STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRINITY SERVICES GROUP, INC., )

)

Petitioner, )

)

and )

) COMPASS GROUP U.S.A., INC., and ) ARAMARK CORRECTIONAL SERVICES, ) INC., )

)

Intervenors, )

)

vs. ) Case No. 98-3670BID

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

David M. Maloney, Administrative Law Judge of the Division of Administrative Hearings, conducted a formal hearing in this case on September 15 and 16, 1998, in Tallahassee, Leon County, Florida.

APPEARANCES

For Petitioner: Rosa H. Carson, Esquire

Leonard A. Carson, Esquire Carson & Adkins

Suite 200

2958 Wellington Circle North Tallahassee, Florida 32308

For Respondent: Lisa M. Bassett

Assistant General Counsel Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500

For Intervenor ACS: Samuel J. Morley, Esquire

Susan Stephens, Esquire Holland & Knight, LLP Post Office Drawer 810

Tallahassee, Florida 32302-0810

For Intervenor Compass: Melissa Fletcher Allaman, Esquire

Ervin, Varn Jacobs & Ervin Post Office Drawer 1170

Tallahassee, Florida 32302-1170 STATEMENT OF THE ISSUE

Whether the Department of Corrections' proposed awards of food service management contracts to ARAMARK Correctional Services, Inc., and Compass Group USA, Inc., are contrary to the agency's governing statutes, the agency's rules or policies, or the specifications contained in the invitation to bid issued by the Department on April 30, 1998, ITB 98-DC-7154, as revised with addenda?

PRELIMINARY STATEMENT

On August 17, 1998, the Division of Administrative Hearings received a letter of the same date under the signature of Lisa M. Bassett, Assistant General Counsel for the Department of Corrections. The letter made reference to a Formal Written Protest filed by Trinity Services Group, Inc., ("Trinity") against the Department of Corrections with regard to Invitation to Bid No. 98-DC-7154.

In addition to the petition filed by Trinity formally protesting the bid awards, the letter enclosed two petitions to intervene. The first was filed by ARAMARK Correctional Services,

Inc., ("ACSI"); the second by Compass Group U.S.A., Inc., ("Compass").

The letter's request that an Administrative Law Judge be assigned to the case was honored. The Division of Administrative Hearings assigned the bid protest Case No. 97-3670BID and the undersigned was designated to conduct the proceedings.

An order establishing prehearing procedure was issued on August 18, 1998, as well as a notice of hearing setting the final hearing to commence on September 15, 1998. On September 1, 1998, the petitions to intervene by ACSI and Compass were granted.

Ten days later, on September 11, 1998, ACSI's motion to dismiss Trinity's petition as having been untimely filed was denied in keeping with an oral ruling made following hearing on the motion on September 9.

Trinity filed its unilateral pre-hearing proposal on September 14, 1998. The other three parties jointly filed a pre- hearing stipulation on September 15, 1998, the first day of final hearing. Both of the pre-hearing filings were accepted.

At final hearing, which took place over two consecutive days, Trinity presented the testimony of Karin Morris, Rhonda Mixon, Louie Cancel, Jim Boylan, Ethan Colchiski, Jeffrey Rich Straley, and Peter Martin Hess. Trinity offered six Exhibits, marked as Petitioner's Nos. 1 - 6. With the exception of Petitioner's No. 4, the telephonic deposition of Charles Donald Wiggins, Trinity's Exhibits were admitted into evidence at

hearing. Compass objected to the introduction of opinion testimony in Dr. Wiggins' deposition on several bases. The Department and ACSI joined in the objections. Ruling was withheld until issuance of this recommended order. The objections are now overruled and the deposition of Dr. Wiggins, in its entirety, is declared admitted into evidence.

Trinity's Request for Official Recognition was granted without objection. Official recognition has been taken of Chapter 120 and Sections 944.38 and 287.057(1), Florida Statutes,

(1997), as well as Chapters 28-106 and 28-110, and Rule 60A-1.002, Florida Administrative Code.

The Department recalled Karin Morris, as its own witness, and offered no exhibits. In the meantime (between the presentation of Trinity's case and the Department's), Compass had called Ted Finnell, its only live witness at the hearing.

Compass offered the testimony of Tom Ondroff, through introduction of his transcribed deposition, Compass Exhibit No.

1. Without objection, it was received. ACSI called four witnesses: John Donovan, Norman Miller, Mark Simon, and Richard Sisca. The deposition transcript of ACSI's expert witness, Joseph Munnelly, had been previously admitted into evidence as one of Trinity's exhibits, Petitioner's Exhibit No. 5. ACSI had one other exhibit marked at final hearing but before ruling on Trinity's objection, ACSI withdrew the offer of the exhibit.

   The transcript was filed October 5, 1998. Proposed recommended orders were filed on either October 15 or 16, 1998. All are deemed timely filed. This recommended order follows.

   FINDINGS OF FACT

   
   

   1. The Parties

      
      

      1. Trinity

         
         

         1. Trinity Services Group, Inc. ("Trinity") is a privately- held Subchapter S corporation. Founded in 1990 by its Chief Executive Officer Peter Martin Hess and Larry Vaughn with the intent of providing correctional food service contracting solely in the state of Florida, Trinity "has grown very quickly" (Tr. 225). It hopes to provide services soon in Cobb County, Georgia, for the first time outside the state of Florida.

         2. Trinity began providing food services in Florida at Dade Correctional Institution in February of 1992. Within four months it had expanded to the South Florida Reception Center and the Charlotte Correctional Institution. It currently provides food services to three of the four facilities covered by the ITB: the Polk, Martin and Everglades facilities.

      2. ACSI

         
         

         1. Organized "solely for the purpose of providing ancillary services to correctional facilities" (Petitioner's No. 1, Tab 14 A, p. 6), Aramark Correctional Services, Inc. ("ACSI") is a wholly owned subsidiary of Aramark Services, Inc. ("ASI"). ASI, in turn, is a wholly owned subsidiary of ARAMARK Corporation ("ARAMARK"). (This system of ownership makes ACSI the "indirect" wholly owned subsidiary of ARAMARK, since ASI is its direct owner.) ARAMARK "employs over 141,000 people in all fifty states

            and eight foreign countries, providing food service to business and industry, colleges and schools, healthcare and leisure markets with revenues exceeding $6.6 billion." (Petitioner's Exhibit No. 1, Tab 24A, p 12.) While ACSI is a separate, independent entity from ASI, and from ARAMARK, all three companies have interlocking directors and share services and responsibilities.

         2. ACSI has over 20 years of correctional food service management serving institutions with bed capacities of at least 750. At least one of the institutions it has served during this 20-year period had a bed capacity of 10,000. Over the past year, ACSI has served over 300,000 inmates per day in more than 30 locations with populations of 750 or more. Its indirect parent, ARAMARK, has over 30 years of food service management experience.

      3. Compass

         
         

         1. Compass Group U.S.A., Inc. ("Compass") is a Delaware corporation. Among its divisions is Canteen Correctional Services. Canteen submitted Compass' response to the ITB under the signature of Canteen's Regional Vice President, Ted Finnell. In the response the statement is made, "Under ITB #98-DC-7154, Canteen will be the prime contractor." (Petitioner's Exhibit No. 1, Tab 24B, Tab 2.)

         2. The response, in a section entitled "Corporate Background" makes reference to Compass Group PLC, the world's largest contract food service company with 130,000 employees in

            Europe and another 42,000 in the United States. Its sales in 1997 were reported to be $6.4 billion. Compass Group U.S.A. is referred to in this section as a division of Compass Group PLC.

         3. The response also contains an independent auditor's report prepared by Deloitte and Touche of consolidated balance sheets of Compass Holdings, Inc.

         4. Compass Holding, Inc., and subsidiaries and Compass Group U.S.A., Inc., and subsidiaries, without limitations are shown as subject to the surety letter written on behalf of Compass assuring the Department that they would write a bond on Compass' behalf for the specific award.

