STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OLD TAMPA BAY ENTERPRISES, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-5225BID

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

)

and )

)

GE INDUSTRIAL SYSTEMS, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 11 and 12, 1999, in Tampa, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert A. Rush, Esquire

Robert A. Rush, P.A.

726 Northeast First Street Gainesville, Florida 32601

For Respondent: Brian F. McGrail, Esquire

Office of the General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

For Intervenor: Jonathan Sjostrom, Esquire

Steel Hector & Davis, LLP

215 South Monroe Street, Suite 601 Tallahassee, Florida 32301-2804

STATEMENT OF THE ISSUE

The issue presented for decision in this case is whether Respondent, the Florida Department of Transportation ("FDOT"), acted contrary to the agency’s governing statutes, rules or policies, or the proposal specifications, in rejecting the proposal of Petitioner, Old Tampa Bay Enterprises, Inc. ("Old Tampa Bay"), to RFP-DOT-97/98-1003, Bridge Tending/Maintenance and Repair Services for Five Movable Bridges, Sarasota and Manatee Counties (the "RFP" or "RFP 1003"), and awarding the contract to Intervenor, General Electric Industrial Systems ("GE"). GE also raises the issue whether Old Tampa Bay lacks standing because it submitted a materially false or fraudulent proposal.

PRELIMINARY STATEMENT

By a Notice of Intent to Protest dated August 26, 1998, and a Formal Written Protest dated September 4, 1998, Old Tampa Bay contested the rejection of its proposal and the award of the contract for RFP 1003 to GE. Old Tampa Bay’s protest alleged that FDOT acted arbitrarily in refusing to accept substitute electricians for those originally proposed by Old Tampa Bay, the original electricians having been lawfully hired away by a subcontractor of GE. The protest alleged bias in favor of GE on the part of Hendrick Ooms, who was the project manager and the FDOT employee with approval authority of the proposed substitutes. The protest alleged that Mr. Ooms closely

scrutinized the substitutes proposed by Old Tampa Bay, ultimately rejecting them all, while accepting without question the substitutions of key personnel proposed by GE.

By letter dated November 30, 1998, and filed on December 1, 1998, FDOT forwarded the Formal Written Protest to the Division of Administrative Hearings for assignment of an Administrative Law Judge and the conduct of a de novo formal administrative hearing in this matter, pursuant to Section 120.57(1) and (3), Florida Statutes. Accompanying the Formal Written Protest was GE’s Motion to Intervene, filed at FDOT on September 21, 1998.

By order dated December 10, 1998, GE’s Motion to Intervene was granted.

The case was originally scheduled for hearing on

January 27-28, 1999. Upon motion by Petitioner, the hearing was continued and rescheduled for February 11-12, 1998.

At the final hearing, Petitioner presented the testimony of Hendrik Ooms, P.E., Assistant Maintenance Engineer for FDOT and project manager for the bridge contracts; Douglas F. Blake, Site Project Engineer for GE; Felipe Alvarez, Purchasing Agent for FDOT; Donald R. Abernathy, President of Old Tampa Bay; Walter Bruce Chapman, Bridge Tending Supervisor for Old Tampa Bay; John Vance, a contract employee with GE; and Walter R. Harwell, a professional engineer employed by Old Tampa Bay. GE presented the testimony of Mr. Blake. FDOT called no witnesses, presenting

its case-in-chief through cross-examination of Mr. Ooms, Mr. Blake, and Mr. Alvarez.

Joint Exhibits 1-20, 20A, 21-22, 23A, 23B, 25-26, 28-30, and

32-37 were admitted into evidence.

A Transcript of the final hearing was filed at the Division of Administrative Hearings on March 8, 1999. Pursuant to a consented motion for extension of time, an Order was entered setting April 2, 1999, as the filing date for proposed recommended orders. All the parties filed proposed recommended orders on April 2, 1999.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made:

1. On or about April 10, 1998, FDOT issued RFP 1003, requesting proposals for a bridge-tending, maintenance and repair service contract for five movable bridges within Manatee and Sarasota Counties. The contract would run for a period of one year, with an option for two annual renewals.

2. FDOT contemporaneously issued RFP 1004, for the performance of identical bridge tending, preventive maintenance and repair services on four other movable bridges in Sarasota County.

3. The RFP required, among other things, that proposers must employ an experienced bridge tender supervisor and an experienced registered electrical engineer.

4. The RFP required that the contractor must be licensed to perform electrical and mechanical work in the State of Florida, and that a copy of the license be submitted as part of the proposal package. RFP 1003, Section 1.7.5. (In this and some other sections of the RFP, FDOT employed the undefined term "Consultant" rather than the term "Contractor" or "Proposer" used through the bulk of the RFPs. Absent a clarifying explanation, it is assumed that all three terms are used interchangeably.)

5. The RFP required the proposers to provide the names of "key personnel," a resume for each of these individuals, and a description of the functions and responsibilities of each key person relative to the task to be performed. The approximate percent of time to be devoted exclusively to this project was also to be provided. FDOT’s prior written approval was required for the removal and substitution of any of the key personnel proposed. "Key personnel" included project engineers, bridge superintendents, mechanics, and electricians.

6. Under the heading "preventive maintenance," the RFP required the proposers to provide "sufficient and competent personnel to perform the inspection, troubleshooting and work for all bid item requirements." The electrician must be "a licensed

   electrician with experience in industrial maintenance and troubleshooting." RFP 1003, Exhibit A-3, Section 3.0.

7. The RFPs incorporated by reference the "Bridge Operations and Maintenance Manual" (the "Bridge Manual"), an FDOT document establishing procedures for bridge operations and maintenance requirements statewide. The Bridge Manual set forth the following qualifications for electricians:

   1. All electricians working on movable bridges or electrical equipment on any bridge must hold at least a journeyman electrician’s license in at least one Florida county and have skills in industrial electrical work.

      
      

   2. Ability to read and understand blueprints and written instructions.

      
      

   3. Ability to communicate effectively orally and in writing.

      
      

   4. Ability to plan, organize and coordinate work assignments.

      
      

   5. Ability to install, alter, repair and maintain electrical systems, equipment and fixtures.

      
      

      Bridge Manual, pages 2-3.

      
      

8. Another section of the Bridge Manual elaborated on the minimum qualifications for electricians as follows:

   All electricians working on movable bridges or electrical equipment on any bridge must hold at least a journeyman electrician’s license in at least one Florida county and have at least two years experience in industrial electrical work.

   Vocational/training in industrial electricity can substitute at the rate of 720 classroom hours for each year of the required

   experience. After employment, they should attend the Bridge Inspection school and Movable Bridge Inspection school. They should also receive continuing training on motor controls, National Electric Code and applicable safety training. They should be able to read blueprints, and written instructions, communicate effectively, be able to plan, organize, and coordinate work assignments, and have the ability to install, alter, repair and maintain electrical systems, equipment and fixtures.

   Bridge Manual, pages 2-17 through 2-18.

   
   

9. The RFP awarded a maximum of 100 points to responsive proposals. A maximum of 60 points could be awarded for the technical proposals, which were scored by a three-member technical committee that included Hendrik Ooms, FDOT’s assistant maintenance engineer for District One. Each member of the committee scored the proposals independently. Their scores were then averaged to arrive at the final technical score.

10. The RFP listed Richard Marino, the head of contracts for District One, as the project manager who should receive all technical questions from prospective proposers. Regardless of the formal designation, Mr. Ooms was in fact the project manager and the person capable of answering technical questions.

11. The technical proposal scoring subsumed a maximum of 35 points for the "management plan," including 20 points for identified "key personnel."

12. A maximum of 35 points could be awarded for the price proposal. The low price proposal received the maximum 35 points, with the remaining proposals scored according to the formula:

    (Low price/proposer’s price) x Price points = Proposer’s total points. The technical committee was not aware of the contents of the price proposals prior to scoring the technical proposals.

