (the Lottery). The reevaluation of portions of responses to Sections 2 and 4 and all responses to Section 3 was based upon the final order entered by Dr. Marcia Mann, Secretary of the Lottery, entered June 4, 1997, in DOAH Case No. 96-5461BID,
associated with the original evaluation of the RFP. The results of the reevaluation performed on the aforementioned sections, in the context of the original evaluation, led to the preliminary determination by the Lottery that AWI was entitled to the award of a contract. That preliminary decision was noticed on September 2, 1997. GTECH challenged that choice as clearly erroneous, contrary to competition, arbitrary and capricious. GTECH also questioned whether the actions by the Lottery were contrary to the governing statutes, rules, policies, or bid specifications in the RFP. To be decided is the question of whether a vendor may be selected based upon the outcome of the reevaluation, together with the results of the initial evaluation not overturned by the June 4, 1997 order entered by the secretary.
PRELIMINARY STATEMENT
On May 7, 1996, the Lottery announced its proposed agency action finding GTECH and AWI responsive to Part I, as that part dealt with the issues of financial responsibility, security and integrity of those vendors envisioned by Section 24.111, Florida Statutes. That preliminary decision went unchallenged.
Following a review of the responses to Part II, the Lottery gave notice that AWI was ranked the highest between the two vendors and was determined to be both responsible and responsive to Part II. Notification was provided on October 31, 1996. Part II principally addressed technical specifications and cost proposals by the vendors. By its proposed action announced on
that date, the Lottery intended to enter into negotiations leading to a contract between the Lottery and AWI to have AWI provide the gaming system and related services called for in the RFP for the benefit of the Lottery.
On November 5, 1996, GTECH filed a formal written protest and petitioned for a formal administrative hearing opposing the proposed agency action that contemplated a contract award to AWI to provide the gaming system and services.
On November 7, 1996, while the case was before the Lottery, AWI petitioned to intervene in the case.
On November 15, 1996, the formal written protest and petition for formal administrative hearing, together with the petition to intervene was forwarded to the Division of Administrative Hearings for the Director and Chief Judge of that Division to assign an Administrative Law Judge to conduct a formal hearing to resolve factual disputes between the parties. Section 120.57(1), Florida Statutes. The undersigned Administrative Law Judge was assigned to conduct the proceeding.
On November 18, 1996, an order was entered which granted intervention to AWI to participate as a party.
To resolve the allegations set forth in an amended formal written protest and petition for formal administrative hearing, a formal hearing was held in DOAH Case No. 96-5461BID. That hearing took place commencing January 13, 1997, and ending on February 5, 1997.
Following the opportunity for presentation of proposed recommended orders, a recommended order was entered on May 5, 1997, directed to DOAH Case No. 96-5461BID. Through the recommended order the Lottery's Secretary was requested to enter a final order which dismissed all allegations by GTECH in DOAH Case No. 96-5461BID with the exception of items within Section 2, 3, 4, and 7 to the RFP. The final order entered on June 4, 1997, directed to the recommended order in DOAH Case No. 96-5461BID, rejected the recommendations concerning adjustment to the scoring for Section 7 related to the GTECH price proposal. The final order agreed with the recommended order concerning the need to reconvene the process to have the original evaluation committee reevaluate and rescore a limited number of items in Section 2 and
4 and all of Section 3. Otherwise, the final order agreed that the GTECH amended written protest and petition in DOAH Case No. 96-5461BID be dismissed. In particular the final order stated in its operative terms:
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED:
The evaluation committee shall be reconvened.
The evaluation committee shall reevaluate and rescore Section 2 of the proposals as follows:
Those evaluators found to have awarded points to AWI for its status as incumbent or its familiarity with Florida or found to have penalized GTECH because it was not familiar
with Florida shall adjust their scores to remove any such considerations.
Those evaluators found to have penalized AWI because of problems in its relationship with EDS shall adjust their scores to remove any such consideration.
d. Those evaluators found to have not considered information in the AWI proposal about its experience in Arizona through December 15, 1995, shall reconsider their scores taking into account that information.
The evaluation committee shall review Section 3 of the RFP, the proposals for Section 3, their notes on Section 3 from all occasions, and the expert testimony in the hearing transcript and depositions, and shall reevaluate and rescore Section 3 consistent with the methodology set forth in the Recommended Order and adopted herein. Information obtained from the Gartner Group shall be excluded from consideration.
AWI shall submit an amended proposal for Subsection 4.6 consistent with the hearing record in relation to the EDS settlement by close of business on Wednesday, June 11, 1997. Based upon this amendment, the evaluators shall rescore Subsections 4.6.1 and 4.6.2.
After completing the rescoring directed above, the evaluators shall adjust their overall scores as necessary and provide them to the Issuing Officer as required by the RFP. A new Notice of Award shall thereafter be posted.
* * *
7. All other allegations contained in Petitioner's Amended Formal Written Protest are dismissed.
Commencing on August 11, 1997, and at various times thereafter the original evaluation committee reconvened,
reevaluated, and rescored items in relation to Sections 2 and 4 and the entire Section 3.
The results of the reconvened process were announced on September 2, 1997, when the Lottery issued a notice of award of the contract and the RFP to AWI. Given the opportunity for a further point of entry to contest the Lottery decision limited to the reconvened process to examine Sections 2, 3, and 4 as identified in the final order issued June 4, 1997, GTECH contested that preliminary decision. GTECH filed a formal written protest and petition for formal administrative hearing on September 5, 1997. That petition was transmitted to the Division of Administrative Hearings for consideration through the formal hearing process identified in Section 120.57(1), Florida Statutes. The same Administrative Law Judge was assigned to conduct the reconvened hearing as had been assigned to conduct the original hearing. The case associated with the reconvened hearing process was assigned DOAH Case No. 97-4369BID.
As identified in the initial notice of hearing, DOAH Case No. 97-4369BID had the limited purpose of considering issues in dispute " . . . consistent with limitations on the scope of the hearing outlined in the Department of Lottery's final order entered June 4, 1997."
The original petition in the present case had been amended before the case was forwarded to the Division of Administrative Hearings by the Lottery. That amendment dates from September 16,
1997. The original formal written protest and petition for formal administrative hearing together with the amended formal written protest and petition for formal administrative hearing were received by the Division of Administrative Hearings on September 17, 1997.
On September 15, 1997, AWI had petitioned for leave to intervene in the action and that petition was forwarded to the Division of Administrative Hearings.
On September 19, 1997, an order was entered by the undersigned granting AWI party status as an intervenor.
The reconvened hearing was noticed to be held on October 13 through 17, 1997. GTECH moved to continue the final hearing.
The hearing was continued until October 22 through 24 and 27 through 31, 1997.
On October 3, 1997, AWI moved to strike, or in the alternative, for a motion in limine directed to GTECH's amended petition for hearing. On October 20, 1997, an order was entered which struck certain paragraphs within the GTECH amended petition in the present case directed to the reconvened hearing process.
In the course of oral argument related to AWI's motion to strike, or in the alternative, motion in limine, a ruling was made which precluded the opportunity for the parties to present additional expert testimony in the hearing de novo to consider matters associated with the reconvened process of evaluation and
rescoring. The basis for that ruling was preserved in a transcript of the hearing on AWI's motion. The essence of the ruling was that no additional expert testimony would be allowed in explanation of the vender proposals, or in critique of the evaluation committee's conclusions associated with the reconvened process. The reason for the ruling was that sufficient opportunity had been presented for the parties to offer relevant expert testimony in the initial bid protest, access to which the evaluation committee had been provided in the reconvened process.
Further, it was determined that the process of allowing an opportunity for the parties to present experts should not be to the exclusion of the evaluation committee's ability to examine any further presentation by experts, in the reconvened hearing. Finally, there was the realization that there had to be an end to the overall process of review of the proposed agency decision.
That could not occur in the event that experts would testify, followed by exposure to their insights on the part of the evaluation committee, and so forth.
Being unable to conclude the hearing within the renoticed dates established, the case was held over for November 5 and 6, 1997.
During the hearing associated with the reconvened process, GTECH called as its witnesses Robert Estevez, Robert Hunter, Barbara Goltz, William Hunter, Gerald Bailey, and George Banks.
The Lottery presented as witnesses Robert Estevez, Robert Goltz, William Hunter, Gerald Bailey, Robert Hunter, and David Columbo. AWI presented the same witnesses as the Lottery, with the exception of David Colombo.
During the reconvened hearing GTECH Exhibits A, B, C, Q, S, T, U(1-15), V, W, X(1-6), Y, 46 and 47 were admitted. GTECH Exhibits E, 24, 25, 45, 48, and 49 were denied admission.
Lottery Exhibits 1 and 2 were admitted. AWI Exhibit 1 was admitted.
GTECH requested an expansion of the number of pages to be submitted in a proposed recommended order. That request was granted and the parties were allowed to submit proposed recommended orders of 50 pages. GTECH also sought additional time within which to file proposed recommended orders. That motion was granted. The parties were allowed to submit their proposed recommended orders no later than January 16, 1998. On January 16, 1998, all parties complied with that opportunity and filed proposed recommended orders in association with the reconvened hearing process. The proposed recommended orders in DOAH Case No. 97-4369BID have been considered in preparing the recommended order.
FINDINGS OF FACT
INSTRUCTIONS AND PROCEDURES FOR REEVALUATION
By the final order entered June 4, 1997, directed to the
recommended order in DOAH Case No. 96-5461BID, the Lottery Secretary reconvened the evaluation committee that had earlier considered responses to the RFP. The mandate for reevaluation was limited to those matters that have been described in the preliminary statement to this recommended order.
Barbara Goltz, who chaired the meetings of the evaluation committee on the prior occasion, had that responsibility during the reevaluation. In performing her task she sought the assistance of in-house counsel for the Lottery. In particular, Ken Hart, General Counsel for the Lottery, and Louisa Warren, Esquire, a Lottery attorney, offered advice concerning the procedures to be followed in making certain that the evaluation committee performed the task of reevaluation consistent with the final order that had been entered by the Lottery Secretary. The involvement by the Lottery attorneys did not preclude an impartial reevaluation of those items described in the final order, by inappropriately influencing Ms. Goltz or other committee members.
To facilitate consideration of those items addressed in the final order which required reevaluation, the Lottery through correspondence directed to the committee members from Patti Osburn, Purchasing Manager for the Lottery, gave further instructions. That correspondence was dated July 7, 1997. In pertinent part it stated:
The Judge in the On-Line bid protest recommended that the Evaluation Committee reconvene and reevaluate certain portions of the vendor proposals. The Lottery has accepted the Judge's recommendation in this regard.
Enclosed for your guidance is a copy of the relevant portions of the Judge's Recommended Order and of the Lottery's Final Order.
Portions of the orders that do not relate to the reevaluation have been omitted.
The orders explain which sections are to be reevaluated and what information is to be considered. The sections you will be addressing are 2 (Experience of Respondent),
3 (Technical), and 4 (Operations and Security). Each Evaluator's tasks with respect to these sections are explained in the Recommended Order. The tasks are not necessarily the same for all Evaluators. A revised evaluation checklist is enclosed for your use but should not be filled in until your evaluation has been completed in accordance with the Recommended Order.
Section 2 will involve some Evaluators making adjustments to their scores as explained below. It also will involve a reevaluation of section 2 by some Evaluators as further explained below.
Barbara Goltz
Deduct one point from AWI in Section 2.1 awarded for incumbency.
Add 1/2 point to AWI in Section 2.1 which was deducted for AWI's problems with Electronic Data Services.
Scores are otherwise to remain the same. Robert Hunter
Deduct one point from AWI in Section 2.1 awarded for incumbency.
