thomas f. panzaVs.steven a. diaz|Department of Transportatio... -- eLawyers

Petitioner: BARTON PROTECTIVE SERVICES, LLC
Respondent: DEPARTMENT OF TRANSPORTATION
Judges: STUART M. LERNER
Agency: Department of Transportation
Locations: Fort Lauderdale, Florida
Filed: Apr. 28, 2006
Status: Closed
Recommended Order on Thursday, July 20, 2006.
Latest Update: Sep. 20, 2006

Summary: Whether the protest of Barton Protective Services, LLC (Barton) challenging the Department of Transportation's (Department's) announced intention to commence negotiations with Faneuil, Inc. (Faneuil), "the firm ranked number one by the Selection Committee," for the contract advertised in ITN-DOT- 05/06-8007-EH "to provide Revenue Collection Services by staffing Department operated toll facilities" on the Florida Turnpike, should be sustained.Petitioner protester failed to show that the ranking o

06-1541.PDF

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARTON PROTECTIVE SERVICES, LLC,.)

)

Petitioner, )

)

vs. ) Case No. 06-1541BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

)

and )

)

FANEUIL, INC., )

)

Intervenor, )

)

and )

)

SERCO, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH), on May 30, 2006 (by video teleconference at sites in Fort

Lauderdale and Tallahassee, Florida), on May 31, 2006 (by video teleconference at sites in Ocoee and Tallahassee, Florida), and on June 1, 2006 (at a single site in Tallahassee, Florida).

APPEARANCES

For Petitioner: Thomas F. Panza, Esquire

Mark A. Hendricks, Esquire Diane Lindstrom, Esquire Panza, Maurer & Maynard, P.A.

Bank of America Building, Third Floor 3600 North Federal Highway

Fort Lauderdale, Florida 33308-6225

For Respondent: C. Denise Johnson, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

For Faneuil: Roy C. Young, Esquire

Timothy R. Qualls, Esquire Young Van Assenderp, P.A.

225 South Adams Street, Suite 200 Tallahassee, Florida 32301

Paul R. Linder, Esquire Griffin & Linder, P.A.

28 East Washington Street Orlando, Florida 32801

Bruce A. Norris, Esquire Kirwin Norris, P.A.

338 West Morse Boulevard, Suite 150 Winter Park, Florida 32789

For Serco: Steven A. Diaz, Esquire

Law Office of Steven A. Diaz 2300 M Street NW, Suite 800

Washington, DC 20037

Robert Rivas, Esquire Sachs Sax Klein

200 West College Avenue, Suite 216 Tallahassee, Florida 32301-7710

STATEMENT OF THE ISSUES

Whether the protest of Barton Protective Services, LLC (Barton) challenging the Department of Transportation's (Department's) announced intention to commence negotiations with Faneuil, Inc. (Faneuil), "the firm ranked number one by the Selection Committee," for the contract advertised in ITN-DOT- 05/06-8007-EH "to provide Revenue Collection Services by staffing Department operated toll facilities" on the Florida Turnpike, should be sustained.

PRELIMINARY STATEMENT

On April 28, 2006, the Department referred to DOAH, pursuant to Section 120.57(3), Florida Statutes,1 Barton's formal written protest of the Department's announced intention to commence negotiations with Faneuil for the contract advertised in ITN-DOT-05/06-8007-EH.

On May 1, 2006, Faneuil filed an unopposed petition seeking the entry of an order "granting intervention to Faneuil as an Intervenor on the side of the Department of Transportation." By order issued May 10, 2006, Faneuil was "granted the intervenor status sought in its petition."

Along with its petition, Faneuil also filed a motion requesting that Barton's formal written protest be dismissed in its entirety on the grounds that Barton lacked standing as the "third-ranked bidder" and that Barton failed "to post a proper

[protest] bond [countersigned by a Florida resident agent] within the time prescribed"; and if not dismissed for these reasons, be dismissed to the extent that it constituted a "protest [of] the specifications of the ITN." On May 5, 2006, Barton filed a response in opposition to the motion. Argument on the motion was held by telephone conference call on May 19, 2006, following which, on May 22, 2006, the undersigned issued an order, which provided, in pertinent part, as follows:

