vs.
Intervenors.
) Case No. 04-3976BID
A formal hearing was held before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, on December 6 through 8, 2004, in Tallahassee, Florida.
For Petitioner: J. Steve Menton, Esquire
Martin P. McDonnell, Esquire Rutledge, Ecenia, Purnell &
Hoffman, P.A.
For Respondent: W. Robert Vezina, III, Esquire
Mary Piccard Vance, Esquire Vezina, Lawrence & Piscitelli, P.A.
Jason K. Fudge, Esquire
For Intervenor: Cynthia S. Tunnicliff, Esquire CTB/McGraw- Brian A. Newman, Esquire
Hill Pennington, Moore, Wilkinson, Bell & Dunbar, P.A.
For Intervenor: Donna E. Blanton, Esquire Harcourt Jeffrey Frehn, Esquire Assessment Radey, Thomas, Yon & Clark, P.A.
Whether Respondent, Department of Education's ("Respondent"), Notice of Intent to Award the contract for Request for Proposal No. 2005-01 ("RFP"), for Administration of the Florida Comprehensive Assessment Test ("FCAT"), is contrary to Respondent's governing statutes, rules or policies, or the bid or proposal specifications.
Whether Respondent's proposed action was clearly erroneous, contrary to competition, arbitrary, or capricious.
This matter arose as a protest by Petitioner filed pursuant to Subsection 120.57(3), Florida Statutes (2004), of a Notice of Intent to Award a contract to Intervenor CTB/McGraw-Hill, LLC ("CTB"), for the administration of the FCAT. The Notice of Intent to Award identified CTB as the highest ranked proposer in response to the RFP. Intervenor Harcourt Assessment, Inc. ("Harcourt"), was ranked second, and Petitioner was ranked third. Petitioner filed a timely notice of protest, followed by a timely formal protest petition. CTB timely filed a Petition to Intervene on October 25, 2004. Harcourt timely filed a Petition to Intervene on October 26, 2004, also challenging the award to CTB. Both Petitions to Intervene were granted.
Petitioner alleged that the competitive proposals submitted by CTB and Harcourt were non-responsive and that Petitioner is entitled to award of the contract. Alternatively, Petitioner seeks rejection of all proposals and re-procurement. Harcourt also alleged that CTB was non-responsive and that Harcourt is entitled to the award of the contract.
At the hearing, Joint Exhibits 1 through 19 were admitted into evidence. Petitioner called Regina Johnson, Steven Charles Kromer, Clarence Reed, Victoria Ash, Jacqueline Mueller, Laura Melvin, Ph.D., Cornelia Orr, Ph.D., and Martin Mineck to testify. Petitioner's Exhibits 1, 2, 2A, and 3 were admitted
into evidence. Respondent called Cornelia Orr, Ph.D., and Respondents Exhibits 1 through 3 were admitted into evidence. Intervenor CTB called Dawn L. Church, Mark Malaspina, David Taggart and Diane Driessen to testify. CTB's Exhibits 2 and 3 were admitted into evidence. Harcourt did not call any witnesses to testify, but introduced the deposition transcripts of Judith Keck, Ph.D., Regina Johnson, and Cornelia Orr, Ph.D. They were admitted into evidence as Harcourt's Exhibits 1 through 3, respectively. The parties requested additional time to file their post-hearing submittals and the request was granted.
The Transcript of the hearing was filed on December 21, 2004. The parties timely filed Proposed Recommended Orders on January 5, 2005. All parties proposals have been given careful consideration in the preparation of this Recommended Order.
Respondent issued the RFP on August 19, 2004, seeking competitive proposals for a contract for administration of the FCAT.
Respondent's intent in this procurement is to contract with a qualified vendor who will be capable of performing the
contract at the lowest possible cost to the State. This contract impacts all Florida public schools.
The RFP included the following provisions regarding the general scope of the requirements and bidder responsibilities.
1.0 . . .
A contract, if awarded, will be awarded by written notice to the qualified and responsive bidder whose proposal is determined to be most advantageous to the state, while taking into consideration price and other criteria specified by the RFP.
1.3 . . .
This RFP defines the requirements for implementing the FCAT assessment program. The RFP and the selected contractor's proposal, together with clarifying documents, define the work to be conducted under contract. These documents will be incorporated into the contracts resulting from the FCAT project award. Because the FCAT assessment program is technical and complex, it is possible that a responsive proposal may not totally or clearly reflect RFP requirements in all details. If the proposal of a contractor selected as a result of the bidding process is inconsistent with the RFP, the requirements of the RFP prevail; the selected contractor will be expected to perform all RFP requirements without an increase in cost above the proposed cost.
* * *
5.18 Acceptance of a Proposal
The Department reserves the right, in its sole discretion, to waive minor irregularities in a proposal. A minor irregularity is a variation from the RFP
that does not affect the price of the proposal, or give one bidder an advantage or benefit not enjoyed by other bidders, or adversely impact the interest of the Department. Waivers, when granted, shall in no way modify the RFP requirements or excuse the bidder from full compliance with the
RFP specifications and other contract requirements if the bidder is awarded the contract.
Rejection of Proposals Proposals that do not conform to the
requirements of this RFP may be rejected by
the Department. Proposals may be rejected for reasons that include, but are not limited to, the following:
The proposal contains unauthorized amendments, either additions or deletions, to the requirements of the RFP.
The proposal is conditional or contains irregularities that make the proposal indefinite or ambiguous.
The proposal is received late.
The proposal is not signed by an authorized representative of the bidder.
The bidder is not authorized to conduct business in the State of Florida or has not included a statement that such authorization will be secured prior to the award of a contract.
A bid bond is not submitted with the proposal.
The proposal contains false or misleading statements or provides references that do not support an attribute, capability, assertion, or condition claimed by the bidder.
The proposal does not offer to provide all services required by this RFP.
Department Reservations and Responsiveness of Proposals
The Department reserves the right to accept or reject any or all proposals received.
5.22 . . .
In the event of conflict between the language of a proposal and the language of the RFP, the language of the RFP shall prevail.
* * *
7.1 Stage I: Evaluation of Mandatory Requirements (Part I)
During the Stage I evaluation, the Office of Agency Procurement and Contracting Services will determine if a proposal is sufficiently responsive to the requirements of this RFP to permit a complete evaluation. In making this determination, the Office of Agency Procurement and Contracting Services will evaluate each proposal according to the process described in this section.
The RFP required prospective vendors to submit sealed proposals in two parts, a technical proposal and a price proposal.
The technical proposals were reviewed and scored by an evaluation committee prior to opening of the sealed cost proposals.
