STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
N. EXPERTISE, INC., )
)
Petitioner, )
)
vs. )
) MIAMI-DADE COUNTY SCHOOL BOARD, )
)
Respondent, )
)
and )
) PREVENTIVE MEDICAL TESTING ) CENTERS, INC., d/b/a GLOBAL ) MRO, )
)
Intervenor. )
Case No. 01-2663BID
RECOMMENDED ORDER
The parties having been provided proper notice, Administrative Law Judge John G. Van Laningham of the Division of Administrative Hearings convened a formal hearing of this matter in Miami, Florida, on October 17, 2001. The proceeding was adjourned on October 18, 2001.
APPEARANCES
For Petitioner: Norman C. Powell, Esquire
Bilzin, Sumberg, Dunn, Baena, Price & Axelrod, LLP
2500 First Union Financial Center
200 South Biscayne Boulevard Miami, Florida 33131-2336
For Respondent: John A. Greco, Esquire
Miami-Dade County School Board
1450 Northeast Second Avenue, Suite 400
Miami, Florida 33132
For Intervenor: Peter E. Abraham
999 Brickell Avenue, Suite 1000
Miami, Florida 33131 STATEMENT OF THE ISSUES
The issues in this bid protest are whether, in making a preliminary decision to award a contract for drug screening services, Respondent acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition.
PRELIMINARY STATEMENT
In this bid protest, Petitioner R.N. Expertise, Inc. ("RN") challenges the proposed award of a public contract to Intervenor Preventive Medical Testing Centers, Inc., d/b/a Global MRO (“Global”). The letting authority is Respondent Miami-Dade County School Board (the “Board”).
The subject contract, for which proposals were solicited under Request for Proposals No. 149-AA10, is for services relating to drug and alcohol testing. The selected vendor will provide professional services associated with the collection of specimens (urine, breath, and blood) from employees of, and those who apply for employment with, the Miami-Dade County
Public School District (the “District”); the transportation of such specimens to a certified laboratory for testing; and the reporting of test results.
Two organizations, Global and RN, submitted proposals in response to the RFP. On April 11, 2001, a selection committee convened to evaluate the proposals. This committee voted to recommend that the contract be awarded to Global. RN timely protested the proposed award, the Board forwarded the matter to the Division of Administrative Hearings (“DOAH”), and the undersigned scheduled a final hearing for July 30, 2001.
Before this hearing occurred, the Board determined that the April 11, 2001, meeting may have violated the Sunshine Law. A continuance was granted, and the case was placed in abeyance, to enable the selection committee to reconvene in a public meeting for the purpose of reevaluating the proposals in compliance with the Sunshine Law.
The selection committee met again on September 4, 2001, and again voted to recommend Global for the contract. On
September 6, 2001, RN sent a letter to the Board’s counsel protesting the second proposed recommendation. (At hearing, the undersigned (with agreement of all parties) deemed the September 6, 2001, correspondence to be an amended pleading constituting RN’s formal written protest of the operative proposed agency action.)
Following that, the final hearing was re-set for October 17, 2001, and proceeded as scheduled with both sides
present. In addition, Global appeared through counsel at the final hearing and moved to intervene. This motion was granted, but Global’s participation was limited to avoid undue delay and prejudice to RN.
At the final hearing, RN put seven witnesses on the stand, each of whom was, at the time, an employee of the District: William Bevan, Barbara Jones, Patricia Parham, Gwendolyn Jennings Kidney, Maria Rodriguez, Enrique Sacasa, and Frederick Conde. RN also offered 13 exhibits (Petitioner's Exhibits 1, 2, 3, 4, 5, 14, 15, 23, 24, 26, 27, 29, and 32), which were
received into evidence.
During RN’s case, the Board elicited testimony through friendly “cross examination” of the District employees that RN called. Thereafter, the Board rested without presenting a defensive case-in-chief.
The hearing transcript was filed with DOAH on November 19, 2001. RN and the Board timely filed proposed recommended orders, which have been carefully considered.
FINDINGS OF FACT
The evidence presented at final hearing established the facts that follow.
The Request for Proposals
On March 14, 2001, the Board authorized the issuance of a request for proposals to solicit offers on a contract for drug screening services. Soon, Request for Proposals No. 149-AA10 (the “RFP”) was issued.
The purpose of the RFP, as stated on the first page thereof, was
[t]o obtain the services of an organization to conduct applicant and employee specimen collection and drug screening services both to meet the general requirements for collection and drug screening services; and the Omnibus Transportation Employee Testing Act (OTETA) requirements for collection and drug screening services. These professional services are described in the Miami-Dade County Public Schools (M-DCPS) Drug-Free Workplace Technical Guide (Attachment A).
The deadline for submission of proposals in response to the RFP was April 10, 2001.
Page 3 of the Miami-Dade County Public Schools (M-DCPS) Drug-Free Workplace Technical Guide (the “Guide”) explained that applicants and employees are tested in the following circumstances: (1) upon application for full-time employment;
(2) when "reasonable suspicion"1 exists to believe that an employee has impermissibly used drugs or alcohol; (3) as part of routine "fitness for duty" medical examinations2; and (4) as a "follow up" to an employee's completion of a drug rehabilitation program.
Because the District employs persons performing safety- sensitive functions and persons who hold commercial driver licenses, the District must comply with a federal law known as the Omnibus Transportation Employee Testing Act (“OTETA”). Employees covered by OTETA are subject to pre-employment testing, post-accident testing, random testing, reasonable suspicion testing, "return-to-duty" testing (after a positive test), follow-up testing, and annual testing. Guide, pp. 10-14. Unlike other employees, persons falling under OTETA are not subject to blood alcohol screening. Guide, p. 22.
The type of drug test that the District most frequently requests involves urinalysis. For alcohol testing, breath analysis is the normal practice. Blood alcohol testing is used infrequently. The RFP did not explicitly disclose the District’s relative demand for these various types of tests.
Section V of the RFP prescribed the technical requirements with which proposers needed to comply. Subsection C thereof stated, in pertinent part:
The collection site is a place where individuals present themselves for the purpose of providing urine or blood specimens to be analyzed for the presence of drugs or alcohol.
Page 15 of the Guide added that "[c]ollection sites shall have all of the necessary personnel, materials, equipment, facilities, and supervision to provide for the collection,
security, temporary storage, and shipping or transportation of urine specimens to a certified drug testing laboratory."
Section V, subsection K set forth four “location parameters [as] examples of locations which shall comprise the areas for collection and drug screening to insure [sic] convenience for applicants and employees.” These “location parameters” essentially divided the Miami-Dade County service area into quadrants.
Section V, subsection L, provided in relevant part: “Mobile collection of specimens will be required at some of the Regional Transportation Centers[.]” The Guide, at page 15, further mandated that "[m]obile collection sites" be equipped and staffed "the same as" other collection sites.
Section V, subsection M stated, in part: “A collection site is preferred in the area of 1500 Biscayne Boulevard, Miami, Florida 33132, for the convenience of any potential employees who wish to provide specimen collection concurrent with a scheduled interview by the Office of Human Resources.”
Section V, subsection N, stated:
At least one site in the North end and [sic] of Miami-Dade County and one site in the South end of Miami-Dade County must be available to perform reasonable suspicion testing of employees. The hours of operation of these facilities must be from 8:00 a.m. to 12:00 midnight.
Section VI of the RFP, which addressed the cost of proposed services, instructed that
[p]roposals must include an itemization of charges for collection of specimens, initial and confirmatory tests. Such itemized charges will be used in the event a retest is necessary. Retests required as a result of defective equipment, incorrect analysis, or misinterpretation shall be done at the expense of the provider.
Section VIII provided that proposals would be “evaluated by [a] selection committee . . . comprised of representatives of the school district, in order to ascertain which proposal best meets the needs of the School Board.” The selection committee (hereafter, “committee”) was to be composed of one administrator each from five separate offices, which were designated in section VIII.
Section VIII also established the evaluation criteria to be used by the committee, stating:
Evaluation considerations will include, but not be limited to, the following:
Responsiveness of the proposal clearly stating an understanding of the work to be performed meeting all the technical guidelines in [the Guide].
Cost may not be the dominant factor, but will have some significance. It will be a particularly important factor when all other evaluation criteria are relatively equal.
Documentation of current certification by DHHS; qualifications of laboratory
staff members; past experience and record of performance; verification of references.
Location of the laboratory and planned method of pick-up from designated collection sites and transportation of specimens according to chain of custody protocol to the drug testing laboratory; turnaround time relative to volume of expected need; accessibility relative to volume of expected need.
Primary emphasis in the selection process will be placed on the independence, background, experience, and service of staff to be assigned to the project. Expertise in the areas addressed in the RFP, and the ability to respond in a timely, accurate manner to the district’s requirements is essential.
Vendor must have a specific comprehensive plan in place to delineate OTETA collection/testing from general collection/testing.
The School District reserves the right to reject any and all proposals submitted and to waive irregularities. . . . .
Relevant Details About the Proposals
Two proposers, Global and RN, submitted timely responses to the RFP. The following is a look at certain terms in their respective proposals.
Global’s Proposal
Global was the incumbent provider pursuant to a contract that had been entered into on June 11, 1997. Even before the establishment of the expiring contractual
relationship, from 1995 forward, Global had provided general drug testing services for the District. In addition to that, Global had performed fingerprint analyses for the District prior to 1995. Thus, Global had a history with the District.
In a Fee Schedule included at page VIII-1 of its proposal, Global quoted the following prices for services:
* * *
After hour Services
Monday — Friday: 5:00 p.m. — 8:30 a.m. Saturday and Sunday All Day
* * *
At page V-1 of its proposal, Global listed ten collection facilities, providing their addresses and hours of operation. According to the proposal, only one of these facilities stays open until midnight. Five of them close each weekday at 4:00 p.m., and four at 5:00 p.m. None is open on weekends.
Global offered collection sites in each of the quadrants specified in subsection V.K. of the RFP. It offered a
site in the area of 1500 Biscayne Boulevard, Miami, Florida, as recommended in subsection V.M. And Global offered at least one site each in the north and south ends of Miami-Dade County, satisfying the geographic requirements of subsection V.N. Global’s south-end site, however, closes at 5:00 p.m. and thus fails to satisfy the requirement, also prescribed in subsection V.N., that such facility remain open until midnight.
In addition to these stationary facilities, Global offered the services of a mobile unit. Its proposal stated:
ON-SITE COLLECTION
Global described its mobile unit, at page V-2, as a “self contained air conditioned motor coach equipped with 2 bathrooms, blood drawing chair, urine collection equipment, computerized breach alcohol analyzer with ample facilities for a physician to conduct physical exams on DOT (OTETA) employees and yearly re- certification.”
Global, in fact, has three of these mobile units. The vans are available for use by all of Global’s clients. Two vehicles are maintained in Fort Lauderdale, Broward County, Florida, and thus are in position to respond to service calls
for the District. The third van is maintained in western Palm Beach County. Because after-hours tests generally are needed in post-accident and reasonable suspicion circumstances, which require a rapid response (within two hours of the incident), the Palm Beach County-based van would not, as a practical matter, likely be deployed for the District. Global does not maintain a mobile unit in Miami-Dade County.
B. RN’s Proposal
Included in RN’s proposal was the following schedule of costs:
RN Expertise charges $27.80 for a 5 panel NIDA drug screen. This charge includes an adulterant panel, 5 panel drug screen, collection of the specimen, transportation charges and MRO charges.
There will not be a charge for confirmation tests.
RN Expertise charges $26.00 for an 8 panel drug screen. This charge will include an adulterant panel, 8 panel drug screen, collection of the specimen, transportation charges and MRO charges. If the School Board does not elect to have an adulterant panel performed on general tests the charge will be $25.00.
RN Expertise charges $25.00 for a breath alcohol test. This also includes on- site testing charges. There will not be a charge for confirmation tests.
RN Expertise will charge $30.00 for a blood alcohol test.
RN Expertise will submit monthly invoices. These invoices will be submitted
to the Office of Operation and Records and/or the Office of Professional Standards (OTETA) through a purchase order. The invoices shall reflect service provided to the Board in the prior month.