      4. The Department

         
         

         1. The Department of Corrections is the state agency "responsible for the inmates and for the operation of . . . all matters connected with the [state's] correctional system." Section 945.04(1), Florida Statutes. Among its powers and duties is the adoption of rules governing the administration of the correctional system which relate to the feeding of prisoners. Section 944.09(1)(p), Florida Statutes.

         2. The Department's Bureau of General Services is in charge of procurement for the Department. The chief of the bureau is Karin L. Morris. As the issuing officer of the ITB, Ms. Morris had the ultimate responsibility for the entire process that relates to the ITB.

   2. Issuance of the ITB and Preliminary Awards

      1. On April 30, 1998, the Department of Corrections issued the Invitation to Bid ("ITB"). Originally, the ITB sought bids for food service management contracts at four facilities: Polk Correctional Institution and Work Camp (the "Polk facility" or "PCIWC"), Broward Correctional Institution (the "Broward facility" or "Broward CI"), Everglades Correctional Institution (the "Everglades facility" or "Everglades CI"), and Martin Correctional Institution and Drug Treatment Center (the "Martin facility" or "MCIDTC"). It was later revised to add service at the Martin Correctional Institution Work Camp, a part of the Martin facility.

      2. Revision 2 of Addendum 2 changed the references to "Martin Correctional Institution and Drug Treatment Center" to "Martin Correctional Institution, Drug Treatment Center and Work Camp" throughout the ITB. This revision included a modification to page 68 of the ITB, the Table 1D Cost Information Sheet.

      3. Revision 4 of Addendum 2 added a fourth paragraph to ITB Subsection 2.2.4 as follows:

         The maximum capacity for the Work Camp is 264 with no confinement beds. The inmate population for April 3, 1998 was 257. One kitchen serves one adjacent dining hall.

         
         

         Petitioner's Exhibit No. 1, Tab 23C.

         
         

      4. Revision 10 of Addendum 2 changed Table 2D, the Present Value Schedule for Martin CI, Drug Treatment Center, to include Martin CI Work Camp. Revision 10 increased the average inmate count stated in Table 2D from 1103 to 1475.

      5. The ITB provided, "[b]idders may bid on a single facility or on multiple facilities." Petitioner's Exhibit No. 1, Tab 23A, Section 2.1, p. 10.

      6. Of the four facilities (Polk, Broward, Everglades and Martin), Trinity is the incumbent provider of food service at three: Polk, Everglades and Martin. The ITB reflects that the current contracts expired at these three facilities on August 31, 1998; August 30, 1998; and August 30, 1998, respectively. The current contract at the Broward facility expired August 31, 1998.

      7. Trinity, ACSI and Canteen Correctional Services (a division of Compass), as well as others, submitted timely bids in response to the ITB. Trinity submitted bids on all four facilities.

      8. On July 15, 1998, the Department issued an intent to award the contracts. Trinity was preliminarily awarded the contract for the Polk facility. But it did not prevail in its bids on the two other facilities for which it is the incumbent, Everglades or Martin. The Everglades facility contract was preliminarily awarded to ACSI. The Martin facility contract was awarded to Compass. And the Broward facility contract was awarded to ACSI, too.

      9. The award to Trinity was not protested and a new contract governing the Polk facility has been awarded to Trinity.

      10. Trinity protested the awards of the contracts for the Everglades facility to ACSI and for the Martin facility to

          Compass. Trinity did not protest the award of the contract to ACSI for the Broward facility, but only through oversight. It intended to or as its CEO, Peter Martin Hess, put it at hearing, "[w]e should have." (Tr. 227).

      11. The only two awards at issue, therefore, in this proceeding are the contract for the Everglades facility to ACSI, and the contract for the Martin facility to Compass, both protested by Trinity. In the case of the Everglades facility, Trinity was the second lowest bidder. In the case of the Martin facility, Trinity was the third lowest bidder preceded by Compass as the lowest and ACSI as the second lowest.

   3. Terms of the ITB

      
      

      1. Mandatory Requirements and Minor Irregularities

         
         

         1. Material deviations by a bidder from the specifications contained in the ITB may not be waived by the Department. A material deviation in the bidder's response renders the bid unacceptable to the Department. Put another way, according to the terms of the ITB, the Department may not make an award to a bidder whose bid contains a material deviation.

         2. Material deviations are to be distinguished from "minor irregularities." Minor irregularities may be overlooked by the Department and do not render the bid unacceptable.

         3. Section 1.8 of the ITB defines "mandatory requirements," while Section 1.9 defines the term "minor irregularity":

            1. Mandatory Requirements: The department has established certain requirements with respect to Bids to be submitted by Bidders. The use of "shall", "must", or "will" (except to indicate simple futurity) in this ITB indicates mandatory compliance is required. Failure to meet those mandatory requirements will cause rejection of the Bid.

               
               

            2. Minor Irregularity: A variation from the ITB terms and conditions which does not affect the price of the bid or give the offeror an advantage or benefit not enjoyed by the other offerors or does not adversely impact the interests of the department.

            
            

            Petitioner's Exhibit No. 1, Tab 23A, p.9.

            
            

      2. Rejection of Bids and Reservation of Rights

      
      

      1. Section 4.3.7 of the ITB, entitled "Rejection of Bids," elaborates on how the Department determines whether a deviation from the ITB is material or not and whether a deviation may be waived.

      2. Section 4.3.7, however, stresses that "[m]aterial deviations cannot be waived." The emphasis is provided not merely through the making of the statement but also by the Department's underscoring of the statement within the text of the ITB.

      3. The section opens with the statement that "[t]he department reserves the right to reject any or all bids containing deviations or to require modifications before

         acceptance." Id., p. 23. It then provides the following two subsections, including the underscored language:

         1. The department has established certain requirements with respect to bids to be submitted by bidders. The use of "shall," "must" or "will" (except to indicate simple futurity) in this Invitation To Bid indicates a requirement or condition from which a material deviation may not be waived by the department. A deviation is material if, in the department's sole discretion, the deficient response is not in substantial accord with this Invitation to Bid's requirements, provides an advantage to one bidder over other bidders, has a potentially significant effect on the quantity or quality of items proposed, or on the cost to the department. Material deviations cannot be waived.

            
            

         2. The words "should" or "may" in this Invitation To Bid indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of,

         
         

         such a desirable feature, will not in itself cause rejection of a bid.

         
         

         Petitioner's Exhibit No. 1, Tab 23A, p.23.

         
         

      4. Section 8 of the General Conditions included in the ITB states:

         
         

         Id.

         As the best interest of the State may require, the right is reserved to make award(s) by individual service, group of services, all or none, or a combination thereof; to reject any and all bids or waive any minor irregularity or technicality in bids received.

         
         

   4. Opening the Bids, Review and Awards

      
      

      1. Opening and Tabulations

         1. The Bureau of General Services in the Department drafted the ITB, opened the bids, tabulated the bids, oversaw the bid review, and was generally responsible for carrying out the bid process. The chief of the bureau, Ms. Morris, made the determination that the bids submitted by Trinity, ACSI, and Compass were responsive. She discussed her decision as to responsiveness with Ms. Bassett, the Department attorney.

         2. The bids were opened beginning at 3:30 p.m. on June 23, 1998, by the Department's employee, Ms. Rhonda Mixon. Ms. Mixon, a Purchasing Specialist Supervisor, read out the bids. Overseen by Ms. Mixon, another Department employee, Ms. Florence DeWeist generated initial handwritten tabulations. For each of the four facilities, the tabulations reflected, among other items, each bidders' cost per diem per inmate (the "unit price") for years one through five of the contracts and a single present money value grand total for the entire contract.

         3. The present money value grand total was required to be calculated by ITB Subsection 6.1, Price Determination:

            In accordance with Section 287.0572 of the Florida Statutes, the cost of the bids which require the payment of money for more than one year and included provisions for unequal payment streams or unequal time payment periods shall be evaluated using present- value methodology. Tables 2A, 2B, 2C and 2D utilize the discount rate of 5.61% provided by the Department of Management Services to develop the present value factors for each of the sixty months of the contract period.