Failure of a bidder to meet every item on the Stage I list would not necessarily result in elimination of the proposal from consideration. A proposal would be eliminated only if it contained a material irregularity.
"Stage I" of the process was identified in the RFP and is basically a check list of documents and commitments that are to be included with proposals. In accordance with Section 7.1, the purpose of the Stage I review is to determine whether the proposals are sufficiently responsive to be considered by the evaluation committee.
Two of Respondent's employees opened the technical proposals and checked the proposals against the Stage I list to make certain "Mandatory Documents and Statements" required by Section 7.1 of the RFP were present. They did not make any substantive judgments about the extent of compliance. In performing this Stage I review, Respondent's employees followed the department's standard operating procedures. No scoring points were associated with the Stage I check list review.
The technical portions of the RFP were categorized into two parts: Part II titled, "Bidder Qualification and Experience"; and Part III titled, "Technical Proposal for Administration." Bidders could receive a maximum of 50 points for Part II and a maximum of 50 points for Part III, a total maximum possible points of 100 for the technical proposals.
The RFP is designed to ensure that only qualified, responsible bidders will be eligible for award of the contract. In order to be considered eligible, a bidder was required to
receive a minimum of 70 cumulative points for the technical proposals.
Each of the two parts of the technical proposals was broken down into ten categories or criteria. The RFP provided that an evaluation committee would assign scores from one
to five, with five being the highest possible score, for each of the criteria.
The RFP consists of approximately 200 pages of technical specifications, instructions, and guidelines including appendices and addenda issued after the original release date.
Each of the bidders submitted technical proposals in excess of 400 pages.
The RFP provided that evaluation of proposals would be based on a holistic approach so that the proposals could be scored based on consideration of the whole package proposed by the bidders without artificial limitations on the evaluators' ability to evaluate the entire proposal and score it accordingly.
The evaluation process was designed to be as objective as possible, but a degree of subjective judgment is involved in the scoring of the proposals.
The 20 scoring criteria for Parts II and III were designed to cover broad categories of qualifications against which the proposals were judged. Because of the holistic
evaluation approach, there was no intent to evaluate proposals on the basis of an item-by-item determination.
The committee evaluating the proposals was selected to include representatives familiar with various aspects of the FCAT, which were covered in the proposals. It also included a person not employed by Respondent as required by new procurement guidelines and also included a parent representative. The evaluation committee was selected so that each member brought a different expertise or perspective to the process.
The evaluation committee was instructed on how the evaluation process was to be accomplished. The evaluators took their responsibility seriously and did a thorough job.
For Part II, the rating scale ranged from five (excellent) to one (unsatisfactory). A score of five means the evaluator found that the bidder demonstrated superior qualifications and experience to perform the required tasks. A score of one meant the bidder demonstrated insufficient experience and capability to perform the required tasks or did not establish its qualifications and experience. The RFP stressed in bold typeface that "[t]he evaluation of Overall Bidder Qualifications and Experience will be completed by the proposal evaluation committee using 'holistic' ratings. Each proposal evaluation committee member, acting independently, will
assign a single rating for each criterion identified in Appendix M."
The "holistic" approach referenced in the RFP means that Respondent looks at the proposal as a whole. The RFP and the administration of the FCAT is very complex and the evaluators are not required to look at each component of the proposal, but are to judge the whole proposal.
For Part III, the rating scale also ranged from five to one. The criteria for what merited a five or a one
changed, however, from Part II. A score of five means that the bidder proposed superior solutions to the requirement of the RFP and has proposed products and services that are desirable for use in the FCAT administration program and are likely to create a high quality assessment program that meets sound psychometric standards that are clearly feasible to implement.
A score of one under Part III means that the bidder proposed inferior or incomplete solutions to the requirements of the RFP or has proposed products and services that would be technically indefensible, would create a flawed assessment program not meeting psychometric standards, or would not be feasible to implement. Again, the RFP stressed in bold typeface that "[t]he evaluation of the Technical Proposal will be completed by the proposal evaluation committee using 'holistic' ratings. Each proposal evaluation committee member, acting
independently, will assign a single rating for each criterion identified in Appendix N."
The proposals were scored independently based upon the proposal's compliance with applicable RFP criteria; the proposals were not scored based upon how they compared to each other. Indeed, the evaluators were instructed not to discuss their scores so that each evaluator would establish their own internal criteria that was consistent across proposals.
Although none of the proposals were deemed non- responsive in this stage, there are indications that failure to meet certain RFP requirements were noticed by the evaluation committed and scored accordingly. Stages II and III of the evaluation process took four days. Representatives of the bidders, including its attorney, attended all of the Stage II and III evaluation sessions.
Documentation of Subcontractor Information.
The RFP included the following specifications relating to documentation of subcontractors and printers.
4.6.1 Subcontractors
The test administration contractor may choose to employ subcontractors for the completion of one or more tasks. If the bidder proposes to employ a subcontractor(s), the qualifications and experience of the subcontractor(s) will be documented in the proposal at the same level of detail as those of the bidder.
A separate chart in the proposal will identify all of the subcontractors proposed to be involved in the project and the services they are expected to provide. All subcontractors must be approved by the Department.
It is assumed that the contractor will use outside printers for some materials.
Printers will be documented as subcontractors, and the management plan will identify the proportion of materials to be printed by the contractor and by outside vendors. Procedures for quality control and security during printing are to be described. Destruction of secure materials is addressed in Section 3.7.4.
The contractor will assume responsibility for all services offered in the proposal whether or not they are performed or produced by the contractor or by subcontractors. The Department will consider the selected contractor to be the sole point of contact for contractual matters, including payment of any and all charges resulting from the contract.
Other specifications in the RFP contained similar or identical language.
The RFP also provided the following in Section 5.31 with respect to subcontractors:
Any change of subcontractors must be approved in advance by the Department. In the event of poor performance by a subcontractor, the Department reserves the right to direct the contractor to replace that subcontractor.
While Item 10 on Page 77 of the RFP required a representation from the vendors that they had identified all
subcontractors and the amount of work to be performed directly by each subcontractor, the only investigation that Respondent undertook to confirm the accuracy of these statements was the Stage I evaluation. The Stage II and Stage III evaluators did not check to ensure that all of the subcontractors had been documented as required by the RFP.