Regarding collection sites and locations, RN’s proposal stated, at pages 12 through 13:
Quest Diagnostics [the laboratory that RN proposed to use] has 14 collection sites in the Miami-Dade County area. Please see Appendix B for all maps of locations and zip code map with all locations that have been highlighted for your convenience.
RN Expertise, Inc. will provide all on- site drug screen collections and breath alcohol tests. We have numerous certified collectors and breath alcohol technicians throughout the state who specialize in on site testing. All collectors and BATS have been certified by Christine Steele. Please see Appendix C. for certificates of RN Expertise, Inc. and insurance and licenses.
Three Quest patient care centers are located very close to the area of 1500 Biscayne Boulevard, Miami, Florida, 33232. The hours of operation are 7:00 am to 4:30 pm.
RN Expertise has arranged three third party sites in the North end of Miami-Dade county and one site in the south end of Miami-Dade County that are available to perform reasonable suspicion and post- accident testing. The hours of operation are from 8:00 am to 12:00 midnight. These addresses are:
Workers Compensation Medical Center 17601 N.W. 2nd Avenue Ste S
Miami, Florida 33169
Workers Compensation Medical Center 6504 N.W. 77th Court
Miami, Florida 33166
Homestead Hospital
160 NW 13th Street Homestead, FL 33030
If these sites are not convenient we can arrange additional sites or provide these tests on an on-site basis.
RN offered collection sites in each of the quadrants specified in subsection V.K. of the RFP. It offered sites in the area of 1500 Biscayne Boulevard, Miami, Florida, as recommended in subsection V.M. And RN offered at least two sites in the north end of Miami-Dade County and one in the south, all three of which were open from 8:00 a.m. until midnight, thereby satisfying both the geographic and hours of operation requirements of subsection V.N.
The Evaluation Committee(s),
Mr. Bevan’s Comparison Chart, and the Evaluations A. The Original Committee
To evaluate the proposals, a five-person committee was appointed in accordance with the RFP. Its members were Nelson
E. Diaz, Deputy Superintendent, Personnel Management and Services; Gwendolyn Jennings Kidney, Assistant Superintendent, Employee Support Programs; Jose Montes de Oca, Assistant Chief Auditor, Management and Compliance Audits; Michael Fox, Risk
Analyst, Risk and Benefits Management; and Patricia Freeman, Director, Business Development and Assistance.
This committee arranged to meet for the first time on April 11, 2001. Notice of the meeting was not published in advance; the committee would convene in private.
The following staff persons were asked to be present at the April 11 meeting to provide technical expertise, if needed: Vera Hirsh, Administrative Director, Personnel; William Bevan, Executive Director, Personnel Operations and Records; Frederic F. Conde, Executive Director, Office of Professional Standards; and Barbara Jones, Director, Procurement.
B. Mr. Bevan’s Comparison Chart
Before the April 11, 2001, meeting, Ms. Hirsh asked Mr. Bevan, as a technical advisor to the committee, to prepare a comparison of the two proposals. At the time, Mr. Bevan was most knowledgeable about the District’s procedures for drug testing, because he had been directly involved in the general drug testing program. Also, through his work experiences, Mr. Bevan had acquired personal knowledge concerning Global. Indeed, Global had listed Mr. Bevan as a reference in its proposal.
Mr. Bevan prepared a comparison chart that was distributed to all the members of the committee. The following table contains the substance of Mr. Bevan's comparison chart:3
Item No. | GLOBAL | RN EXPERTISE |
1 | TURNAROUND TIME IS NEXT BUSINESS DAY 5 DAYS ON POSITIVE | 24 HOURS FOR NEGATIVES 48 HOURS FOR POSITIVES |
2 | LOCATION IS FORT LAUDERDALE | ALTAMONTE SPRINGS |
3 | PLAN TO DELINEATE OTETA FROM GENERAL GOOD PLAN PLUS ICON BASED DRUG TEST FORM | VERY WEAK PLAN VERY WEAK ANALYSIS |
4 | COST $30.00 DOT BLIND SAMPLES ARE INCLUDED | COST $27.80 NO MENTION OF BLIND SAMPLES |
5 | POLICE $25.00 ALL ALCOHOL TESTS BOTH BREATH & BLOOD ARE $25.00 | $26.00 8 PANEL TEST BREATH ALCOHOL $25.00 BLOOD ALCOHOL $30.00 |
6 | COLLECTION SITES 10 TOTAL SITES | 14 TOTAL SITES LESS 4 IN BROWARD, 6 FOR BLOOD DRAW ONLY = 4 NET SITES |
7 | MOBILE COLLECTION DONE BY MOBILE VAN | "WILL PROVIDE ON-SITE COLLECTION" |
8 | EXPERIENCE 4 YEARS WITH M-DCPS NO SUCCESSFUL LEGITATION [sic] AGAINST M-DCPS US SUGAR | ? |
9 | LABORATORY LAB CORP OF AMERICA LATE IN REPORTING RESULTS ONE TIME IN FOUR YEARS | QUEST LABORATORIES QUESTIONABLE |
10 | ADULTERANT TESTING IS PERFORMED BY LAB CORP AT A STANDARD COURSE OF PROTOCOL WITH NO CHARGE FOR THIS PROCEDURE | TESTSURE IS BROKEN OUT AS A SEPARATE ENTITY |
Because of his personal knowledge of and experience with the drug screening program, Mr. Bevan's opinions carried great weight with the committee members. As will become clear, moreover, Mr. Bevan operated as a de facto evaluator. Thus, for good reasons, his comparison chart drew RN’s close and critical attention. It will be examined in detail below.
Item No. 1. This item is helpful as a contrast to the others, for here Mr. Bevan did exactly what a technical advisor should do: provide a concise, accurate, and objective summary of details contained in the proposals without making a subjective judgment as to which proposal is superior.
Item No. 2. As Mr. Bevan admitted at hearing, the RFP did not include, as an evaluation criterion, the location of a proposer's base of operations. Testifying, he explained that, "in [his] mind, [a proposer's location] was not something that was in the RFP, but it was important to me." Hearing Transcript (“T.”) 59. Of course, it was not Mr. Bevan's place to make subjective judgments about what was valuable in the proposals—— that was for the evaluators. Further, even the evaluators could not properly take into account undisclosed evaluation criteria. Thus, this comparison was irrelevant and consideration thereof was contrary to the RFP and contrary to competition.
Item No. 3. This comparison pertained to the evaluation criterion specified in section VIII, subsection F, which provided:
Vendor must have a specific comprehensive plan in place to delineate OTETA collection/testing from general collecting/testing.
Mr. Bevan dubbed RN's proposal "very weak" and Global's "good" primarily because Global's prototype OTETA form had a
transparent drawing of a school bus superimposed over the writing, and its sample form for use by school police officers had a simple, freehand outline of an officer drawn on its face, whereas RN's forms did not have such "icons." Mr. Bevan believed that the pictures of the school bus and police officer would prevent the less intelligent applicants and employees from using the wrong form.4
Although reasonable people might disagree with Mr.
Bevan's analysis of the respective merits of the proposals on this criterion, his conclusion was neither arbitrary nor capricious. The problem, however, is that Mr. Bevan was not a member of the committee, and his qualitative judgment went well beyond an even-handed explanation of a technical term or process, or an objective summary of the proposals' details. In other words, as this item clearly shows, Mr. Bevan assumed the role of evaluator.
Item No. 4. Mr. Bevan's comparison of "blind sample testing" is interesting because the purpose of focusing on this discrete point, among all others relating to the proposers' price quotes for OTETA testing, seems to have been to blunt the advantage that RN otherwise would enjoy for having offered the lower price. (The comparison effectively says, RN's OTETA test is cheaper, yes, but Global adds value by performing blind samples, whereas RN may not provide this service.) Mr. Bevan
could have written, however, with equal accuracy, that RN's price for OTETA testing "includes an adulterant panel" while Global's proposal makes "no mention of adulterant panels," which would have made RN's price quote appear even more attractive as against Global's. RN, however, did not complain about this aspect of Mr. Bevan's analysis; consequently, the undersigned has paid little attention to, and based no ultimate factual determinations or legal conclusions on, this item.
Item No. 5. According to the Guide, at page 21, school police officers are required to be tested for eight drugs or classes of drugs. This is called an "8 panel" test or screen. Other employees, in contrast, need only be tested for five drugs or drug classes, using a "5 panel" screen.
In his comparison, Mr. Bevan balanced Global's supposed price of $25.00 for police tests against RN's quote of
$26.00 for an 8 panel drug screen. Yet, in its Fee Schedule, Global did not specify a separate charge for police tests, 8 panel tests, or 5 panel tests.5 Rather, Global quoted a price of
$25.00 for "general employee drug testing." Based on his previous experience with Global, however, Mr. Bevan assumed that Global's charge for police tests would be $25.00, the same as the cost of testing other non-OTETA employees.
Mr. Bevan's assumption was dubious at best, even assuming that Global previously had been charging $25.00 for
police tests.6 At worst, if Global's historical pricing were ignored (as it should have been, being a fact extrinsic to Global's proposal), Mr. Bevan's assumption was bereft of factual or logical support; it was simply arbitrary. At a minimum, though, Mr. Bevan should have stated, on the comparison chart he provided to the committee, that he was making an assumption in Global’s favor. Without such a qualification, the chart——which purported to compare "apples to apples"——unfairly depicted RN's as unequivocally the costlier proposal on this item, for RN was shown truthfully to have quoted $26.00 for an 8 panel test.
Moreover, significantly, Mr. Bevan omitted the fact that RN also had offered a price of $25.00 for an 8 panel screen without an adulterant panel. Thus, not only had Mr. Bevan potentially compared "apples to oranges," he had compounded the problem by making RN's quote for police testing appear higher than it necessarily would need to be.
Making the matter worse still, Mr. Bevan represented that Global's price for blood alcohol testing was $25.00 versus
$30.00 for the same procedure with RN. Global, however, had not offered to perform blood alcohol tests for $25.00 apiece; it had not quoted any price for such testing. Mr. Bevan assumed that Global's price would be $25.00 based on his past experience with the company. The validity of Mr. Bevan's assumption, again, is questionable;7 at the very least, his assumption should have been
disclosed to the committee on the comparison chart. As drafted, without disclosure of Mr. Bevan's Global-friendly assumption, the comparison chart was grossly inequitable to RN, creating the possibly false impression that RN's price for blood alcohol testing was 20% higher than Global's.
Finally, in comparing the cost proposals, Mr. Bevan failed to note that Global had quoted a hefty $75.00 surcharge for all "after hour services," meaning tests performed on weekdays between 5:00 p.m. and 8:30 a.m., and anytime on Saturday or Sunday. RN, in contrast, did not similarly propose a 400% price increase for after-hours work, and thus would have been favored by the comparison Mr. Bevan chose not to make.
Item No. 6. The issue of collection sites would become crucial. Mr. Bevan's ultimate opinion——that RN had proposed "4 net sites" as against the "10 total sites" offered by Global——was highly subjective and clearly erroneous.
To begin, RN's proposal in fact described a total of
17 collection sites——not 14 as Mr. Bevan incorrectly represented. At pages 12 and 13 of its proposal, RN responded sequentially to RFP section V, subsections K (collection sites desired in four quadrants of Miami-Dade County), L (mobile collection required at some Regional Transportation Centers), M (preference for a site near 1500 Biscayne Boulevard), and N (requiring at least one site each in the north and south ends of
Miami-Dade County). In response to subsection K, RN proposed to use 14 Quest patient care centers, the locations of which were further described in maps attached to RN's proposal as Appendix
B. Three of the 14 Quest centers were represented to meet the preference expressed in subsection M. And RN offered three additional "third party sites" (plainly meaning, in context, sites that were not operated by Quest) to satisfy subsection N. There was and is nothing confusing about RN's response regarding collection sites. No reasonable, fair-minded person, upon reading pages 12 and 13 of RN's proposal, could reasonably conclude that RN was offering a total of only 14 collection sites.
