vs.
Respondent.
) Case Nos. 04-0437BID
Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this proceeding on behalf of the Division of Administrative Hearings (DOAH) on April 8, 2004, in Tampa, Florida.
For Petitioner: Arnold D. Levine, Esquire
Levine, Hirsch, Segall, MacKenzie & Friedsman, P.A.
The issues are whether the specifications in two requests for architectural and construction management services violate
Subsection 120.57(3)(f), Florida Statutes (2003), for the reasons alleged in two written protests.
Petitioner protested two requests for architectural and construction management services issued by Respondent.
Respondent referred the protests to DOAH to conduct an administrative hearing for each protest.
At the administrative hearing, the parties agreed to consolidate the two protest proceedings. Petitioner presented the testimony of four witnesses, one rebuttal witness, and three exhibits for admission into evidence. Respondent presented the testimony of two witnesses and submitted five exhibits for admission into evidence. At the conclusion of the hearing, each party submitted oral motions for attorney's fees and costs pursuant to Section 120.595, Florida Statutes (2003).
The identity of the witnesses and exhibits, and the rulings regarding each, are reported in the two-volume Transcript of the hearing filed with DOAH on May 3, 2003. The ALJ granted Petitioner's request for extension of time in which to file the proposed recommended orders (PROs) without objection by Respondent. The parties timely filed their respective PROs on June 1, 2004.
Petitioner is a general contractor/construction management firm in the State of Florida. The firm maintains its principal office in Tampa, Florida, and provides construction management services throughout the state.
The state previously certified Petitioner as a certified minority business enterprise (MBE), and that certification remains current. Mr. Paul Curtis is the president and chief executive officer (CEO) of Petitioner, a majority shareholder, and an African-American.
Petitioner's president and CEO is licensed by the state as a general contractor, underground utilities and excavation contractor, pollutant storage systems and specialty contractor, and specialty structures contractor. However, Petitioner does not employ any person qualified to provide architectural services.
Respondent is a local school district of the state.
Respondent is responsible for the construction, renovation, management, and operation of the public schools in Hillsborough County, Florida. Respondent routinely obtains the services of architects, engineers, and other professionals through competitive procurement in accordance with Section 287.055, Florida Statutes (2003), the Consultants' Competitive Negotiation Act (CCNA).
On December 30, 2003, Respondent posted on its website, a request for proposals (RFP) for architectural and construction management services. On January 20, 2004, Respondent posted a second RFP for architectural and construction services.
The two RFPs seek architectural services and construction management services incident to the construction or expansion of approximately 12 public schools (the project). The proposed budget for the project is approximately $66.37 million. Respondent seeks to complete the projects to comply with minimum class-size requirements recently imposed by the state.
Petitioner did not submit responses to either RFP at issue in this proceeding. Rather, Petitioner protested the specifications in each RFP. On January 5 and 20, 2004, Petitioner timely served Respondent with respective notices of intent to protest each RFP. On January 15 and February 2, 2004, Petitioner timely served Respondent with a formal written protest of each RFP.
Petitioner alleges that each RFP is deficient for identical reasons. First, the RFPs allegedly violate the requirement in Subsection 120.57(3)(a), Florida Statutes (2003), to notify potential bidders that failure to protest the specifications in each RFP within the statutorily prescribed time, waives their right to protest either RFP (the statutory notice). Second, the RFPs allegedly fail to adequately disclose
selection criteria used to select a successful applicant. Third, the RFPs allegedly violate MBE guidelines in
Subsection 287.055(3)(d), Florida Statutes (2003). Fourth, the evaluation criteria are allegedly confusing or ambiguous and make it impossible to determine the basis upon which Respondent awards points. Finally, Respondent allegedly failed to consider the recent volume of work of each applicant in violation of Subsections 287.055(3)(d) and (4)(b), Florida Statutes (2003).
Neither RFP includes the statutory notice.
Subsection 120.57(3)(a), Florida Statutes (2003), requires Respondent to provide the statutory notice in any notice of decision or intended decision (notice of decision). Florida Administrative Code Rule 28-110.002(2)(a) defines a notice of decision to include the RFPs. Subsection 120.57(3), Florida Statutes (2003), requires Respondent to "use the uniform rules of procedure" prescribed in Florida Administrative Code
Rule 28-110.002. Each RFP is a notice of decision that omits the required statutory notice in violation of Subsection 120.57(3)(a), Florida Statutes (2003).
Respondent's violation of Subsection 120.57(3)(a), Florida Statutes (2003), did not result in any injury in fact to Petitioner. Petitioner received actual notice of each RFP and timely protested each RFP.