The RFP specifically required that all printers be identified and documented as subcontractors. Section 6.3 of the RFP requires the management plan to specifically identify the proportion of materials to be printed by outside vendors. Section 4.6.1 of the RFP on Page 53 states that if a bidder proposes to employ a subcontractor, the qualifications and experience of the subcontractors will be documented in their proposal at the same level of detail as the bidder. That section also provides that "printers will be documented as subcontractors." The timeliness, accuracy, and security of the printing operations are very important to the FCAT program; and the qualifications and experience of the printers, who would actually print the materials, is an important component of this procurement. As it relates to the "back-end" printing of the student and parent reports, there are privacy concerns that are particularly sensitive. The RFP provisions were included to ensure that, if a vendor was going to use outside printers for some of the activities, Respondent would be able to tell from
the response who all of those printers were and what services they were going to perform. The RFP was drafted to ensure that Respondent was dealing with vendors who were qualified and experienced and able to deliver the products requested in
the RFP.
There were specific requirements in the RFP as to how the bidders were supposed to identify prior contracts, provide contact information, and document the printers who were going to do any of the actual printing. Section 6.2 on Page 74 of the RFP required that all vendors were to document contracted services for previous assessment projects similar to the one described in the RFP. For each of those projects, the documentation was supposed to include a description of the services and products delivered, the contract period, the name, address, and telephone of the contract person for each of the contracting agencies. This provision was applicable to all of the printers who were involved in this contract. The printers were also supposed to document how they were going to monitor security and provide quality control during the printing process itself. The intent of the RFP was to have bidders document who was going to do the printing, whether it was subcontractors, sub-subcontractors, or sub-sub-subcontractors.
Section 5.27 on Page 65 of the RFP states that "if a bidder proposes to employ a subcontractor, the subcontractor's
qualifications and experience will be documented in the proposal at the same level of detail as that of the bidder. Procedures for quality control and security of the work tasks performed by the subcontractors are to be described." These provisions are not discretionary. They are mandatory and require all vendors to provide a description of the quality control and security measures to be employed by all subcontractors, including the printers who must be documented as subcontractors.
CTB's proposal identified The Grow Network as the entity that would be responsible for printing requirements. The Grow Network is an affiliate of CTB. CTB's proposal included documentation regarding The Grow Network's qualifications to perform the printing. In its response to the RFP, CTB provided extensive documentation and met all of the requirements of the RFP with respect to its front-end printers. Indeed each of those printers was identified in paragraph 10 of the transmittal letter that accompanied the CTB proposal. The Grow Network was also responsible for providing the back-end printing for the reports to be sent to the parents and students. The Grow Network was identified as doing 20 percent of the printing. However, the Grow Network does not actually do any printing themselves. At the hearing, the Grow Network claimed that it was the "print publisher" of the back-end reports. It stated that the Grow Network utilizes a "distributed printing
approach." This, in fact, meant that the printing was going to be subcontracted out. The services that would be subcontracted out by the Grow Network include digital printing, collating, packing, distribution, and tracking.
CTB's proposal states that GDS, a digital imaging company, will be the print facility utilized by the Grow Network to perform these aspects of the FCAT report printing requirements. CTB's proposal describes the corporate capabilities and experience of GDS, including descriptions of the California and New Jersey projects where GDS was utilized by the Grow Network as its print facility. The RFP also required bidders to provide examples of materials to demonstrate the quality of the work done on similar projects. Accordingly, CTB included sample reports printed by the Grow Network in conjunction with GDS, for the California and New Jersey projects.
Notwithstanding the foregoing detailed documentation of both the Grow Network and GDS, Petitioner asserts that CTB failed to comply with the RFP because the CTB proposal indicates that much of the printing work will be out-sourced without disclosing who is actually going to be providing these services. However, CTB's proposal identifies only one printing facility, GDS, that will be utilized as the print facility under its distributed printing approach. CTB's proposal specifically
states that "Grow currently uses GDS to support their California and New Jersey projects, and they will employ GDS' services for the Florida reporting project." CTB's proposal identifies other printing facilities, Delzer, R.R. Donnelley, and Bowne, that Grow could utilize on the FCAT with Respondent's approval.
These other companies were potential "backup" printers, which were identified in case Respondent preferred using another printing facility. Otherwise, the Grow Network intended to utilize GDS as the sole printing facility on the FCAT and has a commitment from GDS to perform the tasks required. The RFP does not require commitment letters from subcontractors. The RFP required only the identification of the proposed printers, which could be changed with Respondent's approval.
CTB has also indicated in its response that it will utilize 180 employees of Kelly Services, at three different locations, to supervise approximately 3,000 scorers. However, nowhere in the proposal has CTB documented Kelly Services as a subcontractor, nor provided information regarding their experience and qualifications to perform this work.
CTB uses Kelly Services as a recruiting service provider. CTB is responsible for the hiring, training, and directing of the Kelly Services personnel and ultimately for the deliverables received from those employees. Kelly Services is
not a subcontractor as contemplated in the RFP, because they are not held accountable for their deliverables.
Accordingly, CTB's proposal is not deficient for failing to document Kelly Services as a subcontractor. Even if the failure to so document Kelly Services were a deficiency in CTB's proposal, the lack of detail would only lower CTB's score, not make it non-responsive.
The Post-submittal Clarification Process.
The RFP provided at Section 7.0 that each bidder would be required to make a presentation to the evaluation committee after the technical proposals were opened and that information presented or issues clarified during the presentation might affect the number of points an evaluation committee member assigned to a given proposal.
On the first day of the evaluation process, the bidders were required to make separate oral presentations to the evaluation committee. Following those oral presentations, the evaluation committee was to begin the process of scoring the proposals based on the various RFP criteria. This was to be a "closed session" during which the vendors were not permitted to interact with the evaluation committee members; likewise, the evaluation committee members were not permitted to direct any questions to the vendors.
RFP Section 7.0 spells out the rules and processes for conducting the oral presentations of the vendors. This includes the imposition of time limits on the presentations and questions from evaluators, which were to be strictly followed. Section
7.0 states, in pertinent part:
The purpose of the presentation will be for the bidder to describe its offering of products and services and make any statements that will enhance understanding of its offering. The proposal evaluation committee will NOT evaluate the presentations or otherwise award points for the quality of the of the presentation.
Information presented or issues clarified during the presentation MAY affect the number of points a proposal evaluation committee member assigns to a given proposal.
. . . The presentation shall not exceed 30 minutes with an additional 15 minutes reserved for proposal evaluation committee member questions. These meetings will be open to the public; however, only members of the proposal evaluation committee may ask questions of the bidder.
The above-quoted language in the RFP does not contemplate written submissions by vendors following the oral presentations. Nothing else in the RFP specifically authorizes vendors to clarify information in their proposals after the presentations have concluded. Thus, the oral presentation part of the evaluation process is the only RFP-authorized mechanism available to evaluators for seeking clarification of the proposals.