Next, four of the Quest sites proposed by RN are located in Broward County. Mr. Bevan decided that these Broward sites should be ignored. The RFP, however, did not prohibit a proposer from offering sites outside Miami-Dade County, and, significantly, RN's proposal satisfied the RFP's technical requirements concerning collection site locations without the Broward sites. Thus, an evaluator (as opposed to Mr. Bevan, who was not one) might have regarded RN's Broward sites either an added value that made RN's proposal more attractive or an unwanted option that neither added to, nor detracted from, RN's proposal. Either way, however, this qualitative decision was not properly Mr. Bevan's to make as a “technical advisor.”
Mr. Bevan then subtracted six sites from RN's total because the proposal stated that the sites were available for blood draws only. (In fact, RN's proposal indicated that nine of RN's 17 total sites collected blood samples only; three of the nine are in Broward County and six in Miami-Dade.) Mr. Bevan's decision that "blood only" sites should not be counted was plainly contrary to the RFP, under which blood alcohol testing clearly was a required service. While the evidence showed that the District considers urine collection sites to be much more valuable than “blood only” collection sites, which it views as practically worthless, the RFP nevertheless did not disclose this preference or the relative weight of urine sites versus “blood only” sites. Simply put, the RFP did not allow the evaluators to ignore “blood only” collection sites.
At bottom, a fair and balanced comparison (unlike Mr.
Bevan's) would have shown that RN had proposed 17 total sites (four in Broward, 13 in Miami-Dade), of which nine (three in Broward, six in Miami-Dade) were "blood only" sites, leaving eight sites (one in Broward, seven in Miami-Dade) that were available for the collection of both urine and blood. An "apples to apples" comparison of Miami-Dade sites available for blood and urine testing would have been Global, ten versus RN, seven. Each evaluator, however, in weighing the relative merits of the two proposals, should have considered RN's ten additional
sites——there was no warrant in the RFP for excluding them from the mix à la Mr. Bevan's analysis——and made an independent determination of the value added by those sites.
Item No. 7. On this point, Mr. Bevan was unfair to RN——but only a bit. His comparison intentionally drew a distinction between Global's "mobile collection" (the term used in section V.L. of the RFP) and RN's "on-site collection," subtly implying that RN’s proposal might not be responsive, or as responsive as Global’s, to the RFP’s technical guidelines. In fact, however, in its proposal at pages II-2, V-1, V-2, and VIII-1, Global expressly had described the function of its mobile unit as being to provide "on-site" collections; even
Global, in other words, considered mobile collection and on-site collection to be fungible concepts. Mr. Bevan's comparison chart thus somewhat unfairly gave Global a gentle semantic boost while concomitantly giving RN a little linguistic gig.8 Standing alone, this comparison would not be noteworthy. Viewed in the light of other, unfair contrasts, however, Mr. Bevan's mobile collection/on-site collection dichotomy takes on a slight hue of partiality.9
Item No. 8. Here, Mr. Bevan made a comparison that was highly unfavorable to RN. One the one side, he portrayed Global attractively as the incumbent vendor that, during a four- year tenure, has not exposed the District to an adverse
litigation outcome, and which also provides services to U.S. Sugar (an agricultural concern in South Florida). On RN's side there was only a question mark——nothing more. The meaning was obvious: Global has good credentials, but RN's experience and litigation track record are questionable.
This was terribly unfair. RN's proposal included two pages of references listing a number of current clients. Mr. Bevan's explanation at hearing for failing to acknowledge any of RN's references on his comparison chart was that RN's references "were much longer" and would not fit on the page, and that he had "put down what [he] could in the amount of time [he] had."
89. This explanation utterly fails to account for Mr.
Bevan's misleading and prejudicial use of a question mark to describe RN's documented experience; it is not credible and is rejected.10
Regarding exposure to lawsuits, Mr. Bevan's comparison was gratuitous. The RFP did not ask for information concerning lawsuits; and the lack of adverse litigation outcomes, while perhaps interesting and even relevant, was not an evaluation criterion. Further, Mr. Bevan was aware of Global's litigation track record not because of information contained in Global's proposal (for such data was not included therein) but because he previously had monitored litigation against the District arising from OTETA testing. Despite relying on facts extrinsic to
Global's proposal for this comparison, Mr. Bevan made no attempt to determine whether RN had exposed a client to an adverse litigation outcome and hence had no idea whether RN had or had not done so. Yet, despite the absence of any basis in logic or fact for such a conclusion, the question mark in RN's column (adjacent to the favorable comment about Global) strongly implied that RN either had omitted material information about litigation or disclosed something disturbing or questionable.
The unavoidable net effect of this prejudicial and unfair comparison was to put an exclamation point on the fact that Global had served satisfactorily as the incumbent vendor (and thus was a safe choice)——while portraying RN as a pig in a poke (and hence a gamble).
Item No. 9. Mr. Bevan shone a flattering light on Laboratory Corporation of America ("LCA," the laboratory used by Global)——only one glitch in four years!——while labeling Quest Diagnostics ("Quest," used by RN) "questionable." This was problematic for several reasons.
First, the RFP did not specify a preference for any particular laboratory. Second, Mr. Bevan's judgment was not based on the respective proposals but on his personal experiences. He had been pleased with LCA's services and preferred that the District continue to do business with that laboratory. But, as the comparison chart pointedly neglected to
mention, Mr. Bevan's negative opinion of Quest was based on just one incident in which Quest had been slow in reporting the results of a retest that had been requested by an individual who had initially tested positive at LCA and requested that Quest perform the confirmatory test.11 Third, the judgment expressed on the relative merits of the proposers' laboratories was plainly qualitative; in other words, Mr. Bevan was evaluating the proposals, which was not properly his role, for he was not a de jure member of the committee.
Item No. 10. Mr. Bevan's representation to the committee that LCA performed adulterant testing at no cost to the District was not based on Global's proposal, which neither mentioned adulterant testing nor quoted a price for such service, but on his experience with Global. (Incidentally, neither Mr. Bevan's testimony, nor any other evidence, persuasively established that Global or LCA had, in fact, been performing adulterant testing. Rather, the District’s employees assumed that such was the case——as it may, or may not, have been.)
Aside from the impropriety of relying on facts extrinsic to Global's proposal, Mr. Bevan's contrast with RN's proposal ("TestSure is broken out as a separate entity") was both incorrect and incomplete, producing a false, "apples to oranges" comparison.
First, as four pages of descriptive information included in RN's proposal made clear, TestSure is Quest's trademark for its adulterant testing protocol, which Quest considers a "breakthrough in technology for the industry." Contrary to Mr. Bevan's statement, TestSure is not a "separate entity." Thus, the apparently-intended implication that RN's price was higher because it was proposing to use a “separate entity” (in addition to Quest) for adulterant testing was untrue.
Second, the information provided by RN concerning TestSure, rather than being a negative strike against RN's proposal, as Mr. Bevan's comparison suggested, was (or should have been) helpful in evaluating RN's proposal, a plus. While the committee certainly could have chosen to discount or ignore Quest's glowing review of its own product as puffery, the fact was that while Global's proposal said nothing about adulterant testing, RN had submitted some information on the subject.
Finally, Mr. Bevan did not specify that his remark about Global's supposed offer to provide adulterant testing at "no charge" was merely an assumption that, for all that appears in Global's proposal, may or may not be true. This omission was especially unfair to RN because RN had stated explicitly in its cost proposal that an additional dollar would be charged for an adulterant panel——and that the District could save the dollar by
electing not to have the panel performed on general tests. An impartial summary would have acknowledged RN's prices for general tests, both with and without an adulterant panel, and noted that Global's proposal was silent as to whether its quote of $25.00 for general testing included an adulterant panel. To state unqualifiedly that Global would provide adulterant testing for free, when its proposal said nothing of the sort, was patently inequitable.
The First Evaluation and Recommendation
After meeting for two hours on April 11, and having considered Mr. Bevan’s comparison chart, the committee voted to recommend that the contract be awarded to Global. In the minutes of the meeting, it was reported that
[b]oth Proposals were evaluated according to the criteria outlined in the proposal. A comparison was made of services provided, locations for testing, cost, and other requirements. The committee recommended that Global MRO be awarded the contract. In addition to providing a reasonable fee schedule, the locations for drug testing, and the prior outstanding service provided by Global MRO, supports the committee’s decision.
RN timely protested the intended award, the Board referred the matter to DOAH, and a final hearing was scheduled for July 30, 2001. Before the final hearing, however, the Board determined that the April 11, 2001, meeting might have occurred in violation of the Sunshine Law. Accordingly, the final
hearing was postponed to enable the committee to reconvene in a public meeting for the purpose of reevaluating the proposals in compliance with the Sunshine Law.
The Second Evaluation and Recommendation
The committee met for a second time on September 4, 2001, pursuant to a prior written notice of proceedings. The September 4 meeting was open to the public. Although each of the original members of the committee was asked to return, two of them——Mr. Diaz and Ms. Freeman——were unable to attend the second meeting. In their places appeared subordinates as “representatives,” Pat Parham for Mr. Diaz and Enrique Sacasa for Ms. Freeman.
Four members of this committee had no direct involvement in or experience with the drug screening services that were the subject of the contract for which proposals had been solicited. Of the five, only Ms. Kidney was knowledgeable about the program areas and service requirements for which contractual services were being sought.
Once again, staff persons were present, ostensibly to answer technical questions. Mr. Bevan and Mr. Conde returned. With them this time were Barbara M. Moss, District Director, Office of Professional Standards; Brenda Miles, Executive Director, Professional and Technical Staffing; and Linda Cantin, Supervisor, Division of Procurement Management.
Mr. Bevan did not distribute his comparison chart at the committee’s public meeting and made only a couple of comments there in response to questions.
After conferring, the committee found both proposals to be responsive and voted unanimously to recommend that Global be awarded the contract. In the minutes of the September 4, 2001, meeting, it was reported that
[t]he committee agreed that both proposals were good, and clearly stated an understanding of the work to be performed. There were concerns expressed, however, regarding [RN’s proposal] in reference to the location and convenience of collection sites. . . . . [Global] was selected because of the larger number of collection sites for urine that are available and the locations of these sites throughout various parts of the county, which would be of convenience to applicants and employees, and its experience.
RN’s Protest
By letter to the Board’s counsel dated September 6, 2001, RN amended its pending protest of the first recommendation to challenge the second proposed award with a newly-revised statement of grounds.12 As bases for relief, RN asserted that Global’s proposal was materially non-responsive for failure to comply with several of the RFP’s technical requirements; it also alleged that the committee’s evaluation had been flawed in several respects.
Ultimate Factual Determinations
Certain Ultimate findings of fact have been rendered below under the heading “Conclusions of Law.” This has been done for organizational convenience and for clarity of analysis. Accordingly, the findings announced in paragraphs 114, 120, 130, 134, 156, 159, 161-64, 167, and 169, infra, are hereby incorporated as Findings of Fact, as if fully set forth in the instant section of this Recommended Order.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida, and the parties have standing.
The Burden of Proof
Pursuant to Section 120.57(3)(f), Florida Statutes, the burden of proof rests with the party opposing the proposed agency action, here RN. See State Contracting and Engineering
Corp. v. Department of Transportation, 709 So. 2d 607, 609 (Fla. 1998). RN must sustain its burden of proof by a preponderance of the evidence. Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 787 (Fla. 1st DCA 1981).
The Rules of Decision in Bid Protests A. The Standard of Conduct
Section 120.57(3)(f), Florida Statutes, spells out the rules of decision applicable in bid protests. In pertinent part, the statute provides:
In a competitive-procurement protest, other than a rejection of all bids, the administrative law judge shall conduct a de novo proceeding to determine whether the agency's proposed action is contrary to the agency's governing statutes, the agency's rules or policies, or the bid or proposal specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious.
These two sentences defy facile interpretation. The language, however, is critical to the adjudication of the present dispute; to ascertain the appropriate analytical framework for reaching a decision in this matter, the statute must be carefully construed.13
Confusion initially may be engendered by the statute's use of the term "de novo proceeding." Ordinarily, a de novo trial or hearing involves "[t]rying a matter anew; the same as if it had not been heard before and as if no decision had previously been rendered." Black's Law Dictionary (5th ed. 1979)(hereafter "Black's")(defining "de novo trial"). Thus, a
hearing de novo literally means a new hearing, or a hearing the second time.