Respondent issued the RFPs and partially evaluated the responses to them in accordance with a procedure prescribed in a publication that the parties identified in the record as Chapter 7.00 of the School Board Policies and Procedures Manual (the Policy Manual). In general, the Policy Manual requires a Professional Services Selection Committee (the Committee) to conduct at least two rounds of evaluation before Respondent can select a successful applicant.
During the first round, each member of the Committee evaluates each application in accordance with the evaluation criteria prescribed in a Project Information Packet incorporated by reference in the RFP and made available to each applicant. Each Committee member assigns a point total for each response (a score). The Committee then designates a threshold score that an applicant must attain in order to advance to the second round of evaluation that involves face-to-face interviews.
The Committee prepares a list of those applicants that attain scores sufficient to advance to the second round of evaluation. The parties identified as the "short list," the list of applicants that qualify for the second round of evaluation. In practice, the short list usually includes more than three applicants thereby necessitating a third round of interviews.
Once the Committee prepares the short list, Respondent issues a second notice of decision within the meaning of Subsection 120.57(3)(a), Florida Statutes (2003). Respondent sends the notice to all applicants that submitted a response to an RFP. The second notice of decision informs each applicant of the applicant's score and identifies those applicants selected to advance to the second round of evaluation. The second notice of decision includes the statutory notice required in Subsection 120.57(3)(a), Florida Statutes (2003).
The deadline for submitting applications in response to the first RFP was January 16, 2004. By January 15, 2004, Respondent had received approximately 30 applications from architects and approximately 30 applications from construction managers. By January 15, 2004, the Committee had evaluated the responses it had received and determined a short list. Respondent had notified the applicants of their respective scores and identified those applicants selected for interviews in the second round of evaluations. When Petitioner filed a written protest of the first RFP, Respondent suspended
further evaluations of the applicants pursuant to Subsection 120.57(3)(b), Florida Statutes (2003).
Respondent notified bidders of the short list prior to the deadline for filing responses to the RFPs on January 16, 2004. The written protests do not challenge Respondent's
issuance of an apparently premature notice of decision. Petitioner submitted no relevant findings of fact or conclusions of law in its PRO concerning Respondent's practice. Nor did the PRO cite to any evidence of record to support a finding concerning Respondent's practice.
The deadline for submitting applications in response to the second RFP was February 6, 2004. Petitioner filed a written protest on February 2, 2004. Respondent stopped accepting applications in response to the second RFP in accordance with Subsection 120.57(3)(b), Florida Statutes (2003).
The specifications for each RFP adequately disclose selection criteria to prospective applicants, including criteria to be used for interviews during the second round of evaluation. Petitioner's PRO includes no findings of fact or conclusions of law relevant to this issue. Nor does the PRO cite to any evidence of record that supports a finding concerning the issue.
The two RFPs disclose selection criteria to prospective applicants in the same manner. Each RFP includes the following statement:
Any applicant interested in providing either architectural or construction management services shall make application by submission of materials prescribed in the Project Information Packet. The Project Information Packet, additional project information, and the weights associated with
each qualification and evaluation criteria can be obtained by contacting the Planning & construction Office at (813)272-4112 or via the Internet. . . .
Each RFP contains a separate Internet address.
Respondent published the foregoing statement in three area newspapers and on Respondent's official website. Petitioner received notice of the RFPs on the official website.
The Project Information Packets include a list of the members of the Committee, a summary of Respondent's procedures for acquiring professional services, a two-page chart of the evaluation criteria, and a selection activity schedule. Respondent made the Project Information Packets available to prospective applicants in hard copy and electronically on Respondent's official web site. The Project Information Packets adequately identify and describe evaluation criteria and the weight assigned to each criterion, including those to be used during interviews.
The evaluation criteria are not confusing or ambiguous. The language used to describe the criteria does not make it impossible for prospective applicants to determine the basis upon which the Committee will award points. Petitioner's PRO includes no findings of fact or conclusions of law relevant to this issue. Nor does the PRO cite to any evidence of record
to support a finding that the criteria are confusing or ambiguous.
DOAH previously approved Respondent's selection criteria. In RHC & Associates, Inc. v. Hillsborough County School Board, DOAH Case No. 02-3138RP (October 11, 2002), ALJ
T. K. Wetherell, II, concluded that the Policy Manual is a valid exercise of delegated legislative authority. In RHC & Associates, Inc. v. Hillsborough County School Board, DOAH Case No. 02-4668BID (January 3, 2003), ALJ Wetherell concluded that the specification factors and weight assigned to each, comply with the CCNA and are not otherwise arbitrary, capricious, or contrary to competition.