Scores are otherwise to remain the same. Gerald Bailey
Add 25% of points in Section 2.1 deducted from AWI for problems with EDS.
Scores are otherwise to remain the same. William Hunter
Rescore Section 2.1 for both respondents after:
negating pluses awarded to AWI for incumbency.
negating minuses noted for GTECH because it was not familiar with Florida.
negating minuses noted for GTECH based on information learned in connection with other portions of the response.
negating minuses noted for AWI because of problems with EDS.
Robert Estevez
Reevaluate AWI's response to Section 2 taking into consideration information about AWI's experience in Arizona through December 15, 1995. If appropriate, revise AWI's score for that section.
Scores are otherwise to remain the same. George Banks
Rescore AWI after removing consideration given for incumbency.
Scores are otherwise to remain the same.
Section 3 is to be reevaluated in its entirety. For this purpose, each Evaluator is being provided with the following: a copy of the RFP; vendor proposals submitted, in response to section 3; his or her notes on that section from all occasions; and copies of transcripts or expert testimony concerning section 3. Your copy of these materials is enclosed. Site visit materials relative to section 3 are not being copied or enclosed due to their volume. However, the originals are available at the Lottery building. You will need to contact me by telephone to make arrangements to review those materials prior to completing your evaluation of this section. Each of the Evaluators can make arrangements and do their review individually. If there are meetings of the Evaluation Committee at which the materials are needed, they will be made available at the meeting.
All Evaluators are to review all of the materials referred to above and reevaluate section 3 in accordance with the instructions set forth in section 8 and in the Recommended Order. Evaluators must disregard any information previously provided to them concerning statements made by an employee of the Gartner Group.
Subsection 3.1 requires vendors to describe any additional or alternative functionality they can offer, compared to the minimum requirements of section 3 of the RFP. Also, several of the subsections under section 3 specifically invite vendors to describe additional features, capabilities or attributes compared to the minimum requirements of the subsection. Due to these provisions, once the Evaluators determine that the minimum requirements have been met, the Evaluators must also consider and evaluate any additional or alternative features where they are included in a vendor's proposal. See paragraphs 186, 187,
188, 189, 293, 294, and 295 of the
Recommended Order.
Section 4 involves consideration of supplemental information submitted by AWI since the date of your original evaluation. The supplemental information is enclosed.
You will be contacted regarding a meeting date of the Evaluation Committee. In the meantime, if you have any questions please contact me by telephone at 904/487-7710. You are reminded not to discuss anything pertaining to this matter except in meetings of the Evaluation Committee.
Consistent with the representations in the July 7, 1997, correspondence from Ms. Osburn, the committee members were provided redacted copies of the recommended order and final order in DOAH Case No. 96-5461BID. Later the evaluators were provided copies of the full text recommended and final orders. In addition, the evaluators received text of the expert testimony in the prior proceeding in DOAH Case No. 96-5461BID associated with the vendors' technical proposals. The evaluators received the notes that they had made in the evaluation and scoring in the original evaluative process related to DOAH Case No. 96-5461BID. The evaluators were provided the amended response by AWI to subsections 4.6.1 and 4.6.2 to the RFP prior to the reevaluation and rescoring related to that amendment that was conducted in August 1997.
Materials associated with the site visits that were made in the original evaluation process in DOAH Case No. 96-5461BID were made available to the members for purposes of the reevaluation.
Ms. Goltz and Gerald Bailey, another committee member, consulted outside technical texts to assist in preparing themselves to perform the reevaluation. These sources were not made known to other members of the evaluation committee as part of the process of reevaluation. Resort to the outside information did not compromise Goltz' and Bailey's ability to perform a fair and impartial reevaluation.
In furtherance of their charge, Ms. Goltz, Mr. Bailey, Robert Estevez, William Hunter, Robert Hunter, and George Banks, members of the original evaluation committee, reconvened for purposes of reevaluating and rescoring those items referred to in the Lottery Secretary's June 4, 1997 order. The meetings that were conducted to conclude the process were held on dates commencing August 11 and ending August 28, 1997. For the most part those sessions were conducted in public. The exception being that in instances where confidential materials were being considered, the public was not allowed to attend. In these sessions the committee members were encouraged to openly discuss those issues associated with the reevaluation process.
Before the committee went into session, the individual evaluators had prepared themselves for the joint sessions by reviewing the materials that had been provided to assist them in performing the duties called for by the Lottery Secretary's final order.
The pre-meeting activities engaged in by the individual evaluators were designed to assist those persons in their ability to meaningfully participate in the meetings.
In the first meeting conducted on August 11, 1997,
Ms. Goltz directed the meeting by reference to the requirements set forth in the final order in DOAH Case No. 96-5461BID and the relevant terms of the recommended order. The discussions in this meeting, together with the discussions held in the meeting that occurred the next day were designed to identify the appropriate means to honor the instructions from the Lottery Secretary in her final order, which called for the reevaluation of those sections either in whole or in part. The discussions that pertained to the RFP requirements in Section 3 as they influenced the reevaluation process were very specific. This discrete treatment of provisions within Section 3 of the RFP was an attempt to make certain that the committee members complied with the final order in its adoption of the recommended order concerning the method for categorizing requirements within Section 3 to allow the committee members to properly reevaluate and rescore the responses to that section offered by the vendors. Having in mind the direction given by the Lottery's Secretary concerning the categorization of provisions within Section 3 of the RFP, the committee determined to consider the various subsections to Section 3 as follows: 1. Compliance only; 2. Evaluation; and
Evaluation that considers alternative or additional features
not specifically called for by Section 3 of the RFP.
Category 1: "In compliance," referred to the examination of the vendors' responses in view of specific requirements in Section 3 to the RFP without the necessity to perform a further evaluation.
Category 2: "Evaluation," referred to an examination of responses to requirements within Section 3 of the RFP where the vendors were afforded latitude concerning the manner in which the vendors would propose their solutions to that requirement to be compared to the competitor's solutions.
Category 3: "Evaluation of Additions or Alternatives" allowed for the valuation and comparison of additions and alternatives proposed by the competitors in response to a given requirement set forth in Section 3 of the RFP.
After much discussion the committee members reached consensus upon the categorization of discrete requirements within Section 3 of the RFP, but left open the possibility that an individual committee member in rescoring the responses to Section
3 of the RFP could abandon that agreement in favor of his or her insights.
The basic method that the committee decided upon for complying with the final order instructions concerning the method of reevaluation of Section 3, in conformance with the discussion in the recommended order in DOAH Case No. 96-5461BID, reasonably adhered to those directions from the Secretary in her final
order.
In considering the features associated with the responses to Section 3 of the RFP that required reevaluation by the committee in a comparative setting, the committee decided that the individual evaluators would separately determine the value of the respective features proposed in relation to the needs of the Lottery.
The committee in the reconvened evaluation process did not arrive at a consensus concerning the method to be employed in scoring the responses to Section 3 once that section had been broken down into the categories. Section 3 of the RFP called for the assignment of a maximum of 40 points in scoring. How an individual committee member would assign those available points following the implementation of the basic method of reevaluation through the categorization that has been described was left to the judgment of the individual evaluator.
Treatment of Section 2 to the RFP was left to the individual members of the evaluation committee who had specific responsibilities for making a limited reevaluation in accordance with instructions in the final order and the July 7, 1997 correspondence of Ms. Osburn. The only reference to those matters in the open sessions chaired by Ms. Goltz was to remind those individual committee members to comply with the directions set forth in the final order and correspondence by Ms. Osburn. Similarly, information which was provided by AWI as an amendment
to its response to subsections 4.6.1 and 4.6.2 was to be considered in keeping with the terms of the final order on its face. For purposes of re-scoring, that opportunity did not involve a comparison of AWI's original submission in response to sub-subsections 4.6.1 and 4.6.2 of the RFP and the amendment.
The committee meetings that were held in August 1997 were not dominated by any single evaluator or combination of evaluators. Nonetheless, when evaluating responses to Section 3 of the RFP careful attention was given to the Lottery members' insights about the proposed technology as it might benefit the Lottery in reaching its goal to increase the profitability of the Lottery games that it promoted. Ms. Goltz, Mr. Estevez, and
Mr. William Hunter were the Lottery employees that participated in the reevaluation.
Having established the categories for evaluating responses to Section 3 of the RFP, the evaluators spent several days discussing the responses to that section in keeping with the procedures contemplated by the three categories that have been described in prior paragraphs. Following the meetings that ended on August 28, 1997, the committee members were left alone to score the responses to the proposals for Section 3 and portions of Sections 2 and 4, with the responsibility to submit their scores on September 2, 1997. Scoring was conducted and turned in as expected. In performing the tasks of reevaluation and rescoring for the select items described in the final order, the
committee members had sufficient opportunity to apprise themselves of the details of the responses through the committee members' individual assessments and by virtue of the meetings that had been participated in by the committee members.
INDIVIDUAL REEVALUATIONS BARBARA GOLTZ
In preparation for her reevaluation and rescoring, Ms. Goltz read the expert testimony provided to her, and the redacted copies of the recommended and final orders. She read
the responses to the RFP for Section 3 and compared the vendors' suggested solutions and made notes in the course of that process.
In preparing to meet with other evaluators Ms. Goltz also reviewed the notes that she had made from the prior evaluation. Other sources referred to by Ms. Goltz, independent of the actions of other evaluators, were a glossary of terms that she had obtained before the reevaluation, and another book purchased at the commencement of the reevaluation which served to educate her concerning the reevaluation process. The two books that Ms. Goltz relied upon to assist her in understanding materials submitted through the reevaluation process were "Voice and Data Communication Handbook" and "Guide to Networking and Internet Working Terms." However, a knowledge of this source material is not perceived as compromising Ms. Goltz in the reevaluation and rescoring of the relevant sections, having considered her explanation of her activities at hearing.
In response to the instructions for the specific treatment of Section 2, Ms. Goltz deducted a point from her previous score for AWI in relation to the fact that AWI currently provides services to the Lottery. Ms. Goltz in consideration of the requirements in the final order, as further explained in the July 7, 1997 correspondence from Ms. Osburn, added back one-half point to AWI in relation to Section 2 that had been deducted in the original evaluation because of problems that AWI had experienced with its major subcontractor EDS. On balance, this meant that one-half point had been deducted from the original AWI score. These actions taken by Ms. Goltz were consistent with the expectations of the final order. Neither Ms. Goltz nor other evaluators were expected to completely reevaluate and rescore the vendors' responses to Section 2 through the reevaluation process.
Based upon Ms. Goltz' rescoring of Section 2, AWI received 13 points. GTECH's score remained constant at 13 points of the available 15 points for that section.
Ms. Goltz took notes in the course of the committee meetings held in the reevaluation process. Those notes assisted her in performing the task of reevaluation and rescoring.
To rescore responses to Section 3, she determined that the subsections within Section 3 were of equal import, except subsections 3.1 and 3.11.
She did not perceive that subsection 3.1 required scoring. That subsection is entitled "Purpose and Introduction."
Likewise, Ms. Goltz did not award scores for responses to Subsection 3.11. That subsection is entitled "Presentation of the Proposed System." In the main the subsection refers to the demonstration of the particulars of the proposed solution for Section 3, which was achieved by the vendors through site demonstrations. Ms. Goltz refers to subsection 3.11 as "bench marking."