Because clarifications are permissible during the vendor presentations, the RFP expressly states that such clarifications may affect scoring of the proposals. By contrast, nothing in the RFP authorizes the evaluators to seek or consider in scoring the proposals any vendor clarification made in any other form or at any other point, whether before or after the oral presentations. In fact, considering any information received from the vendors outside of the oral presentations would be inconsistent with RFP Section 5.3, which restricts communications by bidders with Respondent's staff. In short, to the extent a clarification of a proposal was needed, under the RFP, it should have been provided orally during the vendor presentations.
Each of the bidders made a presentation to the evaluation committee. During the presentations, members of the evaluation committee asked bidders various questions relating to their respective responses to the RFP. One of the members sought clarification regarding the total number of full time equivalent ("FTE") hours for the persons identified in the proposals. Although the evaluation team was not given any specific standards or base lines to utilize in scoring the staffing and personnel commitments submitted by the parties, a bidders' commitment of personnel resources was an important factor for several of the criteria in the RFP.
The bidder representatives for CTB and Petitioner were not able to provide the requested FTE information at the time of the presentation. Harcourt's representatives, who had had the benefit of hearing the presentations made by Petitioner and CTB, were able to answer the FTE question at the presentation.
Because the evaluators had lingering questions on staffing, Respondent made a decision to send out questions to two of the three vendors following completion of the oral presentations. No scoring was done on any of the proposals prior to the time Petitioner's and CTB's responses were presented to the evaluators. At least some of the evaluation committee members felt that the staffing information was critical. The questions were not based on the presentations by the vendors, but were based on the evaluation committee members' concerns that had not been resolved by the oral presentations. The questions reflected areas that the evaluators were not able to understand from the initial proposals submitted.
After the presentations, Respondent delivered letters dated August 30, 2004, to Petitioner and CTB, but not to Harcourt, asking them to provide the requested FTE information by the following day. CTB and Petitioner both promptly provided the information requested.
CTB's August 31, 2004, written response to the FTE question included a chart that identified all personnel and the
associated FTEs that would be assigned to the project. This FTE chart was prepared by Diane Driessen, CTB's senior program manager who was one of two CTB employees primarily responsible for preparing CTB's response to the RFP.
As a format for its written response, CTB utilized the existing chart for Professional Personnel Responsible for Major Contract Activity (Figure 9), which was in its proposal. CTB added to this chart the additional personnel to reflect the total FTEs for the project as a whole. CTB took the material in the proposal and presented it in a consolidated format. CTB combined the monthly activities by program chart, which was Table 9, with the key personnel chart, which was Figure 9, and handscoring resources presented in the proposal. The additional named personnel in its response were not named in the original figure of key personnel because they were not considered responsible for major contract activities.
It was an oversight that the chart still retained the heading, "Time Task Chart for Key Project Personnel" when it actually reflected the 330 total FTEs for the whole project team as requested by Respondent. The cover letter to Respondent explained that CTB was listing all personnel, not just "key personnel." All of the unnamed persons added to the chart are identified by position in the original proposal.
As part of its written response to Respondent's written requests for additional information, CTB also included a written recap of the questions and answers from its oral presentation.
The evidence demonstrated that the information provided by CTB after receiving Respondent's staff's questions included corrections of errors contained in CTB's initial response to the RFP. This information was presented to the evaluators for them to review and consider in the scoring process.
No one from Respondent made an analysis to determine whether the information in the supplement was contained in the original proposal before it was presented to the evaluators.
The RFP also required the vendors to provide all required information by the deadline that the proposals were to be received. Respondent was obligated to follow these provisions and not accept any information in a manner inconsistent with them.
In addition, bidders were required to commit to complying with all requirements of the RFP if awarded the contract:
I certify that this Proposal is made without prior understanding, agreement, or connection with any corporation firm, or person submitting a proposal for the same materials, supplies or equipment, and is in
all respects fair and without collusion or fraud. I agree to abide by all conditions of this Proposal and certify that I am authorized to sign this Proposal for the Proposer and that the Proposer is in compliance with all requirements of the Request for Proposal including but not limited to, certification
requirements. . . .
The supplemental information submitted by CTB should have been included in CTB's initial submittal. The fifth bullet point of Section 4.6.2 of the RFP on Page 54 required bidders to indicate by name the professional personnel to be responsible for major contract activities with an estimation of the amount of time and full-time equivalencies each person was going to devote to the tasks under the contract. The proposal was also supposed to include a vitae for all such professional personnel. This bullet point was not limited to only those who had a supervisory role. It was the intention of the bullet point that the individuals should be identified by name, including software development staff. Much of CTB's software development staff was not identified by name in its initial response, but they were identified in the supplement.
The RFP required vendors to provide the total time commitment for key personnel in the initial submission and required that the bidders identify by name the professional personnel to be responsible for major contract activities. The time commitment for some of the key project personnel that CTB
identified in its initial proposal were significantly "revised" in its supplement. These "revisions" purportedly correct "errors" in the initial response and include changes to the time commitment for "key project personnel," including the project manager for manufacturing, senior research scientists and the scoring director for one of the major scoring sites. There are six new names that appear in CTB's supplement, as well as numerous revisions to the time commitment of key personnel.
In its written questions to the vendors, Respondent did not request any revisions or corrections of error with respect to any of these key personnel. The evidence is clear that there are "revisions," corrections of errors and significant reformatting that were tailored to address lingering concerns of the evaluators.
CTB's supplemental proposal also included a new chart broken down with many different allocations of days that did not appear anywhere in the original proposal. This submittal also included a number of different "to be assigned" categories that were not specifically included on the chart in the initial submittal and a re-categorization of some of the positions.
The evaluation committee members would not have had enough time to make an assessment as to whether that information was in the original proposal. Had CTB not provided its
supplemental information, the evaluation team would have had a significantly different view point on CTB's staffing.
After the oral presentations, Petitioner also received a written question regarding staffing from Respondent. Petitioner's response was a listing of the FTEs taken from the charts already contained in the original proposal. Petitioner was concerned with the procedure that was being implemented, but after seeking advice of counsel, submitted the response nonetheless. Harcourt was not given this opportunity.
RFP Section 5.16 does not address proposal clarifications, but it does impose limitations on the consideration of proposal "amendments." Section 5.16 states that, absent a specific request by Respondent, any "amendments, revisions, or alterations to proposals will not be accepted after the deadline for the receipt of proposals."