            
            

            A contract for each institution shall be awarded to the bid(s) with the lowest grand

            total cost on the corresponding Table(s) 2A, 2B, 2C and 2D.

            
            

            Petitioner's Exhibit No. 1, Tab 23A, p. 37.

            
            

         4. Completion of the Tables containing the Price Information Sheets and the Present Value Schedules resulted in bidders' calculation of the present value grand total cost for each entire contract. The calculation of the grand total allowed the Department to compare bids by looking at just one figure, the grand total, in order to determine the low bid for a 60-month contract. Nonetheless, as explained in Paragraph 65 below, the Present Value Schedules do not have any significance, in and of themselves, to the bid. The present values of the bids could have been calculated by the Department, without any assistance from the bidders as provided in the schedules, once the bidders supplied the unit price, the actual amount subject to bid. To reiterate, "grand total present value" is simply a function of mathematic calculation flowing from the bid "unit price." Why was it necessary for the bidder to engage in the set of calculations in the cost information sheets and the present value schedules leading to a Grand Total Present Money Value of each contract? The sole purpose of including the Present Value Schedules in the ITB was explained by Ms. Morris at hearing:

            The purpose of including those schedules in the bid was to put all the vendors on notice of the exact methodology that would be used to calculate the five year present value rate so that in the event they did not agree with that methodology they would have to file their bid protest within 72 hours of the

            release of the spec and to prevent it from being an issue after the bids were opened.

            
            

            (Tr. 317). Of course, the methodology could have been outlined without requiring the bidders to actually perform the calculations. But Ms. Morris' purpose was achieved. The bidders all were necessarily keenly aware of the methodology after having actually engaged in the process of all the calculations.

         5. Ms. Mixon's handwritten notes, contemporaneously recorded with the bid openings, reflect an order of evaluation for the bid review team. The order was established so that the bid team would know in what order to review the bids beginning with the low bids first. If the low bid for a facility were found to meet the criteria for evaluation, then there would be no need to review higher bids for that facility. An award would be made to the low bidder since it both met the criteria for an award and was the lowest bidder.

         6. Ms. Mixon's notes reflect that ACSI was the low bidder on the Broward and Everglades facilities, Trinity was the low bidder for the Polk facility and Compass was the low bidder for the Martin facility. With regard to Trinity and Compass,

            Ms. Mixon wrote, "Okay." But as to ACSI, Ms. Mixon made two notations, "(1) Calculations were incorrect" and, followed by a question mark, "(2) Resume & experience." (Petitioner's Exhibit No. 3).

         7. Just as Ms. Mixon noted, based on the grand total cost for the five-year contract period, ACSI was the lowest bidder on

            the Broward and Everglades facilities; Trinity was the lowest bidder on the Polk facility; and Compass was the low bidder on the Martin facility. The responses were turned over for review to the Bid Review Team.

      2. The Bid Review Team

         
         

         1. Although Florida law does not require the Department to use a review team on ITBs, it requires that three people evaluate responses to Requests for Proposals (RFPs), another type of procurement document seeking bids. In light of this RFP requirement, Ms. Morris thought it prudent to use a review team for at least two reasons. First, a team allows personnel with different expertise to bring that expertise to bear on the review. "So, for example, [if] someone from the budget office, someone in finance and accounting [were members of the team, the Department] would have people who were very knowledgeable [in different aspects of the response.]" (Tr. 50). Second, a team offers the Department a more thorough review than if review were limited to just staff from the Bureau of General Services.

         2. A bid review team composed of Jim Boylan, Ethan Colchiski, Jeff Straley, and Louie "Gil" Cancel received training on the review process and reviewed the bids June 30, 1998. The team used a bid evaluation manual in performing the review.

         3. The review team completed review sheets in three different areas: mandatory requirements evaluation, cost compliance review, and technical requirements evaluation. The

            function of the bid review team was described by Ms. Morris as follows:

            To look through the bids and determine whether or not the response to the ITB contain[ed] all the information . . . asked for and [whether the response] compl[ied] with Section 5 of the ITB . . .

            
            

            (Tr. 51). As to each item to be reviewed, each member of the bid team checks either "yes" or "no" unless, for some extenuating circumstance, the member is unable to do so. In some instances, perhaps where unable to check either yes or no, the team member might add a comment in the margins of the review sheet. The function of the review team was to examine the bids and determine whether they contained all of the information that the ITB asked for and whether they complied with the format laid out in Section

            1. of the ITB. It was not the function of the members of the team to determine in instances where "no" is checked whether the non- compliance or missing information constituted a major deviation or a minor irregularity. That determination was left to

               Ms. Morris.

               
               

         4. Each reviewer was provided a Bid Review Manual to use in evaluating the bids. The manual accurately depicted what the reviewers were asked to review in performing the review of the bids.

         5. The Bid Review Manual establishes a three part review: Part A, the Cost Review; Part B, the Mandatory Requirements

            Review (Non-technical); and Part C, the Mandatory Technical Requirements Review.

         6. Chapter IV of the manual describes Part A as providing "reviewers with minimum criteria to establish that cost tables are in compliance with the ITB." Petitioner's No. 1, Tab 15, p.

         1. In Chapter III, Review Process, the manual states that "[t]he costs will be examined to determine if the calculations are accurate," Id. at p. 31, and, moreover, that "[t]he department will request correction of any bidder's TABLE 1-A through TABLE 1-D to address and discrepancies." Id.

            1. Part B of Chapter IV provides "reviewers with guidelines and detailed criteria for determining if each bid is sufficiently responsive to the ITB to permit a complete review." Id., p. 34. As to Part C, the chapter provides "reviewers with the guidelines and checklist for performing a detailed review of all specifications in each bid." Id.

            2. For all parts of the review, the Bid Review Manual directs reviewers to check "yes" or "no" for each numbered item on the review sheet. In the event of a failing score or "for some reason," (see, e.g., Petitioner's Exhibit No. 1, Tab 15, p.

               35) the item was not reviewable, the reviewer is directed to document their findings following the question on the checklist. For Part A, it further states, "Any bid checklist item that contains a failing score will be reviewed by the Issuing Officer in order to determine if the deviation is a minor irregularity."

               Id. For Parts B and C, it states, "[a]ny bid that receives a FAILING score on any item, or for any reason cannot be reviewed, shall be forwarded to the issuing officer in order to determine if the bid is nonresponsive." Id., p. 59 and 66.

            3. Although in one large conference room at the June 30 meeting, the team members conducted individual reviews with assistance from Ms. Morris, Ms. Mixon and Ms. DeWiest as needed.

            4. As it turned out, only the lowest bids were evaluated by the bid team. In reviewing the cost information, the bid team was assisted by an Excel spread sheet prepared by staff of the Department's Bureau of General Services that had been checked and re-checked for accuracy by staff.

            5. The bid team, just as the Bureau of General Service's staff before it, also checked the "arithmetic extensions," contained in the cost information sheets, that is, the "average cost per inmate." The extensions are determined by multiplying the bidder's "cost per diem per inmate" times 30 (an estimation of the number of days in an average month). In addition to the tables contained in the responses by each bidder, the extensions are shown on the cost information sheets introduced into evidence as Petitioner's Exhibit No. 2. The sheets reflect the bid as to the cost per diem per inmate for each of the five years in the contract period. Thus for a bidder on all four facilities, there are 20 extensions on the cost information sheets, that is an

               extension for each of five years in the period times four, the number of facilities.

            6. Since Trinity, ACSI and Compass all bid on each of the four facilities, the team was required to review the cost information sheets calculations of 20 extensions. It was determined that Trinity's arithmetic extensions were correct. But every single arithmetic extension supplied by ACSI (as

               Ms. Mixon had noted earlier) and Compass were slightly off.