For the remaining nine subsections within Section 3, Ms. Goltz divided the available 40 points equally, making each subsection worth 4.44 points. The points for each subsection were further subdivided into sub-subparts. Next, Ms. Goltz determined, based upon information that had been provided to the evaluators concerning the characterization of responses to the RFP, that each vendor in response to the overall requirements of Section 3 was entitled to 81 percent of the available 40 points. That percentage is the lowest level of "outstanding" within the scoring scheme which had been identified in the prior evaluation process. This meant that in a more discrete examination of the proposals beyond that point, the vendors would vie for additional points above the 81 percent score they both were awarded. Basically, the vendor would be awarded points for any benefits in its proposals that exceeded minimal requirements set forth in Section 3, in association with the nine subsections that were considered in their substance.
By using the scoring formula that has been described for Section 3, Ms. Goltz awarded 33.31 points to GTECH and 32.76 points to AWI of the available 40 points.
In particular, for Subsection 3.2, which had eight sub- subparts, a vendor could receive a maximum of .555 points for each sub-subpart and would receive no less than .45 points for each sub-subpart. GTECH received .555 points for sub-subsections 3.2.1, 3.2.2, 3.2.3, and 3.2.6 under subsection 3.2, System Configuration Requirements. Ms. Goltz was influenced in awarding the full points to GTECH in the sub-subsections described by virtue of the capacity which GTECH demonstrated at the site visit which GTECH conducted in Washington State.
By contrast, for sub-subsections 3.2.1, 3.2.2, 3.2.3, and 3.2.6, AWI received 86 percent of the available points for those sub-subsections, meaning that the AWI score was 1.91 compared to the 2.22 for GTECH. Ms. Goltz was persuaded that AWI should be given that score by comparison based upon the benchmark speed of its system when contrasted with GTECH's benchmark speed. Benchmark speed for AWI was in association with the site demonstration in Maryland.
In arriving at her scores for GTECH, she awarded all available points for subsection 3.2.1 without recognizing the merit of GTECH's proposal to offer a central system that would operate 24 hours a day. Ms. Goltz did not perceive that the offer to operate 24 hours a day was more valuable to the Lottery
when compared to the AWI response of "at least 23 hours of operation."
Sub-subsection 3.2.4 is entitled, "Remote Logging." Ms. Goltz awarded AWI a score of .55, because AWI offered a third, dedicated, pair of logging devices that were not mandated
by the requirements of the RFP. Remote logging in her estimation was not associated with the aforementioned items under subsection
3.2 that pertained to the system subject to benchmarking at the site visits. Related to sub-subsection 3.2.4, GTECH had not offered the additional logging devices. Therefore, GTECH received the minimum outstanding score of 81 percent of the possible points for sub-subsection 3.2.4.
Ms. Goltz found no other features that were presented in the responses for subsection 3.2. that warranted extra credit. Consequently, the vendors only received 81 percent of available points for the remaining sub-subsections within subsection 3.2.
Subsection 3.3 is entitled, "Communications Network Requirements." There are four sub-subsections within that subsection. This meant that in accordance with Ms. Goltz' scoring method each sub-subsection would receive as many of 1.11 points, with no sub-subsection receiving less than 0.90 points, which by her calculations equated to 81 percent, the lowest "outstanding" score a vendor could receive. In many respects she found the proposals to be similar. She found the proposals by
the competitors to use current technology. Nonetheless, GTECH was found to be more advanced in the sense of taking greater advantage of newer technologies and being more complete in the details of its proposals. In recognition of the GTECH proposal, she provided additional points to GTECH under sub-subsection
3.3.1 for "General Requirements" and sub-subsection 3.3.4 "Communications Technologies." Ms. Goltz also awarded additional points to GTECH for providing more detail in the description of the offering.
The distinction between the points awarded to GTECH for sub-subsections 3.3.1 and 3.3.4 compared to AWI in those same sub-subsections was that GTECH received 100 percent of available points, contrasted with the 81 percent received by AWI.
Sub-subsection 3.4 is entitled Terminal Requirements. It has four sub-subsections. Ms. Goltz was impressed by the following features by AWI for which she awarded points:
The ability to not only display, but also to print, information in a language other than English which GTECH did not offer.
AWI provided a motor-driven shearing device as opposed to the GTECH offering of a solenoid shearer according to the AWI proposal. The motor-driven shearing device has a longer mean time between failures than the solenoid shearer.
AWI could produce a ticket from another ticket rather than a play slip, unlike the GTECH offering.
The AWI proposal had the capability of designating terminals to serve as the "head"
terminal for a chain store as contrasted with the GTECH proposal which did not mention that capability.
The AWI proposal offered a colored customer display on its retailer terminals, which was not mentioned nor described by GTECH in its proposal.
AWI offered a number of special purpose terminals, in addition to the standard retailer terminals, whereas GTECH did not describe special purpose terminals in its response.
Ms. Goltz perceived the previously described features as technical capabilities that AWI offered that would tend to enhance sales of the Lottery products and increase retailer convenience.
Special purpose terminals that were described were 26 omni point, 23 omni check and 13 omni pak.
Based upon the features that have been described in relation to terminals, Ms. Goltz added 0.221 points to AWI's score.
In this instance, Ms. Goltz did not ignore the fact that GTECH had offered extra features and capabilities that exceeded the minimal requirements of the RFP; however, Ms. Goltz felt that those extra features by GTECH should not receive additional points because they were comparable to AWI's offerings that were equivalent to or offset the features being described by GTECH.
In relation to the memory capacity of the retailer terminals that were proposed by GTECH, Ms. Goltz did not believe that GTECH should be awarded additional points. Therefore, she did not award points to GTECH for memory capacity.
Subsection 3.5, entitled "Online Ticket Gaming Requirements," has 13 sub-subsections. Ms. Goltz awarded GTECH the minimum outstanding score for each of those sub-subsections of 0.341. AWI received a score of .341 for 11 of the 13 sub- subsections and earned additional credit for its response 3.5.10 entitled "Existing Games" and 3.5.11 entitled "Future Games and Features." As a result AWI received a total 3.73 points for subsection 3.5. One basis for awarding additional points to AWI was in association with the belief that AWI was offering 16 games under sub-subsection 3.5.10 and GTECH was offering 10 games in response to that requirement to offer a minimum of 10 games.
Part of the additional credit to AWI was in association with a feature described as "Play it Again."
Subsection 3.6 entitled "Instant Ticket Gaming Requirement" had 13 sub-subsections. Other than sub-subsection 3.6.4.A, "Game Creation/Games Definition," Ms. Goltz did not find the proposals to be subject to the award of any points above the
81 percent attributable to minimal "outstanding" responses. GTECH received 0.321 points for its response to sub-subsection
3.6.4.A by offering significantly more prize levels than had been offered by AWI.
Sub-subsection 3.2.5 entitled "Remote Access", sub- subsection 3.2.7 entitled "System Controls," and sub-subsection
3.2.8 entitled "Transition Year," were considered matters about which the vendors had to demonstrate compliance. Ms. Goltz did not perform any further evaluation of these sub-subsections, in that she was not persuaded that these requirements pertained to performance, thus necessitating a comparison between the
vendors concerning the vendors' respective proposals. Moreover, Ms. Goltz did not find that the vendors had offered alternatives to the requirements set forth in the RFP.
In response to the requirements for rescoring the AWI amended response to subsection 4.6 entitled "Corporate Support and Capabilities," Ms. Goltz had originally limited her consideration to the amendment by AWI which did not cause her to change the score under reevaluation from the score that had been given in the initial evaluation performed under DOAH Case No. 96- 5461BID. Ms. Goltz in examining the AWI amended response to subsection 4.6 believed that AWI would be capable of performing the services needed by the Lottery and that the score for section
4 should remain 13.5. At hearing Ms. Goltz made a comparison of the original AWI response to section 4.6 to the amended response to the subsection. Her conclusion following that comparison was that the personnel described in the amendment had comparable, if not better credentials than those in the original response. That comparison did not cause her to change her original view.
Following the comparison of the original AWI response to subsection 4.6 to the amended response to that subsection, she left the score at 13.5 for AWI as contrasted with 13 points for GTECH of 15 available points.
ROBERT ESTEVEZ
Concerning Section 2, the final order in DOAH Case No. 96-5461BID and the July 7, 1997, correspondence from
Ms. Osburn reminded Mr. Estevez that he should consider AWI's experience in Arizona through the period December 15, 1995, as reported in the AWI response to that section and rescore section
2 accordingly. Having carried out those instructions Mr. Estevez found no basis for changing his score for the overall section 2. That meant that his score for AWI in relation to section 2 was 13 and the score for GTECH was 13.
Mr. Estevez in his reevaluation of section 3 basically compared the responses by the vendors incrementally. He made the comparisons whether the evaluation committee in its consensus had categorized the provision within section 3 as a "compliance item" or an item requiring the evaluation committee to "evaluate."
Mr. Estevez in preparing to score made numerous notes of the features proposed by the vendors listing them side by side to assist him in making a comparison. He performed this assessment with the assistance of the expert testimony which he had reviewed. This process was one in which he was trying to ascertain the qualities of the proposals.
For scoring purposes, section 3 was divided into four scoring groups of equal weight. This was in relation to the 40 available points for section 3. He found that the vendors' responses to the four scoring groups were "outstanding" and merited an 80 percent minimum score for the four groups in his scoring system. Basically, Mr. Estevez awarded any additional points above the base "outstanding" rating in those instances where he had decided that one vendor was offering a beneficial additional feature that was not offered by the other vendor or both offered essentially the same additional features but one vendor's similar offer was materially superior to that of the competitor. He looked for features exceeding the minimum requirements and scored those features based upon the relative merit of the features exceeding the minimum following a comparison with similar information provided by the competitor.
Mr. Estevez grouped the subsections within section 3 as follows: Group 1: subsections 3.1 and 3.2; Group 2: subsection 3.3; Group 3: subsections 3.4 and 3.5; and Group 4: subsections 3.3 through 3.10. The scores arrived at by comparison within the four groups were as follows:
AWI GTECH
Group 1: 8 9
Group 2: 9 8
Group 3: 10 8
Group 4: 9 9
TOTAL 36 34
In accordance with his scoring concept related to Group 1, GTECH was considered superior to AWI in relation to system configuration requirements based upon the greater processing speed of the proposed central system, the scaleability of the central system, the system performance at the site visit and to some extent the memory of GTECH's proposed system which would cause GTECH to have a higher level of response. While recognizing the greater memory capacity of GTECH, Mr. Estevez felt that that capacity was offset by the AWI offering of additional logging devices in its proposal.
In association with the Group 1 scoring for section 3, Mr. Estevez did not believe that the ability that GTECH had in its central system to operate 24 hours a day, as opposed to the offer by AWI to operate a minimum of 23 hours a day warranted additional points for GTECH. This belief was partly based upon his perception that the operating costs to the Lottery for running the system for the additional period of time between the offer by AWI and GTECH were not known. Nor did Mr. Estevez credit GTECH for its discussion of the ability of its system to support a B2 security rating. In his analysis he was not sure that the language of the GTECH proposal actually intended to provide a B2 security rating. Additionally, he was uncertain based upon the information provided by GTECH whether the B2 rating would benefit the Lottery, in that he was persuaded that
there would be some internal expense to the Lottery in adjusting to the B2 level of security.
Under Group 2, associated with subsection 3.3, Mr. Estevez noted the difference in the technology in the proposals for telecommunications. Mr. Estevez compared the
systems and the components within those systems proposed by the vendors and relied on the testimony of experts to assist him in understanding the proposals. He found both vendors' systems to be reliable. Mr. Estevez concluded that the GTECH system had a greater number of terminals that could be affected if there were an outage in the wireless portion of the GTECH system. The GTECH proposal, as he understood it, had as many as 40 retailers connected to a single master radio. By contrast, AWI would connect no more than 20 retailers to a single master radio. The GTECH proposal had a redundant master radio associated with those master radios serving 30 retailers or more. In the event that a master radio was backed up with a second master radio in the GTECH proposal, the second master radio would be located on the same radio tower as the first master radio. The AWI backup master radio for the first master radio would be located on a separate radio tower.