In addition, Section 5.16 does not address when, during the evaluation process, Respondent may request a vendor to amend a proposal. This timing issue is only addressed by statute in Subsection 120.57(3)(f), Florida Statutes (2004), which states that "no submissions made after the bid or proposal opening which amend or supplement the bid or proposal shall be considered." However, the timing of when Respondent could request a proposal amendment under Section 5.16 is not at issue in this case. Respondent acknowledges that it made no such
request in this case. Absent a specific request, Section 5.16 precluded Respondent from considering any amendment to a proposal offered by any vendor.
CTB's written responses to Respondent's written questions amount to a clarification of their bid proposal, since then were submitted only after Respondent requested the information. The responses do not constitute an amendment or supplement to the proposal.
The Evaluation Process
Immediately following the bidders' oral presentations and receipt of the bidders' responses to the evaluators' questions, the evaluation committee met as a body and reviewed each of the proposals. Dr. Orr and Dr. Melvin were
co-chairpersons of the committee and facilitated the evaluation committee review of the technical proposals. They did not participate in the actual scoring of proposals.
The evaluation committee reviewed the three proposals consecutively, evaluating them against the criteria in the RFP. Open discussion about the criteria and the locations within the proposals where criteria were addressed was encouraged and took place.
Whether one bidder was slightly better than another bidder was not the basis for determining the contract award. The RFP provided a balanced formula that sought to ensure the
competency of the awarded by requiring a minimum technical score of 70 while rewarding the competent bidder that submitted the lowest price.
In accordance with the RFP, the evaluation committee assigned holistic ratings to the technical proposals, judging them based on the quality of the proposals as a whole. Each evaluator independently scored the proposals by assigning a score from one to five for each of the 20 criterion in the RFP.
The evaluation committee did not compare the proposals to each other. The evaluation committee completed the evaluation of the first proposal before considering the second proposal and completed the evaluation of the second proposal before completing the evaluation of the third proposal.
Alternative Proposals.
The RFP permitted bidders to propose alternative approaches for meeting Respondent's objectives, but provided that no cost savings or increases for alternative proposals could be referenced in the technical proposal. Any cost savings or increases for alternative proposals were required to be submitted in a separately sealed package and clearly labeled.
None of the bidders included any reference to cost savings or increases in their technical proposals.
Petitioner's proposal clearly marked its alternatives.
CTB sometimes identified its alternatives with a special marker
and sometimes simply described them within the text of the RFP. Harcourt generally did not clearly designate its alternatives.
During the Stage II and III evaluation process, a committee member raised a question regarding assigning points for alternative proposals. Because the RFP did not provide a mechanism for evaluating the alternatives, an internal decision was made by Respondent not to consider the alternatives at all in connection with scoring the proposals. The members of the evaluation team were told to disregard the references to alternative proposals submitted by each of the bidders. There was no provision in the RFP that was relied upon in making that determination.
The evaluators were given no guidance as to which provisions of the various proposals should not be considered. This led to inconsistencies in what was treated as an alternative and not scored, versus what was treated as part of the base proposal and scored.
It is clear that the decision not to consider alternatives resulted in confusion and inconsistency in the evaluation process. For example, one evaluator, Clarence Reed, indicated that if a proposal went beyond the requirements of the RFP and offered something that was not required, but was an enhancement, he viewed that as an alternative and would not have considered it. Similarly, the chairperson of the evaluation
committee and one of the facilitators for the evaluation process, Dr. Orr, testified that "enhancements" should not have been considered. By contrast, most of the evaluators viewed offerings by vendors that went beyond the requirements of the RFP and did not include a cost to Respondent as "enhancements" that could be considered in their evaluation of the proposals. Likewise, Dr. Melvin, one of Respondent's facilitators for the evaluation team, believed that an "augmentation" was not the same as an "alternative." Thus, in many instances, when a vendor offered something beyond the requirements of the RFP, at no cost to Respondent, and did not identify it as an "option" or "alternative," it was considered in the scoring by at least some of the evaluators. The evidence is clear that there are portions of the proposals submitted by Harcourt and CTB that was essentially the equivalent of no cost "alternatives" that were considered by the evaluators while Petitioner's clearly identified "alternatives" were not. In sum, whether a particular proposal was an "augmentation," "option," "alternative" or an additional clarification created confusion among the evaluators. As a result, there was no consistency in terms of what the evaluators could consider in the proposals and what they could not consider.
While it is impossible to quantify the exact impact of the decision not to consider alternatives, it is clear that
Petitioner's bid received a disproportionate negative impact because many of its important enhancements, which were being offered to Respondent at no cost were listed as "alternatives" and never factored into the evaluation process. There were several alternatives proposed by Petitioner that would have been enhancements to the current program and would have been made available at no cost to Respondent. Thus, Petitioner's score was artificially influenced in a negative way. By contrast, the evidence is clear that CTB and Harcourt, in many instances presented different ways to accomplish tasks without specifically utilizing the term "alternative" or "option" and such matters were factored into the evaluation.
The claim by Respondent and CTB that the decision not to consider alternatives was applied even-handedly is not supported by the evidence. Because there was not a consistent manner in which the various companies presented their "enhancements," "augmentations," "options" or "alternatives," Respondent's determination to exclude consideration of "alternatives" precluded the evaluators from fairly determining what each of the vendors could actually provide to the program. It also meant that the vendors were not evaluated on an equal footing. Thus, the decision was contrary to the bid specifications.
In spite of these concerns, the preponderance of the evidence does not demonstrate that Respondent's instruction to evaluators not to consider alternatives rendered the proposed agency action clearly erroneous, contrary to competition, and/or arbitrary and capricious because Respondent was not obligated to accept any of the alternatives offered by a bidder.
The Price Proposals.
Respondent's evaluation of the three bidders' proposals established that each of the bidders was capable and qualified to perform the work under the contract.
The bidders' price proposals remained sealed until after the evaluation committee completed its scoring of the technical proposals.
The price proposals were evaluated based on a formula that awarded 50 points to the bidder with the lowest price. The remaining bidders received points based on a proportion or ratio that compared their price to the low bidder's price.
The RFP provided at Section 7.4, Page 82, in pertinent
part:
A total of 50 points will be awarded to the lowest acceptable Cost Proposal.
Proposals with higher costs will receive the fraction of 50 points proportional to the ratio of the lowest proposal cost to the higher cost proposal. The fractional value of points to be assigned will be rounded to one decimal place. For example, if the lowest responsive cost were $50,000.00, the
bid would receive 50 points. If the next lowest responsive cost proposal were
$75,000.00, it would receive 33.3 points. If the highest responsive cost proposal were
$100,000.00, it would receive 25 points.