               
               

            7. Sometimes the extensions of ACSI and Compass were slightly higher than they should have been. For example, for Year 5 of the Polk facility contract, ACSI's "cost per diem per inmate" was $2.928. ACSI showed the "average monthly cost per inmate" to be $87.844, when it should have been the slightly lower figure of $87.84. (See Petitioner's Exhibit No. 2, Table

               1-A, ACSI bid on Polk). Other times the extensions were slightly lower. For example, for Year two of the Broward facility contract, Compass showed a "cost per diem per inmate" of $2.81.

               Compass calculated the average monthly cost per inmate to be

               
               

               $84.23 when, in fact, it should have been the slightly higher figure of $84.30. (Petitioner's Exhibit No. 2, Table 1-B, Compass [Canteen] bid on Broward). Notably, none of the twenty extensions provided by ACSI and Compass were correct. (The reason for this remarkable oddity is explained in Findings of Fact Nos. 69 and 73, below.)

            8. Among the question asked by members of the team were ones concerning which documents had to be signed. An error had been made in the bid review manual in that the word "sign" had been placed on documents on which there was no place for a signature. Ms. Morris directed that in the instances where there were no signature places "to cross out the words 'and sign' to direct the reviewers to cross through those words." (Tr. 54). The questions that should have been altered according to the direction were Questions 8 and 9, under the Technical Requirements Review.

            9. The direction did not address Question 15. Unlike Questions 8 and 9, which asked whether certain forms were completed and signed, Question 15 asks whether the bidder had submitted a completed and signed Statement of No Involvement. Since the statement covered by Question 15 was not to be made on a form, Ms. Morris' direction did not address it.

            10. As a result of the discussion concerning signed statements, three of the reviewers, Mssrs. Cancel, Boyland and Straley, mistakenly thought that the Statement of No Involvement did not have to be signed. In addition, Mr. Colchiski marked through "and signed" on Question 15 as to the review of ACSI's bid, indicating that ACSI's Statement of No Involvement had not been signed. In one way or another, the reviewers noted that ACSI and Compass had not signed their Statements of No Involvement. For example, Mr. Boylan also marked through the

                words "and signed," on Question 15 in reference to ACSI while as to Compass he checked neither "yes" or "no" but wrote above the places for checkmarks, "yes submitted not signed." Petitioner's Exhibit No. 1, Tab 18, p. 70 under Boylan as to Compass.

            11. Each of the four members of the team completed their individual reviews as shown by signed and dated cover sheets stapled to their review sheets.

            12. Ms. Morris performed a final review of the bids by reviewing the ITB, the bids and the bid review sheets. She also consulted with Lisa Bassett, the Department's attorney assigned to assist with the bids.

      3. The Award Memorandum and Award

         
         

         1. On July 14, 1998, an Award Memorandum on the ITB was forwarded to Nancy K. Wittenberg, the Department's Assistant Secretary for Administration, from Ms. Morris and Jim Boylan, Chief of the Bureau of Food Services. The memorandum contained the recommendation that contracts be awarded to ACSI for Broward CI and Everglades CI, to Trinity for Polk CI and to Compass for Martin CI. Attached to the memorandum was the Final Report and Award Recommendations of the Bid Review Team signed by each of the team's members. The recommendations, that Trinity be awarded the Polk facility contract, ACSI the Broward and Everglades facilities contracts, and Compass the Martin facility contract, were approved the following day, July 15, 1998. The same day, at

         approximately 1:00 p.m., the Department posted its Notice of Award.

   5. Posting; Filing of the Protests and a Motion to Dismiss

1. The Notice of Award was posted on July 15, 1998, at 1:00 p.m. Within an hour prior to the posting, Trinity received a copy of the notice by fax. The notice stated that it would remain posted from July 15, 1998, at 1:00 p.m. to July 21, 1997, at 9:00 a.m. July 15 was a Wednesday; July 21 was a Tuesday.

2. The notice contained a paragraph warning potential protesters of the time requirements governing protests:

   A notice of intent to protest must be filed within the 72 hours listed on this Notice of Award and a formal written protest must be filed within ten days after filing the intent to protest. Failure to file a protest within the time prescribed in section 120.57(3), F.S., shall be constitute waiver of proceedings under Chapter 120, F.S.

   Petitioner's Ex. No. 1, Tab 21, Award Memo Attachment, (e.s.).

   
   

3. Section 120.57(3)(b), Florida Statutes, provides that a notice of bid protest shall be filed "within 72 hours after the posting of the bid tabulation." In calculating the 72 hours, the statute mandates the exclusion of Saturdays and Sundays.

   Pursuant to the calculation, a notice of protest would have to have been filed, at the latest, by 1:00 p.m., Monday, July 20. Trinity did not file a notice until 2:36 p.m., the afternoon of Monday, July 20, at least an hour and one-half late.

4. The Department ruled Trinity's notice of protest to be timely because it was within the period posted on the notice,

   that is, prior to 9:00 a.m, Tuesday, July 21. Ms. Morris, in deposition, offered reasons for extending the 72-hour period from 1:00 p.m., Monday, July 20, to 9:00 a.m., Tuesday, July 21, none of which were are sanctioned or allowed by the statute.

5. Following a motion to dismiss at the Division of Administrative Hearings based on the untimeliness of the filing of the notice with the Department, a denial was entered.

   Although this Administrative Law Judge agrees with ACSI, the movant, that Trinity's notice was untimely under the statute, the motion was denied because the Department had misled Trinity in the Notice of Award by indicating that the 72-hour period was not over until Tuesday, July 21, at 9:00 a.m.

   VI Cost Information

   
   

6. Section 5.6.2 of the ITB required bidders to submit Cost Information Sheets (Tables 1A through 1D) and Present Value Schedules (Tables 2A-2d). Table 1C and 2C relate to the Everglades Facility; Revised Table 1D and 2D relate to the Martin Facility.

7. As explained already, completion of the Cost Information Sheets required bidders to insert a cost per diem per inmate (the "unit price") for contract years one (1) through (3) and for each of two renewal years for each institution for which the bidder was submitting a bid. Thus, five costs per diem per inmate or unit prices were required to be bid for each contract.

8. Completion of the Present Value Schedules required bidders to calculate and submit their present value grand total cost for each contract. Thus for each contract there were unit prices bid but only one present value grand total. The Department looked to the present value grand total to determine which bidder was the low bidder because it only had to examine one figure as opposed to the five "unit price" figures which varied from year to year. But the present value grand total was nothing other than the result of mathematics applied to the five unit prices. For this reason, as found in paragraph 32, above, the present value grand total is not a figure actually bid. The unit price is the only truly bid figure. Furthermore, unlike the bid "unit prices," the present value grand total shown by the bidder could be incorrect if the product of a mathematical mistake or mistake in arithmetic extensions, made by the bidder.

9. As to mistakes, including mistakes in extensions, the "General Conditions" Section, beginning on the face of the ITB, places the burden on the bidders to prevent mistakes: "Bidders are expected to examine the specifications, [etc., including extensions]. Failure to do so will be at bidder's risk. In case of mistake in extension, the unit price will govern." Petitioner's Exhibit No. 1, Tab 23A, cover page.

10. Announcement that the "unit price governs" is another way of expressing what Ms. Morris said about the present value schedules, as quoted in paragraph 32, above. The schedules have

    no real significance. The significant figure in the bid is the unit price." Stated yet another way, the most important information in the bid is the unit price because the unit price prevails regardless of the number of inmates. As Ms. Morris testified, "If the number [of inmates] goes up or down, [the contractor] will continue to be paid the unit price . . . times the midnight census at each institution." (Tr. 315).

11. The unit price is also the most crucial information from the point of the bidders because it is the only amount that is truly "bid." The rest of the information contained in the Tables simply flows from arithmetic calculations or "extensions" as the Department calls them. On the cost information sheet portions of the Tables, the unit price, as found above, for each of the five contract years is multiplied by 30 to yield the "average cost per month," for each of the five contract years.