. . . . Such a hearing contemplates an entire trial of the controversial matter in the same manner in which the same was originally heard. It is in no sense a review of the hearing previously held, but is a complete trial of the controversy, the same as if no previous hearing had ever been held. It differs, therefore, from an ordinary appeal from an inferior to an appellate body where the proceedings of the hearing in the inferior court are reviewed and their validity determined by the reviewing court. A hearing de novo therefore is nothing more nor less than a trial of the controverted matter by the court in which it is held. The decision therein is binding upon the parties thereto and takes the place of and completely nullifies the former determination of the matter. It is in a sense and is in fact a trial of the controversy in a court of law.
Collier & Wallis v. Astor, 70 P.2d 171, 173 (Cal. 1937)(citation omitted).
If the framers of Section 120.57(f), Florida Statutes, had intended the term "de novo proceeding" to have its customary legal meaning, then presumably they would have written something like: the administrative law judge shall conduct a de novo proceeding to determine which of the competing offerors, if any, should be awarded the contract. But instead, the drafters defined the issues for determination in a "competitive- procurement protest" so as to make it (reasonably) clear that the "de novo proceeding" must focus on the agency's "proposed action" and produce a (recommended) decision to uphold or override such action. Yet, this creates some dissonance: such
a review of prior action is not a trial-level duty; it is an appellate function. And moreover, appellate-level proceedings are rarely (if ever) "de novo proceedings" (although appellate courts review certain legal decisions under a de novo standard of review).
The First District Court of Appeal has construed the term "de novo proceeding," as used in Section 120.57(3)(f), Florida Statutes, to "describe a form of intra-agency review.[14] 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." State Contracting and Engineering Corp. v. Department of Transportation, 709 So. 2d 607, 609 (Fla. 1st DCA 1998). In this, the court followed its earlier Intercontinental Properties, Inc. v. State Department of
Health and Rehab. Serv., 606 So. 2d 380, 386 (Fla. 1st DCA 1992), a decision which predates the present version of the bid protest statute, wherein the court had reasoned:
Although the hearing before the hearing officer was a de novo proceeding, that 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, as the hearing officer apparently thought, that the hearing officer 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 . . . have been satisfied.
Thus, the "de novo proceeding" contemplated in Section 120.57(3), Florida Statutes, might be envisaged, oxymoronically, as an "appellate trial," a hybrid proceeding in which evidence is received, factual disputes are settled, legal conclusions made——and prior agency action is reviewed for correctness.
The first district's interpretation of "de novo proceeding" is sensible and almost certainly implements the legislative intent. After all, if bid protests were de novo proceedings in the usual sense, then administrative law judges might become, de facto, the state's über-purchasing agents; it is doubtful the statute's drafters desired that result. The problem is, once bid protests are conceived to be "appellate trials," new questions arise, and chief among them is this: What are the standards of review?
As the statute says, the ultimate issue is "whether the agency's proposed action is contrary to the agency's governing statutes, the agency's rules or policies, or the bid or proposal specifications." This could be construed as a standard of review, which might be distilled into: whether the agency erred in applying a governing principle. Such a review would be akin to an appellate court's evaluation of a lower tribunal's legal conclusions. Ordinarily, of course, legal
conclusions are decided independently (or de novo) by the reviewing court, with little deference paid to the trial judge.
E.g. Florida Game and Freshwater Fish Comm'n v. Dockery, 676 So.
2d 471, 474 (Fla. 1st DCA 1996); Avery Development Corp. v. Village by the Sea Condominium Apartments, Inc., 567 So. 2d 447,
449 (Fla. 4th DCA 1990).
The next sentence, however, which describes the "standard of proof," renders the foregoing interpretation untenable, for reasons that will become clear. But first: it is an impediment to applying the statute that of the several standards ushered in by words "standard of proof," none is a known "standard of proof."
As commonly used in legal discourse, the term "standard of proof" signifies the nature, quality, and quantity of evidence with which the proponent of an allegation (or the one who bears the burden of proof) must come forward in order to establish that allegation. The widely-recognized standards of proof are: preponderance (or greater weight) of the evidence, clear and convincing evidence, and proof beyond a reasonable doubt. See, e.g., Black's Law Dictionary (definition of "standard of proof"); see also Allstate Ins. Co. v. Vanater, 297 So. 2d 293, 295 (Fla. 1974)(listing the "three basic standards by which the sufficiency of evidence is weighed by fact- finders"). It is highly unlikely that the legislature intended
to change the standard of proof in bid protests, from "preponderance of the evidence," see Section 120.57(1)(j), Florida Statutes, to a new and unfamiliar standard.
Instead, a reasonable interpretation of "standard of proof" as used in Section 120.57(3)(f) is that the term means standard of review. This is because, while the "standard of proof" sentence fails to mention a single common standard of proof, it does articulate two accepted standards of review: the "clearly erroneous" and abuse of discretion (= "arbitrary, or capricious") standards. (The "contrary to competition" standard——whether it be a standard of proof or standard of review——is unique to bid protests.) Construing "standard of proof" to mean "standard of review" makes the sentence make sense.15
It also sheds light on the "de novo proceeding" sentence. If the "standard of proof" sentence describes the standard of review (as reasonably it must), then logically the "de novo proceeding" sentence must not prescribe the standard of review, because the legislature presumably would not have done so twice, differently. Moreover, the "standard of proof" sentence plainly manifests an intent that the agency's proposed action be accorded a measure of deference that is inconsistent with a de novo review for error, which would seem to be the standard of review if the "de novo proceeding" sentence were
construed to articulate one. By framing the ultimate issue as being "whether the agency's proposed action is contrary to the agency's governing statutes, the agency's rules or policies, or the bid or proposal specifications," it is probable that the legislature, rather than describing a standard of review, intended to establish a standard of conduct for the agency. The standard is: In soliciting and accepting bids or proposals, the agency must obey its governing statutes, rules, and the project specifications. If the agency breaches this standard of conduct, its proposed action is subject to (recommended) reversal by the administrative law judge in a protest proceeding.
Applying the above interpretations, it is concluded that the party protesting the intended award must identify and prove, by the greater weight of evidence, a specific instance or instances where the agency's conduct in taking its proposed action was either:
contrary to the agency's governing statutes;
contrary to the agency's rules or policies; or
contrary to the bid or proposal specifications.
It is not sufficient, however, for the protester to prove merely that the agency violated the general standard of conduct. By virtue of the applicable standards of review, the protester must in addition establish that the agency's misstep was:
clearly erroneous;
contrary to competition; or
an abuse of discretion.
Having identified these review standards, it will be seen that they are markedly different from one another. The abuse of discretion standard, for example, is a good deal more deferential (or narrower) than the clearly erroneous standard. The review process thus necessarily entails a decision regarding which of the several standards of review to apply in evaluating a particular action. To do this requires that the meaning of each standard be properly understood.
B. The Standards of Review
The Clearly Erroneous Standard
The clearly erroneous standard is that generally applied in reviewing a lower tribunal's findings of fact. In Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 573-74 (1985), the United States Supreme Court expounded on the meaning of the phrase "clearly erroneous," explaining:
Although the meaning of the phrase "clearly erroneous" is not immediately apparent, certain general principles governing the exercise of the appellate court's power to overturn findings of a [trial] court may be derived from our cases. The foremost of these principles . . . is that "[a] finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed." This
standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty . . . if it undertakes to duplicate the role of the lower court. "In applying the clearly erroneous standard to the findings of a [trial] court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo." . . . . If the [trial] court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. . . . .
(Citations omitted)(emphasis added).
The Florida Supreme Court has used somewhat different language to give this standard essentially the same meaning:
A finding of fact by the trial court in a non-jury case will not be set aside on review unless there is no substantial evidence to sustain it, unless it is clearly against the weight of the evidence, or unless it was induced by an erroneous view of the law. A finding which rests on conclusions drawn from undisputed evidence, rather than on conflicts in the testimony, does not carry with it the same conclusiveness as a finding resting on probative disputed facts, but is rather in the nature of a legal conclusion. . . . .
When the appellate court is convinced that an express or inferential finding of the trial court is without support of any substantial evidence, is clearly against the
weight of the evidence or that the trial court has misapplied the law to the established facts, then the decision is 'clearly erroneous' and the appellate court will reverse because the trial court has 'failed to give legal effect to the evidence' in its entirety.
Holland v. Gross, 89 So. 2d 255, 258 (Fla. 1956)(Citation omitted).
Even after its meaning is clearly understood, however, applying the clearly erroneous standard in a bid protest is problematic because of the hybrid nature of this "appellate trial." Appellate courts, not being triers of fact, defer to the fact findings of the lower tribunal——hence the standard. But administrative law judges are triers of fact charged with making findings based upon the evidence in the record. Yet, in arriving at its intended award, the agency——which in a bid protest is loosely analogous to a lower tribunal (despite being a party litigant)——may itself have made factual determinations. The agency's findings, of course, would not be based upon evidence in a record developed in a formal, adversarial, de novo proceeding, but still: To what extent, if at all, should the administrative law judge defer to the agency's factual determinations? (And if not at all, to what actions does the clearly erroneous standard apply?)
In sorting this out, a distinction should be drawn between historical, objective, or "hard" facts, on the one hand,
and ultimate factual determinations, on the other. The former are susceptible to proof by conventional methods. With regard to this kind of fact, the evidence may be hotly contested and highly in conflict, but in the end, the light was either red, yellow, or green. An ultimate factual determination, in contrast, is often a conclusion derived by reasoning from objective facts; it frequently involves the application of a legal principle or rule to hard historical facts: e.g. the driver failed to use reasonable care under the circumstances and therefore was negligent; and it may be infused with policy considerations. Reaching an ultimate factual finding requires that judgment calls be made which are unlike those that attend the pure fact finding functions of weighing evidence and choosing between conflicting but permissible views of reality.
Because a bid protest is fundamentally a de novo proceeding, it is concluded that the agency is entitled to no deference in connection with the resolution of disputes involving objective facts. It is exclusively the judge's job, as the trier of facts, to ascertain from the competent, substantial evidence in the record what actually happened in the past or what reality presently exists, as if no decision previously had been made.
If, however, the challenged agency action involves an ultimate finding of fact——for example, an agency's conclusion
that a proposal's undisputed departure from the project specifications was a minor irregularity as opposed to a material deviation——then some deference is in order, according to the clearly erroneous standard of review. To prevail on an objection to an ultimate finding, therefore, the protester must substantially undermine the factual predicate for the agency's conclusion or convince the judge that a defect in the agency's logic led it unequivocally to commit a mistake.
There is another species of agency action that also is entitled to review under the clearly erroneous standard: interpretations of statutes for whose administration the agency is responsible, and interpretations of the agency's own rules. See State Contracting and Engineering Corp. v. Department of Transportation, 709 So. 2d 607, 610 (Fla. 1st DCA 1998). In deference to the agency's expertise, such interpretations will not be overturned, either by the courts or administrative law judges, unless clearly erroneous. Id.16
This means that if the protester objects to a proposed agency action on the ground that it violates either a governing statute within the agency's substantive jurisdiction or the agency's own rule, and if, further, the validity of the objection turns on the meaning, which is in dispute, of the subject statute or rule, then the agency's interpretation thereof must be accorded deference; the challenged action should
stand unless the agency's interpretation is clearly erroneous (and assuming the agency acted in accordance therewith).17
2. The Abuse of Discretion Standard
The statute requires that agency action (in violation of the applicable standard of conduct) which is "arbitrary, or capricious" be set aside. Above, the phrase "arbitrary, or capricious" has been equated with the abuse of discretion standard because the concepts are indistinguishable and hence interchangeable——and because use of the term "discretion" here is a useful reminder as to the kind of agency action reviewable under this highly deferential standard.
It is now frequently observed that an arbitrary decision is one that is not supported by facts or logic, or is despotic. Agrico Chemical Co. v. Department of Environmental
Regulation, 365 So. 2d 759, 763 (Fla. 1st DCA 1978). Thus, under the arbitrary or capricious standard, "an agency is to be subjected only to the most rudimentary command of rationality. The reviewing court is not authorized to examine whether the agency’s empirical conclusions have support in substantial evidence." Adam Smith Enterprises, Inc. v. State Department of Environmental Regulation, 553 So. 2d 1260, 1273 (Fla. 1st DCA 1989). Nevertheless,
the reviewing court must consider whether the agency: (1) has considered all relevant factors; (2) has given actual, good faith
Id.
consideration to those factors; and (3) has used reason rather than whim to progress from consideration of each of these factors to its final decision.