Upon opening the three bidders price proposals, it was determined that Petitioner's bid for the base and renewal period was $224,969,699; Harcourt's bid was $167,055,970; and CTB's bid was $140,107,439.
On September 23, 2004, Respondent posted a Notice of Intent to Award the contract for the FCAT administration to CTB. The posting showed the final scores of the three vendors as follows:
Proposers Mandatory Bidders Technical Total Cost Total Requirement Qualifications/ Quality Points Proposal Points Met Experience Stage III (Stages Stage IV Stage
| Stage | II |
| II&III) | V |
Pearson Yes Educational Assessment | 44.6 |
| 44.3 | 88.9 | 31.4 120.3 |
Harcourt Yes | 42.7 |
| 42.2 | 84.9 | 42.4 127.3 |
CTB/McGraw Yes Hill | 43.8 |
| 44.9 | 88.8 | 50 138.8 |
CTB's price for performing the contract over a five-year period is approximately $85 million less than the
price proposed by Petitioner and approximately $27 million less than the price proposed by Harcourt. Over a three year contract period, CTB's price for performing is approximately $53 million less than the price proposed by Petitioner and approximately $14 million less than the price proposed by Harcourt.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.569 and Subsection 120.57(3), Florida Statutes (2004).
Standing
Both Petitioner, the protestor, and Harcourt, an Intervenor, have challenged the fundamental fairness of Respondent's procurement process. Both vendors argue that the evaluation committee's review of supplemental material after proposals were opened and the evaluation committee's failure to consider proposal alternatives during the evaluation process were contrary to Respondent's governing statutes and the RFP. These challenges to the propriety of the evaluation process provide a basis for standing of both vendors. They argue that under a fair procurement process that followed the requirements of Subsection 120.57(3), Florida Statutes (2004), and the RFP, Harcourt or Petitioner may have received a higher score and been awarded the contract instead of CTB. They argue, further, that every vendor that participated in this flawed procurement is entitled to a rebidding under a fair process, which may result in an award to any of the bidders. As a result, both Harcourt and Petitioner have a substantial interest in the outcome of the protest. See, e.g., Bozell, Inc. v. Department of Lottery, Case
No. 91-3165BID (DOAH July 25, 1991)(Final Order August 21, 1991, adopting Recommended Order) (Fourth-ranked bidder had standing to intervene to protect its position, "as well as to examine, to the extent raised by Bozell [the Petitioner], the propriety of the evaluation process.") Both Petitioner and Harcourt were "adversely affected" by the alleged flawed process that led to Respondent's proposed agency action. See § 120.57(3)(b), Fla.
Stat. (2004) (one who is "adversely affected" by Notice of Intent to Award contract may file protest.)
CTB, the first-ranked bidder, has standing to intervene in this proceeding because its substantial interests will be determined by this challenge to the Agency's intended action, which is to award the contract to CTB.
In its Petition to Intervene, CTB challenges Petitioner's standing to bring this protest. CTB's objection is that Petitioner is the third-lowest bidder, not the second- lowest bidder. As previously noted, Petitioner has an independent basis for standing because of its challenge to the fundamental fairness of the RFP process. However, Petitioner also has standing as the third-lowest bidder, as its protest challenged the responsiveness of both the first- and second- lowest bidders. See, e.g., Metcalf & Eddy, Inc. v. Department
of Transportation, Case No. 00-0494BID (DOAH July 30, 2001) (Final Order September 27, 2001, adopting Recommended Order)
(When third-lowest bidder files protest alleging that both first- and second-lowest bidders should be rejected as nonresponsive, third-lowest bidder has standing); Rovel Construction, Inc. v. Department of Health, Case No. 99-0596BID (DOAH April 27, 1999)(Final Order May 28, 1999, adopting Recommended Order) (Forth-lowest bidder that filed formal written protest contesting scoring/qualification of first-, second-, and third-lowest bidders had standing.)
Harcourt has standing to intervene in this protest pursuant to Florida Administrative Code Rule 28-106.205 ("Persons other than the original parties to a pending proceeding whose substantial interest may be determined in the proceeding and who desire to become parties may petition the presiding officer for leave to intervene.") As the second- lowest bidder, Harcourt did not file a bid protest. However, the allegations in Petitioner's petition demonstrate that Harcourt's substantial interests may be affected or determined in this proceeding. See, e.g., Experior Assessments, LLC v.
Department of Business and Professional Regulation, Case No.
03-1722BID (DOAH August 22, 2003)(Final Order September 4, 2003, adopting Recommended Order) (Second-lowest bidder allowed to intervene in protest by third-lowest bidder because allegations in petition show its substantial interests may be affected, even though second-lowest bidder did not itself file bid protest.)
Petitioner's petition challenged the responsiveness of Harcourt's bid and alleged that aspects of the procurement process were flawed. Among the relief Petitioner seeks is that a new procurement should be held. Thus Harcourt, as the second- lowest bidder, has standing to participate as a party.
De Novo Proceeding
Subsection 120.57(3), Florida Statutes (2004), reads in relevant part:
(f) In a protest to an invitation to bid or request for proposals procurement, no submissions made after the bid or proposal opening which amend or supplement the bid or proposal shall be considered. In a protest to an invitation to negotiate procurement, no submissions made after the agency announces its intent to award a contract, reject all replies, or withdraw the solicitation which amend or supplement the reply shall be considered. Unless otherwise provided by statute, the burden of proof shall rest with the party protesting the proposed agency action. In a competitive- procurement protest, other than a rejection of all bids, proposals, or replies, 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 solicitation specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious. . . .
The protestor has the burden of proving by a preponderance of the evidence that Respondent's proposed agency
action is invalid under the standards set forth in Subsection 120.57(3)(f), Florida Statutes (2004). See § 120.57(1)(j), Fla. Stat. (2004) ("Finding of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.") see also State Construction and Engineering Corp. v. Department of Transportation, 709 So. 2d 607, 609 (Fla. 1st DCA 1998).
The requirement that the Administrative Law Judge conduct a de novo proceeding has been interpreted by the First District Court of Appeal. The court described a de novo proceeding in the context of a bid protest as "a form of intra- agency review. The judge may receive evidence, as with any formal hearing under Subsection 120.57(1), Florida Statutes (2004), but the object of the proceeding is to evaluate the action taken by the agency." State Construction, 709 So. 2d 609.