After the decisions in the two RHC cases, Respondent slightly adjusted the weights given to certain criteria in order to increase minority and small business participation. Respondent made the adjustments after consulting with the NAACP. In relevant part, Respondent increased the weight given for an applicant's resume from 20 to 25 points. Respondent increased the weight given for recent volume of business with Respondent from 5 to 10 points. Respondent decreased the weight given for Project/Applicant Correlation from 25 to 15 points. The changes to the weights assigned to certain evaluation criteria after the two RHC cases comply with the CCNA, are not confusing or
ambiguous, and do not make it impossible for prospective applicants to determine the basis for awarding points.
The specifications for each RFP do not violate MBE guidelines in Subsection 287.055(3)(d), Florida Statutes (2003). Petitioner's PRO includes two proposed findings relevant to this issue. The two proposed findings are correct, but not material.
Respondent has no practice or procedure in place to certify prospective applicants as MBEs. Rather, Respondent registers an applicant as an MBE if the applicant has been certified as an MBE by another agency. Both public and private agencies, sometimes for a fee to private consultants, certify MBE firms. The National Minority Association certifies companies as MBEs for a fee.
Subsections 287.055(3)(d) and (4)(b), Florida Statutes (2003), contain no express requirement for Respondent to independently certify applicants as MBEs. The former provision requires Respondent to evaluate whether an applicant is a certified MBE. The latter provision requires Respondent to determine whether an applicant is qualified based on prescribed factors that include certification as an MBE. Petitioner cites no legal precedent that authorizes the ALJ to construe either statutory provision to require Respondent to independently certify applicants for either RFP. Petitioner cites no other
legal authority to support its allegation that Respondent must independently certify applicants as MBEs.
Respondent's policy of accepting MBE certifications by other agencies and private companies is reasonable. Independent certification would be redundant and a waste of taxpayer resources.
Respondent relies on a company identified in the record as Morrison & Associates to conduct background checks on every applicant claiming to be certified as an MBE. In addition, Respondent's Office of Supplier Diversity maintains certification information for new contractors and subcontractors. The Office of Supplier Diversity confirmed for the Committee that each applicant claiming to be an MBE was in fact certified as an MBE.
The Committee awards each applicant with an MBE certification the maximum number of points in that category. If Petitioner were to have submitted an application for either RFP, the Committee would have awarded Petitioner the maximum number of points available for MBE certification.
Respondent properly determined the volume of work of each applicant in accordance with Subsections 287.055(3)(d) and (4)(b), Florida Statutes (2003). Respondent defines the
phrase "recent volume of work" to mean the dollar amount of work performed for Respondent as a construction manager or architect
within five years of the date of determination. Respondent awards the maximum number of points to applicants who have not performed any work for Respondent in the previous five years.
Respondent determines recent volume of work based on information that does not include work performed by subcontractors. Petitioner has performed work for Respondent in the past, but only as a subcontractor. Petitioner last performed work for Respondent approximately seven years ago.
If Petitioner were to have submitted an application for either RFP, the Committee would have awarded Petitioner the maximum number of points for recent volume of work. The information that the Committee would have reviewed would not have identified the work previously performed by Petitioner as a subcontractor. Moreover, the work was performed more than five years ago.
Petitioner is a nonprevailing adverse party within the meaning of Section 120.595, Florida Statutes (2003). Petitioner failed to change the outcome of Respondent's proposed use of the RFPs to obtain construction and architectural services for the project.
Petitioner did not participate in the proceeding for an improper purpose. The issue of whether Respondent must include the statutory notice in the RFP specifications is a
justiciable issue of law. Petitioner's participation in this proceeding was not for a frivolous purpose.
Respondent is the prevailing party in this proceeding.
Respondent did not submit evidence concerning the amount of attorney's fees and costs that Respondent incurred to defend the written protests or the reasonableness of those fees and costs.
CONCLUSIONS OF LAW
DOAH does not have jurisdiction over that part of the protests pertaining to architectural services. Petitioner lacks standing to protest the RFPs for architectural services. Petitioner is not licensed to provide architectural services directly to Respondent, and the evidence of Petitioner's ability to provide architectural services indirectly, if any, was neither credible nor persuasive.
DOAH has jurisdiction over the remainder of the protests pertaining to construction management services. Petitioner is licensed in the state to provide construction management services and submitted some evidence that Petitioner would have been a potential bidder if it were not for Petitioner's protest of the alleged deficiencies in the RFPs.