In connection with the security of master radio sites, Mr. Estevez had concerns about the GTECH and AWI proposals. In particular he had concerns based upon information provided by GTECH as part of site survey information in report no. 11 for
Naples, Florida. He found that this example showed that the equipment being used for the Lottery operation would be located in a room accessible by tenants to that building other than the Lottery. Taking this as an example, Mr. Estevez believed, based upon his own insights, that security in such a location would be non-existent.
Finally, Mr. Estevez believed that the tele- communication system proposed by AWI was better suited for Florida when compared to the GTECH proposal. Mr. Estevez, in his opinion of the GTECH system, was concerned about inclement weather in Florida as that weather would influence the satellite component of the GTECH proposal. With this in mind, Mr. Estevez awarded AWI one more point for Group 2 than he awarded GTECH.
In relation to Group 3, associated with terminals, Mr. Estevez felt that both the vendors offered outstanding solutions but he believed AWI was superior to GTECH in that AWI
offered the following distinguishing features: 1. AWI's unitary and modular retailer terminals; 2. AWI's special use, omni point and omni check terminals; 3. the capabilities of AWI's retailer terminals to act as the lead terminal for chain stores;
AWI's player registration and subscription feature; and 5. AWI's "Play It Again" and automated coupon entry features. These extra features, as Mr. Estevez understood it, allowed the sale of on-line quick pick tickets, pre-validation, sale of tickets at remote events from hand-held terminals and automated coupon
entry, which would help the retailers and favorably impact sales of Lottery products in ways not described by GTECH.
Mr. Estevez noted the AWI registration and subscription feature "Players Club" when compared to the GTECH offer of "Player Express" was more advantageous because it was included as part of a base price, whereas he perceived that the GTECH offering was for a price yet to be determined following a later discussion with the Lottery. In relationship to the comparison of "Players Club" against "Player Express" Mr. Estevez concluded that the AWI version had options such as electronic market surveys and winners' insurance, features not offered by GTECH. These distinctions led Mr. Estevez to assign AWI 10 points for Group 3 and GTECH 8 points for that group.
Under his Group 4 scoring for section 3, he looked at that group as an overall process comparing any additional features or items offered by the respective vendors which might benefit the Lottery. Through this process he determined that benefits from one vendor were offset by benefits from another vendor. Eventually, he determined that each vendor should receive 9 points, and that the offerings by the vendors did not form the basis for scoring one vendor higher than the competitor.
In evaluating AWI's responses to sub-subsections 4.6.1 and 4.6.2 he initially tried to recall what had been proposed by AWI originally to contrast that with the amended information
which had been provided as part of the reevaluation process. By this approach, the score that he had assigned originally for AWI did not change. When given the opportunity to reread the original submission by AWI for those subsections and to compare the original submission with the amendment to the sub- subsections, he did not change his impression concerning the score that AWI should receive. Ultimately, through the reevaluation, as with the original evaluation, AWI received 12 points for section 4 and GTECH received 8 points for that section.
WILLIAM HUNTER
In relation to section 2 of the RFP Mr. W. Hunter had been instructed by the final order, as further explained by the July 7, 1997 correspondence from Ms. Osburn, to make corrections in association with the benefit to AWI for its familiarity with the Lottery, as an incumbent, to not penalize GTECH based upon information from responses to other sections within the RFP associated with the GTECH proposal, to refrain from penalizing GTECH because of its lack of familiarity with the existing circumstances in the Florida Lottery and to set aside any deductions related to the AWI proposal because of problems associated with its relationship with EDS when the responses were made. Mr. W. Hunter adjusted his scores to section 2 in accordance with those instructions. In addition, Mr. W. Hunter deducted one-half point from the AWI score because of its
experience in Arizona as reported in its response to section 2. (This latter adjustment was not called for by the final order.) Otherwise, Mr. W. Hunter honored the instructions set forth in the final order. With the half-point deduction from AWI for its experience in Arizona and other adjustments, the result is that Mr. W. Hunter's score for section 2 is 14.5 for AWI and 15 for GTECH.
In reevaluating and rescoring responses to section 3, Mr. W. Hunter divided the 40 points available into ten subsections and further divided the subsections into sub- subsections. Where Mr. W. Hunter found the responses to be in compliance, without other value, the competitors received 50 percent of available points. The remaining 50 percent of available points were utilized to reflect value of features offered that surpassed the minimum requirements in the RFP. If a vendor had an item of additional value, the vendor received points for that item, otherwise not. In the event that both vendors had similar items of value, the vendors received extra points based upon a comparison of the additional items offered by the respective vendors.
In performing the reevaluation for section 3,
Mr. W. Hunter made comparisons between the responses of the vendors examining the details of the proposed solutions offered by the vendors, with an emphasis on the manner in which the proposed solutions were engineered.
The result of this analysis was a score of 25.58 points for AWI and 24.96 points for GTECH.
In relation to subsection 3.2, System Configuration, Mr. W. Hunter provided extra points to GTECH for sub-subsections 3.2.1, 3.2.2, 3.2.3, and 3.2.6. AWI also received extra credit for those subsections. In addition, AWI received extra credit for sub-subsection 3.2.4. in a setting where GTECH was not found to have a comparable feature in its response. By contrast, through a comparison of the responses by the vendors for sub- subsections 3.2.1, 3.2.2, 3.2.3, and 3.2.6, GTECH was found to offer the superior solution. Thus, GTECH received more points than AWI.
Specifically, in relation to subsection 3.2.1, AWI was credited for its offer to operate at least 23 hours a day and was given .125 points for that offer. GTECH was given 0.2 points for its willingness to operate 24 hours a day.
In connection with sub-subsection 3.2.2, Mr. W. Hunter concluded that the GTECH offer of the GEMS system, with its duplicate test system, would be more advantageous than AWI's IMM system and report server, with GTECH receiving 0.13 points and AWI 0.125 points for these features.
In connection with sub-subsection 3.2.3, the AWI offer of its IMM system and report server was provided a score of 0.13, whereas GTECH's GEMS system without test equipment received 0.125
points.
In connection with memory capacity of the proposals, Mr. W. Hunter did not perceive that the vendors had described capacity in excess of what was needed to operate the proposed systems. Accordingly, no extra points were received for the amount of memory proposed by the vendors. Likewise, the vendors did not receive extra points for the description of the upgrade paths that would be involved in changing out the Lottery operation. Finally, Mr. W. Hunter did not believe that the multiprocessors offered by GTECH would create greater advantage when compared to the uniprocessors offered by AWI.
The basis for awarding extra points to AWI under sub- subsection 3.2.4 was related to two extra report loggers being proposed by AWI which caused him to award 0.125 extra points. Under that same sub-subsection AWI also received 0.05 points for its description of the proposed timing of the purging of ticket stock information, compared to the GTECH solution which
Mr. W. Hunter believed would not ensure the ticket stock information was retained for a sufficiently long period of time.
Related to subsection 3.2, Mr. W. Hunter created a mathematical formula to determine extra points to be awarded the two vendors for demonstrating their ability to operate at throughput rates that were in excess of what was required by the RFP. In doing so he took the maximum transactions speed that had been demonstrated in the site visits conducted by the vendors and
subtracted the required throughput rate and then divided by the required rate and multiplied the resulting percentage by the demonstrated rate. This was followed by a multiplication by 0.25 points which had been allocated for scoring the additional features and capabilities. By this process GTECH received 0.1 points and AWI received 0.05 points. Those scores were rounded to arrive at the final answer.
In relation to subsection 3.3, Communication Network Requirements, GTECH received an overall score of 2.05 compared to the 2.0 points for AWI. The distinction which Mr. W. Hunter made for those systems was that GTECH provided greater detail in its design than AWI. Nonetheless, Mr. Hunter did compare the overall communications networks proposed by the vendors, and relied upon expert testimony from the vendors to assist him in that comparison. By this process he found that the vendors had complied with the RFP, but saw no advantage in terms of discrete items that warranted additional points for their value.
On the subject of the ability of a vendor to carry out the conversion plan, eventuating in the new system,
Mr. W. Hunter believed that section 4 of the RFP spoke to this necessity. Therefore, he did not attempt to ascertain whether the proposals by the vendors would conform to the requirement to make a timely conversion of telecommunications. In passing,
Mr. Hunter noted that the information provided in the proposals in response to the requirement in the RFP that the
telecommunications systems be implemented with the 180 days, did not lead Mr. Hunter to believe that the vendors would fail in that attempt.
Sub-subsection 3.4.1, Retailer Terminals, was a circumstance in which both vendors through their responses offered additional features deserving of credit. Specifically AWI received extra points for its willingness to provide unitary/modular terminals, special purpose terminals, the ability to use a retailer terminal as a head office terminal serving chain stores and the provision of color customer LEDs. This meant that AWI received 0.5 points for compliance and an extra score of 0.4 points. GTECH received a total score of 0.6 points, constituted of 0.5 points for compliance, and 0.05 points for the combination of its sign board attachment, handicapped-accessible terminals, removable bar code reader and terminal diagnostics. The remaining 0.05 points for extra credit related to features in the GTECH terminals was for the voice-sound option proposed by GTECH.
Through his evaluation Mr. W. Hunter did not believe that the memory capabilities of the retailer terminals proposed by the vendors warranted additional points.
The AWI special purpose terminals which Mr. W. Hunter referred to were the omni-point, omni-check, and omni-pak.
The handicapped-accessible terminals proposed by GTECH refer to the ISYS features. The GTECH removable barcode was
referred to as GVT.
In the instances of the additional credit given for AWI and GTECH in relation to the their retailer terminal proposals, the competitor did not offer comparable features.
Sub-subsection 3.4.2, Management Terminals, was a circumstance in which Mr. W. Hunter concluded that the only feature worthy of extra credit was a feature offered by both vendors to provide ad hoc reporting. Both vendors received 0.125 points in extra credit for that feature.
Subsection 3.5, On-Line Ticket Gaming Requirements, was an instance in which, in association with sub-subsection 3.5.9, Player Registration and Subscription, Mr. W. Hunter awarded AWI additional points for its "Players Club," wherein AWI was believed to register players through the use of retailer terminals, as contrasted with the mail-in registration system proposed by GTECH. In addition, pursuant to requirements of sub- subsection 3.5.10, Existing Games, Mr. W. Hunter gave additional credit for the AWI offering of a system that promised "as many as
16 simultaneous on-line games," as contrasted with the GTECH proposal response which stated that its "proposed system used to process your [the Lottery's] on-line gaming environment is equipped to handle as least 10 on-line games as required by the Lottery." In his analysis Mr. W. Hunter believed that AWI committed to 16 games and GTECH committed to 10 games, notwithstanding the GTECH discussion of its operation in other
jurisdictions which support 20 games, or in one instance even 30 games.
In connection with sub-subsection 3.5.11., Future Games, AWI received additional points for its offer of parameter- driven software at the CPU and at the terminal, in a setting where Mr. W. Hunter read the GTECH proposal as offering that software only at the CPU. Mr. W. Hunter also gave credit to AWI for the combination of automated coupon entry and "Play it Again" features found in the AWI proposal that were not sufficiently duplicated by GTECH.