As outlined in Subsection 120.57(3)(f), Florida Statutes (2004), the ultimate issue in this proceeding 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." See, e.g., R.N. Expertise, Inc. v. Miami-Dade County School Board, Case No. 01-2663BID
(DOAH February 4, 2002)(Final Order March 14, 2002, adopting Recommended Order), where the Administrative Law Judge stated:
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 probably 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.
Id. at 39.
In addition to proving that the Agency breached this statutory standard of conduct, a protestor additionally must establish that the Agency's violation was either clearly erroneous, contrary to competition, arbitrary, or capricious.
§ 120.57(3)(f), Fla. Stat. (2004).
Each of these phrases has been construed by Florida's appellate courts. See e.g. Colbert v. Department of Health, 2004 WL 2964085 (Fla. 1st DCA 2004) ("[O]ur review
standard . . . is that of clearly erroneous, meaning the interpretation will be upheld if the agency's construction falls within the permissible range of interpretations. If, however, the agency's interpretation conflicts with the plain and
ordinary intent of the law, judicial deference need not be given to it.") Id. at 49 ("[A]gency 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.'") Dravo Basic Materials Company, Inc. v. State Department of Transportation, 602 So. 2d 632 (Fla. 2d DCA 1992) (An "arbitrary decision is one not supported by facts or logic. A 'capricious' action is one that is taken without thought or reason, or irrationally.")
An agency has discretion to waive a minor irregularity in a competitive proposal. See Liberty County v. Baxter's Asphalt & Concrete Company, 421 So. 2d 505 (Fla. 1982); Tropabest Foods, Inc. v. Department of General Services, 493 So. 2d 50 (Fla. 1st DCA 1986); Robinson Electric Company, Inc. v.
Dade County, 417 So. 2d 1032 (Fla. 3d DCA 1982). A minor irregularity is a variation from the bid specifications which "does not affect the price of the bid, or give the bidder an advantage or benefit not enjoyed by other bidders or does not adversely impact the interests of the agency." Tropabest, 493 So. 2d at 52. This definition was incorporated into the RFP in Section 5.18.
The purpose of competitive bidding requirements for the award of public contracts is to ensure fairness to prospective vendors and to secure the best value at the lowest
possible price to the public. The Florida Supreme Court established this as the first paradigm of public procurement in Wester v. Belote, 138 So. 721 (Fla. 1938), where it explained that:
The object and purpose of competitive bidding statutes is to protect the public against collusive contracts; to secure fair competition upon equal terms to all bidders; to remove, not only collusion, but temptation for collusion and opportunity for gain at public expense; to close all avenues to favoritism and fraud in its various forms; to secure the best values at the lowest possible expense; and to afford an equal advantage to all desiring to do business with the public authorities, by providing an opportunity for an exact comparison of bids.
Id. at 722.
The procuring agency also has a duty to seek the lowest bid when making an award of a public contract. The Second District Court of Appeal explained this important policy consideration as follows:
There is a very strong public interest in favor of saving tax dollars in awarding public contracts. There is no public interest, much less a substantial public interest, in disqualifying low bidders for technical deficiencies in form, where the low bidder did not derive any unfair competitive advantage by reason of the technical omission.
Intercontinental Properties v. Department of Health and
Rehabilitative Services, 606 So. 2d 380, 386 (Fla. 3rd DCA 1992).
Minor Irregularities
An agency has discretion to waive a minor irregularity in a bid proposal. See Tropabest Foods, Inc. v. Department of General Services, 493 So. 2d 50 (Fla. 1st DCA 1986); Robinson Electric Company, Inc. v. Dade County, 417 So. 2d 1032 (Fla. 3d DCA 1982). A minor irregularity is a variation from the bid specifications which "does not affect the price of the bid, or give the bidder an advantage or benefit not enjoyed by other bidders or does not adversely impact the interests of the agency." Tropabest, 493 So. 2d at 52. As noted by the district court, "the purpose of competitive bidding is to secure the lowest responsible offer and minor irregularities can be waived in effectuating that purpose." Tropabest, 493 So. 2d at 52. The bidders were all on notice of this right as the RFP clearly stated that minor irregularities could be waived by Respondent.
To determine whether an irregularity is minor, the government must determine whether waiver of the irregularity provided an unfair economic advantage to the winning bidder. That determination requires consideration of the prices bid. In Baxter's Asphalt, 421 So. 2d at 507, the bid specifications required bidders to submit a base bid and an alternate bid. The winning bidder only submitted a base bid, but that base bid was lower than any of the base bids or alternate bids submitted by the other bidders. The irregularity was deemed minor because
the winning bidder received no unfair economic advantage, in spite of the apparent significance of the irregularity and in spite of the clear direction in the bid documents that required submittal of two bids.
Petitioner failed to prove that any of the minor inconsistencies between CTB's 400-page proposal and the RFP conferred a competitive advantage in favor of CTB. Moreover, Petitioner failed to demonstrate that its proposal was free from the same type of minor errors it cites in CTB's proposal. See Intercontinental Properties, 606 So. 2d at 384 ("A party protesting an award to the low bidder must be prepared to show not only that the low bid was deficient, but must also show that the protestor's own bid does not suffer from the same deficiency.") Consequently, Petitioner failed to prove that CTB secured a competitive advantage by failing to substantially comply with the RFP specifications, and CTB's proposal should not be rejected as non-responsive.
Subcontractors
The extent to which CTB documented its subcontractors and identified its printers are matters that were taken into account in the evaluation process in accordance with the RFP evaluation method. The RFP did not require commitments from subcontractors, and CTB identified all the subcontractors it
proposed to utilize to complete the work called for in the RFP and identified the work to be performed by its subcontractors.
The evidence is not persuasive that CTB's documentation of its proposed report-printing subcontractor was deficient. In addition, Petitioner has failed to demonstrate how any such deficiency could render CTB's proposal non- responsive. Under the RFP evaluation criteria, failure to provide more detail regarding the qualifications and experience of its proposed subcontractors could only negatively impact CTB's score.
Accordingly, CTB's failure to provide more detail about its proposed subcontractors did not afford CTB a benefit or advantage not enjoyed by the other bidders, and thus, cannot serve as a basis for rejection of CTB's bid. See Liberty County
v. Baxter Asphalt & Concrete Company, 421 So. 2d 505 (Fla. 1982); State Contracting and Engineering Corporation v.
Department of Transportation, 709 So. 2d 607, 609 (Fla. 1st DCA 1998); and Harry Pepper & Associates, Inc. v. The City of Cape
Coral, Florida, 352 So. 2d 1190 (Fla. 2nd DCA 1977).