Section 120.57(3)(b), Florida Statutes (2003), required Petitioner to file a written protest of each RFP before submitting an application in response to an RFP. The statutory requirement enables Respondent to correct or clarify
specifications in the RFPs before accepting bids so that potential bidders may avoid the expense of bidding on RFPs with deficient specifications and so that actual bidders are assured of fair competition. If Petitioner were to have waited to protest the RFPs until Respondent determined a short list and issued a notice of decision, Petitioner may have waived its statutory right to protest the specifications in each RFP. Capeletti Brothers, Inc. v. Department of Transportation,
499 So. 2d 855, 857 (Fla. 1st DCA 1986). See also Advocacy Center for Persons with Disabilities, Inc. v. Department of
Children and Family Services, 721 So. 2d 753, 755 (Fla. 1st DCA 1998)(citing Capeletti for the proposition stated).
Petitioner has the burden of proving that the specifications in each RFP were deficient for the reasons stated in the written protests. State Contracting and Engineering Corporation v. Department of Transportation, 709 So. 2d 607, 609 (Fla. 1st DCA 1998). Petitioner did not satisfy its burden of proof.
Although Petitioner prevailed on one allegation in each written protest concerning the failure to include the statutory notice in the RFP, Petitioner did not show that Petitioner suffered any injury in fact from the omission of the statutory notice. Petitioner timely protested each RFP. However, Respondent never provided other potential or actual
bidders with a point of entry to protest each RFP because neither RFP included the required statutory notice.
Petitioner did not prevail on the remaining allegations in each written protest. The evidence is clear
and convincing that the proposed agency action does not violate Subsection 120.57(3)(f), Florida Statutes (2003), for the remaining reasons stated in the written protests.
The RFP specifications adequately disclose the evaluation criteria. Petitioner's PRO does not include any proposed findings of fact or conclusions of law relevant to this issue and does not cite to any evidence in the record to support a finding that the RFP specifications failed to adequately disclose evaluation criteria.
The evaluation criteria in the RFP specifications are not confusing or ambiguous. DOAH previously upheld the validity of the evaluation criteria in two separate cases cited in the Findings of Fact. Subsequent changes to the evaluation criteria do not make the criteria confusing or vague. Petitioner's PRO does not include any proposed findings of fact or conclusions of law relevant to this issue and does not cite to any evidence in the record to support a finding that the amended criteria are confusing or vague.
Petitioner's allegation that Respondent did not independently certify applicants as MBEs is without legal basis.
The relevant statute contains no express requirement for Respondent to independently certify applicants as MBEs. Petitioner cited no legal authority to support a statutory construction requiring independent certification. In any event, Petitioner would have received the maximum number of points available for MBE certification if Petitioner were to have submitted an application for either RFP.
The RFP specifications properly consider recent volume of work. Petitioner cited no legal authority that requires Respondent to do more than it already does to comply with Subsection 287.055(4)(b), Florida Statutes (2003). If Petitioner were to have applied for either RFP, the evidence is clear and convincing that Petitioner would have qualified for the maximum number of points available in this category.
During the hearing, Petitioner argued and submitted evidence that Respondent excluded members of the public and other bidders from the Committee's determination of a short list for the first RFP. Petitioner also argued and submitted evidence that the RFP specifications exclude actual bidders from each other's presentations during interviews. However, the arguments and evidence are not relevant to an allegation in either written protest. They are relevant to an alleged violation of the state's Sunshine Law rather that an alleged violation of the bid protest statute. See, e.g., Leach-Wells v.
City of Bradenton, 734 So. 2d 1168 (Fla. 2d DCA 1999); Silver Express Company v. District Board of Lower Tribunal Trustees of
Miami-Dade Community College, 691 So. 2d 1099 (Fla. 3d DCA 1997); Port Everglades Authority v. International Longshoremen's Association, Local 1922-1, 652 So. 2d 1169 (Fla. 4th DCA 1995).
The parties' respective motions for attorney's fees and costs (attorney's fees) are denied. Petitioner is not entitled to attorney's fees because Petitioner is the nonprevailing adverse party. Respondent is not entitled to attorney's fees because the omission of the statutory notice from each RFP was a justiciable issue of law. In addition, Respondent submitted no evidence of the amount or reasonableness of the attorney fees that Respondent incurred.
RECOMMENDED that the Respondent issue a Final Order dismissing the two protests.
DONE AND ENTERED this 1st day of July, 2004, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2004.
W. Crosby Few, Esquire Few & Ayala
Arnold D. Levine, Esquire
Levine, Hirsch, Segall, Mackenzie & Friedsman, P.A.
Dr. Earl J. Lennard, Superintendent Hillsborough County School Board Post Office Box 3408
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.