To the extent that it seeks a summary recommended order of dismissal on the ground that Petitioner lacks standing as the "third-ranked bidder," Faneuil's Motion to Dismiss is denied. See NCS Pearson, Inc. v. Department of Education, No. 04-3976BID, 2005 Fla. Div. Adm. Hear. LEXIS 892 (Fla. DOAH 2005)(Recommended Order)("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.").
To the extent that it seeks a summary recommended order of dismissal on the ground that Petitioner failed "to post a proper [protest] bond [countersigned by a Florida resident agent] within the time prescribed," Faneuil's Motion to Dismiss is denied. See General Electric v. Department of Transportation, 869 So. 2d 1273, 1274 (Fla. 1st DCA 2004)("Appellant is correct that notice and an opportunity to cure are
required before a bid protest is dismissed solely due to a deficient bond."); and ABI Walton Ins. Co. v. Department of Management Services, 641 So. 2d 967, 969 (Fla. 1st DCA 1994)("Because the department did not give Walton notice and a reasonable opportunity to post the bond, the denial of the protest solely because Walton had not filed the bond was improper.").
With respect to whether Petitioner is, in effect, untimely "protest[ing] the specifications of the ITN," as alleged by Faneuil, this issue will be addressed by the undersigned in the [Recommended] Order he will issue after the parties have had an opportunity to present evidence (at the final hearing), and further argument (in their proposed recommended orders), on the matter.

On May 4, 2006, Barton filed a Motion for Leave to Amend Formal Written Protest and Petition for Formal Administrative Proceeding. By order issued May 22, 2006, the motion (which was unopposed) was granted. Barton's Amended Formal Written Protest and Petition for Formal Administrative Proceeding (Amended Formal Protest) contained the following prayer for relief:
1. That the DEPARTMENT stay the solicitation process and the contract award process until this Protest is resolved by final Agency action;
2. That the DEPARTMENT provide all information requested by BARTON and permit BARTON to supplement this Protest, if deemed necessary;
3. That the DEPARTMENT disqualify FANEUIL as a non-responsive and non-responsible bidder;
4. That the DEPARTMENT reject all proposals and rebid the procurement;
5. That the DEPARTMENT provide an opportunity to resolve this protest by mutual agreement within seven (7) days of the filing of this Petition as required by § 120.57(3), Fla. Stat.;
6. That if this protest cannot be resolved within seven (7) days, that this formal written protest be referred to the Division of Administrative Hearings and a formal hearing be conducted before an Administrative Law Judge pursuant to § 120.57(1) and (3), Fla. Stat.;
7. That if referred to an Administrative Law Judge, such Judge enter a Recommended Order disqualifying FANEUIL as a non- responsive and non-responsible bidder, or in the alternative, enter a finding that this procurement ITN-DOT-05/06-8007-EH be withdrawn and that the DEPARMENT OF TRANSPORTATION, FLORIDA'S TURNPIKE ENTERPRISE be required to issue a new procurement for revenue collection services and that the DEPARTMENT be required to select other FDOT personnel[2] to serve as evaluators on any new procurement issued for revenue collection services.
  
  On May 10, 2006, a Notice of Hearing by Video Teleconference was issued scheduling the final hearing in this case for May 30, 2006, through June 2, 2006.
  On May 16, 2006, less than 20 days before the scheduled commencement of the final hearing, Serco, Inc. (Serco) filed a petition requesting that it "be granted Intervenor status, subject to such terms and conditions as the tribunal may deem appropriate; and that, if need be, a continuance of the
  scheduled final hearing be granted." On May 18, 2006, the Department filed a response to Serco's petition, stating that it did "not oppose Serco's intervention," but that it "strongly oppose[d] Serco's Alternative Motion for Continuance." On
  May 18, 2006, Faneuil filed an Objection to Serco's Petition to Intervene, requesting that the "Motion to Intervene filed by Serco be denied and if granted, that no continuance of the scheduled hearing date be granted." Argument on Serco's Petition to Intervene was heard on May 22, 2006, by telephone conference call. The following day, the undersigned issued an order, which provided, in pertinent part, as follows:
  1. Serco (whose petition contains allegations sufficient to demonstrate that its substantial interests are subject to determination or will be affected through this proceeding) will be permitted to intervene in this matter to protect those interests, subject to the following limitations, as permitted by Florida Administrative Code Rule 28-106.205: Serco will not be allowed to engage in discovery; nor will it be allowed to elicit any evidence at the final hearing absent a showing, made at an appropriate time during the hearing, that its eliciting the particular evidence it seeks to have considered would not unduly delay or disrupt the proceeding or cause unfair prejudice.
  2. The final hearing in this case will commence, as scheduled, on May 30, 2006.

On May 26, 2006, the parties (Barton, the Department, Faneuil, and Serco) filed a Pre-Hearing statement which read, in pertinent part, as follows:

A concise statement of the nature of the controversy.

This is a bid protest filed pursuant to Chapter 120.57, Florida Statutes, in response to the Department's posting of the ranking of the vendors in response to ITN- DOT-05/06-8007-EH, for revenue collection services for staffing Department operated toll facilities.
A brief general statement of each party's position.