Post-Submittal Clarification Process
The RFP had not asked CTB, or any other bidder, to provide its total FTEs for the entire project. The evaluation committee, even with its expertise, could not determine from CTB's proposal the total personnel resources that CTB intended
to dedicate to the project. This information was important to the evaluation committee members, and they sought answers to it prior to beginning the evaluation process. In this case, CTB was unable to provide a response to the FTE question during its presentation. The information submitted by CTB, in response to Respondent's written questions, went beyond what the evaluation committee had asked. Respondent's evaluation committee facilitator and co-facilitator acknowledge that the information submitted was not required by the RFP itself, but was supplemental to it. CTB's written response to Respondent's question concerning FTEs unquestionably "supplements" its original proposal.
However, Section 5.16 of the RFP specifically allows "amendments, revisions, or alterations to proposals" that are "specifically requested by the Department." Of concern is the plain language of Subsection 120.57(3), Florida Statutes (2004), which flatly prohibits the consideration of "submissions made after the bid or proposal opening which amend or supplement the bid or proposal." An RFP provision that is in violation of a state statute is invalid. See, e.g., Capital Group Health Services of Florida v. Department of Administration, Case No. 87-5387BID at paragraphs 61-62 (DOAH March 9, 1988)(Final Order April 28, 1988, modifying Recommended Order).
Testimony at hearing makes clear that the evaluators considered the supplemental material submitted by CTB. It is impossible to say how much significance this submission was accorded. Indications are, however, that it may have been given considerable weight. It is reasonable to believe that CTB's scores would have been quite different if one or more evaluators believed that CTB had only assigned seven full-time employees to the FCAT administration project. However, assuming these indications are correct, a re-scoring of Stage II or Stage III evaluations would not have changed the ultimate outcome.
Harcourt, who satisfactorily provided the information sought by the evaluation committee during the oral presentation, was afforded no opportunity to send additional material to the evaluation committee.
The three vendors should have been scored according to how well they satisfied the requirements of the RFP; that is, on the basis of their submitted proposals, their 30-minute presentations, and their ability to answer the evaluation committee's questions following the presentations. While Harcourt was held to that standard, CTB and Petitioner were not.
Nevertheless, CTB's post-presentation submission actually reflected only minor changes in the number of full-time personnel dedicated to the FCAT administration project. Even after consideration of Syslogic Technology Services, Inc. v.
South Florida Water Management District, Case No. 01-4385BID (DOAH January 18, 2002)(Final Order March 6, 2002, adopting Findings of Fact and Conclusions of Law of Recommended Order); Brown's Refrigeration v. Department of Management Service, Case No. 94-6143 (DOAH January 18, 1995)(Final Order adopting Recommended Order February 16, 1995); U.S. Foodservice, Inc. v.
School Board of Hillsborough County, Case No. 98-3415 (DOAH November 17, 1999)(Final Order is not available); and National Beverages, Inc. v. University of Central Florida, Case Nos.
96-5320 and 96-6089BID (DOAH March 19, 1997)(Final Order adopting Recommended Order April 16, 1997). Respondent's request for supplemental information from CTB and Petitioner, and CTB's response to it, do not rise to the level of a breach of the statutory standard of conduct outlined in Subsection 120.57(3)(f), Florida Statutes (2004). The request (and subsequent delivery of the information) is not contrary to the prohibition in Subsection 120.57(3)(f), Florida Statutes (2004), relating to amendments or supplements after the opening of proposals because CTB did not seek to offer it on its own, nor did it change its staffing plan after the presentations.
In addition, a preponderance of the evidence does not demonstrate that the supplemental information renders Respondent's proposed agency action clearly erroneous, contrary to competition, arbitrary, or capricious.
Alternatives
Respondent's instruction to the evaluators not to consider alternatives proposed by the vendors is directly contrary to the terms of the RFP, as the evaluation committee's co-facilitator acknowledged at hearing. Moreover, the evaluators were given no guidance as to which provisions of the various proposals should not be considered. This led to inconsistencies in what was treated as an alternative and not scored, versus what was treated as part of the base proposal and scored.
It is impossible to tell how Respondent's improper instruction to evaluators not to consider alternatives affected the scoring of the proposals, although the evidence shows the instruction probably had a disproportionate negative impact on Petitioner, as its "alternatives" were easy to identify and disregard.
However, Section 1.3.2 of the RFP states that "alternate proposals for completing specific work tasks will be considered . . . and bidders must be aware that the Department is not obligated to accept the alternative." Failure of evaluators to consider information required by the RFP is not clearly erroneous or arbitrary. The evidence does not support the conclusion that CTB's score or the other bidders' scores
should be changed because of the disparity in the evaluation process.
The preponderance of the evidence demonstrates that Respondent's instruction to evaluators not to consider alternatives does not render the proposed agency action clearly erroneous, contrary to competition, arbitrary, or capricious.
Evaluation Process "Fundamentally Flawed"?
Although Petitioner asserts that the evaluation process was "fundamentally flawed," Petitioner did not present any evidence suggesting that its score, or the score CTB received, should be changed to correct these "flaws." Due to the large point disparity (18.5 points) between CTB and Petitioner's final scores, Petitioner would not have won the award if it received a perfect score on the qualitative portions (Stages II and III) of the evaluation process. These factors could not have affected the final outcome of the evaluation. Accordingly, Petitioner did not demonstrate that it was prejudiced by these matters, or that Respondent's intended action is clearly erroneous, contrary to competition, arbitrary, or capricious.
It should be noted, however, that although Petitioner alleged that the Harcourt proposal was also nonresponsive, Petitioner put on no evidence at hearing supporting its allegation that Harcourt's alleged modification of the RFP's
liquidated damages provision rendered its proposal nonresponsive. Therefore, the question whether Harcourt's proposal was unresponsive does not need to be reached.
RECOMMENDED that the Commissioner of the Department of Education adopt this Recommended Order and enter an final order awarding the contract for RFP No. 2005-01 to the low bidder, CTB/McGraw-Hill, LLC.
DONE AND ENTERED this 8th day of February, 2005, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2005.
J. Stephen Menton, Esquire Rutledge, Ecenia, Purnell
& Hoffman, P.A.
Cynthia S. Tunnicliff, Esquire Pennington, Moore, Wilkinson,
Bell & Dunbar, P.A.
Donna E. Blanton, Esquire Radey, Thomas, Yon & Clark, P.A.
313 North Monroe Street, Suite 200 Post Office Box 10967 Tallahassee, Florida 32302
Jason K. Fudge, Esquire
W. Robert Vezina, III, Esquire Vezina, Lawrence & Piscitelli, P.A.
Daniel J. Woodring, General Counsel Department of Education
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.