The second district nicely framed the "arbitrary or
capricious" review standard in these terms: "If an administrative decision is justifiable under any analysis that a reasonable person would use to reach a decision of similar importance, it would seem that the decision is neither arbitrary nor capricious." Dravo Basic Materials Company, Inc. v. State Department of Transportation, 602 So. 2d 632, 634 n.3 (Fla. 2d DCA 1992). As the court observed, this "is usually a fact- intensive determination." Id. at 634.
Compare the foregoing "arbitrary or capricious" analysis with the test for review of discretionary decisions:
"Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion."
Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980), quoting Delno v. Market Street Ry. Co., 124 F.2d 965, 967 (9th Cir. 1942). Further,
[t]he trial court's discretionary power is subject only to the test of reasonableness,
Id.
but that test requires a determination of whether there is logic and justification for the result. The trial courts' discretionary power was never intended to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner. Judges dealing with cases essentially alike should reach the same result. Different results reached from substantially the same facts comport with neither logic nor reasonableness.
Whether the standard is called "arbitrary or capricious" or "abuse of discretion," the scope of review is identical and demands the maximum deference. The reason for pointing this out, and for invoking the abuse of discretion standard, is not to satisfy academic curiosity, but to underscore that the narrow "arbitrary or capricious" standard of review cannot properly be applied in evaluating all agency actions that might be challenged in a bid protest; rather, this highly deferential standard appropriately applies only to those decisions which are committed to the agency's discretion.
For example, as previously discussed, an agency's interpretations of some statutes and its own rules are entitled to the deference that the clearly erroneous standard affords. But an agency's statutory construction is never reviewed under an "arbitrary, or capricious" standard because issues of interpretation, being fundamentally legal in nature, are not
matters of personal judgment over which the agency (or any body, including a court) has discretionary power.
Likewise, ultimate factual determinations cannot be reviewed for abuse of discretion, because issues of fact——even "ultimate" factual issues——are not, by nature, questions reserved to the decision maker's discretion. Some deference to such ultimate factual determinations is appropriate; they should stand unless clearly erroneous. Maximum deference, however, is plainly unwarranted.
Thus, in sum, where the protester objects to agency action that entails the exercise of discretion, the objection cannot be sustained unless the agency abused its discretion,
i.e. acted arbitrarily or capriciously. For other agency actions, a different standard of review must be applied.
3. The Contrary to Competition Standard
The third standard of review articulated in Section 120.57(3)(f) is unique to bid protests. The "contrary to competition" test is a catch-all which applies to agency actions that do not turn on the interpretation of a statue or rule, do not involve the exercise of discretion, and do not depend upon (or amount to) a determination of ultimate fact.
The difficulty in applying this standard is its singularity. It is not a test that has a fixed meaning in the law. And the legislature chose not to define the standard.
Thus, it becomes necessary to give life to the statutory terms through application on a case by case basis.
The starting point, as always, is the statute's plain language. In ordinary usage, the preposition "contrary to" means "in conflict with." See Mirriam-Webster's OnLine Collegiate® Dictionary <http://www.m-w.com/> (definition of "contrary to"). The term "competition" means "the effort of two or more parties acting independently to secure the business of a third party by offering the most favorable terms[;] a contest between rivals." Id. (definition of "competition"). Thus, agency action that is inconsistent with the efforts of two or more rivals to secure the agency's business by offering the most favorable terms is "contrary to competition."
Obviously, the plain language approach has its limitations. The simple "inconsistency" test is too slippery for sure-handed application——and fails adequately to accord deference to the agency's proposed action. Almost any misstep by the agency could be deemed "inconsistent with" competition, absent additional explication of the nature and degree of inconsistency that justifies overriding the agency's intended award.
To probe the legislative intent in this regard, reference is made to Chapter 287, Florida Statutes, which deals
with state purchasing. Section 287.001 contains an expression of legislative intent concerning public procurement. It reads:
The Legislature recognizes that fair and open competition is a basic tenet of public procurement; that such competition reduces the appearance and opportunity for favoritism and inspires public confidence that contracts are awarded equitably and economically; and that documentation of the acts taken and effective monitoring mechanisms are important means of curbing any improprieties and establishing public confidence in the process by which commodities and contractual services are procured. It is essential to the effective and ethical procurement of commodities and contractual services that there be a system of uniform procedures to be utilized by state agencies in managing and procuring commodities and contractual services; that detailed justification of agency decisions in the procurement of commodities and contractual services be maintained; and that adherence by the agency and the contractor to specific ethical considerations be required.
Reviewing this statement of the reasons why the legislature intends that public contracts be let pursuant to free and open competition, and the aims of such competition, is helpful in envisioning those actions that are contrary to competition. As Section 287.001, Florida Statutes, is examined, it becomes evident that actions which tend to thwart the legislative goals, or to cause the harms against which the legislature intends to guard, should be considered contrary to competition.18
Thus, from Section 287.001 can be derived an articulable standard of review. Actions that are contrary to competition include those which:
create the appearance of and opportunity for favoritism;
erode public confidence that contracts are awarded equitably and economically;
cause the procurement process to be genuinely unfair or unreasonably exclusive; or
are unethical, dishonest, illegal, or fraudulent.
The Responsiveness of Global's Proposal
As protest grounds, RN contends that Global's response deviated materially from the project specifications as set forth in the RFP, and that, therefore, the Board breached the applicable standard of conduct by considering Global's offer and recommending that Global be awarded the contract.19 Two of RN's complaints have merit, namely, that (1) Global's proposal failed to include an itemized charge for blood alcohol testing and (2) Global's proposed collection facilities did not include the requisite south Miami-Dade site having hours of operation from 8:00 a.m. through midnight. These irregularities will be examined in turn.
The Absence of an Itemized Charge for Blood Alcohol Testing
To review, section VI of the RFP required that proposals "include an itemization of charges for collection of specimens" and instructed that "[s]uch itemized charges will be used in the event a retest is necessary." Among the services explicitly and unambiguously required under the contract that the Board hopes to award is the collection of blood for blood alcohol testing.20 Global did not quote a price for blood alcohol tests; RN did.
The Board argues that Global's proposal was responsive because section VI did not specifically require a price quote for blood testing. In any event, the Board says, if Global's proposal were deficient in this regard, the deviation was a minor one that could be waived.
The resolution of this issue of responsiveness turns on the interpretation of section VI of the RFP. The agency's interpretation of this provision will stand unless clearly erroneous, because no one timely protested the project specifications.
From the outset, it is apparent that section VI is woefully inadequate as a means of obtaining uniform responses on pricing for objective and impartial evaluation. Instead of explicitly prescribing the specific items for which prices would
need to be quoted (e.g. breath alcohol tests, blood alcohol tests, urine tests, OTETA tests, etc.) and the minimum service levels for each type of test (e.g. adulterant panels shall be included in the price, blind sample testing shall be included, etc.), the RFP gave the proposers too little guidance regarding which tests to quote and how much detail to provide. The lack of specificity and direction in section VI all but guaranteed that the proposers would quote prices on different items and that questions would arise concerning the scope of services included in a particular price——which is exactly what happened. As a result, a fair, "apples to apples" comparison of the quoted costs was difficult if not impossible.
Further, the cost specification failed to solicit from the proposers an annualized cost as required by Section 287.057(2), Florida Statutes, which provides that a "proposal shall state the price for each year for which the contract may be renewed." (Emphasis added). The reason for requiring such information is that the "[e]valuation of proposals shall include consideration of the total cost for each year as quoted by the offeror." Id. Thus, deficiencies in the specification made it difficult (though not impossible) for the evaluators to fulfill a statutory mandate.
Although this is not a specifications protest, these obvious flaws in section VI are relevant insofar as they relate
to the interpretation of the subject provision and contributed to other problems that arose in the evaluation process.
In determining whether section VI, reasonably interpreted, did or did not require a price quote for blood alcohol testing, the key terms initially are "itemization" and "itemized." As used in everyday discourse, an "itemization" is an itemized list. See Merriam-Webster's OnLine Collegiate® Dictionary (Webster's). The creation of an itemization clearly entails the act of setting down in detail or by particulars, for that is the dictionary definition of "itemize." Id. An itemized list, in other words, is a catalogue of things, item- by-item.
The next question, then, is: what "things" does the RFP require be set forth in detail, item-by-item? The answer, according to the plain language of section VI, is: "charges for collection of specimens." As used in this context, the term "specimen" clearly means "a portion or quantity of material for use in testing, examination, or study <a urine specimen>." Webster's. Thus, by its plain terms, section VI seems to require that specimen-specific charges be quoted (or, alternatively perhaps, that a single price be quoted for the collection of all specimens, although neither proposer chose such a course).
The Board disagrees, however, on the ground, mentioned above, that the RFP did not specifically require a price quote for collection of blood specimens. The factual premise of the Board’s position is correct: section VI did not make specific reference to blood tests. But it is equally correct to say, as a matter of fact, that the RFP did not specifically require an itemized charge for the collection of urine specimens or breath specimens, either. And yet, once awarded, the subject contract plainly will require the selected vendor to collect specimens of all three, as needed for the various tests that must be performed under the contract. The Board's argument, therefore, though based on a factually correct premise, is not logically persuasive in support of the proposition sought to be established, i.e. that a specific price quote for collection of blood was unnecessary; rather, the Board's contention merely begs the question.
Ultimately, the Board's interpretation of section VI cannot be included within the range of permissible interpretations, for two decisive reasons. First, section VI can only be read, reasonably, to have required that specimen- specific charges be listed. Second, although the specific specimen-types were not identified in section VI, it is clear that, when the RFP is read as a whole, the "specimens" to which the provision reasonably referred are all specimens that the
contract will require be collected——a set that unquestionably includes blood. (If proposers were allowed to quote prices for anything less than all such specimens, as would be the case under the Board's interpretation, then the Board, having incomplete information, would be unable fairly to evaluate the proposals on cost, which was a requirement under the RFP and is, in any event, a statutory mandate.) The Board's interpretation of section VI is, therefore, clearly erroneous.
Consequently, it is determined that Global's proposal was not responsive to section VI, for failing to quote a price for the collection of blood specimens.
Before concluding that the proposed award should be rescinded on this basis, it must be considered whether the Board's action might be upheld on the theory that the irregularity in Global's proposal was (as the Board here argues) a minor one that the could have been waived. The Board's proposed action, in other words, might be sustained as being right for the wrong reason.21 Because, however, the Board's proposed action was not based upon a finding that Global's failure to include an itemized charge for blood alcohol testing was a minor deviation, the Board having concluded that Global's proposal was responsive, there exists no ultimate factual determination in this regard to review for clear error.22 As a
result, the question whether this particular deficiency of Global's proposal is minor or material must be decided de novo.
It has long been recognized that "although a bid containing a material variance is unacceptable, not every deviation from the invitation to bid is material. [A deviation] is material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition." Tropabest Foods, Inc. v. State Department of General Services,
493 So. 2d 50, 52 (Fla. 1st DCA 1986). "The test for measuring whether a deviation in a bid is sufficiently material to destroy its competitive character is whether the variation affects the amount of the bid by giving the bidder an advantage or benefit not enjoyed by other bidders." Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190, 1193 (Fla. 2d DCA 1977).
The courts have applied two criteria in determining whether a variance is material and hence non-waivable:
[F]irst, whether the effect of a waiver would be to deprive the municipality of its assurance that the contract will be entered into, performed and guaranteed according to its specified requirements, and second, whether it is of such a nature that its waiver would adversely affect competitive bidding by placing a bidder in a position of advantage over other bidders or by otherwise undermining the necessary common standard of competition.
[S]ometimes it is said that a bid may be rejected or disregarded if there is a material variance between the bid and the
advertisement. A minor variance, however, will not invalidate the bid. In this context a variance is material if it gives the bidder a substantial advantage over the other bidders, and thereby restricts or stifles competition.
Robinson Electrical Co. v. Dade County, 417 So. 2d 1032, 1034 (Fla. 3d DCA 1982), quoting 10 McQuillan, Municipal Corporations
§ 29.65 (3d ed. rev. 1981)(footnotes omitted).