Subsection 3.6, Instant Ticket Gaming Requirements, was an occasion in which GTECH received additional points under sub- subsection 3.6.4, Game Creation, for having 100 prize tiers which exceeded the requirement of 50 prize tiers. In association with sub-subsection 3.6.11, Ticket Validation, AWI and GTECH were awarded extra points for having an additional "pay inquiry" feature, referred to by GTECH as "Dollar Prompt." AWI received extra credit in the scoring under sub-subsection 3.6.14, Management Control, for offering messages of 40 lines with 800 characters, compared to GTECH's 800 characters with 20 lines. While GTECH offered the ability to broadcast up to 800 characters, those 800 characters must be provided within 20 lines. For Mr. W. Hunter this offer was not as advantageous as the offer by AWI to broadcast 800 characters within 40 lines.
In relation to subsection 3.7, Integration With Lottery
Systems, Mr. W. Hunter saw nothing in the proposals that warranted scores above the basic score for compliance.
In relation to subsection 3.8, Reporting Requirements, the vendors were given equal extra credit for their ad hoc reporting proposals. That credit amounted to 0.66 points.
A different treatment was given to the scoring subsections 3.9, Soft Ware Quality Requirements; 3.10, Acceptance Test Requirements; and 3.11, Presentation of the Proposed System. Mr. Hunter believed that these items were less quantifiable and not subject to assignment of extra points in a discrete fashion. He gave overall credit for compliance in these systems. He then added equal additional value to both of the proposals. Mr. W. Hunter did not attempt to compare the outcome of the two site visits and the manner in which the presentations were made by the vendors at the site visits. His belief was that those presentations were essentially the same.
Mr. W. Hunter's understanding of the requirements of the final order in relation to subsection 4.6, was to consider new information provided by AWI to see if it would change the score he awarded AWI for the overall section 4. Through this review he did not believe the score should change. At hearing, having examined the original submission by AWI for subsection 4.6 compared to the amended information, Mr. W. Hunter did not believe that the AWI score should change for section 4. This
meant that the AWI score for section 4 was 13 and the GTECH score for section 4 remained at 10 points.
ROBERT HUNTER
In accordance with the instructions contemplated by the final order and the Osburn letter, Mr. R. Hunter deducted a point from AWI in the rescoring of section 2. As a consequence AWI received a score of 14 for section 2. GTECH also received a score of 14 for section 2.
Mr. R. Hunter's understanding of the requirements for reevaluating and rescoring section 3, unlike his instructions for section 2, was that the entire section 3 was to be reevaluated and rescored. To prepare himself for the task, Mr. R. Hunter read the proposals by the vendors for section 3, making notes of what was contained within those proposals, looking for differences and distinctions in the proposals and performing a limited preliminary evaluation while recording his impressions of the responses.
Mr. R. Hunter concluded that the responses by the vendors were very good. To distinguish the responses, Mr. R. Hunter tried to impose a system of allocating points for items that he considered to be superior in the proposals by the use of a mathematical formula. He finally concluded that this method was too complicated. In the last analysis Mr. R. Hunter used adjectival ratings contemplated by the scoring sheets that had been initially provided by the Lottery. In that connection he
found both proposals to be "outstanding." He then listened to the discussions in the committee meetings to discern which among the items proposed by the vendors would offer added value to the Lottery. To help remember those items for purposes of rescoring, Mr. R. Hunter took notes during the course of the committee meetings. He also read the transcript of the committee meetings that had been prepared during the reevaluation process as a means to assist him in rescoring. He took additional notes as a result of reading the transcript of the meetings involved with the reevaluation process.
In performing the reevaluation and rescoring, Mr. R. Hunter relied heavily on the discussion by the Lottery committee members concerning any additional items offered by the vendors beyond the basic requirements set forth in the RFP and the value that those additions would have to the Lottery.
In carrying out the reevaluation and rescoring of section 3, Mr. R. Hunter had made his judgments in a side-by-side comparison of the proposals, relying on the testimony of the experts taken in the initial hearing in DOAH Case No. 96-5961BID as a means to understand the proposals.
In the review of the material that had been submitted to Mr. R. Hunter, he noted the conflict in the opinions of the experts in the testimony given in association with the initial hearing in DOAH Case No. 96-5961BID. For that reason it was hard to distinguish which vendor had the better proposal. Confronted
with this dilemma, Mr. R. Hunter concluded that the principal distinctions which he saw in the proposals, were the AWI methods of maintenance of retailer terminals, wherein the entire retailer terminal would be removed and substituted when repairs were affected, as opposed to repair of individual items at the retailer location by GTECH and the fact that AWI offered an optional modular terminal, constituted of various components, and GTECH did not.
Mr. R. Hunter also afforded additional credit to AWI for specialty terminals offered in its proposal.
In relation to sub-subsection 3.4.1, Retailer Terminals, Mr. R. Hunter, based upon information provided to him in the committee meetings conducted in the reevaluation, did not believe that the retailer terminal memory capacity as described by the vendors created a reason to assign additional points, in that the memory capacity had to be considered in connection with the overall systems proposed by the vendors.
On the GTECH side of the ledger, Mr. R. Hunter concluded that the telecommunications proposal by GTECH constituted of satellite and radio communication, as well as land lines was reliable. This caused him to "restore" two points to the score for GTECH that he had deducted in the initial evaluation associated with DOAH Case No. 96-5461BID.
Some other specific observations by Mr. R. Hunter in his reevaluation related to the recognition that GTECH offered a
24-hour operation in its system compared to the AWI offer of at least 23 hours, but the GTECH proposal to operate for greater periods of time did not sufficiently impress Mr. R. Hunter to cause him to grant GTECH additional credit in the scoring.
Another observation related to the AWI offer of additional logging devices, which Mr. R. Hunter concluded might offer incremental value, but not enough to adjust the score for AWI to add additional points.
Other examples of features offered by the vendors that did not warrant additional points were the AWI shearing mechanism for tickets and the GTECH handicap-accessible terminals.
Mr. R. Hunter evaluated the systems provided by two vendors as a whole, as contrasted with the consideration of the relative merits of the individual components within those systems. Through this process, he determined, based upon a consideration of the expert testimony, that both vendors could exceed the minimal requirements of the RFP for primary and secondary site configurations. However, he did not perceive from the information presented to him that either system was superior.
While recognizing that the throughput for GTECH and AWI exceeded the requirements mandated by the RFP, and that GTECH was generally superior to AWI, this did not impress Mr. R. Hunter sufficiently to add additional value to the GTECH score.
Mr. R. Hunter had concerns about the tele- communications proposals for both vendors but those concerns did
not influence his scoring. Those concerns included the question of security for radio tower sites and the ability of the vendors to obtain the necessary radio licenses in a timely manner.
Upon reflection, Mr. R. Hunter did not believe that one vendor's system was clearly superior to the other vendor's system. He awarded AWI 35 and GTECH 34 points for section 3.
In reevaluating subsection 4.6 through the amended submission of AWI, Mr. R. Hunter recognized that the purpose was to show the consequences of the termination of the relationship between AWI and its former principal subcontractor EDS.
Mr. R. Hunter read the resumes of the new people described in the amended submission by AWI to subsection 4.6 and noted that the persons in question were competent and in some instances had worked for EDS. This procedure was followed in connection with the committee sessions to reevaluate and rescore. As part of the hearing de novo in the present case, Mr. R. Hunter re-read the original AWI submission for subsection 4.6 in DOAH Case No. 96- 5961BID and compared those materials to the amendment in the present case made by AWI to that subsection. That comparison did not change his impression concerning the AWI amendment to subsection 4.6. Both through a consideration of the amendment alone and the amendment compared to the initial submission by AWI for subsection 4.6, Mr. R. Hunter maintained his score for AWI in relation to subsection 4.6. This meant that the AWI score for
section 4 remained 13 points. The GTECH score for section 4 was
11 points.
GERALD BAILEY
In preparing himself to perform the reevaluation and rescoring, Mr. Bailey reviewed materials that had been provided by Ms. Osburn prior to the first meeting. To assist him in his deliberations Mr. Bailey took notes and relied upon the committee discussions in the meetings. Mr. Bailey took part in the discussions in the meetings involved with the reevaluation process. He relied upon the testimony of experts in trying to compare the proposals by the vendors for section 3.
Specifically, Mr. Bailey in response to the instructions in the final order, as further explained in the Osburn correspondence related to DOAH Case No. 96-5961BID, removed the deduction of points for AWI's response to section 2 that pertained to his negative opinion of the AWI problems with its subcontractor EDS. As a result, 3.75 points were re-added to the AWI score for section 2. This meant that AWI received 15 points for section 2, the same number of points that GTECH received.
Mr. Bailey responded to the proposals for section 3 by concluding that both vendors were very competent. Therefore, each vendor was awarded the maximum of 40 points at the inception of his reevaluation. He then deducted points from the proposals by the vendors, one point at a time, in the instance where a
vendor had a proposal that included a disadvantageous feature or where a vendor failed to include an advantageous feature that had been offered by the competitor. In the event that benefits of features offered were negligible in their import or the exact detail of those features was not provided with the responses,
Mr. Bailey did not adjust the scores. In the event vendors would offer additional features, although not precisely the same features, which Mr. Bailey deemed to be of equal advantage, no point adjustment took place.
In particular, Mr. Bailey did not deem that the 24 hours operation of the GTECH system compared to "at least 23 hours," offered by AWI warranted an adjustment to the AWI score by deducting a point. In this consideration, Mr. Bailey took into account what the committee described as insufficient information about the cost impacts to the Lottery of operating the system for 24 hours as GTECH proposed.
Mr. Bailey did not perceive that the GTECH discussion of B2 security in its proposal warranted an adjustment of scores in favor of GTECH.
Mr. Bailey did not find that the memory capacity of the equipment offered by the vendors, even with the benefit of the expert testimony discussing the proposals by the vendors, gave him sufficient understanding to make critical judgments about the distinctions in the proposals. This meant that
Mr. Bailey did not decide that either vendor had offered additional memory beyond what was required by the RFP.
Mr. Bailey deducted a single point in relation to each of the following circumstances:
In sub-subsection 3.2.4, GTECH lost a point to AWI based upon AWI's additional management report logging devices;
In sub-subsection 3.2.6, AWI lost a point to GTECH based upon GTECH's higher transaction rates.
In sub-subsection 3.4.1, AWI lost a point to GTECH for GTECH's offering of musical tones and the paper cutter in its retailer terminals.
The decision about the additional logging devices took into account the comments of the Lottery committee members to the effect that separate logging devices would offer a greater access to reports by Lottery employees.
Mr. Bailey's deducted a point from the AWI score in association with sub-subsection 3.2.6, based upon GTECH's higher transaction rates.
At hearing Mr. Bailey adjusted the scores that he had initially assigned for sub-subsection 3.4.1 in relation to the GTECH offer of musical tones (emission of voice audio) and the paper cutter (shearer), in recognition of the fact that it was AWI, not GTECH that offered a motor-driven shearer, a technology which he considered superior to the solenoid shearer offered by
GTECH. On balance, this meant that no points were deducted from either vendor in relation to sub-subsection 3.4.1.
In relation to sub-subsection 3.5.9, Mr. Bailey deducted a point from GTECH in view of what he considered to be a superior subscription system offered by AWI under its "Players Club." Notwithstanding the opportunity to look at the "Player Express" system described by GTECH in sub-subsection 3.5.11,
Mr. Bailey continued to hold to the opinion that the AWI "Players Club" was superior to the GTECH "Player Express" when scoring
sub-subsection 3.5.9. Mr. Bailey perceived that the "Players Club" was part of a system being proposed for immediate implementation by the Lottery, while the GTECH "Player Express" was an option to be provided in the future, which to Mr. Bailey meant that the feature was not part of the base system being offered to the Lottery.