The Department's position:

The Department issued ITN-DOT-05/06-8007-EH on January 24, 2006. An optional pre- proposal meeting was held on February 2, 2006. All replies were submitted and opened on March 7, 2006. The Department posted its notice of ranking of the vendors on
March 23, 2006. The Invitation to Negotiate Posting Tabulation provided:

"The Department will commence negotiations with the firm ranked number on[e] by the Selection [C]ommittee. Should the Department be unable to negotiate a satisfactory contract with the number one ranked firm, negotiation with the firm shall be suspended. The Department may then undertake negotiations with the firm ranked number two by the Selection Committee.
Failing accord with the firm ranked number two, the Department may continue the negotiation process in the order of the ranking until the Department is able to negotiate a satisfactory contract."
The Department acted in accordance with all applicable laws and procedures in the procurement and evaluation of ITN-DOT-05/06- 8007-EH.
Petitioner, Barton Protective Services

The DEPARTMENT'S proposed ranking of the vendors is contrary to the DEPARTMENT'S governing statutes, applicable rules or policies and ITN specifications. The evaluators' scoring and ranking of the vendors was directly based upon a fundamentally flawed evaluation process wherein the evaluators either failed to follow the ITN and agency instructions, misunderstood the instructions, followed the instructions in an inconsistent manner; failed to apply their individual evaluation process consistently or failed to weigh responses to specifications consistently.
The result was a fundamentally flawed evaluation process in which points were awarded arbitrarily, capriciously, in a clearly erroneous manner and contrary to competition. Further, the Evaluation Committee members lacked the necessary training and experience in evaluating and assessing employee pay and benefits which led to the improper, inconsistent evaluation and scoring of vendors' proposals which is arbitrary, capricious, clearly erroneous and contrary to competition. Additionally, the existence of bias and favoritism undermined the purpose of a fair and competitive procurement process and is contrary to competition and therefore this procurement should be withdrawn it its entirety.
Faneuil's Position: Same as Department[']s.
Serco, Inc. Statement of Issues:

Serco will address three issues. One, the responsibility of Serco, Inc. as an offeror in the subject procurement, in response to

the specific challenge(s) raised by the Protestor; two, the responsiveness of the Serco, Inc.'s offer in the subject procurement, in response to the specific challenge(s) raised by the Protestor; and three, the remedy, assuming the Protestor establishes any error in the scoring and evaluation of the bids. Serco maintains that the available and appropriate remedies in this matter are different from those stated in the contentions and the prayer of relief of the Protestor.[3]

* * *

g. A concise statement of those facts which are admitted and will require no proof:

This is a bid protest proceeding pursuant to Section 120.57(3), Florida Statutes.
The subject matter of the this protest is ITN-DOT-05/06-8007-EH for toll revenue collection services.
On March 23, 2006, the Department posted its notice of ranking of the vendors.
Faneuil was the firm ranked number one. Serco was ranked number two. Barton Protective Services was ranked number three.
Barton Protective Services timely filed this bid protest on April 5, 2006 with the Department and filed a corrected statutorily required bid protest bond on May 4, 2006.

h. A concise statement of those issues of law on which there is an agreement:

The standard of review in this matter is whether the proposed agency decision was clearly erroneous, contrary to competition, arbitrary or capricious. Section 120.57(3)(f), Florida Statutes.
The burden of proof shall rest with the party protesting the agency action, and 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 statues, rules or policies. Section 120.57(3)(f), Florida Statutes.

* * *

As noted above, the final hearing in this case was held on May 30 and 31, 2006, and June 1, 2006. Eleven witnesses testified at the hearing: Steven Spitzer, Reno Abbadini, Karen Greenawalt, John Sneed, Frankie Cook, Milissa Burger, Barbara Brantley, Michael Taggert, Anna McNider, Deborah Stemle, and Woodrow Lawson. In addition, the following exhibits were offered and received into evidence: Joint Exhibits 1 through 15, Respondent's Exhibit 1, and Petitioner's Exhibits 2, 3, 8,

11, 12, 23, 29, 35 through 41, 51 through 60, 63 through 73, 77,

80, 83, 87, 91, 119, 120, 128, 138, 139, 143, and 153).

At the close of the taking of evidence, the parties stipulated to the following post-hearing deadlines, which were accepted by the undersigned: 20 days from the date of the filing of the last volume of the hearing transcript with DOAH for the filing of proposed recommended orders; and 30 days from the date of the filing of the last proposed recommended order with DOAH for the issuance of the recommended order.

The last volume of the Transcript of the final hearing (which consisted of four volumes in toto) was filed with DOAH on June 9, 2006.