Here, the Board's acceptance of Global's proposal, despite its lack of an itemized charge for the collection of blood, gave Global a substantial competitive advantage over RN, the competitor which had provided the required price quote. The advantage was, Global did not need to disclose its price for conducting blood alcohol tests, a cost which might or might not have been lower than the $30.00 quoted by RN. This advantage matured when Global was given the benefit of an assumption (which may or may not be true) that its blood tests cost
$25.00——or 20% less than RN's cost.
The Board argues that the cost of blood tests is immaterial because blood testing is rarely called for in practice.23 This contention misses the mark: the determinative (and undeniable) fact is that blood testing is a required contractual service. Whether the successful vendor will be asked to perform one such test or one hundred, the competitors' proposals must be evaluated as to the respective costs quoted
for that service, pursuant to the terms of the RFP and Florida law. The cost of a required contractual service cannot be considered immaterial, regardless whether that cost may contribute only a small percentage to the total cost of the contract.
Consequently, Global's failure to quote a charge for the collection of blood specimens was a material defect that the Board could not waive. The Board's decision to accept Global's materially deficient proposal cannot be upheld as being right for the wrong reason.
The Lack of a Suitable South-End Site
Subsection V.N. of the RFP informed proposers that at least one collection site each in the north and south ends of Miami-Dade County “must be available to perform reasonable suspicion testing” during the hours of “8:00 a.m. to 12:00 midnight.” Of the ten collection facilities that Global listed at page V-1 of its proposal, at least one (at 646 W. Palm Drive, Florida City) is located in the south end of the county.24
The problem with Global’s Florida City site is that it opens at 9:00 a.m. and closes at 5:00 p.m.25 (Indeed, only one of Global’s stationary sites operates after 5:00 p.m.——its north county site, which is open until midnight, Monday through Friday——and half of them close at 4:00 p.m.) Thus, the Florida City site does not satisfy the RFP’s “hours of operation”
requirement; in fact, it is only open for half of the required time, falling short of the minimum by 40 hours per week.26
The committee determined, and the Board here maintains, that Global’s proposal was responsive to subsection
V.N. because Global offers the services of a mobile unit that is available after hours, Monday through Sunday, in emergency situations. As found above, Global maintains two vans in Broward County that can respond to after-hours requests for service in the south end of Miami-Dade County.
Whether Global’s proposal is responsive to subsection
V.N. turns on whether the terms “site” and “facilities” as used the subject specification contemplate a motor vehicle. Because subsection V.N. was not challenged in a specifications protest, the Board’s interpretation thereof will not be disturbed unless clearly erroneous.
The relevant dictionary definitions of the term “site” are: “the spatial location of an actual or planned structure or set of structures (as a building, town, or monuments)[;] a space of ground occupied or to be occupied by a building[; and] the place, scene, or point of something.” Webster’s. The term “facility” is relevantly defined to mean “something that makes an action, operation, or course of conduct easier——usually used in plural <facilities for study>[; and]
something (as a hospital) that is built, installed, or established to serve a particular purpose.” Id.
In the context of subsection V.N., these two terms, given their ordinary meanings, naturally connote a “brick and mortar” building (to use Mr. Bevan’s phrase). However, without undue ingenuity, a mobile van can be considered the place or scene of something (i.e. drug or alcohol testing) as well as a thing that makes an action or operation easier. Thus, while the average person would not likely imagine a motor vehicle upon first reading or hearing the terms “site” and “facilities,” it cannot be said, based solely on the meaning of these two words, that the Board’s interpretation is clearly erroneous.
There is more to subsection V.N., however. Look again at the pertinent language: “[At least] one site in the
South end of Miami-Dade County must be available to perform reasonable suspicion testing of employees.” For the Board’s interpretation to make sense, the phrase “in the South end of Miami-Dade County” must be understood as an adverbial phrase modifying the adjective “available.” To see the sentence as the Board has construed it, rearrange the words as follows: At least one site must be available in the South end of Miami-Dade County to perform reasonable suspicion testing of employees. In the Board’s reading of subsection V.N., the term “available” is synonymous with “obtainable.” See Webster’s (definition of
“available”). Since Global’s mobile unit may be obtained for use in the south end of Miami-Dade, the Board in effect maintains, Global’s proposal satisfies subsection V.N.
The trouble with this interpretation is that, given the structure of the sentence, it is extremely stilted, to the point of being unreasonable.27 Grammatically, the phrase “in the South end of Miami-Dade County,” situated as it is immediately following the noun “site,” is plainly adjectival in nature. It modifies the noun “site”——not the adjective “available.” It tells us that the site must be located in the south end. Once that qualification is understood, the term “available” takes on a different meaning than the Board has given it, namely, “present or ready for immediate use.” Webster’s (definition of “available”). Under this construction, Global’s vans do not qualify as responsive “sites” because they are not “located” in the south end of Miami-Dade County under any reasonable understanding of the term “located.”28
While the foregoing analysis is sufficient to declare the Board’s interpretation clearly erroneous, as confirmation of this conclusion consider whether, under the Board’s construction, a proposal to use a single van based in Fort Lauderdale as both the north- and south-end sites in Miami-Dade would be responsive. The answer, logically, must be yes, because the van could be driven, as needed, to either area of
the county and hence would be “available” in both locations as the Board has construed the RFP.29 Yet, that was plainly not the intent of subsection V.N., which obviously sought at least two separate sites, and any interpretation thereof which would allow such a result, as would the Board’s, is clearly erroneous.
Accordingly, it is concluded that Global’s proposal was not responsive to subsection V.N. of the RFP.
The Board suggests, alternatively, that Global’s failure to propose a south-end site which satisfies all the requirements of subsection V.N. can be deemed a minor irregularity because the District does not request many after- hours tests.30
The use of mobile unit in lieu of a stationary facility for after-hours testing is a material deviation, however, because the substitution affected the price of Global’s proposal. The effect is manifested unequivocally in the $75.00 surcharge that Global has proposed to tack onto the regular unit-cost of every after-hours test——resulting in a 400% price increase for general drug tests and breath alcohol tests performed weekdays between 5:00 p.m. and midnight (and between midnight and 8:30 a.m., Monday through Friday, and anytime on Saturday or Sunday) in south Miami-Dade (and elsewhere). Thus, the deviation apparently increased the total cost of Global’s proposal.
That the Board chose to select Global’s costlier proposal——RN did not offer to impose a surcharge for after-hours services——in spite of its noncompliance with subsection V.N. is powerful proof that Global’s proposal to use a van in place of a stationary site secured for Global a competitive advantage: the Board was willing to pay more to obtain the services of a mobile unit, which it obviously perceived as an added value. The Board’s action would have been acceptable if Global were offering the services of a mobile van in addition to a responsive south-end site; its action is not acceptable, however, because the deviation, while desirable in the Board’s eyes, was selected in lieu of the particular item sought in the project specifications.31
Global’s failure to offer a collection site in the south end of Miami-Dade that fully conformed to all the requirements of subsection V.N. was a material deviation from the project specifications that could not be waived. The proposed award to Global cannot be upheld as being right for the
wrong reason.
Alleged Flaws in the Evaluation
RN has alleged that the committee committed reversible errors in evaluating the proposals. Three such alleged deficiencies deserve discussion herein: the failure to consider stated evaluation criteria; the consideration of
unstated evaluation criteria; and the failure to consider the total annual cost of the contract being awarded.
Stated Evaluation Criteria
Florida law requires that a request for proposals prescribe all of the criteria to be used in determining the acceptability of proposals, together with the relative importance of such criteria. This is evident from the statutory definition of “request for proposals,” which explains that a “request for proposals includes, but is not limited to, general information, applicable laws and rules, functional or general specifications, statement of work, proposal instructions, and evaluation criteria.” Section 287.012(15), Florida Statutes (emphasis added). Continuing, the statute directs, importantly, that “[r]equests for proposals shall state the relative importance of price and any other evaluation criteria.” Id. (emphasis added).
Section 287.057(2), Florida Statutes, provides additionally that when, as here, a request for proposals properly may be issued, such request shall include “a statement of the commodities or contractual services sought and all contractual terms and conditions applicable to the procurement of commodities or contractual services, including the criteria, which shall include, but need not be limited to, price, to be
used in determining the acceptability of the proposal[.]” (Emphasis added).
Underscoring the importance of the foregoing requirement that all evaluation criteria be disclosed in the request for proposals, Section 287.057(2) further mandates that the contract award “shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous to the state, taking into consideration the price and the other criteria set forth in the request for proposals.” Id. (emphasis added).
These statutes form the legal backdrop against which the instant RFP must be considered. Recall that the RFP set forth six lettered paragraphs of evaluation criteria in section VIII, at pages 6 through 7. See paragraph 13, supra. RN charges that the committee failed to take into account all of these criteria.
The evaluators who testified at hearing said that the committee did consider all of the stated criteria. The fundamental problem here, however, is that the RFP failed to state the relative importance of the respective evaluation criteria, in violation of Florida procurement law. The evaluators, in turn, both individually and as a group, failed separately to score each discrete criterion——which, in fairness,
would have posed a challenge due to the RFP’s silence as to the relative weight to be given the evaluation criteria.
The upshot of the way this evaluation was carried out is that the evidence is insufficient to establish that the committee did not give some consideration to all of the stated criteria. It must be said, however, that the committee most likely applied these criteria inconsistently, not in bad faith but because the evaluators had no objective benchmarks for guidance. Uneven application of the evaluation criteria is manifestly contrary to competition (which is why the relative importance of the criteria must be disclosed in advance). If, for example, the criterion prescribed in subsection VIII.C. of the instant RFP were not given exactly the same weight in the evaluation of both proposals, then the competition was unfair. The likelihood that the committee applied the evaluation criteria in a non-uniform fashion stands out as a genuine flaw in the instant evaluation.
The undersigned is constrained to avoid basing an ultimate conclusion on this flaw in the process, however, because RN failed to plead with particularity either the failure of the RFP to state the relative importance of the evaluation criteria or the committee’s consequent inability to apply such criteria uniformly. Hence, RN waived these issues. See Section 120.57(3)(b), Florida Statutes.32
Accordingly, it is concluded that RN’s protest fails as to the allegation that the committee did not consider all stated evaluation criteria.
Undisclosed Evaluation Criteria
From the requirement that requests for proposals state all of the evaluation criteria logically follows the rule that proposals shall be evaluated only on the stated criteria and none other. For obvious reasons, no agency can be allowed to employ secret evaluation criteria in a competitive procurement.
Section VIII of the instant RFP contained language which might be understood to suggest that the list of six evaluation criteria was not meant to be exclusive (i.e. “[e]valuation considerations will include, but not be limited to
. . .”). As a threshold matter, however, it is concluded that this language cannot legally be construed as a reservation of the “right” to evaluate the proposals using undisclosed criteria, because no such “right” can exist in harmony with Florida law.
Turning to the question whether the committee applied unstated criteria, a review of the minutes of the committee’s September 4, 2001, meeting reveals, initially, that the evaluators blurred the distinction between the technical requirements of section V and the evaluation criteria in section
VIII, effectively using some of the former (e.g. “itemization of charges for specimen collection and testing,” Minutes, p. 2) as evaluation criteria. This lack of rigor probably resulted from the RFP’s failure to specify the weight of review criteria rather than any partiality on the committee’s part; but regardless of the cause, the fact that technical requirements were used as ad hoc evaluation criteria increases the likelihood that the two proposals were not measured with an identical yardstick. To the point, moreover, the use of technical requirements in place of (or in addition to) stated evaluation criteria is a method of evaluating with undisclosed criteria.33 Because RN’s protest is grounded on different theories, however, the issue will not be further explored here.
In its minutes, the committee reported that the determinative factors in its selection of Global were “the larger number of collection sites for urine that are available [with Global] and the locations of these sites throughout various parts of the county, which would be of convenience to applicants and employees, and [Global’s] experience.” Were these decisive considerations based on secret evaluation criteria?