12. The average costs per month for each year of the five- year period are then used in present value schedules which calculate the present money value for each of the 60 project months in the five year contract. The monthly cost per inmate (or unit price) is multiplied by an average inmate count to yield a "total monthly cost." This cost is then multiplied by a monthly present value factor to yield a present money value for the month. The 60 present money values are then added to yield a "grand total" for the entire contract which determined the low bidder. The grand total present money value, however, is nothing

    more than the result of arithmetic applied to the unit price, an amount supplied by each bidder.

13. In the case of ACSI, Richard C. Sisca, ACSI's Vice- President and Chief Financial Officer, generated the cost information sheets and Present Money Value Tables contained in the ACSI bid through use of a Microsoft/Excel financial software program.

14. The program performed the arithmetic necessary to produce the required present money values. The calculations shown on Mr. Sisca's computer screen were "truncated," (Tr. 359) that is, they were only to the third decimal point, when, in fact, the Excel program actually calculated to the fourth decimal point. As a result, the figures on the tables submitted with ACSI's bid were slightly off from the figures calculated by the Department, also using an Excel program. "If that fourth decimal had been [on the screen] and you then multiplied it by the 30 days, you would have gotten the exact [same] number," (Tr. 360), as the Department.

15. ACSI also made a typographical error with regard to one of the figures on the cost information sheet for the Everglades facility. The first two numbers were transposed in Column 5 (average monthly cost per inmate) for Year 3. ACSI had put down "97.965" (Petitioner's Exhibit No. 2, Table 1-C, ACSI bid on Everglades) when it meant to put down "79.965." The error is obvious since the average monthly cost per inmate for the other

    four years ranged between 77.649 and 80.736, and since the cost per diem per inmate for year three fell in the middle of the range of the costs per diem per inmate for the other four years.

16. Both sets of errors, the mathematical extensions and the typographical error, were corrected or disregarded by the Department.

17. As to the arithmetic extension errors, the Department simply crossed through the figures placed by ACSI in column five of the tables and wrote down the correct, slightly different, figure it had calculated. But the Department did not alter the basis of the bids, the cost per diem per inmate figure, that is, the unit prices. The Department then calculated the correct Grand Totals. The correction provided by the Department was one that was solely the consequence of mathematics, a matter, unlike the bid unit price, over which ACSI and the other bidders had no control.

18. In the same way, Compass' Cost Information Sheet was also faulty. The "average monthly cost per inmate" as the result of mathematical error were incorrect. The Department, just as it did with ACSI, corrected the 20 slightly incorrect arithmetic extensions provided by Compass. But, just as in the case of ACSI, the Department did not change the unit price bid by Compass. The Department simply provided correct figures that stemmed from Compass' bid of the unit price as dictated by the laws of mathematics.

19. Compass' Present Value Schedules, by using incorrect "average monthly cost per inmate" figures, also yielded incorrect Grand Total Present Values, just as in the case of ACSI. These values were incorrect in the case of Compass for an additional reason on the table related to the Martin facility. Compass had used the incorrect number of inmates at the Martin facility, one of the figures called for by the Present Value Schedule.

20. The corrections to the cost information sheets and present value schedules submitted by ACSI and Compass were made as part of the Department's review. In Compass's case, the corrections included using the correct number of inmates at the Martin facility. According to Ms. Morris, the Department corrected the errors, "because the first thing you do when you start reviewing a bid is check the math. I[t] would be irresponsible not to check the math." (Tr. 307). Otherwise, the Department would be left vulnerable to mathematical errors by bidders. Whether too high or too low, the bids' errors could skew the process resulting in improper awards. In this case, however, the corrections did not change the low bidders for the contracts. Ms. Morris, as the issuing officer, therefore, determined that the cost information sheets submitted by ACSI and Compass contained only minor irregularities that the Department could waive. Consistent with that determination, the Department, indeed, waived the irregularities contained in the cost information sheets.

    1. Corporate Qualifications

       
       

21. Section 5 of the ITB is entitled "Contents of Bid". It describes the format of the bid together with instructions. "Technical Documentation" instructions are contained in Section

    1. Paragraph 5.1.1.1 requires a statement regarding whether the bidder is a corporation or a legal entity. Paragraph 5.1.1.2 requires a "statement confirming that the prime contractor is registered to do business in Florida which includes their corporate charter number." Petitioner Exhibit No. 1, Tab 23A,

       p. 28.

       
       

22. Under the Executive Summary portion of Section 5, ACSI wrote:

    ARAMARK Correctional Services will provide the required services as requested in the Invitation to Bid with a professional management team and with proven systems.

    ARAMARK Correctional Services provides management to over 160 correctional facilities in 30 states with these same proven methods.

    Petitioner's Exhibit No. 1, Tab 24A, p.1. In response to ITB Paragraph 5.1.1.1, ACSI stated, "ARAMARK Correctional Services [that is, ACSI] will perform 100 percent of the work, without the use of subcontractors." No statement was made, however, under Paragraph 5.1.1.1 as to whether ACSI was a corporation or legal entity.

23. In response to Paragraph 5.1.1.2, ACSI did not make reference to itself. Instead it made reference to its parent,

    ARAMARK. The response reads, "ARAMARK is registered to work in Florida. Our corporate charter number is F94000005180."

24. That references to ARAMARK in the bid are different from references to ARAMARK Correctional Services (ACSI), the former being to ARAMARK Corporation, the indirect parent of ARAMARK Correctional Services or ACSI, is clear from page 12 of ACSI's bid. There, ACSI describes itself as "a totally specialized, independent organization with access to the financial and management resources of the ARAMARK Corporation

    . . ." Petitioner's Exhibit No. 1, Tab 24A, p. 12. This organization, that is ACSI, is also described as one that "provides high quality, professional management focused solely on corrections." Id. ACSI's focus solely on corrections distinguishes it from ARAMARK, its parent, in the description of ARAMARK, as the provider of services to a much broader range of clients than just those engaged in corrections and its history on the same page of the bid:

    Since 1959, ARA Services has established a reputation for premium quality service to all sectors of the food service industry. On October 11, 1994, in celebration of 10 years of private and employee ownership, ARA Services transitioned to the next level of organizational growth by becoming the ARAMARK Corporation. ARAMARK takes pride in the high quality of our service and the professionalism of our employees. ARAMARK employs over 141,000 people in all fifty states and eight foreign countries, providing food service to business and industry, colleges, and schools, healthcare and leisure markets with revenues exceeding $6.6 billion.

    Id.

    
    

25. In its responses to every paragraph in Subsection

    
    

    1. , (eighteen paragraphs in all), except for 5.1.1.2., ACSI refers to itself as Aramark Correctional Services. It is only in response to Paragraph 5.1.1.2, that ACSI makes reference to its parent, ARAMARK. Thus, ACSI did not provide a response that it is registered to do business in Florida. It relied on the registration of its parent, ARAMARK, for fulfilling this requirement.

26. In contrast, Compass, referring to itself as "Canteen," a member of Compass Group USA, Inc., a Delaware corporation, stated in its bid, "Canteen is registered to do business in the state of Florida. Our corporate state ID number is 80-380005674- 08." Petitioner's Exhibit No. 1, Tab 24(b), p. 1. Trinity responded, "Trinity Services Group, Inc. is a legal corporation on file as such with the Florida Department of State. We will not employ any subcontractors in the performance of our responsibilities in this contract. Our corporate charter number is L94963." Petitioner's Exhibit No. 1, Tab 24(C), Cover letter to Ms. Florence M. DeWeist.

    1. Demonstration of Financial Capability

       
       

       1. ITB Requirements

27. Subsection 5.1.2, on page 30 of the ITB states, "The bidder shall supply the following

    information for his own firm and for any subcontractors:

    Section 5.1.2.1 Financial Statements

    
    

    Financial statements for the applicable legal entity(s) (prime contractor and subcontractor) sufficient to demonstrate the capability to perform this contract shall be provided for each of the last three years.