13. Finally, proposers could obtain 5 preference points for Disadvantaged Business Enterprise (DBE) participation of at least

    10 percent of the total dollar amount of the contract, or 2 preference points for DBE participation of between 5 and 10% of the total dollar amount.

14. On or about May 11, 1998, three companies submitted proposals for RFP 1003 and 1004: GE; Old Tampa Bay; and C & S Building Maintenance Corporation. GE is the incumbent vendor for these contracts. Until this bid, Old Tampa Bay was a subcontractor to GE on these contracts.

15. On May 22, 1998, FDOT posted the proposal tabulations indicating the intended awardees of the two contracts. Old Tampa Bay was the apparent awardee of the contract for RFP 1003, the contract at issue in this case, with a total score of 79.67 points. GE was the second high scorer, with 79.45 points.

16. GE was the apparent awardee of the contract for RFP 1004.

17. As to RFP 1003, the averaged technical score for Old Tampa Bay was 39.67 points. The averaged technical score for GE was 49 points.

18. All three members of the technical committee awarded GE more points than Old Tampa Bay, though Mr. Ooms saw a greater

    difference between the two bids than did the other committee members, Richard Marino and Kenneth Clark. Mr. Marino awarded 56 points to GE and 52 points to Old Tampa Bay. Mr. Clark awarded

    53 points to GE and 47 points to Old Tampa Bay. Mr. Ooms awarded

    
    

    38 points to GE and 20 points to Old Tampa Bay.

    
    

19. Despite the difference in the technical proposals, Old Tampa Bay was named the intended awardee for RFP 1003 on the strength of 35 points for its significantly lower price proposal ($539,915 per year, versus $621,340 per year for GE) and obtaining the full 5 points for DBE participation. GE was awarded 30.45 price points according to the RFP formula and obtained no DBE points.

20. No formal protest having been received, FDOT moved forward to the next step in the award process. The agency sent substantially identical letters to Old Tampa Bay as the intended awardee of the contract for RFP 1003 and to GE as the intended awardee of the contract for RFP 1004.

21. The letters, dated June 15, 1998, and signed by Felipe Alvarez, FDOT’s purchasing agent, informed the vendors that they had each proposed the same people as "key personnel" who would devote 100 percent of their time to the project. This situation "concerned" FDOT, as these persons obviously could not devote 100 percent of their time to RFP 1003 as employees of Old Tampa Bay and 100 percent of their time to RFP 1004 as employees of GE.

22. The letters requested each of the vendors to clarify the employment of the following persons: Mr. W. Bruce Chapman, whom GE had identified as its bridge superintendent and Old Tampa Bay had identified as its project manager; Mr. Gary Berkley, whom GE had identified as its mechanic and Old Tampa Bay had identified as its primary mechanic; Kelly Green, whom both GE and Old Tampa Bay had identified as primary electrician; and John Vance, whom both GE and Old Tampa Bay had identified as supporting electrician.

23. The letters concluded with the following statement:

    
    

    The Proposal Package stated that if awarded the Agreement, the Consultant is to provide the services of the key personnel proposed. Removal and substitution of any of the key personnel proposed will require the Department’s prior written approval. Please advise the Department if your firm plans to provide the same key personnel or will be providing an equivalent substitution; equivalent meaning as of [sic] the same caliber, experience, and expertise or better than the individual originally proposed. (Emphasis added.)

    
    

24. As noted in FDOT’s letter, the Old Tampa Bay proposal listed Kelly Green and John Vance as electricians. Old Tampa Bay’s proposal emphasized that Vance and Green were the current electricians performing electrical maintenance and repairs on the bridges, with nine years combined experience on the District One contract.

25. Old Tampa Bay's proposal emphasized the ease of transition to the new contract that FDOT would enjoy should it select Old Tampa Bay:

    There will be no transition pain from the existing prime contractor [GE] to [Old Tampa Bay] as ALL personnel currently serving are already on the [Old Tampa Bay] payroll and have been for several years. FDOT will have no new relationships to establish or unknowns with which to be concerned. (Emphasis in original.)

    
    

26. Old Tampa Bay’s proposal emphasized in several places that Old Tampa Bay would provide the same electricians who were already working on the bridges. In describing its technical approach to the electrical systems, Old Tampa Bay emphasized that its electricians would require no orientation before commencing work:

    The electrical system is a critical link in the operation of the bridge. Its maintenance is crucial to reliable operation. [Old Tampa Bay's] comprehensive maintenance program is designed to meet and exceed contract requirements. The [Old Tampa Bay] electrician (Resume attached) is knowledgeable and experienced in the performance of this program. He has performed this service under other FDOT contracts.

    
    

27. Old Tampa Bay's proposal emphasized the experience of its electricians with respect to the electro-mechanical control systems, stating that "All [Old Tampa Bay] service personnel including electricians have been trained to work on, maintain, and troubleshoot as required each intricate system." Old Tampa

    Bay emphasized the experience of Vance and Green, and stated that they had "never failed to correct any problems on this system on any of the bridges in this contract."

28. Old Tampa Bay made similar representations in regard to equipment malfunctions and computerized control systems, emphasizing the quick, successful responses by and experience of its electricians.

29. The evidence indicated that Old Tampa Bay knew, or should have known, at the time it submitted its proposal, that John Vance had no intention of working for Old Tampa Bay on these contracts.

30. Old Tampa Bay included Mr. Vance’s name and license in its proposal without his consent. Mr. Vance never stated orally or in writing that he agreed to be included in Old Tampa Bay's proposal.

31. Old Tampa Bay never asked Mr. Vance’s permission to include his name as a proposed supporting electrician.

32. Old Tampa Bay never asked Mr. Vance’s permission to include a copy of his electrical contractor’s license in Old Tampa Bay's proposal.

33. About two weeks prior to the proposal submission date, Old Tampa Bay's president, Donald Abernathy, asked Mr. Vance for a copy of his license, but did not tell him that Old Tampa Bay intended to include the license in its proposal. Rather,

    Mr. Abernathy told Mr. Vance that Old Tampa Bay needed the

    license for purposes related to insurance. Mr. Vance refused to provide Old Tampa Bay with a copy of his license.

34. Old Tampa Bay obtained a copy of Mr. Vance’s license by making a public records request to Manatee County, and submitted that copy with its proposal.

35. Mr. Bruce Chapman has served for nearly four years as a bridge tender supervisor, employed by Old Tampa Bay under a GE contract with the FDOT. At the time of the hearing, Mr. Chapman was still an Old Tampa Bay employee.

36. Mr. Chapman assisted Mr. Abernathy in trying to obtain permission of various people to use their names in Old Tampa Bay's proposal. Mr. Chapman testified that he knew from conversations with Mr. Vance that Mr. Vance did not want to work for Old Tampa Bay on the new contract.

37. Old Tampa Bay also knew at the time of proposal submission that it had obtained no assurances from Kelly Green that he would work for Old Tampa Bay on the contract for

    RFP 1003. As detailed below, Mr. Green ultimately signed a letter-of-intent to work for GE on the contract for RFP 1004.

38. Mr. Abernathy contended that Old Tampa Bay was entitled to include Vance and Green in its proposal without permission because they were Old Tampa Bay employees. However,

    Mr. Abernathy also conceded that Vance and Green were at-will employees, and his prior attempt to secure their permission to

    use their names in the Old Tampa Bay proposal was a tacit admission that Old Tampa Bay had no control over them.

39. Further, in the fall of 1997, Mr. Abernathy attempted to obtain the signatures of Mr. Vance and several other bridge employees to a non-compete agreement for the purpose of binding them to Old Tampa Bay. Mr. Vance refused to sign the agreement.

40. Old Tampa Bay provided payroll services to Vance and Green during their work on the bridges under GE’s existing contract with the FDOT, but Old Tampa Bay never supervised the work of the bridge electricians, never provided Vance or Green with the tools, equipment or supplies they used in their work as bridge electricians, and never had any control over the day-to- day activities of any electricians on any FDOT contract.