To be sure, none of the stated criteria explicitly disclosed that the number and locations of urine collection
sites would be evaluation considerations. True, subsection
VIII.D. advised that the location of the laboratory would be considered——but the laboratory and the collection sites are different things. As it happens, the best authority for ranking the proposals based on the number and locations of urine collection sites was also found in subsection VIII.D., which included this clause: “accessibility relative to volume of expected need.”
This rather vague “accessibility” criterion is not much of a peg on which to hang the committee’s hat. On the other hand, no one challenged the vague criterion in a specifications protest. As it stands, the vague “accessibility” criterion is broad enough to permit consideration of the number and locations of urine collection sites——and much else besides. RN’s failure to timely protest the vagueness of the RFP’s language, however, now precludes a recommended reversal of the Board’s proposed action based on poorly written project specifications.34
As for the committee’s evaluation of the proposals based on the competitors’ “experience,” subsection VIII.C. set forth the enabling criteria: “past experience and record of performance” and “verification of references.” Plainly, “experience” was a disclosed, if wide open, review criterion.
The root causes of much of RN’s dissatisfaction with the evaluation process are vaguely-worded review criteria and the silence of the RFP on the relative importance of these criteria. These are substantial problems, but they were not timely or properly protested and thus cannot be grounds for reversal of the Board’s proposed action. The protest is rejected to the extent it is based upon the committee’s alleged use of undisclosed evaluation criteria.
Failure to Consider Total Cost
It is undisputed that in evaluating the proposals, the committee did not calculate——and thus did not compare——the estimated total annual cost of the respective proposals.
Rather, the evaluators examined unit costs——e.g. RN would charge
$27.80 for an OTETA test, Global would charge $30.00 for an OTETA test——and found, on that basis, that the proposals were practically indistinguishable.
The committee’s approach was shortsighted. A $2.20 difference in the price of two competing products that cost about $30.00 respectively may not be a big deal for many consumers——if they only plan to purchase one or two. If, however, a particular consumer planned to buy more than a couple of these items, then the significance of that $2.20 price differential would increase in direct proportion to the quantity purchased. Thus, if 10,000 units per year were required, for
example, then the seemingly small difference in price would add up to $22,000.
Consideration of total annual cost in the evaluation of competitive offers for public contracts is not merely a matter of logic and good sense; it is a requirement of Florida procurement law. As mentioned earlier, Section 287.057(2), Florida Statutes, directs that evaluators shall consider “the total cost for each year as quoted by the offeror.”35
Here, the committee’s mandatory task was complicated by the fact that the RFP had not asked the proposers to quote a total annual cost.36 Still, the committee should have been able, by examining historical data, to ascertain a reasonably reliable estimate of the Board’s demand for the various tests in question.37 Armed with such figures, the evaluators could have multiplied the anticipated numbers of such tests against the unit costs quoted by the proposers, summed the subtotals, and thereby come up with a reasonable approximation of the proposals’ respective total costs per year. This would have taken a bit of work but the burden should not have been insuperable.
The committee’s failure to undertake this effort was contrary to Section 287.057(2), Florida Statutes. Further, the committee’s inaction——a breach of the applicable standard of conduct——was contrary to competition because, if a public
contract were let without full consideration of the total cost to the taxpayer, the public could not be confident that the award was made equitably and economically.
Therefore, the committee committed reversible error in failing to consider the total annual cost of the respective proposals.
Bias and Favoritism
RN alleges that the committee was biased in favor of Global, the incumbent vendor. To the extent this charge is based on Mr. Bevan’s involvement in the evaluation, it lands a blow.
Initially, as has been found, Mr. Bevan’s substantive role in the evaluation process exceeded that of mere technical advisor. He was a de facto member of the Selection Committee. In this, Mr. Bevan’s participation was contrary to the RFP, which, in section VIII, specified that a five-person selection committee would conduct the evaluation of proposals. Thus, in allowing Mr. Bevan to step into the shoes of an evaluator and engage in a qualitative review of the proposals, becoming in effect a sixth evaluator, the Board violated the standard of conduct.
Mr. Bevan’s participation as an evaluator cannot be dismissed as a harmless error. Indeed, among the evaluators,
Mr. Bevan was the most knowledgeable regarding the Board’s drug testing procedures. His input carried considerable weight.
Mr. Bevan’s strong opinions were reflected in the comparison chart he prepared and distributed at the April 11, 2001, committee meeting. Though it appeared objective on its face, Mr. Bevan’s chart was one-sided and unfair, depicting RN’s proposal in a harshly negative (and at times false) light while bending over backwards to make Global look good, even when doing so entailed making generous assumptions in Global’s favor.
After considering all the evidence, the factfinder determined that Mr. Bevan’s chart was little more than a hatchet job on RN.
It is this latter determination which drives the conclusion that Mr. Bevan’s involvement was contrary to competition. Had his opinions appeared instead to have been the product of an impartial and fair consideration of the proposals’ merits, Mr. Bevan’s participation might not have constituted reversible error. As it happened, Mr. Bevan’s unjust comparison chart was a torpedo aimed directly at RN, whether he specifically intended that result or not.
The Board attempts to play down Mr. Bevan’s involvement, and lessen the significance of his chart, by stressing that Mr. Bevan spoke little at the September 4, 2001, meeting and did not distribute his comparison sheet at that second gathering of the committee. The fact is, however, that
three of the original five members of the committee rejoined the group on September 4. Thus, as of September 4, a majority of the official committee had already seen Mr. Bevan’s chart and heard from him on April 11. This is persuasive evidence that the damage done earlier subsisted despite Mr. Bevan’s relative silence the second time around.
In sum, Mr. Bevan’s involvement was contrary to the specifications of the RFP and contrary to competition. Accordingly, the Board’s proposed action must be overturned.
The Composition of the Selection Committee
RN alleges that none of the committee members had sufficient expertise to evaluate the proposals for compliance with the RFP’s technical requirements. The Board counters that technical advisors (such as Mr. Bevan) were present at the committee meetings to answer any technical questions that may have been raised, thereby compensating for any evaluator’s lack of expertise.
Section 287.057(16) provides that “[f]or requests for proposals, a selection team of at least three employees who have experience and knowledge in the program areas and service requirements for which contractual services are sought shall be appointed by the agency head to aid in the selection of contractors for contracts of more than the threshold amount provided in s. 287.017 for CATEGORY FOUR.” The category four
threshold is $150,000, which is exceeded by the subject contract.38
At hearing, the Board’s attorney elicited testimony establishing that four of the five committee members had no direct involvement with the services that the RFP solicited. From this follows the inference that only one of the evaluators had experience and knowledge in the program areas and service requirements for which contractual services were being sought. Thus, the composition of the committee failed to satisfy Section 287.057(16), Florida Statutes——a violation of the standard of conduct.
This error was not rendered harmless by the participation of technical advisors. To the contrary, that four out of five de jure evaluators lacked relevant knowledge and experience actually magnifies the problems associated with Mr. Bevan’s improper participation as a de facto committee member.
Among the sound reasons for requiring a knowledgeable and experienced selection team is to produce evaluations in which the merits of competing proposals are fairly and competently considered. When people who are unfamiliar with the subject matter of a contract are allowed to evaluate offers to perform the work, the danger exists that their focus will stray from the important details (which the novice might not recognize or understand) to irrelevant or improper considerations,
creating opportunities for favoritism and eroding public confidence that contracts are awarded equitably. Consequently, the Board’s violation of Section 287.057(16), Florida Statutes, was contrary to competition and requires that the proposed award be overturned.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order rescinding the proposed award to Global.
DONE AND ENTERED this 4th day of February, 2002, in Tallahassee, Leon County, Florida.
JOHN G. VAN LANINGHAM
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 4th day of February, 2002.
ENDNOTES
1/ "Reasonable suspicion" is described at pages 5 and 6 of the Guide.
2/ Blood alcohol screening is required only in fitness for duty circumstances. Guide, p. 22.
3/ The language is all Mr. Bevan's. The undersigned added the Item Numbers for ease of reference and packaged the information in a table. Mr. Bevan's chart was laid out in two columns (for Global and RN, respectively) with ten rows but was not formatted in a table.
4/ Since OTETA applies to many positions unrelated to school buses (e.g. sprinkler mechanic, roofer, playground equipment installer, fence installer, and fertilizer equipment operator, to name a few), it is not self-evident that the picture of a bus would be as helpful as Mr. Bevan assumed.
5/ RN did not allege that Global's proposal was materially non- responsive for failing to itemize costs for these separate tests.
6/ All things change with the passage of time. (As common experience teaches, this is especially true in regard to the cost of goods and services.) Therefore, it is a logical fallacy to assume that that which has been will, for that reason, continue to be.
7/ The assumption is questionable not only for reasons previously stated, see endnote 6, supra, but also because blood alcohol testing is not part of “general employee drug screening” (for which Global quoted a price of $25.00). Mr. Bevan gave Global a remarkable benefit of the doubt here.
8/ That Global had described how it would provide on-site collection (i.e. using a "self contained air conditioned [fully equipped] motor coach") whereas RN had not proffered such details would be a reasonable basis for considering Global the superior proposer on this item on the merits. Mr. Bevan, however, was making a different point, it seems.
9/ At hearing Mr. Bevan (in response to a leading question by the Board's attorney) defined "mobile collection" as collection of a specimen taking place in a vehicle, and contrasted such with "on-site collection," which he was prompted to characterize as collection taking place inside of a "brick and mortar" building. The term "mobile collection" is not defined in the RFP, however; and, moreover, as used in the context of section V, subsection L, the term cannot reasonably be read to exclude the possibility that collection could take place inside brick and mortar buildings, i.e. "some of the Regional Transportation Centers." But this quibbling over the meaning of "mobile
collection" is largely academic because the committee did not purport to disqualify RN for failing to propose the use of a self-contained "motor coach."
10/ Obviously, if Mr. Bevan truly lacked adequate paper space and preparation time to list any of RN's references, he simply could have written "many references" or "many clients."
11/ Ironically, Mr. Bevan accurately could have said of Quest, as he did of LCA, that the firm was late in reporting results one time in four years. Of course, the statement is meaningless unless one also knows how many timely results were received in the same period. With LCA Mr. Bevan clearly meant to imply that the firm had made only one mistake in the course of providing many timely results. Conversely, with Quest Mr. Bevan intended to communicate that the firm routinely made mistakes and would be unreliable——a conclusion for which Mr. Bevan had no reasonable basis in fact or logic.
12/ A copy of this letter was received for the file during the course of the final hearing. By stipulation, this September 6, 2001, correspondence was designated RN’s formal written protest document. See Section 120.57(3)(b), Florida Statutes.
13/ Beyond construing the term "de novo proceeding," see infra in the text, recent judicial applications of the statute, which was revised substantially in 1996, offer little guidance as to the meaning of the determinative language, the courts having quoted the subject provisions without critical comment. See Gtech Corp. v. State Department of the Lottery, 737 So. 2d 616, 619 (Fla. 1st DCA), rev. denied, 749 So. 2d 502 (1999); State Contracting and Engineering Corp. v. Department of Transportation, 709 So. 2d 607, 609 (Fla. 1st DCA 1998).
14/ Because the Division of Administrative Hearings ("DOAH") is independent of the letting authority in all instances, see Section 120,65(1), Florida Statutes, it might be preferable to label bid protests before DOAH a form of inter-agency review or, alternatively, intra-branch review, although of course the letting authority itself ultimately renders the final order, so the first district's nomenclature is technically correct.
15/ The legislature's use of the term "standard of review" in the very next sentence of the statute, which deals with protests contesting a rejection of bids, has not been overlooked. While ordinarily it would be presumed that the legislature, having
chosen to use different terms in the same statute, must have intended that each separate term convey a distinct meaning, the ordinary presumption simply does not work here. The legislature could not reasonably have intended that a protester establish its case by "clearly erroneous" evidence, or by proof that is "contrary to competition."
16/ From the general principle of deference follows the more specific rule that an agency’s interpretation need not be the sole possible interpretation or even the most desirable one; it need only be within the range of permissible interpretations.
State Board of Optometry v. Florida Society of Ophthalmology,
538 So. 2d 878, 885 (Fla. 1st DCA 1988); see also Suddath Van Lines, Inc. v. Department of Environmental Protection, 668
So. 2d 209, 212 (Fla. 1st DCA 1996). However, "[t]he deference granted an agency’s interpretation is not absolute." Department of Natural Resources v. Wingfield Development Co., 581 So. 2d 193, 197 (Fla. 1st DCA 1991). Obviously, an agency cannot implement any conceivable construction of a statute or rule no matter how strained, stilted, or fanciful it might be. Id.