    These may include:

    
    

    1. Summary of significant accounting policies

    2. Balance sheet

    3. Statement of income

    4. Statement of changes in financial position

    5. Notes to financial statements

    6. Auditor's reports Petitioner's Exhibit No. 1, Tab 23A, (e.s.)

       1. Bid Team and Department Review of Financials

28. Although there was an accountant (Straley) and a budget analyst (Cancel) on the review team, the reviewers did not perform any analysis of the financial information provided by ACSI or Compass to determine whether the financial information demonstrated financial capability to perform the contracts. With regard to the financial statements, the reviewers did nothing more than to check to see if the bids included the required financial statements.

29. Ms. Morris reviewed the financial statements, "[o]nly in a cursory fashion." (Tr. 79). She relied on Mr. Straley and Mr. Cancel to make the determinations of financial capability in their review. Since review by the bid team was confined to whether the information was supplied or not, it appears from this record that no one at the Department, prior to award of the bids, conducted an analysis of whether ACSI or Compass demonstrated financial capability to perform the contracts.

    1. ACSI

       
       

30. ACSI, the legal entity which submitted the bid, is an indirect wholly-owned subsidiary of ARAMARK. (It is not directly owned by ARAMARK because its shares are owned by another subsidiary of ARAMARK.) Still, the two have interlocking boards of directors. Various services are shared between the two, including most financial and managerial services. ACSI operates as a division of ARAMARK. Seen from ARAMARK's perspective, ACSI is one of ARAMARK's operating divisions. The view of ARAMARK, seen from the perspective of ACSI's president and chief executive officer, is that most of the financial and support functions essential to ACSI are performed by ARAMARK:

    Virtually all the financial services from accounts payable to payroll to capital requirements, insurance, a number of support functions, including information systems and technology, marketing support, legal support, all those functions are performed by ARAMARK as part of our [ACSI's] daily operation.

    
    

    (Testimony of John Robert Donovan, Jr., Tr. 406.)

    
    

31. The integrated relationship of ACSI and ARAMARK is reflected as well by Form 10-K filed with the Securities and Exchange Commission (SEC) which shows the consolidated financial positions of ARAMARK and its subsidiaries, including ACSI. (The Department has accepted Form 10-K's from parent corporations in the past to show the financial capability of subsidiaries.) Financial data for ARAMARK and ACSI are reported together to the

    SEC because or the requirements of generally accepted accounting principles and SEC rules.

32. ARAMARK and ACSI have the ability to continue as going concerns. In other words, based on liquidity and financial resources, the two are able to meet debts and obligations for the next one year and one day.

33. In ensuring that it will perform the contract, ACSI submitted a certification that its surety Continental Casualty company agreed to issue a bond in the amount of $50,000, as required by the ITB if ACSI were to be awarded the contract. The certification from Continental does not mention ARAMARK but testimony established that ARAMARK will guarantee the bond because it is its practice to guarantee the obligations of its subsidiaries. (See Tr. 368).

    1. Compass

       
       

34. Compass is the legal entity that submitted the bid to the Department but similar to ACSI, the financial statements submitted by Compass were consolidated. In the case of Compass, its statements were consolidated with Compass Holdings, Inc., its parent and by whom it is a wholly-owned subsidiary. Three years of consolidated financial statements were submitted.

35. Unlike ACSI, Compass also submitted a "Supplemental Consolidating Balance Sheet September 30, 1996 (in Thousands)" containing information on Compass for its fiscal year ending September 30, 1996. But the response did not contain any

    information specifically identifiable to Compass for the other two years of the required three past years worth of financial statements. The financial statement for 1996 shows over

    $1,000,000,000 dollars in assets and more than $13,000,000,000 dollars in operating income for the two companies. Compass, at that time, comprised more than 80 percent of the assets and operating income of Compass Holdings, Inc.

36. Compass Holdings, Inc., has grown since 1996 and its financial health has increased, although whether Compass participated in that growth or contributed to it was not shown.

37. A letter of surety was given by Compass' bonding company. The performance bond required by the Department was given by both Compass Holdings, Inc., and Compass. Just as in the case of the other bidders, the purpose of the bonding requirement was to eliminate from the process any company that did not have the financial capability to obtain a bond guaranteeing performance.

    1. Individual Financial Capability to Perform

       
       

38. In the cases of both ACSI and Compass, the financial information relative to the two companies are not broken out separately from the information relative to their parents. The result is that it cannot be determined from the financial information whether they are capable on their own to perform the contracts.

39. Nonetheless, the consolidated statements demonstrate that both ACSI and Compass are backed by parent corporations whose financial situations ensure that ACSI and Compass have at least potential for access to resources necessary to ensure their ability to perform. The question remains whether these financial resources are ones which may be credited to the two successful bidders under the requirements of the ITB for submission of financial information. If so, the question also remains as to whether there is any guarantee that the resources will be made available by the parents to their subsidiaries.

    1. Statement of No Involvement

       
       

40. Subsection 5.1.12 of the ITB, Statement of No Involvement, states:

    The bidder shall insert a signed statement acknowledging the requirement that there has been no prior involvement by the bidder in performing a feasibility study of the implementation of the proposed contract, or in the drafting of the Invitation to Bid pursuant to Section 944.38, Florida Statutes.

    
    

    Petitioner's Exhibit No. 1, Tab 23(A), p. 33, (e.s.).

    
    

41. Subsection 5.1.12 is a reflection of not only Section 944.38, Florida Statutes, but also of Section 287.057(16), Florida Statutes. That statute declares ineligible for contracts with agencies persons who, under certain circumstances, have performed a feasibility study of the implementation of the proposed contract or participated in the drafting of an invitation to bid on the contract.

    1. ACSI

       
       

42. ACSI did not submit a signed statement of no involvement. Instead, under the heading of "Tab 12 5.1.12 Statement of No Involvement," ACSI provided the following typed response:

    By virtue of this proposal response, we have provided a signed statement acknowledging the requirements that there has been no prior involvement by the bidder in performing a feasibility study of the implementation of the proposed contract, or in the drafting of the Invitation to Bid pursuant to Section 944.38, Florida Statutes.

    Presumably, what is meant by this response is that the requirements of a Statement of No Involvement are acknowledged and that signing the bid, itself, together with the acknowledgment, is the equivalent of a signed statement of no involvement.

43. That appears to be the interpretation of the Department. It determined that the failure in ACSI's case to submit a signed statement of no involvement was no more than a minor irregularity. Among the reasons offered for its determination was that ACSI had equated its response to Subsection 5.1.12 with a signed statement and the bid itself was signed. Other reasons offered by the Department that the failure was a minor irregularity were: first, that ACSI had initialed a line on a supplemental bid sheet included to assist bidders in preparing their Bids indicating that it understood and agreed to the requirement for a Statement of No Involvement; and second,

    that a signed statement could be obtained by the Department after the award.

44. The Vice-president and chief financial officer for ACSI offered an explanation at hearing for the missing signed statement. The person within ACSI accountable for the Statement of No Involvement, he testified, "In my review of the documents, we found that there was that one item that had not been signed just due to the sheer magnitude of the number of items that had to be signed and initialed." (Tr. 391).

    1. Compass

       
       

45. Compass makes no explanation of its failure to sign s statement of no involvement. Its statement reads as follows, "Canteen Correctional Services has not been involved in performing a feasibility study or in drafting the Invitation to Bid for any of the facilities involved in ITB Number 98-DC-7154." Petitioner's Exhibit No. 1, Tab 24(B), Tab 12, p. 29. There is no signature on the page of the statement itself.

46. The lack of a signature on the page in Compass' bid devoted to the Statement of No Involvement was determined by the Department to be a minor irregularity. Tab 12, containing the statement, is part of Compass' response package, that is, its bid. The bid is under a cover sheet signed by Ted Finnell, Regional Vice President of Sales, for Canteen Correctional Services. The Supplemental Bid Sheet in the package, just as in

    the case of ACSI, is initialed in the blank next to Statement of No Involvement.