41. The electricians worked on a daily basis with GE’s project engineer, Douglas Blake. Mr. Blake had trained Mr. Vance on bridge electrical equipment when the latter commenced work on the bridges. The electricians looked to Mr. Blake for technical and substantive assistance in working on the bridges. Mr. Vance testified that he considered himself an employee of GE.

    Mr. Green did not testify at the hearing.

    
    

42. On June 26, 1998, both Old Tampa Bay and GE submitted responses to the FDOT letter of June 15, 1998. In a letter signed by William Trainor, contract leader, GE set forth its staffing plan for RFP 1004. GE identified the following as "key personnel" proposed for the positions discussed in the FDOT

    letters: John Vance as bridge superintendent (replacing W. Bruce Chapman); Bruce Morris as mechanic (replacing Gary Berkley); Kelly Green as primary electrician; and John Vance as Supporting electrician. GE attached résumés for each of these personnel.

43. GE indicated that it would utilize PRM, Inc. as a subcontractor to secure the required contract personnel for the contract under RFP 1004, and GE attached letters-of-intent for employment for each of the named key personnel. Each of these letters was signed either by the named employee or by the president of PRM, Inc.

44. FDOT accepted GE’s response in full. The award of the contract for RFP 1004 to GE was not protested.

45. In a letter dated June 26, 1998, signed by Donald R. Abernathy, president, Old Tampa Bay proposed the following key personnel: W. Bruce Chapman as project manager; Gary Berkley as mechanic; Charles Adam Kenney as bridge superintendent (not mentioned in the FDOT letter); and Kelly Green as primary electrician. Old Tampa Bay attached résumés for each of these personnel. The letter made no mention of a supporting electrician.

46. Old Tampa Bay also attached agreements of the employees to serve in their respective positions. However, the signature line on Kelly Green’s statement of acceptance was left blank.

47. Mr. Abernathy testified that he asked Mr. Green to sign the document indicating his acceptance of employment with Old

    Tampa Bay, but Mr. Green refused. Mr. Abernathy did not reveal this information to FDOT, continuing to maintain that he was within his rights as Mr. Green's employer to include his name in the proposal.

48. FDOT knew from its review of the GE submission that Mr. Green had in fact signed a letter of intent for employment with PRM, Inc. to work on the GE contract.

49. Mr. Alvarez, the FDOT purchasing agent, acted chiefly as a coordinator and as the person ensuring that the procedural requirements of competitive bidding laws were met by FDOT. He admittedly lacked the expertise to make decisions as to the technical aspects of the project. Thus, Mr. Alvarez forwarded the vendors’ responses to Mr. Ooms, the project manager, for his evaluation.

50. Mr. Ooms is a professional engineer, and for the past five years has supervised the operations of all nine bridges covered by RFPs 1003 and 1004.

51. In a memorandum to Mr. Alvarez, dated July 2, 1998, Mr.. Ooms reported his findings and conclusions regarding the vendors’ submissions. As noted above, he found the GE submission acceptable in its identification of PRM, Inc. as a subcontractor and its naming of Vance, Morris, and Green as intended key personnel.

52. Mr. Ooms found acceptable the submission of Old Tampa Bay insofar as it named Chapman, Kenney, and Berkley as key

    personnel. However, Mr. Ooms noted that the Old Tampa Bay submission provided no documentation of Kelly Green’s commitment to work for Old Tampa Bay.

53. Mr. Ooms also noted that the Old Tampa Bay submission made no mention of John Vance, who had been listed as support electrician in Old Tampa Bay’s original proposal, and listed no substitute who would take over those duties. Mr. Vance had also accepted an offer from PRM, Inc. to work on the GE contract. Thus, Mr. Ooms concluded that the proposed key personnel roster submitted by Old Tampa Bay was not acceptable.

54. By letter to Donald R. Abernathy dated July 8, 1998, Mr. Alvarez conveyed to Old Tampa Bay the "discrepancies" found by FDOT in the Old Tampa Bay submission of June 26, 1998. While stating that FDOT accepted the proposal of Chapman, Kenney, and Berkley for their respective positions, Mr. Alvarez pointed out the problems noted by Mr. Ooms as to Green and Vance.

55. The letter concluded that "the Department still requires that your firm provide, in writing, clarification as to the positions of Primary and Supporting Electricians," and required the response by July 13, 1998.

56. Old Tampa Bay responded by letter to Mr. Alvarez from Mr. Abernathy dated July 10, 1998. The letter provided no explanation as to Mr. Green’s unsigned agreement or Old Tampa Bay's failure to mention Mr. Vance or otherwise address the position of supporting electrician. The letter stated no

    objection to any of the conclusions contained in FDOT’s letter of July 8, 1998. The letter took no issue with the standard described for "equivalent" electricians.

57. Old Tampa Bay's letter stated that it had selected

    
    

    Mr. Gary McCormick as its primary electrician. The letter noted that Mr. McCormick was finishing a project but would be available for this contract no later than July 27, 1998. The letter stated that while Mr. McCormick was a "skilled and valuable electrical and hydraulic specialist," he had never been required to have an electrician’s license by any prior employer. The letter requested that FDOT waive the license requirement for 90 days, during which time Mr. McCormick would obtain the required license.

58. The letter attached Mr. McCormick’s résumé, which indicated that he had been involved with the Stickney Point bridge from September 1997 until July 1998. The résumé provided no dates for any of his other employment since 1973. The résumé indicated that most of Mr. McCormick’s electrical experience involved repair and installation of elevators. Old Tampa Bay's submission made no attempt to relate Mr. McCormick’s elevator experience to the electrical specifications of the RFP.

59. The letter further stated that Old Tampa Bay was "actively seeking" a supporting electrician, and that Mr. Abernathy would fill the position until the search was completed over the "next few weeks." The letter gave no further indication

    of the status of Old Tampa Bay's attempt to locate a support electrician. The letter attached the résumé of Mr. Abernathy.

60. Mr. Alvarez forwarded Old Tampa Bay’s July 10, 1998, letter to Mr. Ooms for his review. By memorandum dated July 15, 1998, Mr. Ooms responded to Mr. Alvarez, concluding that the proposed key personnel roster of Mr. McCormick and Mr. Abernathy as primary and supporting electricians was not acceptable.

61. Mr. Ooms’ memorandum first addressed Old Tampa Bay's original statements in its proposal as to Vance and Green, noting that Old Tampa Bay represented both electricians as follows, in his words (punctuation and capitalization not corrected):

    [Mr. Green] "has worked on FDOT movable bridge contracts for the past 4 years in Sarasota and Manatee counties. His duties range from preventive maintenance to emergency repair" . . . "an intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Green has a Journeyman’s electricians license.

    * * *

    
    

    [Mr. Vance] has worked on FDOT movable bridge contracts for the past 5 years in Sarasota and Manatee counties. The maintenance he performs covers the entire bridge--the gates, lock motors, drive motors, variable frequency drives, programmable controllers, contactors, limit switches, control panels and resistors." "intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Vance has a [sic] Electrical Contractor’s license.

62. Mr. Ooms contrasted Mr. Green’s qualifications with those of Mr. McCormick, whose résumé showed that he had less than one year’s experience with bridges, did not hold a journeyman electrician’s license, and thus was not "an equivalent substitution for Mr. Kelly Green."

63. Mr. McCormick’s résumé listed his current employer as "Acutec Inc.," his position as "project electrical foreman," and stated that he was "currently finishing Stickney Point drawbridge rehabilitation project. In charge of electrical, PLC, and hydraulic systems installation, trouble-shooting, and start-up. Working closely with Gregg Martin of FDOT, Sarasota."