The parties timely filed their Proposed Recommended Orders on June 29, 2006.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

Florida's Turnpike Enterprise and its Toll Operations

The Florida Turnpike System consists of toll roads in the southern and central parts of the state.
Florida's Turnpike Enterprise (Turnpike Enterprise), a unit of the Department, is responsible for the management and operation of the Florida Turnpike System.
There is, organizationally, within the Turnpike Enterprise, a Division of Toll Operations, which is headed by a Director of Toll Operations. The current Director of Toll Operations is Evelio Suarez. Mr. Suarez's immediate predecessor as Director of Toll Operations was Deborah Stemle, who held the position from December 1997, to November 13, 2003.
Three "distinct units" make up the Division of Toll Operations, each headed by a Deputy Director, who reports to the Director of Toll Operations: SunPass Operations; Toll Systems Support and Maintenance; and Revenue Collection Services (RCS).
The SunPass Operations unit is responsible for the Turnpike Enterprise's electronic toll collection operations. Faneuil currently has two contracts with the Department involving SunPass Operations: a "SunPass Secondary Call Center" contract, which has been in effect since April 2005; and a "SunPass Contact Center and Support Services" contract that has been in effect since April 1, 2006.
The Toll Systems Support and Maintenance unit is responsible for acquiring and maintaining the infrastructure and equipment needed for toll operations.
RCS is responsible for the "accurate collection and deposit of cash toll revenues and to provide efficient and friendly service to the motoring public in manned and automatic coin lanes."
Milissa Burger is now, and has been since July 2002, the RCS Deputy Director. Ms. Burger's immediate predecessor as RCS Deputy Director was Charles Gilliard. Preceding
Mr. Gilliard in the position was Ms. Stemle. Ms. Stemle held the position from September 1986, to December 1997.4
Under Ms. Burger's direct supervision are six regional toll managers, who oversee the overall operation of the toll facilities in one of the six following "toll regions": Orlando region; Tampa region; Palm Beach region; North Broward region; South Broward region; and Miami region. There are approximately
10 to 15 toll facilities located in each of these "toll regions." Approximately 50 of the toll facilities are "open[] on [a] 24-hour, seven-days-a-week, 365-days-a-year basis."
Barbara Brantley (formerly Trien) is now, and has been since November 2002, the Orlando Regional Toll Manager.
Ms. Brantley's immediate predecessor as Orlando Regional Toll Manager was Ms. Burger, who held the position from June 1991, until her promotion to RCS Deputy Director in July 2002.
Frankie Cook is now, and has been for the past year and a half, the Tampa Regional Toll Manager.
Steve Spitzer is now, and has been since December 1994, the Palm Beach Regional Toll Manager. Mr. Spitzer has been employed by the Department since 1990. Before becoming the Palm Beach Regional Toll Manager, he was an Operations Management Consultant with the Department.
Reno Abbadini is now, and has been since December 1997, the North Broward Regional Toll Manager. Mr. Abbadini has been employed by the Department since February 1995. Before becoming the North Broward Regional Toll Manager, he was an Operations Management Consultant with the Department.
Karen Greenawalt is now, and has been since October 1996, the South Broward Regional Toll Manager. Ms. Greenawalt has been employed by the Department for 32 years.
John Sneed is now, and has been since August 1994, the Miami Regional Toll Manager. Before becoming the Miami Regional Toll Manager, Mr. Sneed was an Operations Management Consultant II with the Department.
When she was with the Department, Ms. Stemle exercised supervisory authority over Ms. Burger, Ms. Brantley,
Mr. Spitzer, Mr. Abbadini, Ms. Greenawalt, and Mr. Sneed.5 In carrying out her supervisory responsibilities, she evaluated them and authorized or recommended pay increases and/or promotions for them that she believed they "deserve[d]" and had "earned."6 Her relationship with them was "purely professional." They were not personal friends of hers with whom she socialized (nor are they now).7
Each toll facility has a toll facility manager who exercises day-to-day operational control over the activities at the facility, including supervision of regional office support staff.
Toll facility managers are under the direct supervision of the regional toll manager of the region in which their facility is located.
The Director of Toll Operations, RCS Deputy Director, regional toll managers, toll facility mangers, and regional office support staff are all Department employees.
Privatization of Toll Facility Staffing
Working at each toll facility under the direction and control of the toll facility manager are toll collectors, toll collector supervisors, toll facility laborers, and toll collection couriers.
Toll collectors are "responsible for accurately classifying vehicles, collecting tolls and providing change to motorists traveling through a toll lane."
Toll collector supervisors "coordinate [the] work shift[s] of toll collectors."
Toll facility laborers "maintain the cleanliness of a toll facility by performing routine maintenance and custodial duties."
Toll collection couriers "provide pick up and delivery service between toll facilities and [the] regional office."
Until 1994, toll collectors, toll collector supervisors, toll facility laborers, and toll collection couriers were employed by the Department.
Since 1994, these positions have been outsourced, with Barton providing the Department with the necessary staffing services pursuant to written contracts (one for each region). Barton representatives have regular contact with RCS personnel, including the regional toll managers (who serve as the Department's contract managers under the contracts), to discuss
operational issues relating to the staffing services it provides the Department.
Barton was selected to provide these services following competitive procurement solicitations in 1994, 1996, and 2000. It currently provides the Department with approximately 2,000 contract employees.
The contracts Barton entered into with the Department following the 2000 solicitation each had an expiration date of November 30, 2005, which "was extended initially for a six-month period."
The Department, in or around 2005, decided to "rebid" the contracts. It "wanted to provide a better overall package to the employees" than was required under its contracts with Barton in order to help limit turnover and the number of vacant positions.
ITN-DOT-05/06-8006-EH
To this end, in or around the first week of November 2005, the Department issued ITN-DOT-05/06-8006-EH (ITN 006), "soliciting written replies from qualified vendors interested in participating in competitive negotiations to establish [two separate] contract[]s to provide Personnel Services: Toll Collections": one providing for staffing services for the Orlando, Tampa, and Palm Beach regions; and the other providing for staffing services for the North Broward, South Broward, and
Miami regions. Vendors were instructed that they could "submit proposals for both or one of the contracts to be awarded" and that they were to "submit separate proposals for each of the contracts."
Ms. Burger was the "primary drafter" of ITN 006.