Rather, "only a permissible construction” will be upheld by the courts. Florida Society of Ophthalmology, 538 So. 2d at 885.
Accordingly, “[w]hen the agency's construction clearly contradicts the unambiguous language of the rule, the construction is clearly erroneous and cannot stand.” Woodley v. Department of Health and Rehabilitative Services, 505 So. 2d 676, 678 (Fla. 1st DCA 1987); see also Legal Environmental Assistance Foundation v. Board of County Commissioners of Brevard County, 642 So. 2d 1081, 1083-84 (Fla.
1994)(“unreasonable interpretation” will not be sustained).
17/ In a protest following the announcement of an intended award, the same result should usually obtain with regard to agency action taken upon its interpretation of the project specifications——but for a different reason. It is, of course, by no means self evident that deference is appropriate in connection with an agency's interpretations of its project specifications. That an agency possesses expertise in, say, environmental protection does not suggest that the agency is expert at drafting contractual language. However, Section 120.57(3)(b), Florida Statutes, provides a remedy for badly- written or ambiguous specifications: they may be protested within 72 hours after the receipt thereof. The failure to avail oneself of this remedy effects a waiver of the right to complain about the specifications per se. Consequently, in a post- proposed award protest, if the dispute turns on the
interpretation of an ambiguous, vague, or unreasonable specification, which could have been corrected or clarified prior to acceptance of the bids or proposals had a timely specifications protest been brought, and if the agency has acted thereafter in accordance with a permissible interpretation of the specification (i.e. one that is not clearly erroneous), then the agency's intended action should be upheld——not out of deference to agency expertise, but as a result of the protester's waiver of the right to seek relief based on a faulty specification. If, however, the agency has acted contrary to the plain language of a lawful specification, then its action is clearly erroneous and cannot stand; in that situation, no waiver would have occurred, because no one would be expected or well- advised to protest an unambiguous specification that facially conforms with Florida procurement law.
18/ This approach is suggested by Judge Miner's dissent in Gtech Corp. v. State Department of the Lottery, 737 So. 2d 616, 622-25 (Fla. 1st DCA 1999). Although the judge's argument failed to command a majority, the dissenter's use of Section 287.001, Florida Statutes, to give meaning to the "contrary to competition" concept is not inconsistent with the majority opinion in that case or any other of which the undersigned is aware.
19/ The Board does not contend that an award could be made to a proposer whose response deviated materially from the project specifications. Such action, it is summarily concluded, would be contrary to governing statutes. E.g. Sections 287.012(16) and 287.052(2), Florida Statutes. Thus, to the extent grounded on allegations that the Board proposes to accept a materially non-responsive proposal, RN's protest sufficiently has satisfied the statutory requirement of identifying action that, if proven, violates the letting authority's standard of conduct.
20/ That blood alcohol tests are infrequently performed does not change the fact that the contract holder, according to the plain project specifications, will be obligated to perform such tests as needed.
21/ Under the so-called "tipsy coachman" rule, a reviewing court will usually affirm a ruling based on erroneous reasoning if the lower tribunal's ultimate decision was correct under another theory revealed in the record. E.g. Farrey's Wholesale Hardware Co., Inc. v. Hobesound Industrial Park, Inc., 719 So. 2d 374,
375 (Fla. 3d DCA 1998); see also Dade County School Board v.
Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999); Green v. First American Bank and Trust, 511 So. 2d 569, 573 (Fla. 4th DCA 1987), rev. denied, 520 So. 2d 584 (1988). (The origin of this rule's colorful name is revealed in Carraway v. Armour and Co., 156 So. 2d 494, 497 (Fla. 1963).)
22/ When an agency asserts for the first time as a party litigant in a bid protest that an irregularity was immaterial, the contention must be treated, not with deference as a presumptively neutral finding of ultimate fact, but with fair impartiality as a legal argument; in other words, the agency is entitled to nothing more or less than to be heard on an equal footing with the protester.
23/ The Board's argument on materiality, it should be noted, is substantially undermined by the fact that the committee failed to consider the total annualized cost of the respective proposals, but rather looked only at unit costs. See paragraphs 152-57 in the text, infra. Thus, while it is true that the difference between the two proposals, as far as the total cost each year for blood testing is concerned, may be minimal (assuming arguendo that Global's charge for blood tests really is $25.00), it is also true that the committee did not evaluate the proposals in this way. On the other hand, on a unit-cost basis, which is how the committee did review the proposals, the 20% difference between $25.00 and $30.00 is substantial and material. To argue, after the fact, that materiality should be determined based, in effect, on a total cost comparison (which should have been made during the evaluation but was not) is inconsistent.
24/ There are no maps in evidence pinpointing the location of this site, or any other, of Global’s. For that matter, the areas comprising the “south end” and “north end” of Miami-Dade County were not clearly delineated in the evidence. No one, however, disputed that RN’s south-end site, in Homestead, satisfied the geographic requirement, as the committee had determined. Since Florida City is south of Homestead, as a matter of indisputable geographic fact, it follows that Global’s Florida City site is suitably situated in the county’s south end. There was some evidence that Global’s site at 17013 South Dixie Highway also is located in the south end, but that conclusion may be debatable. In any event, subsection V.N. required only one south-end location, and Global offered at least one.
25/ The site is also closed on weekends, as are all of Global’s stationary sites. Subsection V.N. is ambiguous as to whether the required north- and south-end sites must be open from 8:00
a.m. to 12:00 midnight on Saturdays and Sundays. Because RN did not challenge the responsiveness of Global’s proposed north-end site on the ground that it is closed on Saturdays and Sundays, however, it has been assumed herein that the “hours of operation” clause in subsection V.N. referred only to hours during Monday through Friday.
26/ Global’s South Dixie Highway facility is open from 8:00 a.m. until 4:00 p.m., Monday through Friday, thus affording an additional hour of coverage in the south end, assuming this site is properly located in the south end and assuming further that subsection V.N. permits the aggregation of multiple sites’ operating hours to meet the requirement of 16 hours of daily operation. Even with these favorable assumptions, however, Global’s proposal is still short seven hours’ coverage per day in the south end.
27/ That subsection V.N. repeated the word “site” twice in the first sentence, followed immediately, once, with the phrase “in the North end . . . of Miami-Dade County” and a second time with the phrase “in the South end of Miami-Dade County,” makes it impossible reasonably to view the geographic references as qualifiers of the adjective “available.” No ordinary person attempting to express a requirement that a “site” must be transportable to the south end of Miami-Dade, as opposed to a requirement that a site must be located in this area, would do so in the manner of subsection V.N.
28/ Whether Global’s vans are “located” in the south end of Miami-Dade County might have presented a closer factual question if one or both were kept and maintained in that area, but neither is. At bottom, Global’s vans, like countless other motor vehicles, including my own, may be driven to the south end of Miami-Dade County. It cannot reasonably be asserted, however, that, for example, my Tallahassee-based automobiles are “located” in the south end of Miami-Dade simply because they can be driven there. Additionally, if the Board had truly intended that a motor vehicle could be counted as a “site” under subsection V.N., it presumably would have included therein the term “mobile site,” which appears elsewhere in the RFP. E.g.
Guide, p. 15.
29/ Of course, a single van could not be physically present in both places at the same time, but none of Global’s vans can be in two places at once either. Therefore, if Global’s vans happen to be tied up on calls in Broward County when a request for after-hours service comes from south Miami-Dade, then the test in the south end will be delayed. This possibility, however, did not dissuade the Board from considering Global’s vans sufficiently “available” in south Miami-Dade.
30/ The Board’s proposed action was not based on an ultimate finding that the defect in RN’s proposal was a minor irregularity; it was based, rather, on the Board’s position (rejected herein) that RN’s proposal was responsive to the RFP’s requirements regarding the availability of a south-end site.
Thus, there being no ultimate finding of immateriality to which deference need be accorded, the question will necessarily be decided de novo.
31/ It may seem counterintuitive that a proposer whose non- responsive offer is more expensive than a competitor’s nevertheless has secured an advantage. Consider this hypothetical.
Suppose an agency solicits proposals for a contract to purchase various listed paper products as needed. Among the line items on which a price must be quoted is “paper towels, 1,000 rolls.” In the context of the project specifications, assume, the term “paper towels” plainly means regular, dry paper towels.
Two proposers respond. One competitor offers 1,000 rolls of paper towels at $1.00 per roll. The other offers 500 rolls of ordinary towels at $1.00 apiece plus 500 packages of pre- moistened towels at $4.00 each. Clearly, the latter offer is non-responsive.
In evaluating the proposals, however, the agency decides that moist towels are really better than dry ones. They can be used for cleanup without a nearby water supply——and besides, the agency probably will not need to buy many more than 500 rolls, so the added cost is not too important a factor. The agency accepts the non-responsive proposal.
It should be apparent that such action is unfair to the proposer whose less expensive offer complied with the RFP. Had the compliant proposer known that the agency would prefer moist
towels——indeed, would pay a premium for them——it might have made a different offer. And the agency might have obtained a lower price for moist towels had it expressed a desire therefor in its project specifications.
The bottom line is, allowing a proposer to offer a different product than the one sought——even if (perhaps especially if) the agency considers the substitute to be a better product——undermines the common standard of competition. For that reason, such action, when challenged, cannot be allowed to stand.
32/ Because RN did not plead the issue in its formal protest of the intended award, it need not be decided in this case whether an agency’s failure to specify the relative importance of evaluation criteria is a defect which is waived if not timely challenged in a specifications protest.
33/ Where, as here, responsiveness to the technical requirements is itself a separate evaluation criterion, using some of the technical requirements as independent evaluation criteria (whose relative importance is unknown) operates as a kind of random double dipping.
34/ The committee’s decision to give the greatest weight to consideration of the locations and number of urine collection sites contravened subsection VIII.E., which required that “primary emphasis” be “placed on the independence, background, experience, and service of staff to be assigned to the project.” (Emphasis added). Ironically, this criterion is the only one whose relative importance was stated at all meaningfully. (An attempt was made, in subsection VIII.B., to articulate the relative importance of cost, which was to be “not dominant” but have “some significance” unless the proposals were relatively equal, in which case price would become “particularly important.”) Yet, while the committee may have given some consideration to the merits of the proposers’ respective staffs, it is evident that, in fact, primary emphasis was not given to this consideration. RN did not protest on this basis, however.
35/ The one-year contract at issue is potentially renewable for three additional years. RFP, section VII, subsection A. Thus, the total annual cost provisions of Section 287.057(2), Florida Statutes, are clearly applicable, even under the narrowest interpretation thereof.
36/ Because the RFP did not request the information, the proposers should not be faulted for failing to include in their proposals the total price for each year, as Section 287.057(2) requires; in any event, no issue was raised concerning the responsiveness of either proposal in this regard.
37/ Indeed, the committee needed to have some idea of expected demand in order to apply the criterion of “accessibility relative to volume of expected need.” See paragraph 148 in the text, supra.
38/ In section IV of the RFP, at page 2, the Board estimated that, on an annual basis, 9,000 tests would be needed for job applicants and, in addition, 2,000 tests for employees. If the total number of tests per year is assumed to be 11,000 and the average cost of each test is not less than $25.00, then the contract is worth at least $275,000.
COPIES FURNISHED:
Norman C. Powell, Esquire
Bilzin, Sumberg, Dunn, Baena, Price & Axelrod, LLP
2500 First Union Financial Center
200 South Biscayne Boulevard Miami, Florida 33131-2336
John A. Greco, Esquire
Miami-Dade County School Board
1450 Northeast Second Avenue, Suite 400
Miami, Florida 33132
Peter E. Abraham
999 Brickell Avenue, Suite 1000
Miami, Florida 33131
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
10 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 13, 2002 | Agency Final Order | |
| Feb. 04, 2002 | Recommended Order | Bid protester established that proposal submitted by putative successful proposer was materially non-responsive to Request for Proposals, and the evaluation of proposals was flawed. Recommend proposed award be rescinded. |