64. Mr. Ooms testified that Mr. McCormick did not have the qualifications claimed in his résumé. He testified that

    Mr. McCormick was not in charge of electrical, PLC and hydraulic systems installation on the Stickney Point bridge. He testified that Mr. McCormick was strictly a "wire puller," with "no experience whatsoever to do this type of work."

65. Mr. Ooms took issue with Mr. McCormick’s claim that he was "in charge" of the installation of the PLC, or programmable logic controls. Mr. Ooms testified that Mr. McCormick’s employer, Acutec, was involved with writing the PLC program, setting up the parameters, checking out the hydraulics, and performing the interfacing, but that Mr. McCormick was simply running wires from point-to-point pursuant to instructions from others.

66. Mr. Ooms testified that he knew these facts from watching at first-hand the work being performed on the Stickney Point bridge. Mr. Ooms did not call Acutec to verify the statements in Mr. McCormick’s resume. Mr. Ooms stated that there was no need to call Acutec, as he was out on the bridge and could see for himself what Mr. McCormick was doing.

67. PLCs, or programmable logic controls, are the means by which newer bridges are controlled by computer. The PLC sequences the computer program to constantly monitor the condition and operation of the bridge. The PLC technology is not unique to bridges. It is common in many manufacturing operations, and is in place on two of the five bridges covered by RFP 1003. The remaining three bridges have a manual relay control system. Old Tampa Bay did not dispute that PLC experience is necessary to perform the work as an electrician on this contract.

68. Mr. Ooms noted that Mr. McCormick’s résumé claimed PLC experience, but that when the time came for the contractor to deliver the laptop computer with the PLC programs to run the renovated Stickney Point bridge, Mr. McCormick could not even run the program on the computer. Mr. Ooms testified that if one cannot run the computer program, one cannot do anything on a computer controlled bridge.

69. Mr. Ooms’ testimony as to the qualifications of Mr. McCormick is credited. While Mr. Ooms might have confirmed his

    conclusions with Mr. McCormick’s employer, he cannot be found to have acted arbitrarily in relying on his own extensive observations of Mr. McCormick’s job performance.

70. Old Tampa Bay offered no evidence to dispute the factual underpinnings of Mr. Ooms’ decision that Mr. McCormick was not an equivalent substitute for Kelly Green.

71. Mr. Ooms’ July 15, 1998, memorandum also rejected Mr. Abernathy as the temporary supporting electrician. As quoted above, the memorandum noted Old Tampa Bay's representation that John Vance, the supporting electrician it originally proposed, has worked on FDOT movable bridge contracts for the past five years in Sarasota and Manatee counties, has intimate knowledge of these bridges, and has an electrical contractor’s license.

72. Mr. Ooms noted that Mr. Abernathy does not have an electrical contractor’s license. Mr. Ooms also took issue with Mr. Abernathy’s résumé statement that he has acted as a bridge inspector for the past eight years for Kisinger Campo and Associates, a company that FDOT hires to perform bridge inspections.

73. Mr. Ooms wrote that in the five years that FDOT has let out the operations and maintenance contracts, he has never "seen or known of Mr. Abernathy visiting a Sarasota or Manatee county bridge or troubleshooting a bridge problem." He testified that Kisinger Campo could not have used Mr. Abernathy as a bridge

    inspector because he lacked the required engineer’s license or certification as a bridge inspector.

74. Mr. Ooms admitted that Kisinger Campo does not always tell him who is performing the inspections. Mr. Ooms made no inquiries of Kisinger Campo to verify Mr. Abernathy’s résumé.

75. Mr. Abernathy testified that he was in fact an electrical inspector for Kisinger Campo for eight years and that in 1997 he personally performed inspections on every bridge covered by RFP 1003, including the electrical, lighting, and PLC systems.

76. Mr. Abernathy conceded that he does not have an electrical contractor’s license.

77. Mr. Abernathy’s testimony is credited as to his experience as a bridge inspector. In the case of Mr. McCormick, Mr. Ooms reasonably relied on his own extensive observations. As to Mr. Abernathy, Mr. Ooms attempted to rely on what he did not observe. Mr. Ooms chose to assume, without knowledge or verification, that Mr. Abernathy’s résumé was false. This assumption was arbitrary, and cannot be credited.

78. Mr. Ooms’ decision to reject Mr. Abernathy was nonetheless reasonable. Mr. Abernathy did not possess the requisite license, and admitted that his most recent experience in actually performing bridge electrical maintenance and repair was more than twenty years ago.

79. By letter to Mr. Abernathy dated July 17, 1998,

    
    

    Mr. Alvarez conveyed FDOT’s rejection of Old Tampa Bay’s proposal pertaining to the electrician positions. The reason for rejection was stated as follows:

    As stated within the Request for Proposal Package, if you are proposing to substitute key personnel you must provide an equivalent substitution; equivalent meaning as of [sic] the same caliber, experience, expertise or better than the individual originally proposed.

    
    

    . . . Please understand, the Department is looking forward in [sic] entering into an Agreement with your firm, [sic] however, it cannot accept anything less than what was originally proposed.

    
    

80. Mr. Alvarez’ letter enclosed Mr. Ooms’ memorandum of July 15, 1998, and offered Old Tampa Bay another opportunity to submit substitute electricians no later than July 27, 1998.

81. By letter from Mr. Abernathy to Mr. Alvarez, dated July 27, 1998, Old Tampa Bay submitted a new list of proposed substitutes. The text of the letter stated, in full:

    We have selected Mr. Steven Manning, Master Electrician License Number 3994, Hillsborough County to be our primary electrician.

    Attached is his resume. We have selected Mr. Adrian Cook as the supporting

    electrician, Journeyman License Number JE776, Hillsborough County. We have selected

    Mr. Wayne Cano as an electrician’s helper.

    
    

    Hillsborough County licenses have full reciprocity with Manatee and Sarasota Counties.

    
    

82. Résumés of all three proposed employees were attached, along with copies of the relevant licenses and certificates of

    completion of various professional training courses.

    
    

83. Mr. Manning’s résumé contained sketchy descriptions of the kinds of electrical work he had performed, and gave no indication that he had any experience working with computers or PLCs.

84. Mr. Manning’s résumé revealed no experience with moveable bridge maintenance or repair. Mr. Manning had no experience as an electrician on the FDOT bridges.

85. Mr. Manning’s résumé indicated that his experience included industrial electrical experience intermittently during eight years of electrical work. The résumé indicated "industrial and commercial electrical work," "working in fuel terminals, working with motor controls," "remodeling tenant spaces," "working with new commercial," "working with commercial remodeling, and service work," "traveling around Florida and Georgia remodeling Pizza Huts," "residential and commercial sales, estimating jobs, job foreman, billing and scheduling, handling of permits," and "working with industrial and commercial, service work, remodeling and new construction."

86. Old Tampa Bay's submission offered no specific information or explanation of how Mr. Manning’s varied experience related to the specifications for electrical maintenance and repair in the RFP.

87. Old Tampa Bay had obtained Mr. Manning’s name by calling an electrical company, Southern Power and Controls, and

    asking for recommendations of personnel with qualifications and experience equivalent to Mr. Green’s. Southern Power and Controls is an industrial electrical firm specializing in industrial controls, motor controls, switch gears, limit switches, and PLCs. Old Tampa Bay would have paid a finder's fee to Southern Power & Controls for any employees who went to work for Old Tampa Bay on this contract.

88. Old Tampa Bay provided Southern Power and Controls with the documentation it had submitted to FDOT regarding the qualifications and experience of Vance and Green.

89. Robert Harwell, a registered electrical engineer and principal of Old Tampa Bay, had discussions with Southern Power and Controls as to the qualifications of the candidates it sought.

90. No person from Southern Power and Controls appeared at the hearing to explain the process by which they selected Mr. Manning. No person from Old Tampa Bay ever interviewed Mr. Manning. Mr. Manning did not testify at the hearing.