    1. Still No Signed Statements

    
    

47. While Ms. Morris testified that signatures for Statements of No Involvement could be obtained post-award, neither ACSI nor Compass produced signed statements at hearing nor was there any evidence that such statements had been submitted to the Department after the awards.

    1. Company/Employee Experience

       
       

       1. The ITB Requirements

          
          

48. Section 5.1.3, entitled Tab 3 of the ITB, as revised by Addendum 2, states:

    In accordance with the requirements of this [ITB], the bidder shall provide documentation required by the department as listed below.

    
    

    * * *

    
    

    5.1.3.2 Resumes

    
    

    Bids shall include resumes of Chief Operations Officer (or Division V.P. for Correctional Food Service), District Food Service Supervisor, and Food Service Director showing employment history for all relevant and related experience (including specific dates, names of employers and educational institutions).

    
    

    Staff expertise relevant to work required in the section entitled "Services to Be Provided." Minimum contrator experience requirements are as shown below.

    
    

    Chief Executive Office or Division V.P. for Correction Food Service

    1. Four years (4) overall experience in Food Service Management.

       
       

    2. One year (1) specific experience within Correctional Food Service with specific experience related to operation of a 750 or greater bed institution serving three meals daily.

    
    

    District Food Service Supervisor

    
    

    1. Two years (2) overall experience in Food Service Management.

    2. One year (1) specific experience in Correctional Food Service.

    3. One year (1) experience in Food Service Management within a Correctional Institution managing a 750 or greater bed institution serving three meals daily.

    Food Service Director

    
    

    a. One year (1) overall experience in Food Service Management.

    
    

    Petitioner's Exhibit No. 1, Tab 23C.

    
    

    1. ACSI

       
       

       1. CEO/V.P. Experience

          
          

49. At the time of the submission of its bid, ACSI did not have personnel who would oversee the contract in the positions of Chief Executive Officer or V.P. for Correction Food Services with the one-year exerience called for by "b.," under the CEO/Division

    V.P. section.

    
    

50. Resumes submitted for ACSI's CEO, John Donovan, and Division V.P., Norm Miller showed the two had nine months, experience and eight months' experience, respectively, with ACSI.

51. Although the resumes do not detail that their experience at ACSI is related to operation of an institution of

    750 beds or more serving three meals a day, that experience is gleaned from the bid as a whole, that is, in conjunction with ACSI's corporate experience detailed elsewhere in ACSI's bid.

52. The bid team members either checked "no" for Item 3 of the ACSI Technical Requirements Review, left it blank, or noted concerns because none of the resumes provided by ACSI met the one-year experience requirement for CEO/Division V.P. For example, Mr. Cancel both checked "no" and then in notation expressed doubts about combining experience reflected on more than one resume. Questions about combining experience were directed to Ms. Morris during the review by the bid team.

53. The Department determined that the one-year experience requirement was met for CEO or Division V.P by combining CEO Donovan's nine months experience with Division V.P. Miller's eight months experience. Ms. Morris testified that combining the two was in substantial accord with the requirements of the ITB. At hearing, moreover, Ms. Morris assumed, rightly it appears from the time by which this recommended order is issued, that each of the two will have the one year's experience prior to the actual commencement of services performed by ACSI should it prevail in this bid protest.

54. As indicated in his resume, Mr. Donovan has been continuously involved with food service management since 1980.

    He meets the four-year experience requirement called for by "a.,"

    of the CEO/Division V.P, thereby rendering it unnecessary as to whether Mr. Miller meets the four-year requirement.

    1. Food Service Director

    
    

55. The resume submitted by ACSI in response to the Food Service Director requirements is Mark Simon's. In addition to lengthy experience in "Business Dining Services," for ARAMARK, it reflects his experience as a District Manager for "Correctional Services" at ARAMARK since October of 1996. There is, however, no information in the bid that Mr. Simon has one year's experience within a correctional institution managing a 750 or greater bed institution serving three meals daily.

56. At hearing, Mr. Simon testified that he had had experience with two locations larger than 750 beds "[s]ince the time I joined corrections." (Tr. 342). As of June 1998,

    Mr. Simon's experience in correctional food services was "[a]pproximately two years," having exceeded the one-year requirement in October of 1997 (Tr. 343). He did not testify however whether three meals daily were served at these 750-bed institutions. His overall food service management experience was nearly eighteen years at the time of the hearing according to his resume.

    
    

    1. Compass

    
    

57. Michael Fortunato's title is president of Canteen Correctional Services. Although his title does not match the

    title used by the ITB, Division V.P. for Correction Food Service, his position within the organization is the equivalent of a Division V.P. for Correction Food Service. His resume reflects the experience required by the ITB for Chief Executive Officer or Division V.P for Correction Food Service.

58. The resumes submitted by Compass reflect the experience called for by Section 5.1.3.2 of the ITB.

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction

       
       

59. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Section 120.57(3), Florida Statutes.

    1. De Novo Proceeding; Burden and Standard of Proof

       
       

60. Section 120.57(3)(f), Florida Statutes, in pertinent part, provides:

    In a competitive procurement protest . . . the administrative law judge shall conduct a de novo proceeding to determine whether the agency's proposed action is contrary to the agency's governing statutes, the agencies rules or policies, or the bid . . . specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary or capricious.

61. The meaning of a de novo hearing in an award case, such as this one, has been explained in the aftermath of the 1996 revisions to the APA by the First District Court of Appeal in

    State Contracting v. Department of Transportation, 709 So. 2d 607 (Fla. 1st DCA 1998):

    In [the] context [of Section 120.57(3))f)], the phrase "de novo hearing" is used to describe a form of intra-agency review. The judge may receive evidence, as with any formal hearing under section 120.57(1), but the object of the proceeding is to evaluate the action taken by the agency.

    
    

    Id., at 609. The court also explained that the burden is on the party protesting the award of the bid to establish a ground for invalidating the award.

62. The State Contracting Court applied the "clearly erroneous" standard to affirm the rejection by the agency of a recommended order. The administrative law judge had recommended that a bid be rejected as unresponsive because, although a disadvantaged business form had been submitted and was facially sufficient, it was determined that the bidder could not meet the required level of participation by disadvantaged business enterprises. The agency believed that compliance would be a matter of enforcement and that responsiveness demanded only that the form be facially sufficient. Since the form was sufficient, the agency in final order determined that the bid was responsive over the recommendation of non-responsiveness by the administration law judge. The court agreed that the agency determination was not clearly erroneous. The holding in State Contracting has relevance to this case, especially since the main claim of Trinity is that the Department's proposed awards were

    clearly erroneous either because the bids were not responsive contrary to the terms of the ITB, contained errors in the response under the terms of the ITB or constituted non-waivable material deviations.

    1. Responsiveness, Errors in Responsiveness and Mandatory Requirements, Material Deviations and Minor Irregularities

       
       

63. A responsive bid is a bid that is complete as to form. In Intercontinental Properties, Inc. v. Department of Health and Rehabilitative Services, 606 So. 2d 380, 381 (Fla. 3rd DCA 1992), the court stated that a bid was responsive, under the invitation to bid, if it had been "submitted on the correct forms, and contain[ed] all required information, signatures, and notarizations."

64. Following a determination that a bid is responsive, the agency must determine whether the bid has accurately and completely responded to the specifications. At either point in the bid review, normally the presence of an irregularity does not necessitate that the bid be rejected if the agency determines both that the irregularity is "minor" and that it may waive the irregularity. Material variances, however, by definition, are normally matters which may not be waived.

65. In this case, the ITB follows the customary understanding of "mandatory requirements," "minor irregularities," and "material variances or deviations." It declared mandatory requirements to be non-waivable matters as

    indicated by mandatory terms: "shall," "must" or "will" (except to indicate simple futurity.) It then defines "minor irregularity" as a variation from the ITB terms and conditions which does one of three things: one, the variation does not affect the price of the bid; two, the variation does not give the offeror an advantage or benefit that is not enjoyed by the other offerors; and three, the variation does not adversely impact the interests of the Department.