Ms. Brantley assisted her in "writing parts of the Scope of Services." Also assisting Ms. Burger were Sheree Merting and Elizabeth Hill of the Turnpike Enterprise's "contracts office," which is headed by Woodrow Lawson, who is a contractual services administrator with the Department.
ITN 006 provided for a "mandatory pre-proposal meeting," which vendors had to attend to avoid being "immediately disqualif[ied] from further consideration." It also required that vendors have experience "for at least the past five (5) years, in the management and operation of toll collections staffing."
Mr. Lawson did not have any direct involvement in the drafting or issuance of ITN 006. When he first reviewed it after its issuance (in order to respond to questions from vendors that had been forwarded to him by his staff), he had a "number of concerns with the document," including the requirement that vendors have previous "toll collections staffing" experience. In Mr. Lawson's view, such a requirement was unnecessary and anti-competitive because the Department, not
the vendor, was to be providing training to the contract employees.
Given the extensive changes that he believed needed to be made to ITN 006, Mr. Lawson decided that the Department "needed to pull back this document and start all over." He spoke about the matter with Mr. Suarez, who "concurred and he pulled [it] back."
Mr. Lawson, with the assistance of a member of his staff, Frank Elmore, and Ms. Burger, made numerous changes to ITN 006. The result of their efforts was a new invitation to negotiate, ITN-DOT-05/06-8007-EH (ITN 007).
ITN-DOT-05/06-8007-EH
The Department issued ITN 007 in mid to late January 2006, establishing a March 7, 2006, deadline for the submission of sealed replies. Pre-submission addenda to ITN 007 were issued on February 23, 2006 (Addendum No. 1) and February 28, 2006 (Addendum No. 2).
The documents comprising ITN 007 included: the Advertisement; Special Conditions; General Contract Conditions (PUR 1000); General Instructions to Respondents (PUR 1001); Standard Written Agreement; Scope of Services (Exhibit "A"); Method of Compensation (Exhibit "B"); Price Proposal (Exhibit "C"); various "forms" and "attachments"; and the aforementioned addenda.
Advertisement
The Advertisement identified the "Scope of Services" the Department was soliciting as follows:
The State of Florida, Department of Transportation (hereinafter referred to as the "Department") is soliciting written replies from qualified Proposers interested in participating in competitive negotiations to establish a term contract to provide Revenue Collection Services by staffing Department operated toll facilities with Proposer's employees. It is anticipated that agreement will have an initial contract term of sixty (60) months with a renewal option.

The Department intends to award a contract [to] the responsive and responsible Vendor whose proposal is determined by a Selection Committee to provide the best value to the Department. One contract will be awarded which will cover the following regions in the State of Florida as further described in the Invitation to Negotiate (ITN):

Orlando Region Tampa Region
Palm Beach Region North Broward Region South Broward Region Miami Region