91. Old Tampa Bay proposed Adrian Cook as a supporting electrician. Mr. Cook’s résumé indicated that he was a licensed journeyman electrician, with four years’ experience as an electrician and two years as an apprentice. Mr. Cook’s résumé indicated two years of unspecified commercial and industrial work, but no moveable bridge experience.

92. Old Tampa Bay obtained Mr. Cook’s name from Southern Power & Controls, asking for personnel with qualifications and experience equivalent to Mr. Green’s. No person from Southern Power & Controls appeared at the hearing to explain the rationale for choosing Mr. Cook. No person from Old Tampa Bay ever interviewed Mr. Cook. Mr. Cook did not testify at the hearing.

93. Old Tampa Bay submitted Mr. Wayne Cano as an "electrician’s helper." Old Tampa Bay did not specify what function Mr. Cano would serve or what actions he would perform as an "electrician’s helper." Neither the RFP nor Old Tampa Bay's proposal contains any mention of an "electrician’s helper."

94. Mr. Cano’s résumé did not indicate an electrician’s license. Old Tampa Bay did not state that it had any intention to require Mr. Cano to obtain an electrician’s license.

    Mr. Cano’s résumé did not indicate any moveable bridge experience or experience on other FDOT projects.

95. Again, Mr. Alvarez forwarded the Old Tampa Bay letter and attachments to Mr. Ooms for his review. Mr. Ooms provided his response by memorandum dated August 6, 1998.

96. Again, Mr. Ooms outlined the qualifications and experience of the electricians originally proposed, Kelly Green and John Vance, as set forth in Old Tampa Bay's own proposal. Mr. Ooms wrote as follows (punctuation and capitalization not corrected):

    Mr. Green’s experience were [sic] listed as follows. "has worked on FDOT movable bridge

    contracts for the past 4 years in Sarasota and Manatee counties. His duties range from preventive maintenance to emergency repair

    . . . an intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr.

    Green has a Journeyman’s electrician license.

    
    

    Mr. Vance’s experience were [sic] listed as follows. "has worked on FDOT movable bridge contracts for the past 5 years in Sarasota and Manatee counties." "The maintenance he performs covers the entire bridge-- the gates, lock motors, drive motors, variable frequency drives, programmable controllers, contactors, limit switches, control panels and resistors." "intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Vance has a [sic] Electrical Contractor’s license.

    
    

    Mr. Green and Mr. Vance each have over four years of "on the Bridge" experience trouble shooting non functioning systems. They have worked on nine different bridges that were 30-40 years old with antique controll [sic]

    systems and on bridges recently rehabilitated with modern computer controlled systems.

    They have years of experience in reading and analyzing bridge ladder logic programs and trouble shooting problems and solutions. All these bridges were operational and any loss of service was quickly reported. An outage can easily block traffic for several miles in minutes generating calls from the sherrifs [sic] department. In addition, any breakdown in service has severe political consequences due to the Ringling bridge and Anna Maria Bridge replacement program. A problem on Ringling Bridge can cause a [sic] hour detour and missed flights.

    On page C-1 of the contract it states "The Contractor’s personnel that will perform the work required by this Section shall be trained and well experienced in start-up and maintenance of equipment . . . and will have

    headquarters within Sarasota/Manatee County"

    . . . On page A-3.2 is [sic] states "the Contractor shall initiate corrective action within fifteen (15) minutes following the malfunction." further down on Page C-1 of the contract "the Contractor agrees to provide men and equipment to a bridge sites [sic] within 30 minutes of notification of any emergency equipment failure".

97. Mr. Ooms contrasted the experience and qualifications of the proposed substitutes as follows (punctuation and capitalization not corrected):

    Mr. Steven Manning experience [sic] in industrial electrical work does not start until 1997. It does not show any bridge related work. His training certificate in Electrical ladder Drawings" is for a one day

    7 contact hours session. The "well experienced" requirement is not clearly indicated by his resume. Mr. Adrian Cook also does not show any bridge related work and the "well experienced". Mr. Wayne Cano has 11 years of industrial experience but no bridge experience or electricians license.

    
    

    In conclusion Old Tampa Bay enterprises needs to provide us with equivalent substitutions. Specifically licensed electricians with a minimum of four years experience in diverse bridge electrical configuration; with old relay logic operation, well experienced in PLC controllers from various manufactures [sic]; the ability to read and interpret ladder logic drawing; the ability to program plc’s. The Department’s inclusion of response time in the contract clearly indicates our desire for prompt and efficient emergency repair work. In other words the Department would like the equivalent of Mr.

    Green and Mr. Vance in the original proposal

    who’s [sic] experience will "keep bridge down time and repair time to a minimum."

    
    

98. By letter to Mr. Abernathy dated August 13, 1998, Mr. Alvarez forwarded FDOT’s rejection of Old Tampa Bay’s

    proposed substitutes. The letter essentially reiterated the contents of the memorandum quoted above, and informed Old Tampa Bay that it would have one last opportunity to provide FDOT with equivalent or better substitutions for the electrical key personnel. Old Tampa Bay’s response would be due no later than August 24, 1998.

99. Mr. Alvarez testified that as to this and his prior letters to Mr. Abernathy, he essentially acted as a conduit for the actual decision-maker, Mr. Ooms. Mr. Alvarez wrote the letters because he was the designated contact person in the FDOT contracts office, not because of any personal expertise or authority he possessed to deal with the issue of the qualifications of the proposed key personnel.

100. By letter from Mr. Abernathy to Mr. Alvarez, dated August 21, 1998, Old Tampa Bay informed FDOT that "we are unable to locate electricians which meet or exceed the qualifications of those we proposed, i.e., Mr. Green and Mr. Vance. Please proceed as necessary." Old Tampa Bay’s letter did not take issue with any of the conclusions set forth in Mr. Alvarez’ letter of

     August 13, 1998.

     
     

101. On August 24, 1998, FDOT posted a revised proposal tabulation finding Old Tampa Bay nonresponsive and listing GE as the intended awardee of the contract for RFP 1003.

102. At the hearing, Mr. Ooms testified that he did not know Mr. Manning, Mr. Cook, or Mr. Cano, had no personal

     knowledge of their background or experience, and relied on their résumés in making his decision.

103. Mr. Ooms felt that Mr. Manning, while a master electrician, lacked sufficient experience on PLCs and had no experience working on bridges. Mr. Ooms noted that the only indication of electrical ladder drawing or computer experience on Mr. Manning’s résumé was a seven-hour continuing education course in electrical ladder drawing.

104. Mr. Ooms’ undisputed testimony was that a single seven-hour course was insufficient to provide the expertise needed to perform the duties required of an electrician on these bridges.

105. Mr. Ooms admitted that John Vance and Kelly Green lacked PLC experience when they started working on the bridges, and were trained by FDOT. However, Mr. Ooms rejected Old Tampa Bay’s suggestion that Mr. Manning could be similarly trained on the job. Vance and Green were trained in connection with the installation of PLC equipment on the Cortez Bridge in 1996.

     Mr. Ooms testified that this training was simply a part of the rehabilitation of the bridge, and that PLC experience was not a prerequisite at the time Vance and Green were hired.

106. Mr. Ooms further distinguished this situation by noting that the issue here is not simply qualifications, but equivalency. Mr. Ooms stated that because Old Tampa Bay’s winning proposal was based on the presence of Vance and Green,

     any substitutes for Vance and Green must not only meet the RFP specifications but must be equivalent to the experience of Vance and Green, which included PLC experience.

107. Mr. Ooms testified that he rejected Adrian Cook for the same lack of PLC experience. Mr. Cook held the required journeyman electrician’s license, but his résumé gave no indication of PLC or troubleshooting experience. Mr. Ooms testified that he called Mr. Cook’s current employer, who vouched for him as a "good man," but provided no details as to his PLC experience. Mr. Ooms also admitted that he did not ask the employer about Mr. Cook’s PLC experience.