Mr. Bailey deducted a point from GTECH in relation to sub-subsection 3.5.11, in that the AWI "Play It Again" feature was found to increase the ease with which customers could play the lottery, in a setting in which the GTECH proposal did not have a comparable feature.
In relation to sub-subsection 3.6.14.G, Mr. Bailey deducted one point from GTECH based upon the AWI offering of a capability to broadcast messages to retailers of up to 800 characters, without breaking the message. Mr. Bailey compared that response to the GTECH response which talked about 800
characters "depending on font size." The GTECH solution was discounted because Mr. Bailey found that the reduction in font size would offset the value of offering the message with 800 characters.
No point adjustments were made to the vendor proposals for subsection 3.3, Communications Network Requirements.
Mr. Bailey set aside concerns he held in the initial evaluation in DOAH Case No. 96-5961BID related to the reliability of the GTECH telecommunications in its satellite component. He believed that GTECH had one solution for telecommunications and AWI selected another solution. He found neither system to be superior. His misapprehension that some portion of the AWI solution for the telecommunication system would be constituted of analog equipment might upgrade his view of the AWI proposal.
This is not seen to enhance his view of the GTECH proposal. Under the circumstances the misunderstanding by Mr. Bailey does not create the opportunity for the fact-finder to change his scores.
Mr. Bailey's final scores for section 3 were 39 points for AWI and 36 points for GTECH.
In rescoring subsection 4.6 for the AWI proposal, as amended, Mr. Bailey had considered that information in its entirety as part of the reevaluation and rescoring that took place within the committee. This did not change his impression of his scoring in section 4. When caused to reconsider the AWI
submission based on a comparison of the original submission for subsection 4.6 with the amended submission, in association with the hearing, this did not change his impression of the AWI submission. This meant that AWI received 15 points for section 4 and GTECH received 11.25 points as final scores for that section. Specifically, Mr. Bailey did not believe that the personnel or organizational structure for AWI had changed in quality from its original submission in DOAH Case No. 96-5961BID through the amendment in the present case.
GEORGE BANKS
The expectation for George Banks in rescoring
section 2, based upon the final order, was that Mr. Banks should not award points to AWI based upon its incumbency as the vendor serving the Lottery. With that in mind, Mr. Banks subtracted one and a half points from the AWI score for section 2. This meant that AWI received a score of 13.5 points and GTECH 15 points in the final analysis.
Generally Mr. Banks read all of the materials provided to him for purposes of the reevaluation before the committee met to perform the reevaluation. He took notes to assist him in isolating the features that were offered by the vendors that
he thought would provide additional value. His process of reevaluation was to reflect upon the proposal section by section. This effort was made in response to the reevaluation of section 3.
In performing the reevaluation for section 3,
Mr. Banks concluded that some subsections within that section were more important than others and warranted greater scores, by weight. He divided the 40 available points in section 3 by
making available 10 points for each of subsections 3.2 and 3.3; 5 points for each of subsections 3.4, 3.5, and 3.6; and a single point for each of subsections 3.7 through 3.11. By this process Mr. Banks arrived at a score of 36.5 for GTECH and 34 for AWI.
In performing the reevaluation and rescoring Mr. Banks took advantage of the expert testimony that had been given in the prior hearing associated with DOAH Case No. 96-5961BID.
Mr. Banks concluded that the GTECH proposed system configuration had equipment that was faster and had a higher transaction capability. As a consequence GTECH received additional points not given to AWI for site configuration. Mr. Banks also awarded additional points to GTECH for its telecommunications design in comparison to the AWI proposal.
In connection with the telecommunications design,
Mr. Banks felt more comfortable with the GTECH satellite offering having read the expert testimony. He also expressed concern about the ability of AWI to provide the proposed digital land lines by the beginning of the contract. Mr. Banks in relation to the AWI proposal for telecommunications did not feel that AWI had provided sufficient detail to allow him to determine whether a percentage of the AWI proposal for land line would be analog as
opposed to digital. Nonetheless, he did not consider the AWI proposal to be unresponsive in this matter.
Mr. Banks awarded extra points to AWI in association with subsection 3.4 because of the multiple terminals offered in the AWI proposal, its use of a motor driven paper cutter and color display and the ability to support remote sales events.
Unlike other evaluators, Mr. Banks in reevaluating the AWI response to subsection 4.6 principally directed his attention to the amendment, without the opportunity to make a direct comparison to the original to subsection 4.6 offered in DOAH Case No. 96-5961BID. The amendment itself did not cause Mr. Banks to change the AWI score for subsection 4.6 as it influenced the score for the overall section. This meant that the AWI score for section 4 remained at 15 as did the GTECH score.
OTHER CONSIDERATIONS
Beyond the general instructions given, the evaluators used varying approaches to their responsibilities to reevaluate and rescore. Nothing in their activities leads to the conclusion that the committee members were inherently biased or prejudiced in their decisions when considering the particulars of their choices.
Having had the benefit of the testimony of the experts who appeared in the initial hearing in DOAH Case No. 96-5461BID,
the opportunity to review their notes, to examine information related to the site visits, and the benefit of discussions in the committee meetings in the reevaluation, the evaluators were sufficiently informed to conduct a meaningful reevaluation and to assign their scores through the reevaluation process. In this pursuit, it was not unexpected, nor unreasonable for the non- lottery members on the committee to rely upon the insights of lottery members of the committee concerning the proposed technology presented by the vendors in their responses to Section
3 and its influence on lottery earnings.
The ultimate method for assigning scores in the reevaluation process was not described in the final order calling for the reevaluation. Even without that explanation, in competitive bidding it is expected that the evaluators conduct themselves in a manner which demonstrates fairness and impartiality. The evaluators carried out that expectation in dissimilar ways but without bias or prejudice.
Implicit in the decision by the secretary, announced in the final order, to have the original evaluators reconvene for the purpose of reevaluation and re-scoring, is the possibility that the evaluators were aware that AWI had offered a lower price for its services in response to the RFP. In fact, the evaluators acknowledged awareness of the low quotation for price offered by AWI. In their testimony offered at the hearing to reevaluate the responses, the evaluators disavowed the influence which a
knowledge of the price quotation had on their activities.
Nothing in the record supports a determination that the knowledge of price unduly influenced the evaluators in carrying out their responsibilities in the reevaluation. Generally, while grounds exist to question specific aspects of the activities of the committee when performing the reevaluation, the circumstances associated with those matters do not lead to a finding that the actions by any evaluator constituted a contrivance designed to favor one vendor. Mistakes that were made in the process of reevaluation and re-scoring do not point out a lack of impartiality, as opposed to occasional misapprehension of the requirements in the RFP or the responses to the RFP, specifically in relation to Section 3. None of the difficulties with the evaluators activities in association with the reevaluation and
re-scoring of Section 3, have a material influence on the outcome of the overall process in evaluating and scoring responses to the RFP, Part II.
In the course of the reevaluation of Section 3, if the information the evaluators were presented with was susceptible to more than one interpretation, the interpretation which the evaluators had in mind would be acceptable, if that interpretation was within the realm of reasonable interpretations.
The fact that some evaluators were reminded during the course of the hearing, by attorneys representing the Lottery and
AWI, that the evaluators should consider the original response in DOAH Case No. 96-5461BID, offered by AWI to subsection 4.6, as well as the amendment by AWI to that subsection, did not by the terms of that contact between the attorneys and the evaluators, compromise the ability of the evaluators to act impartially in responding to the AWI information related to the subsection.
At sub-subsection 3.2.1., General Systems Requirements, in relation to the operation of the proposed system it is stated:
The Respondent must propose a system capable of meeting the Lottery's current needs and expanding to meet the Lottery's needs as they expand throughout the term of the contract.
It is the desire of the Lottery to operate the proposed system twenty-four (24) hours a day, each day of the year. The proposed System must be capable of being operational a minimum of twenty-three (23) hours a day, each day of the year. The Respondent shall discuss how this requirement can be met including the impact of cost on various levels of performance.
This provision contemplates the desire of the lottery to operate 24 hours a day for each day of the year. In this connection, to the extent that the evaluators were convinced that they had the authority to consider the cost implications of operating a full day, each day of the year, they acted appropriately.
GTECH offered a proposed system that would operate 24 hours a day. That offer was clearly distinguishable from the AWI offer to operate at least 23 hours a day. The 23-hour offer by
AWI met the minimum requirements of the RFP but did not offer more.
While the Lottery has stated its preference to operate
24 hours a day and made it incumbent on the vendors to operate a minimum of 23 hours a day, the RFP goes on to discuss the need for the vendor to describe how the vendor would meet the impact of cost on various levels of performance. In response AWI speaks in terms of operating the minimum requirement of 23 hours per day without performance trade-offs and with no additional costs to the Lottery. By contrast, GTECH speaks in terms of a 24 hours per day operation and the belief that there are no known negative costs or impacts to operating 24 hours a day, followed by the observation that the additional hours associated with a 24-hour operation would promote higher sales of lottery products.
Both vendors have adequately followed the instruction to discuss cost impacts for their proposed levels of performance. Consequently, the perception held by the evaluation committee that the difference between 24-hour and 23-hour operation is marginal and not a worthwhile venture given conjecture about operating costs associated with the GTECH proposal, runs contrary to the RFP which recognizes the clear advantage of a 24-hour operation compared to the 23-hour minimum when cost impacts are adequately described.
Under sub-subsection 3.2.1., General System Requirements, there is also stated, in the requirement, that:
All systems proposed by the Respondent must meet or exceed the NATIONAL COMPUTER SECURITY CENTER'S security standard level C2 compliance.
To this requirement GTECH responded:
The proposed DIGITAL system complies with the NATIONAL COMPUTER SECURITY CENTER'S security
standard level C2 security rating. As a matter of fact, ALPHA systems can support up to B2 security rating.
It was not unreasonable for the evaluators to perceive that the offering by GTECH was for C2 only with its proposed system and that the reference to B2 capabilities generally associated with ALPHA systems was a comment in passing, unrelated to the proposal in this case.
In connection with subsection 3.3, Communications Network Requirements, in the expectation that the vendors would have their systems up and running within 180 days, the RFP contemplated the need to comply with that provision. The statement by the vendors that they could comply was sufficient, subject to other intrinsic proof within the responses to the RFP, or extrinsic proof, that the responses were incorrect in the assertion that the vendors could comply with that requirement. Based upon the record in the reconvened hearing, the evaluators acted within the proper exercise of their responsibilities by concluding that both vendors can meet the 180-day requirement for installation of the proposed systems. The recognition by evaluators that the Lottery could resort to liquidated damages
claims, in the event that the successful vendor did not comply with this requirement, has no bearing on the propriety of the evaluators' assessment of responses to the RFP as a means to determine the successful bidder.
In response to sub-subsection 3.5.9., Player Registration and Subscription, AWI made an offering, known as "Player's Club." That feature for registration and subscription is initiated by the retailer making available a membership form seeking information about the name, address and other demographics associated with the individual who completes the form. That form is then sent to the Lottery. At the inception of this process, a card is provided to the player at the retailer location. The card contains a unique nine-digit number that is swiped through the retailer terminal and the clerk hits a designated key to initiate the registration process for that card. The card is contemporaneously provided to the player. The card can then be used for playing lottery games by having the card swiped through the terminal with the entry of a play. In summary, to complete the registration process, information from the card must be entered at the retailer terminal, and the membership form provided sent to the Lottery separately. The player registration by AWI contemplates that the players pay a nominal registration fee to offset administrative costs. The technology in that process accounts for the fee in a way similar
to the recordation of on-line sales and can be accomplished in the same time frame as an on-line sale.