Special Conditions
Special Condition 5 addressed the "Scope of Services." It provided as follows:
Details of desired commodity/services, information and items to be furnished by the Vendor are described in Exhibit "A," Scope of Services, attached hereto and made a part hereof.
Special Condition 6 required that "any technical questions arising from this Invitation to Negotiate . . . be forwarded in writing" to Mr. Lawson's subordinate, "procurement officer" Ms. Hill. In addition, it advised that "[t]he Department's written response to written inquiries submitted timely by interested vendors [would] be posted on the Florida Vendor Bid System."
In Special Condition 7, the Department "reserve[d] the right to reject any and all replies received pursuant to this Invitation to Negotiate (ITN), if [it] determine[d] such action [to be] in the best interest of the Department," and it further "reserve[d] the right to waive minor irregularities in submitted replies."
The Department provided the following description of the "Invitation to Negotiate Process" in Special Condition 10:
The Steps for this Invitation to Negotiate process are outlined below. Dates and times associated with these steps are shown in Section 11, Schedule of Events, of these Special Conditions. Vendors['] replies should be prepared to provide a straightforward, concise description of the Vendor's ability to meet the requirements and to allow the Department to properly evaluate the Vendor's reply. The Vendor's reply shall be thorough and complete since negotiations with respect to items of scope and items of price will be at the sole discretion of the Department. Once Vendors have been ranked, the Department will proceed with negotiation in accordance with the negotiation process described below.
Vendors should be cognizant of the fact during negotiations, the Department reserves the right to finalize negotiations at any time in the negotiation process when the Department determines that such election would be in the best interest of the State.

Step 1): Scope Pre-Proposal Meeting will be conducted at the Turnpike Enterprise Headquarters . . . . Attendance by Proposers is optional.

Step 2) Interested Vendors must submit a sealed reply consisting of the following to the "Procurement Agent" identified on the cover page:
- Qualifications Questionnaire Form - with additional sheets as needed to address and respond to all questions completely (see Special Condition 14.1).
- Dun and Bradstreet Supplier Evaluation Report
- Technical Proposal
- Price Proposal
Step 3) The Evaluation and Selection Committee, composed of at least three members, will evaluate and score the replies individually. The individual scores of the committee members will be averaged by Turnpike's Contractual Service Staff to arrive at an overall score. Vendors will be ranked in the order of their overall score with the highest scored firm ranked number one, the second highest scored firm ranked number two and so forth.[8]
Step 4) Posting of Ranking for 72 hours on the Vendor Bid System.

Step 5) Once the posting period has ended the Department may undertake negotiations with the first-ranked Vendor until an
acceptable contract is agreed upon, or it is determined an acceptable agreement cannot be reached with such Vendor. If negotiations fail with the first-ranked Vendor, negotiations may begin with the second- ranked Vendor, and so on until there is an agreement on an acceptable contract. The Department reserves the option to resume negotiations that were previously suspended. The Department also reserves the right to forego any negotiations and execute an agreement based upon a Vendor's written proposal. The Department will initiate all negotiations.

Step 6) The intended award will be posted in accordance with law and rule.

Step 7) The Department will contract with the Vendor with whom an acceptable agreement was reached.
Special Condition 12 provided the following information regarding the protest procedures that were available to "adversely affected" vendors:
Any vendor who is adversely affected by the Department's recommended award or intended decision must file the following with the Department of Transportation . . . .:
1. A written notice of protest within seventy-two (72) hours after posting of the intended decision, and
2. A formal written protest and protest bond in compliance with Section 120.57(3) Florida Statutes, within ten (10) days of the date on which the written notice of protest is filed. At the time of filing the written protest a bond (a cashier's check or money order may be accepted) payable to the Department must also be submitted in an amount equal to one percent of the estimated
  contract amount based on the contract price submitted by the protestor.
  
  Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. If the notice advises of the bond requirement but a bond or statutorily authorized alternate is not posted when required, the agency shall summarily dismiss the petition.
In Special Condition 13, vendors were given notice of the optional "pre-proposal meeting," the purpose of which would be "to provide an open forum for the Department to review the Scope of Services, ITN requirements, contractual requirements, etc." This special condition further provided as follows:
At least three (3) days before the Scope Meeting, Vendors should Mail, e-mail, or fax known technical questions to the person shown on the Special Conditions page, questions and issues which they want addressed during the pre-proposal meeting.
The Vendor should pay particular attention to identifying any improvement, corrective measures, or other changes that could be incorporated in the Scope of Services that had not existed or may have been overlooked or require clarification. If required, a revised Scope of Services will be issued.
Vendors are certainly welcome to ask questions at the pre-proposal meeting other than those previously forwarded to the Department, but the Department reserves the right to delay a response when further consideration is needed.
Special Condition 14 described what vendors needed to include in their replies to ITN 007. It read, in pertinent part, as follows:
The Sealed Reply shall be in the following format and provide the requested information.
14.3.1 Project Budget

The Proposers Price Proposal shall not exceed the Department's budget. Funding for this Agreement is provided to the Department by the Florida Legislature on a Department fiscal year basis. The Department's fiscal year begins July 1 of each year and ends June 30 of each succeeding year.