108. As to Mr. Cano, Mr. Ooms testified that he appeared well qualified but lacked the required journeyman electrician’s license, and lacked bridge experience. Mr. Ooms was impressed by Mr. Cano’s PLC and ladder logic experience, and might have approved him but for the lack of the required license.

109. Mr. Ooms acknowledged that Kelly Green did not have his journeyman electrician’s license when he started work on the bridges. Mr. Ooms testified that he was unaware of that fact at the time Mr. Green was hired.

110. Douglas Blake, project engineer for GE, affirmed that in the five years GE has been performing bridge operations and maintenance, FDOT has never asked any electrician to produce a license. Mr. Blake testified that performance of an electrician’s job on these bridges does not require permitting,

     and that there is no license exposure to an electrician working these jobs. Mr. Blake’s opinion was that the license requirement is merely a contract tool FDOT can use to eliminate substandard bids.

111. No witness for FDOT assented to Mr. Blake’s characterization of the license requirement. FDOT’s consistent position was that a prospective electrician must have at least a journeyman electrician’s license, as set forth in the RFP and the Bridge Manual.

112. Mr. Blake testified that Manning, Cook, and Cano all appeared to be worthy candidates to be bridge electricians, insofar as their electrical technical qualifications appeared to compare favorably to those of Vance and Green. No evidence was presented that Mr. Ooms had any knowledge of Mr. Blake’s opinion at the time he made his decision, or that such knowledge would have altered that decision.

113. Lane Tyus, a GE electrical engineer with experience on these bridges, likewise testified that the résumés of Manning, Cook, and Cano would pass his initial screening and that he would make a final decision in a face-to-face interview. No evidence was presented that Mr. Ooms had any knowledge of Mr. Tyus’ opinion at the time he made his decision, or that such knowledge would have altered that decision.

114. At the hearing, Old Tampa Bay produced a list purporting to show 25 electricians whose hiring for bridge work

     was approved by FDOT for various districts during the period 1991 through 1998, despite the fact that none of the 25 had prior bridge experience. This list included Mr. Vance and Mr. Green in District One, where Mr. Ooms works.

115. Mr. Ooms disclaimed knowledge as to the approval practices of other districts, which in any event have no relevance to this proceeding.

116. Mr. Ooms again averred that this situation is different than that prevailing when Vance and Green were hired, because the substitutes here proffered by Old Tampa Bay must not only meet the RFP requirements but must be the equivalent of Vance and Green in experience and expertise.

117. Mr. Abernathy testified that he believed the team of Manning, Cook and Cano was the equivalent of Vance and Green. He testified that any modern industrial electrician must have experience with PLCs, and will not necessarily spell-out that experience on his résumé. He testified that it was his "absolute firm belief" that no matter whose names he submitted to FDOT as substitute electricians, they would be rejected.

118. Mr. Ooms testified that he neither favored GE nor disfavored Old Tampa Bay. He admitted having greater familiarity with GE’s personnel because they have been working on the bridges for the last five years. He testified that he considers it his professional obligation to work with whoever holds the contract.

119. Aside from the obvious licensure deficiency for Mr. Cano, these proposed substitutes may well have been

     equivalent to Vance and Green. However, their equivalence could not be ascertained from Old Tampa Bay's submissions. Their résumés did not clearly establish their qualifications in areas that Old Tampa Bay knew or should have known were critical to FDOT. The agency made its expectations very clear to Old Tampa Bay as to what was expected of equivalent substitutes.

120. Old Tampa Bay did nothing to expand upon the sketchy résumés of these persons, or to explicate the relationship between their experience and the work to be performed on the bridges. Mr. Ooms cannot be faulted for failing to consider information that the proposer did not provide. It is found that Mr. Ooms was not biased in rejecting Manning, Cook, and Cano.

121. Old Tampa Bay argues that the disparity in the scoring of the technical proposals between Mr. Ooms and the other two evaluators demonstrates his bias in favor of GE. However, as noted above, all three evaluators gave GE the highest marks for RFP 1003. In fact, the scores for GE’s proposal given by the other two evaluators were significantly higher than the score Mr. Ooms gave to GE’s proposal. The fact that Mr. Ooms found an 18-point disparity between the proposal of GE and the proposals of the other two bidders does not of itself indicate bias in favor of GE on his part, any more than the fact that his score

     for GE was 15 to 18 points lower than the GE scores by the other evaluators indicates a bias against GE.

122. FDOT demonstrated no bias against Old Tampa Bay in this process, providing Old Tampa Bay repeated opportunities to provide satisfactory substitutes for Green and Vance.

123. Old Tampa Bay attempted to show disparate treatment by introducing evidence showing that FDOT allowed GE to substitute Kelly Green for an electrician named Charles Cave in 1995, after award of the previous contract, despite the fact that Green at the time had no experience working on the bridges and did not obtain a journeyman electrician’s license until approximately two months after he commenced work.

124. Assuming arguendo that FDOT’s actions in awarding this contract may be attacked by showing different agency behavior in prior contracts, the evidence adduced by Old Tampa Bay is insufficient because it gives no indication of the qualifications of Charles Cave, the electrician replaced by Mr. Green. There is no way to determine whether Mr. Green was or was not an equivalent substitute for Mr. Cave, and thus no way to establish disparate treatment by FDOT from one contract to the next.

125. Old Tampa Bay further asserts that FDOT’s treatment of Mr. Green when he commenced work indicates that FDOT had the discretion to allow Mr. McCormick to obtain his journeyman electrician’s license after commencing work.

126. Assuming arguendo that Old Tampa Bay’s assertion is correct, the facts establish that the lack of a license was a secondary concern in the rejection of Mr. McCormick. Mr. Ooms testified that his rejection of Mr. McCormick was primarily based on lack of bridge and PLC experience, and the overstatement of qualifications on Mr. McCormick’s résumé. Even if Mr. McCormick possessed the required license, Mr. Ooms would have properly rejected him.

127. Old Tampa Bay challenged FDOT’s allowing GE to make changes in its management personnel after being awarded the contract for RFP 1003. The three upper-level managers in question were located in Atlanta, had nothing directly to do with the operation of the bridges, and were not "key personnel" as described in the RFP and Bridge Manual. GE informed FDOT of the change in a courtesy letter, dated October 20, 1998, more than five months after submission of the original proposals. The RFP did not require these remote persons to be identified by name at all, let alone require GE to freeze them in place as a condition of its contract.

128. As noted above, the facts established that Old Tampa Bay included the name of John Vance in its proposal though it knew or should have known that Mr. Vance had no intention of working for Old Tampa Bay on this project. Old Tampa Bay attempted to demonstrate that GE did substantially the same thing

     when it included the name of Mr. Lane Tyus in its proposal as its registered electrical engineer.

129. Mr. Tyus indeed testified that he did not know that GE had included his name in the proposal at the time it was submitted, and was not made aware of his inclusion until some time after Old Tampa Bay filed its protest. However, Mr. Tyus also testified that he knew his résumé was kept on file by GE precisely for inclusion in proposals. Further, he testified that he has been involved with the contract for these bridges since 1992, that he was not surprised at his inclusion, and that he was prepared to undertake the tasks described in the GE proposal. Thus, there is no comparison between Mr. Tyus’ situation with GE and that of Mr. Vance with Old Tampa Bay.

130. Finally, Old Tampa Bay attempted to demonstrate bias in the fact that FDOT allowed GE to submit John Vance's name as bridge superintendent for RFP 1004, despite his lack of experience in that position. However, Mr. Ooms testified that Mr. Vance was in fact more than qualified for the position, in that the training requirements set forth in the Bridge Manual for electricians such as Mr. Vance include all the requirements for bridge superintendents as well as electrical courses.

     CONCLUSIONS OF LAW

     
     

131. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1) and (3), Florida Statutes.