66. The Department reiterates in Section 4.3.7.1 of the ITB, (see Finding of Fact 25, above) that "[t]he use of 'shall,' 'must' or 'will' . . . in this Invitation To Bid indicates a requirement or condition from which a material deviation may not be waived by the department." And it underscores for emphasis the sentence, "Mandatory requirements may not be waived."

    1. Cost Information

       
       

67. State Contracting offers insight into this issue in the case. There is nothing facially insufficient about the tables containing the Cost Information Sheets and Present Value Schedules submitted by ACSI and Compass. They may be facially incorrect but they are not insufficient. They were filled out. They contained minor errors in arithmetic or in use of prescribed figures, such as the average number of inmates. But the only reason they were included was to put the bidders on notice of the Department's methodology in calculating present value, a value demanded by statute, Section 287.0572. Once the unit price was

    inserted into the cost information sheets, the remainder of the calculations in the sheets and the schedules to reach the Grand Total Present Value were ones the Department conducted itself. Those calculations led to "present value money" results that no party to this proceeding had any control over. And while a bidder may not modify its bid after the opening, the Department is clearly authorized to make mathematical corrections, if it chooses to do so. See Rule 60A-1.002(10), Florida Administrative Code.

68. The result the Department reached in finding the Tables submitted by ACSI and Compass to be responsive was not erroneous. As explained by Ms. Morris, the tables had no real significance, other than that amount which was truly bid, the unit price. The errors committed by ACSI and Compass, moreover, had no effect on whom the Department determined to be the lowest bidder on the four facilities.

69. The case would be different if the Department or ACSI or Compass had changed or manipulated the unit prices bid by the bidders to whom the preliminary awards were made. But the evidence showed this not to be the case. The changes to the tables made by the Department, all ones dictated by the laws of mathematics or figures prescribed for use by all the bidders, render the errors made by ACSI and Compass not substantial and insignificant, in other words, minor irregularities. The irregularities with regard to cost information were not only

    minor but they were irregularities the Department was duty-bound to correct.

    1. Financial Capability

       
       

       1. ACSI

          
          

70. There is no question that the consolidated financial statements submitted by both ACSI demonstrate that between itself and its parent, ARAMARK, there is financial capability to perform the contracts.

71. But the ITB requires the bidder to demonstrate its own financial capability. Funds necessary to perform are potentially accessible to ACSI but there is no guarantee contained in its response in the event of financial difficulty that those funds will be made available. The Department's determination that ACSI demonstrated financial capability was clearly erroneous. There was no demonstration that ACSI, independently, or with others through letters of credit or customary means of guaranteeing financial capability, has the financial capability to perform.

72. Failure to furnish three years of financial statements as to itself, alone, also renders ACSI's bid non-responsive.

    1. Compass

       
       

73. Similarly, Compass submitted consolidated financial statements demonstrating that with its parent, there is potential access to the financial wherewithal necessary to perform the contracts.

74. Unlike ACSI, however, Compass submitted a balance sheet for its fiscal year ending September 30, 1996. This 1996 financial statement demonstrates that Compass has the financial capability to perform the contracts. But the ITB sought three years' worth of financials. Compass did not supply three years' worth as to itself, alone, that demonstrates financial capability. The ITB's requirement for three years' worth of statements is a reasonable method for demonstrating a record of financial backing.

75. Compass' bid, therefore, was not responsive as to financial capability.

    1. Arbitrary and Capricious

       
       

76. As to both ACSI and Compass, the Department's determination of financial capability was arbitrary and capricious. No one at the Department conducted the review necessary to determine that the two were, in fact, financially capable.

    1. Project Staff Experience

       
       

77. Compass' bid met the ITB's staff experience requirements; ACSI's did not.

78. ACSI does not argue that any one person met the one- year correctional food service experience required of the company CEO or the Vice-president for correctional food services. ACSI and the Department, instead, rely on the Issuing Officer's decision to combine the experience of two employees. But there

    were no facts articulated to support this combination. It was not shown to have been done in the past nor was it done for any of the other bidders. The decision to combine experience of two of ACSI employees to meet the requirement for one, on the state of this record, was arbitrary and capricious.

    1. Other Mandatory Requirements

    
    

    1. Authorization to Do Business in Florida

       
       

79. Compass demonstrated in its response that it is authorized to do business in Florida; ACSI did not.

80. ACSI demonstrated that ARAMARK, its parent, is authorized to do business in Florida but without doubt, its response to the ITB did not demonstrate that it is authorized to conduct business in Florida.

81. ACSI argues that the reference to ARAMARK in the response to Paragraph 5.1.1.2 is "clearly to ACSI, because ACSI's responses to the preceding and following sixteen subsections contained in section 5.1.1. refer to ACSI." That argument cuts both ways. The way in favor of ACSI is undermined by the clarity of the distinction between ACSI and ARAMARK drawn elsewhere in ACSI's response to the ITB. Most telling, however, is the absence of any proof offered in this proceeding, such as certified copies of corporate documents on file with the Department of State, that ACSI is, in fact, registered to do business in Florida and has a corporate charter number that

    matches the number declared to be ARAMARK's in its response to Paragraph 5.1.1.2.

82. At bottom, it is clear from the ITB that potential bidders were put on notice by the ITB that to be qualified to submit a bid, the bidder, itself, in other words, the prime contractor under the envisioned contract, must be qualified to do business in Florida. ACSI's failure to demonstrate its authorization to do business in Florida is a material deviation that cannot be waived. See, e.g., Greenhut Construction v. Henry A. Knott, Inc., 247 So. 2d 517 (Fla. 1st DCA 1971).

83. This material deviation from a mandatory requirement of the ITB is the most serious flaw in ACSI's response.

    1. Statement of No Involvement

    
    

84. Neither Compass nor ACSI submitted a signed Statement of No Involvement. Compass submitted a Statement of No Involvement but it was not signed. ACSI submitted what amounted to an acknowledgment that its involvement in the drafting of the ITB or in feasibility studies was prohibited but it did not submit an actual statement. Thus, neither Compass nor ACSI's bids were responsive in this respect.

85. The submission of a signed Statement of No Involvement was clearly a mandatory requirement of the ITB under the terms of the ITB. It could not be waived under the terms of the ITB describing non-waivable deviations. Quite simply, a signed bid without a signature on a statement required to be signed is not a

    bid which contains all necessary signatures. It is a signed bid missing a necessary signature: the signature on the statement.

86. Ms. Morris' decision that the failure in signature is a minor irregularity because a signed statement could be obtained after the opening of the bids is contrary to procurement law. If a bidding error constitutes a material variance, the agency may not allow the bidder to amend the bid after its opening. Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190 (Fla. 2d DCA 1977).

RECOMMENDATION

It is

RECOMMENDED that the Department of Corrections enter a final order setting aside the awards of the contracts for the Everglades and Martin facilities to ACSI and Compass, respectively, and awarding the contracts instead to Trinity Services Group, Inc.

DONE AND ENTERED this 30th day of November, 1998, in Tallahassee, Leon County, Florida.

DAVID M. MALONEY

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 30th day of November, 1998.

COPIES FURNISHED:

Rosa H. Carson, Esquire Leonard A. Carson, Esquire Carson & Adkins

Suite 200

2958 Wellington Circle North Tallahassee, Florida 32308 Trinity Services Group, Inc.

Samuel J. Morley, Esquire Susan Stephens, Esquire Holland & Knight, LLP Post Office Drawer 810

Tallahassee, Florida 32302-0810 Aramark Correctional Services, Inc.

Melissa Fletcher Allaman, Esquire Ervin, Varn, Jacobs & Ervin

Post Office Drawer 1170 Tallahassee, Florida 32302-1170 Compass Group U.S.A., Inc.

Lisa M. Bassett

Assistant General Counsel Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500

Louis A. Vargas, General Counsel

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Harry K. Singletary, Jr., Secretary Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 98-003670BID

Orders for Case No: 98-003670BID