The Department anticipates that the following funds will be appropriated by the Florida Legislature for the fiscal year noted. The Proposer shall not exceed the Department's anticipated funding for any given fiscal year when preparing its price proposal. Before submitting a Price Proposal, compare your cost for a given time period in Schedule 2 of your price proposal to the corresponding time period shown below and do not exceed the Department's anticipated legislative funding.
Fiscal Period
Department Funding
6/1/06-6/30/06
$7,000,000
7/1/06-6/30/07
$55,500,000
7/1/07-6/30/08
$57,165,000
7/1/08-6/30/09
$58,880,000
7/1/09-6/30/10
$60,647,000
7/1/10-5/31/011
$57,261,000
14.3.2 Preparation

The Proposer is required to present its Price Proposal on the forms set forth in Exhibit "C" . . . .

* * *
How replies would be evaluated was described in Special Condition 15, which read as follows:
Price Proposal evaluation is the process of examining a Vendor's price. The Proposer's Price will be evaluated using the present value methodology as required by Section 287.0572, Florida Statutes. A present value discount rate of 4.27% shall be used in the
evaluation. The price analysis will be conducted by a comparison of the present value of each Vendor's proposal. The criteria for price evaluation shall be based upon the following formula:

(Lowest Present Value Price/Vendor's Present Value Price) x Maximum Points (10) = Vendor's Total Price Points

The lowest present value proposal price will be divided by the Vendor's present value price. The results will be multiplied by the maximum price proposal points (10) to arrive at the total price points for the Vendor.
In Special Condition 18, the Department "reserve[d] the right to perform or have performed an on-site review of the vendor's facilities and qualifications" following the "sealed reply due date and prior to contract execution" in order to "verify data and representations submitted by the vendor"; "determine whether the vendor has an adequate, qualified, and experienced staff, and can provide overall management facilities"; and "verify whether the vendor has financial capability adequate to meet the contract requirements." The Department added:
Should the Department determine that the reply has material misrepresentations or that the size or nature of the vendor's facilities or the number of experienced personnel (including technical staff) are not adequate to ensure satisfactory contract performance, the Department has the right to reject the reply.
Special Condition 23 stated that the Department would "execute a written agreement with the awarded Vendor, which w[ould] include the final negotiated terms, conditions, specifications/scope of services, and prices."
Special Condition 25 listed the forms that were part of the ITN. It provided as follows:
FORMS
1. QUALIFICATIONS QUESTIONNAIRE Package (Form 1)
2. Drug Free Work Place Certification (Form 2)
3. MBE/DBE Participation Statement (Form 3)
4. Certification of Acceptable Driving Record (Form 4)
  
  OPTIONAL
5. Corporate Resolution (Form 5) General Contract Conditions
The General Contract Conditions included the following provisions, among others:
* * *

19. Lobbying and Integrity The
Contractor shall not, in connection with this or any other agreement with the State, directly or indirectly (1) offer, confer, or agree to confer any pecuniary benefit on anyone as consideration for any State officer or employee's decision, opinion, recommendation, vote, other exercise of discretion, or violation of a known legal duty, or (2) offer, give, or agree to give to anyone any gratuity for the benefit of, or at the direction or request of any State officer or employee. . . .

* * *

33. Contractor Employees, Subcontractors, and Other Agents. The Customer and the State shall take all actions necessary to ensure that Contractor's employees, subcontractors and other agents are not employees of the State of Florida. . . .

* * *

47. Special Conditions. Pursuant to 60A- 1.002(7), F.A.C., a Customer may attach additional contractual and technical terms and conditions. These "special conditions" shall take precedence over this form PUR 1000 unless the conflicting term in this form is statutorily required, in which case the term contained in the form shall take precedence.

General Instructions to Respondents
The General Instructions to Respondents included the following provisions, among others:
* * *
1. Terms and Conditions. All responses are subject to the terms of the following sections of this solicitation, which in case of conflict, shall have the order of precedence listed:
  - Technical Specifications,
  - Special Conditions,
  - Instructions to Respondents (PUR 1001),
  - General Conditions (PUR 1000), and
  - Introductory Materials.
  The Buyer objects to and shall not consider any additional terms or conditions submitted by a respondent, including any appearing in documents attached as part of respondent's response. In submitting its response, a
  respondent agrees that any additional terms or conditions, whether submitted intentionally or inadvertently, shall have no force or effect. Failure to comply with terms and conditions, including those specifying information that must be submitted with a response, shall be grounds for rejecting a response.
2. Questions. Respondents shall address all questions regarding this solicitation to the Procurement Officer. Questions must be submitted via the Q & A Board within MyFloridaMarketPlace and must be RECEIVED NO LATER THAN the time and date reflected on the Timeline. Questions shall be answered in accordance with the Timeline. All questions submitted shall be published and answered in a manner that all respondents will be able to view. Respondents shall not contact any other employee of the Buyer or the State for information with respect to this solicitation. Each respondent is responsible for monitoring the MyFloridaMarketPlace site for new or changing information. The Buyer shall not be bound by any verbal information or by any written information that is not contained within the solicitation documents or formally noticed and issued by the Buyer's contracting personnel. Questions to the Procurement Officer or to any Buyer personnel shall not constitute formal protest of the specifications of the solicitation, a process addressed in paragraph 19 of these Instructions.
3. Conflict of Interest. This solicitation is subject to chapter 112 of the Florida Statutes. Respondents shall disclose with their response the name of any officer, director, employee or other agent who is also an employee of the State. Respondents shall also disclose the name of any State employee who owns, directly or indirectly, an interest of five percent (5%) or more in the respondent or its affiliates.
* * *