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

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

133. "A capricious action is one taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic." Agrico Chemical Co. v. Department of Environmental Regulation, 365 So. 2d 759, 763 (Fla. 1st DCA 1978). The inquiry to be made in determining whether an agency has acted in an arbitrary or capricious manner involves consideration of "whether the agency: (1) has considered all relevant factors; (2) has given actual, good faith consideration to those factors; and (3) has used reason rather than whim to progress from consideration of these factors to its final decision." Adam Smith Enterprises v. Department of Environmental Regulation, 553 So. 2d 1260, 1273 (Fla. 1st DCA 1989).

134. Because Old Tampa Bay has challenged FDOT's intent to award the contract to GE, it has the burden of proving "a ground for invalidating the award." State Contracting and Engineering Corp. v. Department of Transportation, 709 So. 2d 607, 609 (Fla. 1st DCA 1998); Section 120.57(3)(f), Florida Statutes ("Unless

     otherwise provided by statute, the burden of proof shall rest with the party protesting the proposed agency action."). Because there is no statute providing otherwise, the findings of fact in this proceeding "shall be based upon a preponderance of the evidence." Section 120.57(1)(h), Florida Statutes.

135. This is a de novo proceeding, which the Court in State Contracting described as follows: "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." 709 So. 2d at 609. The Court cites Intercontinental Properties, Inc. v. State Department of Health and Rehabilitative Services, 606 So. 2d 380, 386 (Fla. 3d DCA 1992) for the definition of a de novo hearing in bid protest proceedings. A de novo proceeding

     simply means that there was an evidentiary hearing during which each party had a full and fair opportunity to develop an evidentiary record for administrative review purposes. It does not mean, . . . that the hearing officer [now administrative law judge] sits as a substitute for the Department and makes a determination whether to award the bid de novo. Instead, the hearing officer sits in a review capacity, and must determine whether the bid review criteria set forth in [Liberty County v.

     Baxter’s Asphalt and Concrete, Inc., 421 So. 2d 505 (Fla. 1982)] have been satisfied.

     
     

136. Old Tampa Bay took no issue with FDOT’s initial evaluation of the proposals for RFP 1003, which resulted in a notice of intended award to Old Tampa Bay, with the proviso that

     Old Tampa Bay confirm the employment status of four employees, including electricians Kelly Green and John Vance, whose names also appeared in GE’s winning proposal for RFP 1004.

137. Old Tampa Bay took no issue with the procedure followed by FDOT to confirm the employment status of these persons, which was to afford both intended awardees an opportunity to respond in writing as to whether they would provide the services of these persons or of "equivalent substitutes," meaning "of the same caliber, experience, and expertise or better than the individual[s] originally proposed."

138. Indeed, had FDOT shown an indication that it would accept persons of inferior experience and qualifications, it would have subverted competitive bidding by according Old Tampa Bay a significant competitive advantage over the other proposers. See Tropabest Foods, Inc. v. Department of General Services, 493 So. 2d 50, 52 (Fla. 1st DCA 1986)(a bid containing a "material variance" is unacceptable, where quoted term is defined in part as an irregularity that "give(s) the bidder an advantage or benefit not enjoyed by other bidders").

139. GE responded with definite letters-of-intent, one signed by Kelly Green himself, and one signed by the president of PRM, Inc. on behalf of John Vance. Old Tampa Bay’s response was silent as to John Vance, but continued to claim that Kelly Green would work on the contract, though the letter-of-intent to work

     for Old Tampa Bay contained a blank signature line for Kelly Green.

140. The facts established that, unknown to FDOT, Old Tampa Bay knew or should have known that John Vance had no intention of working for Old Tampa Bay on this contract, and that it had no assurance that Kelly Green intended to work for Old Tampa Bay. Despite this knowledge, Old Tampa Bay included their names in its proposal and repeatedly emphasized the experience of Vance and Green and the ease of transition FDOT would enjoy if it awarded the contract to Old Tampa Bay.

141. Had FDOT been aware of these circumstances, it would have been within its discretion to refuse to consider any attempts at substitution and to reject the Old Tampa Bay proposal at the outset.

142. Even under the facts as FDOT understood them at the time, FDOT would have been within its discretion to reject the Old Tampa Bay proposal as of June 26, 1998, when Old Tampa Bay submitted an unsatisfactory list of electricians, i.e., the name of Kelly Green with no assurance that Mr. Green intended to work for Old Tampa Bay on RFP 1003, and the unexplained omission of John Vance.

143. However, rather than rejecting Old Tampa Bay's proposal out of hand, FDOT proceeded to give Old Tampa Bay three more opportunities to submit a list of acceptable substitute electricians for Vance and Green. Old Tampa Bay chose not to

     respond to the third proffered opportunity, instead sending FDOT a letter stating that Old Tampa Bay was unable to locate electricians who meet or exceed the qualifications of Vance and Green.

144. FDOT’s "equivalent substitute" standard was appropriate to ensure that no proposer gained an unfair advantage. In a contract involving procurement of personnel, it may at times be necessary for a vendor to substitute personnel. FDOT anticipated that possibility by including in the RFP the provision for substitutions with FDOT approval.

145. Old Tampa Bay offered no evidence of the circumstances surrounding any of the other new electricians it alleged had been hired and trained on these and other FDOT bridges in the past. The list offered by Old Tampa Bay to show that FDOT had hired many electricians without prior bridge experience in several districts has no bearing on this case, because it does not address the issue of equivalence when substituting electricians named in a winning proposal.

146. In the one specific instance in which Old Tampa Bay attempted to prove that GE substituted the electrician included in one of GE’s bids, no evidence was offered of the surrounding circumstances or of whether the substitute, Kelly Green, was in fact "equivalent" to Charles Cave, the electrician he replaced.

147. Old Tampa Bay argued that FDOT acted arbitrarily in rejecting the two slates of substitute electricians it did

     submit. Old Tampa Bay argued initially that these electricians should have been accepted because they met the criteria for electricians set forth in the RFP and the Bridge Manual.

148. Accepting arguendo that these electricians met the criteria of the RFP and the Bridge Manual, Old Tampa Bay's argument nonetheless fails. FDOT correctly pointed out that, by submitting the names of Vance and Green in its proposal and permitting its proposal to be scored on that basis, Old Tampa Bay raised the bar such that any proposed substitutes had to be at least of the same caliber, experience, and expertise as Vance and Green. Where the contract had already been tentatively awarded to Old Tampa Bay with a winning score partially based on the presence of Vance and Green as electricians in its proposal, Old Tampa Bay could not be allowed to substitute electricians who merely met the minimum criteria set forth in the RFP and Bridge Manual.

149. Old Tampa Bay argued that when Vance and Green were initially hired as bridge electricians, neither had any bridge experience. Old Tampa Bay argued that the electricians it sought to substitute were equivalent to Vance and Green at the time Vance and Green were initially hired and had no bridge experience. This argument is unavailing, because the qualifications of Vance and Green at the time they were hired was not the standard to be applied in this instance.

150. Old Tampa Bay's proposal did not offer qualified but inexperienced electricians. Old Tampa Bay offered the same electricians who had provided satisfactory maintenance and repair service on the very bridges under this contract for years. Its proposal was permeated with representations that FDOT could rely upon Old Tampa Bay's bringing with it the electricians currently working on the bridges. Thus, the standard for any proposed substitutes was that they be equivalent to the electricians currently working on the bridges.

151. Old Tampa Bay went on to argue that Hendrik Ooms was biased in favor of awarding the contract to GE, and that his bias ensured that no electrician proposed by Old Tampa Bay would ever be found an equivalent substitute for Vance and Green. The fault, however, lay not with Mr. Ooms but with the sketchy résumés provided by Old Tampa Bay in support of its proposed substitutes. The résumés gave Mr. Ooms precious few specifics as to their qualifications and the applicability of their skills to the jobs for which they were proposed.