By contrast, GTECH's specific response to sub- subsection 3.5.9., generally describes the advantage of player registration and on-line subscription through a general discussion concerning the capture of information about the player's name, address and favorite numbers played. The means for capturing this information is not described. What is described is the use of that information associated with registration of players. The subscription method discussed in the GTECH proposal is one in which players purchase lottery subscriptions through the mail. In describing the method of player registration the GTECH proposal states that GTECH looks forward to working with the Lottery on the appropriate technology to facilitate player registration in Florida should the Lottery choose to pursue the option.
GTECH has further discussion of its proposals on registration in its response to sub-subsection 3.5.11, Future Games and Features. Under that heading, GTECH describes its "Player Express," and the sub-component of "Player Express" known as "Player Card System," said to expand the capabilities described in the player registration and subscription portion of its response to sub-subsection 3.5.9. The "Player Card System" within "Player Express" is said to create the opportunity for gaining more information about who plays the lottery based upon
the use of the card. In turn this will help the Lottery run promotions, special games, direct mail campaigns, et cetera, in the interest of increasing revenues. However, the GTECH description under sub-subsection 3.5.11, related to "Player Express" states that:
GTECH has committed to offering the lottery any of the new innovations as options for the future.
This can be taken to mean to include the option "Player Card System." Again, as with the description by GTECH in specific response to sub-subsection 3.5.9, as contrasted with the AWI description for that sub-subsection, GTECH is describing an intention for the future, not its proposal in the present competition with AWI. Under the circumstances it was appropriate for the evaluators to award points to AWI in this category without a similar award to GTECH.
Sub-subsection 3.5.10, refers to existing games. It states:
The CONTRACTOR must be capable of supporting the following games, as well as describing its ability to support up to as, but not limited to, a total of ten (10) on-line games.
In response to the category of ten (10) on- line games, AWI stated:
The MASTER LINK ADVANCE GAMING SYSTEM
supports as many as sixteen (16) simultaneous on-line games, surpassing the RFP requirement of ten (10).
It was reasonable for the evaluators to conclude that the commitment by AWI was for sixteen (16) on-line games.
In comparison, GTECH stated:
In Sweden our PRO:SYS system is currently supporting more than 20 on-line games, and Finland has now exceeded 30 on-line games. The lottery's only limitation would be the size of the central system. GTECH's proposed system used to process your own-line gaming environment, is equipped to handle at least
10 on-line games as required by the lottery.
It was appropriate for the evaluators to conclude that the GTECH offering did not commit to provide more than the minimum ten (10) on-line games, notwithstanding its description of its systems in other jurisdictions.
In association with sub-subsection 3.5.12, Dual Security Number, a careful reading of the GTECH proposal for this sub-subsection leads to the conclusion that G-Guard was a system offered to meet the basic requirements of the RFP. The
G-Guard system provided both encryption and decryption. Likewise the alternative solution by GTECH which would allow sign-on information to pass through the gaming system before being logged on the dual security system also employed the G-Guard system.
The alternative was not acceptable to the evaluators. The unacceptability of the alternative was not an improper choice by the evaluators. The misconception by the evaluators was the failure to recognize that G-Guard with its encryption and decryption also pertained to the basic solution. The failure to
credit G-Guard for its two forms of protection, encryption and decryption, offered in the basic solution, as with other oversights and mistakes described was not material in its import, because adjustments to the scores assigned for Section 3 would not change the overall result of the competition.
Sub-subsection 3.6.14G, Broadcasting, makes its incumbent upon the contractor to provide a system with "the ability to broadcast general messages to instant retailers, on- line retailers, or both, up to five hundred (500) characters or twenty (20) lines, whichever is greater." The AWI proposal said:
each message can be up to 40 lines of text exceeding the RFP requirements by 100%.
The maximum message size is 800 characters.
GTECH by contrast, stated that it had the ability to support that requirement within the sub-subsection. Elsewhere, in response to sub-subsection 3.5.5, Retailer Messages, GTECH stated "The Isys terminal can accommodate a system broadcast message of up to 500 characters in length, and emits an audible signal upon receipt of this message. Depending on the font size, the Isys terminal can display up to 40 characters per line for a maximum of 20 lines or 800 characters." Evaluators who saw the AWI solution as superior and awarded points accordingly were reasonable in that assessment.
OVERALL SCORES FOR RFP
The following constitutes a recapitulation of the scores received by the vendors, to include sections reevaluated
and those that were not:
AWI | Sec. 2 | Sec. 3 | Sec. 4 | Sec. 5 | |
Mngt. | Technical | OPS/Security | Marketing | ||
B.Goltz | 13 | 32.76 | 13.5 | 9 | |
R.Hunter | 14 | 35 | 13 | 8 | |
G.Bailey | 15 | 39 | 15 | 10 | |
R.Estevez | 13 | 36 | 12 | 10 | |
G.Banks | 13.5 | 34 | 15 | 10 | |
W.Hunter | 14.5 | 25.58 | 13 | 8 | |
Sub-total | 83 | 202.34 | 81.5 | 55 | |
Average | 13.83 | 33.72 | 13.58 | 9.17 Average subtotal = | 70.30 |
Cost Points | Awarded | 20.00 | |||
CMBE Bonus Points Awarded | 5.00 | ||||
TOTAL | 95.30 | ||||
G-TECH Sec. 2 | Sec. 3 | Sec. 4 | Sec. 5 | ||
Mngt. | Technical | OPS/Security | Marketing | ||
B.Goltz 13 | 33.31 | 13 | 9 | ||
R.Hunter 14 | 34 | 11 | 8 | ||
G.Bailey 15 | 36 | 11.25 | 10 | ||
R.Estevez 13 | 34 | 8 | 8 | ||
G.Banks 15 | 36.5 | 15 | 9 | ||
W.Hunter 15 | 24.96 | 10 | 7 | ||
Sub-total 85 | 198.77 | 6.25 | 51 | ||
Average 14.16 | 33.13 | 11.38 | 8.5 Average subtotal = | 67.17 | |
Cost Points Awarded | 16.99 | ||||
CMBE Bonus Points Awarded | 5.00 | ||||
TOTAL | 89.16 | ||||
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1) and (3), Florida Statutes (1997).
GTECH is adversely affected by the Lottery decision finding AWI responsible and responsive to the requirements in Part II of the RFP and finding that AWI is the higher-ranked competitor following the reevaluation in the present case. AWI is entitled to participate in a hearing to resolve the dispute between GTECH and the Lottery. Both GTECH and AWI have standing. Section 120.57(3), Florida Statutes (1997).
GTECH complied with the requirements for timely filing its formal written protests of the Lottery determination that AWI was responsible, responsive and the higher-ranked competitor following reevaluation. Section 24.109(2)(a), Florida Statutes, (1997).
In resolving the underlying factual disputes between the parties in the reevaluation, as a means to then examine the proposed agency action, that threshold determination shall be made upon the preponderance of the evidence. Section 120.57(1)(h), Florida Statutes (1997).
GTECH has the burden of proof to establish the allegations in its amended formal written protest and petition in the reevaluation. Section 120.57(3)(f), Florida Statutes (1997).
To resolve the disputed issues between the parties concerning the facts and law pled in the amended formal written protest and petition, a de novo hearing has been conducted, the Lottery having preliminarily determined that it intends to negotiate a contract with AWI as contrasted with a preliminary decision to reject all bids. The purpose of the hearing on the reevaluation was to determine whether the Lottery in its proposed action acted in a manner that was contrary to its governing statutes, its rules or policies or the specifications within Part
II. Ultimately, for GTECH to prevail, the evidence must establish that the Lottery’s actions as alleged in the petition were contrary to its governing statutes, its rules or policies or the requirements of Part II, to the extent that its actions considered through the de novo proof were shown to be clearly erroneous, contrary to competition, arbitrary or capricious. Section 120.57(3)(f), Florida Statutes (1997).
In the final order entered in DOAH Case No. 96- 5461BID, the Lottery Secretary made the policy decision to reconvene the process and to reevaluate responses to some items within the RFP. Having made that decision, it now must be concluded whether the process of reevaluation and rescoring in
the select sections leads to the determination of the winner in this competition.
Based upon the facts presented in the hearing to consider the reevaluation, the appropriate course is to declare the winner in accordance with the present RFP. That winner is AWI by virtue of the higher score it received in comparison to GTECH's score. Those scores respectively are 95.30 and 89.16.
The instructions that were given in the final order in DOAH Case No. 96-5461BID set forth the policy considerations in the process of reevaluation. Nothing in the statutes or rules pertaining to the Lottery prohibit the reconvening of the process for purpose of reevaluation and rescoring in select areas, as was ordered by the Lottery Secretary. The present case limits itself to the a determination of whether the reconvened process was conducted in accordance with the policy decision in the final order, as examined in the de novo hearing. Given the authority for the Lottery to proceed with reevaluation in accordance with the final order, there remains to be determined whether the activities that ensued beyond the decision to reconvene the bid process for a limited purpose, led to actions by the Lottery which is clearly erroneous, contrary to competition, arbitrary, or capricious. If actions are found to be in violation of those standards, those actions must be examined to determine if they are material in nature, such as to change the outcome in this case.
In accordance with the final order in DOAH Case
No. 96-5461BID, the reevaluation committee was reconvened. In accordance with that final order the committee members reevaluated and rescored select parts of Section 2. In accordance with the final order the evaluation committee reviewed Section 3 of the RFP, the proposals to that section, their notes on Section 3 from other occasions, the expert testimony in DOAH Case No. 96-5461BID, and reevaluated and rescored Section 3 consistent with the methodology that was set forth in the recommended order in DOAH Case No. 96-5461BID. For the most part, the evaluation committee members acted appropriately. As reported in the fact-finding, in some instances clear errors were committed, but the nature of those mistakes did not rise to the level of creating a material departure from the requirements of law, especially given that changes to the scoring in those limited areas in Section 3 where the problems arose would not influence the outcome of the overall scoring process for the RFP, Part II. The errors were not material. The actions taken in the reevaluation for Section 3 and other sections called for in the final order were not contrived such as to be contrary to competition.
The final order instructed AWI to submit an amended proposal for subsection 4.6 consistent with the hearing record in DOAH Case No. 96-5461BID, as it related to the EDS settlement and to do so by close of business on Wednesday, June 11, 1997. No
proof was presented to show that AWI did not comply with this direction. Based upon the amendment, the evaluators were to rescore sub-subsections 4.6.1 and 4.6.2. That instruction did not anticipate that the evaluators were responsible for ascertaining whether AWI had submitted an amended proposal for subsection 4.6 consistent with the hearing record in relation to the EDS settlement as to the substance of the submission. The committee members were only expected to examine the product of the resubmission. Arguably that examination included a comparison to the original submission in DOAH Case No. 96- 5461BID. That is a fair reading of the final order. The fact that the evaluators were reminded to consider the original submission by AWI in comparison to the amendment for subsection
4.6. by counsel for the Lottery and AWI, having considered the facts associated with that reminder, does not lead to the conclusion that the committee members were compromised in their ability to make a fair and impartial evaluation in a comparison of the AWI original submission and its amendment. The fact that one evaluator was not provided the specific opportunity to compare the original submission by AWI to its amendment is not material.
As directed in the final order the evaluators following the reevaluation and rescoring adjusted their overall scores as necessary and provided them to the Issuing Officer and this information led to the a new notice of award.
In summary, the results of the reevaluation in the present case, together with the results in DOAH Case
No. 96-5461BID, not part of the reevaluation process, lead to the conclusion that the contract in RFP No. 95/96-001/R should be awarded to AWI.
RECOMMENDATION
Based upon the findings of fact and the conclusions of law, it is,
RECOMMENDED:
That a final order be entered awarding the contract in the RFP 95/96-001/R to AWI, thereby dismissing the challenge by GTECH to that award.