152. Old Tampa Bay faulted Mr. Ooms for failing to make further inquiries to satisfy his questions regarding the experience and expertise of the proposed substitutes. The facts established that Old Tampa Bay itself undertook only the most cursory review to confirm the qualifications of the substitutes whose names it obtained from Southern Power & Controls. Old Tampa Bay had no answer for Mr. Ooms' objections to the Stickney

     Point bridge experience claimed by Mr. McCormick. By failing to include comprehensive descriptions of the experience of its proposed substitutes, Old Tampa Bay ensured that FDOT could make no meaningful comparison.

153. Old Tampa Bay argued that FDOT’s "equivalent substitution" standard essentially meant that there could be no substitution. However, Old Tampa Bay never attempted to seek clarification of the standard, nor did it offer an explanation of its own rationale for concluding that its proposed substitutions were equivalent. Old Tampa Bay simply handed FDOT résumés that Old Tampa Bay itself had given only the briefest examination, for proposed employees that in most instances Old Tampa Bay had not bothered to interview.

154. Mr. Ooms was not required to make inquiries to complete Old Tampa Bay's submissions for it. FDOT had already bent over backwards in giving Old Tampa Bay multiple opportunities to save its bid. FDOT was not further required to instruct its employee to undertake independent efforts to supplement submissions that the agency had gratuitously allowed in the first instance. FDOT was candid in revealing the reasons for its rejections. Old Tampa Bay had every opportunity to modify and improve its own efforts, and failed to do so. FDOT was justified in rejecting Old Tampa Bay's attempted substitutions.

155. Mr. Blake and Mr. Tyus, both of GE, offered their opinions that Manning, Cook, and Cano appeared to be well qualified substitutes. Their opinions played no part in

     Mr. Ooms’ decisions regarding these proposed substitutes, and do not impeach his independent judgment based on his review of Old Tampa Bay's submissions. Mr. Ooms could not have consulted these representatives of a competing vendor had he wished, and their after-the-fact assessments are thus irrelevant.

156. Further, the fact that a private employer might take a second look at or interview these potential employees based upon their sketchy résumés does not establish that a state agency, reviewing a proposal, is required to allow the proposer to supplement its deficient response. In fact, case law establishes that agencies must tread carefully when allowing bidders to change their bids. See Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190, 1192 (Fla. 2d DCA 1977)("a bidder cannot be permitted to change his bid after the bids have been opened, except to cure minor irregularities"); E. M. Watkins & Company, Inc. v. Board of Regents, 414 So. 2d 583, 587 (Fla. 1st DCA 1982)(discussion of "unfair bidding advantages" enjoyed by bidder who fails to list subcontractors in bid but is allowed to supply the list after bid opening).

157. Mr. Blake’s opinion that the licensing requirement is merely an FDOT contract management tool, unrelated to the actual performance of the contract, stands only as his personal opinion.

     FDOT’s is the authoritative voice as to the licensing requirement, provided its view is not arbitrary. The RFP clearly stated that a journeyman’s license was required to work as an electrician on this contract. No party challenged that RFP requirement. Mr. Blake’s implication that the work could be performed by an unlicensed electrician may be accurate and would have some bearing in a proceeding challenging the RFP itself, but is irrelevant to this proceeding in light of the clear RFP requirement.

158. Old Tampa Bay's attempt to prove Mr. Ooms’ bias through his scoring of the proposals is without merit. All three members of the technical committee rated the GE proposal for RFP 1003 as the best. The other two committee members found less difference between the GE proposal and those of Old Tampa Bay and C & S Building Maintenance Corporation than did Mr. Ooms. However, this fact alone does not establish that Mr. Ooms' scoring of the proposals was based on anything other than his honest judgment, or that his assessment of the relative merits of the proposals was less reliable than those of the other two evaluators. It could be reasonably asserted that, given his first-hand experience of the nuts and bolts of operating these bridges, Mr. Ooms’ evaluation was more reliable than those of the other two evaluators.

159. Mr. Ooms was not required to put on blinders or disregard his own first-hand knowledge of the operations of these

     bridges and of the people who have worked on them. It is reasonable to assume that Mr. Ooms was placed on the evaluation committee precisely because of this knowledge, and that FDOT would have been remiss had it not taken advantage of Mr. Ooms’ experience. He knew the capabilities of Vance, Green, and McCormick, and was able to make judgments based on that knowledge. He knew nothing of Manning, Cook, and Cano, and it was incumbent upon Old Tampa Bay to provide him with sufficient information to make a reasonable decision as to their abilities. Old Tampa Bay's failure to provide that information does not establish Mr. Ooms’ bias.

160. Old Tampa Bay argued that Mr. Ooms should have been excused from his duties in this procurement, due to his "outside knowledge not confined to the documents submitted in the RFP" regarding the qualifications of the personnel in question. Old Tampa Bay attempts to analogize the procurement evaluation process to a court proceeding, in which a judge or juror may indeed be dismissed for knowledge of disputed evidentiary facts or suspicion of partiality.

161. The analogy does not hold. There was no evidence that Mr. Ooms was partial to GE in this procurement, and "outside knowledge" is not a disqualifying factor in evaluating a bid. Rather, agencies making major procurements of services are required by statute to appoint "a selection team of at least three employees who have experience and knowledge in the program

     areas and service requirements for which contractual services are sought." Section 287.057(15), Florida Statutes (Supp. 1998) (emphasis added). Contrary to Old Tampa Bay's suggestion that FDOT should have appointed evaluators who were blank slates regarding the performance history of the existing contractors, FDOT had an affirmative duty to appoint a selection team with experience and knowledge of the bridges. Such experience necessarily subsumes knowledge of the individuals working on the bridges.

162. Despite the indicia that Old Tampa Bay knew or should have known that Vance and Green did not intend to work for it on this contract, GE's assertion that Old Tampa Bay's protest should be rejected for lack of standing due to its having submitted a false or fraudulent proposal is rejected. It is concluded that the evidence was insufficient to establish that Old Tampa Bay intended to submit a fraudulent proposal. Mr. Abernathy's testimony is credited to the extent that he honestly, albeit stubbornly and wrongly, believed that Old Tampa Bay was within its rights to submit the names of these electricians because they were on the payroll of Old Tampa Bay at the time the proposals were submitted.

163. In summary, it is concluded FDOT made every reasonable effort to assist Old Tampa Bay in obtaining the final award of the contract for RFP 1003, and that the reason for Old Tampa Bay's ultimate rejection was not FDOT's bias against Old Tampa

     Bay or in favor of GE. Rather, Old Tampa Bay's cavalier treatment of the multiple opportunities afforded it to save its proposal caused its rejection.

164. FDOT's decision to award the contract for RFP 1003 to GE was not clearly erroneous, contrary to competition, arbitrary, or capricious. FDOT's decision to award the contract for RFP 1003 to GE was not contrary to the agency's governing statutes, rules or policies, or the proposal specifications. In this de novo proceeding, Old Tampa Bay established no grounds for invalidating the award.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Transportation enter a final order dismissing the protest filed by Old Tampa Bay Enterprises, Inc. and awarding the contract for RFP-DOT-97/98- 1003, Bridge Tending/Maintenance and Repair Services for Five Movable Bridges, Sarasota and Manatee Counties, to General Electric Industrial Systems.

DONE AND ENTERED this 27th day of May, 1999, in Tallahassee, Leon County, Florida.

LAWRENCE P. STEVENSON

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

www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1999.

COPIES FURNISHED:

Jonathan Sjostrom, Esquire Steel, Hector & Davis LLP

215 South Monroe Street, Suite 601 Tallahassee, Florida 32301-1804

Brian F. McGrail, Esquire Office oif the General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

Robert A. Rush, Esquire Robert A. Rush, P.A.

726 Northeast First Street Gainesville, Florida 32601

Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Docket for Case No: 98-005225BID

Orders for Case No: 98-005225BID