DONE AND ENTERED this 20th day of February, 1998, in Tallahassee, Leon County, Florida.
CHARLES C. ADAMS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1998.
COPIES FURNISHED:
Thomas F. Panza, Esquire Mark A. Emanuele, Esquire Deborah S. Platz, Esquire
PANZA, MAURER, MAYNARD & NEEL, P.A.
3600 North Federal Highway
Third Floor, NationsBank Building Fort Lauderdale, Florida 33308
John R. Beranek, Esquire AUSLEY & MCMULLEN
Post Office Box 391 Tallahassee, Florida 32302
William H. Roberts, Esquire
W. Eugene Gandy, Esquire Department of Legal Affairs The Capitol
Tallahassee, Florida 32399-1050
Louisa H. Warren, Esquire Department of Lottery
250 Marriott Drive Tallahassee, Florida 32301
Martha Harrell Chumbler, Esquire Michael P. Donaldson, Esquire Post Office Box 190
Tallahassee, Florida 32302
Dr. Marcia Mann Secretary
Department of Lottery
250 Marriott Drive Tallahassee, Florida 32301
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 |
|---|---|
| Mar. 24, 1998 | Final Order filed. |
| Mar. 09, 1998 | Petitioner`s Response to Respondent`s Exceptions to Recommended Order Pursuant to the Uniform Rules of Procedure, Florida Administrative Code 28-106.217(2) (filed via facisimile) filed. |
| Feb. 20, 1998 | Recommended Order sent out. CASE CLOSED. Hearing held 10/22-24 & 27-31/97 & 11/05-06/97. |
| Jan. 16, 1998 | (From W. Roberts) Proposed Recommended Order filed. |
| Jan. 16, 1998 | Petitioner, GTECH Corporation`s Proposed Recommended Order filed. |
| Jan. 16, 1998 | (From M. Chumbler) Notice of Filing Intervenor`s Proposed Recommended Order; Intervenor`s Proposed Recommended Order; Sealed Document filed. |
| Dec. 31, 1997 | Order sent out. (PRO`s due by 1/16/98) |
| Dec. 30, 1997 | Reporter`s Errata Sheet filed. |
| Dec. 30, 1997 | Cover Letter to Parties of Record from M. Whiddon (& enclosed reporter`s errata sheet) sent out. |
| Dec. 23, 1997 | GTECH Corporation`s Motion for Enlargement of Time to File Proposed Recommended Order; Cover Letter (filed via facisimile) filed. |
| Dec. 22, 1997 | Notice of Filing; DOAH Court Reporter Final Hearing Transcripts (Volumes 14, 15, 16, 17, 18, tagged/1 Sealed Envelope) filed. |
| Dec. 10, 1997 | Notice of Filing; (Volumes 6-13 of 18) DOAH Court Reporter Final Hearing Transcript filed. |
| Dec. 03, 1997 | Notice of Filing; (Volumes 1-5 of 18) DOAH Court Reporter Final Hearing Transcript filed. |
| Dec. 02, 1997 | Order sent out. (PRO`s not to exceed 50 pages) |
| Nov. 17, 1997 | (Respondent) Response to Motion for Leave to File Proposed Recommended Orders in Excess of Forty Pages filed. |
| Nov. 14, 1997 | Petitioner GTECH Corporation`s Motion for leave to file Proposed Recommended Orders in Excess of Forty Pages (filed via facisimile) filed. |
| Nov. 10, 1997 | (Petitioner) Condensed Copy of Deposition of David Colombo (filed via facisimile) filed. |
| Nov. 10, 1997 | GTECH Corporation`s Amended Exhibit List; GTECh Corporation`s Proffer Regarding Expert Testimony (filed via facisimile) filed. |
| Nov. 05, 1997 | CASE STATUS: Hearing Held. |
| Nov. 03, 1997 | Letter to CCA from W. Roberts Re: Enclosing cases in support of Lottery`s and AWI`s position on attorney-client communications, or attorney work product filed. |
| Oct. 31, 1997 | Amended Notice of Hearing sent out. (hearing set for Nov. 5-7, 1997; 9:00am; Tallahassee) |
| Oct. 31, 1997 | (Petitioner) (I0) Notice of Filing Return of Service; (16) Affidavit; (11) Subpoena Ad Testificandum; (7) Subpoena Ad Testificandum Duces Tecum; (2) Return of Service Affidavit filed. |
| Oct. 22, 1997 | Intervenor automated wagering international`s response to Petitioner`s motion to submit depositions into evidence and motion to quash subpoenas filed. |
| Oct. 21, 1997 | GTECH Corporation`s compliance with order of prehearing instructions regarding list of witnesses, GTECH Corporation`s unilateral prehearing stipulation (filed via facisimile) filed. |
| Oct. 21, 1997 | GTECH Corporation`s supplemental exhibit list, GTECH Corporation`s compliance with order of preheating instructions regarding exhibit lists (filed via facisimile) filed. |
| Oct. 21, 1997 | Notice of appearance (John K. Aurell) filed. |
| Oct. 21, 1997 | Respondent and Intervenor`s joint prehearing stipulation filed. |
| Oct. 20, 1997 | Order sent out. (re: ruling on motion to strike) |
| Oct. 20, 1997 | Petitioner GTECH Corporation`s Motion to Submit the Deposition of Martha Harrell Chumbler, Esquire and Michael Donaldson, Esquire into Evidence; Petitioner GTECH Corporation`s Motion for Clarification (filed via facisimile) filed. |
| Oct. 17, 1997 | GTECH Corporation`s Second Request for Production of Documents to State of Florida, Department of Lottery (filed via facisimile) filed. |
| Oct. 17, 1997 | (Petitioner) (2) Notice of Filing Return of Service; (2) Subpoena Ad Duces Tecum; (2) Affidavit filed. |
| Oct. 16, 1997 | (Petitioner) Re-Notice of Taking Deposition (Duces Tecum) (filed via facsimile). |
| Oct. 16, 1997 | (Respondent) Emergency Motion for Protective Order filed. |
| Oct. 15, 1997 | GTECH Corporation`s Notice of Service of Answers to Automated Wagering International, Inc.`s First Set of Interrogatories (filed via facisimile) filed. |
| Oct. 14, 1997 | (Petitioner) Notice of Filing Return of Service; Return of Service Affidavit; Subpoena Ad Duces Tecum filed. |
| Oct. 14, 1997 | (Petitioner) Notice of Filing Return of Service; Subpoena Ad Duces Tecum; Affidavit filed. |
| Oct. 14, 1997 | GTECH`s Response in Opposition to AWI`s Supplemental Memorandum in Support of Motion to Strike or, in the Alternative, Motion in Limine filed. |
| Oct. 10, 1997 | AWI`s Supplemental Memorandum in Support of Motion to Strike or, in the Alternative, Motion in Limine filed. |
| Oct. 10, 1997 | Respondent`s Response to First Request for Admission filed. |
| Oct. 10, 1997 | GTECH Corporation`s Response to Automated Wagering International, Inc.`s Motion to Strike, or in the Alternative Motion in Limine filed. |
| Oct. 09, 1997 | Letter to CCA from Sheila Ross (RE: available date for hearing) (filed via facisimile) filed. |
| Oct. 09, 1997 | GTECH Corporation`s Notice of Service of Answers to State of Florida, Department of Lottery`s First Set of Interrogatories (filed via facsimile). |
| Oct. 08, 1997 | (Petitioner) Re-Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Oct. 07, 1997 | Certificate of Service of AWI`s First Interrogatories to GTECH filed. |
| Oct. 06, 1997 | (From W. Roberts) Notice of Service of Answer`s to Petitioner`s First Interrogatories filed. |
| Oct. 06, 1997 | (Intervenor) Notice of Filing Answers to Petitioner`s First Set of Interrogatories filed. |
| Oct. 06, 1997 | Petitioner, GTECH Corporation`s First Request for Admissions to Respondent, State of Florida Department of Lottery (filed via facisimile) filed. |
| Oct. 06, 1997 | (Petitioner) Notice of Taking Deposition (Duces Tecum) (filed via facsimile). |
| Oct. 03, 1997 | AIWI`s Motion to Strike or, in the Alternative, Motion in Limine filed. |
| Oct. 03, 1997 | Notice of Service of Respondent`s First Interrogatories to Petitioner (filed via facisimile) filed. |
| Oct. 02, 1997 | Order sent out. (re: taking of deposition) |
| Oct. 02, 1997 | (Petitioner) 2/Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Oct. 02, 1997 | (Respondent) Objections to Petitioner`s First Request for Production of Documents filed. |
| Oct. 02, 1997 | Notice of Taking Deposition (Duces Tecum) (filed via facsimile). |
| Oct. 01, 1997 | (Petitioner) Notice of Taking Deposition (Duces Tecum) (filed via facsimile). |
| Oct. 01, 1997 | (Petitioner) Notice of Telephonic Hearing (filed via facisimile) filed. |
| Sep. 30, 1997 | (Petitioner) Notice of Taking Deposition (Duces Tecum) (filed via facsimile). |
| Sep. 30, 1997 | Automated Wagering International, Inc.`s Motion for Protective Order filed. |
| Sep. 29, 1997 | GTECH Corporation`s Notice of Service of First Set of Interrogatories to Automated Wagering International, Inc; GTECH`s First Set of Interrogatories to Automated Wagering International, Inc. (filed via facisimile) filed. |
| Sep. 29, 1997 | (Petitioner) 7/Notice of Taking Deposition (Duces Tecum); (Petitioner) Subpoena Duces Tecum(filed via facsimile). |
| Sep. 29, 1997 | GTECH Corporation`s First Request for Production of Documents to State of Florida, Department of Lottery (filed via facisimile) filed. |
| Sep. 25, 1997 | Order Continuing and Rescheduling Hearing sent out. (hearing set for Oct. 22-24 & 27-31, 1997; 9:00am; Tallahassee) |
| Sep. 24, 1997 | (From W. Roberts) Response to Motion for Continuance filed. |
| Sep. 23, 1997 | Petitioner GTECH Corporation`s Motion for Continuance of Final Hearing Scheduled for October 13-17, 1997 (filed via facisimile) filed. |
| Sep. 19, 1997 | Prehearing Order sent out. |
| Sep. 19, 1997 | Notice of Hearing sent out. (hearing set for Oct. 13-17, 1997; 9:00am; Tallahassee) |
| Sep. 19, 1997 | Order sent out. (AWI Granted Leave to Intervene) |
| Sep. 17, 1997 | (Automated International, Inc.) Petition for Leave to Intervene filed. |
| Sep. 17, 1997 | Agency Referral Letter; Amended Formal Written Protest and Petition for Formal Administrative Hearing; Formal Written Protest and Petition for Formal Administrative Hearing; 1 Expando Folder of Exhibits to Petition filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 23, 1998 | Agency Final Order | |
| Feb. 20, 1998 | Recommended Order | The results of a reconvened hearing to consider response to select sections within the RFP favored the vendor initially chosen by the Department of Lottery. |
GTECH CORPORATION vs DEPARTMENT OF LOTTERY, 97-004369BID (1997)
REGENCY ELECTRIC CONTRACTING COMPANY vs. DEPARTMENT OF TRANSPORTATION, 97-004369BID (1997)
RUSSELL ENGINEERING vs. DEPARTMENT OF TRANSPORTATION, 97-004369BID (1997)
CHEESBRO ROOFING, INC. vs ORANGE COUNTY SCHOOL BOARD, 97-004369BID (1997)
GTE DATA SERVICES, INC. vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 97-004369BID (1997)