10. Performance Qualifications. The Buyer reserves the right to investigate or inspect at any time whether the . . . qualifications, or facilities offered by respondent meet the Contract
requirements. . . . . Respondent must be prepared, if requested by the Buyer, to present evidence of experience, ability, and financial standing . . . . If the Buyer determines that the conditions of the solicitation documents are not complied with, . . . or that the qualifications, financial standing, or facilities are not satisfactory, . . . the Buyer may reject the response . . . .

* * *
1. Clarifications/Revisions. Before award, the Buyer reserves the right to seek clarifications or request any information deemed necessary for proper evaluation of submissions from all respondents deemed eligible for Contract award. Failure to provide requested information may result in rejection of the response.
2. Minor Irregularities/Right to Reject. The Buyer reserves the right to accept or reject any and all bids, or separable portions thereof, and to waive any minor irregularity, technicality, or omission if the Buyer determines that doing so will serve the State's best interests. The Buyer may reject any response not submitted in the manner specified by the solicitation documents.
* * *

19. Protests. Any protest concerning this solicitation shall be made in accordance with section 120.57(3) and 287.042(2) of the Florida Statutes, and chapter 28-110 of the
Florida Administrative Code. Questions to the Procurement Officer shall not constitute formal notice of a protest. It is the Buyer's intent to ensure that specifications are written to obtain the best value for the State and the specifications are written to ensure competitiveness, fairness, necessity and reasonableness in the solicitation process.

Section 120.57(3)(b), F.S. and Section 28- 110.003, Fla. Admin. Code require that a notice of protest of the solicitation documents shall be made seventy-two hours after the posting of the solicitation.

Section 120.57(3)(a), F.S. requires the following statement to be included in the solicitation: "Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes."

Section 28-110.005, Fla. Admin. Code requires the following statement to be included in the solicitation: "Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes."

Scope of Services
Section 2.0 of the Scope of Services contained "Definition[s] of Terms," including the following:
2.7. Department's Regional Toll Manager: The individual employee responsible for the management oversight of an entire region, including the management of the toll collection staffing contract, supervision of toll facility managers and regional office support staff[;] provides direction and guidance for the operation of the toll facilities, budget control, monitor[s] cash collection, and monitor[s] banking and auditing reports for cash handling errors.
Serves as the Department's Deputy Project/Contract Manager at the Region level of this Contract.

2.8 Department's Toll Facility Manager: This individual is responsible for the total operation of a toll facility.
Responsibilities include supervision of Department and contract employees, maintaining a well trained and motivated work force, providing exceptional customer service, contract management and meeting the financial goals of the Department.

2.9. Contract Employee: The individual employed by the contractor performing the duties and responsibilities of a toll collector, toll collector supervisor, toll facility laborer or courier.
Section 3.0 of the Scope of Services contained the following "General Description" of the services sought by the Department through ITN 007:
Section 4.0 of the Scope of Services advised that "[o]ne contract w[ould] be awarded from this Invitation to Negotiate to provide services for toll facilities assigned to the Department's six toll regions . . . consisting of the Orlando Region, Tampa Region, Palm Beach Region, North Broward Region, South Broward Region and the Miami Region."
Section 5.0 of the Scope of Services was entitled, "Project Management," and read as follows:
The Vendor shall provide a senior level employee to be located in the State of Florida and preferably in the area of one of the six toll facilities to act as the Program Director during the term of the Agreement with authority to act on the behalf of the vendor in any matter related to the contract personnel assigned and is
responsible for all communication with the Department and the Department's Contract Manager. The Program Director shall speak, read, write and understand the English language and must be available or on-call to the Department on a 24/7 (24 hours per day,
7 days per week) basis during the term of the Contract. The Vendor shall provide emergency telephone numbers and contingency procedures for failure of first level of response. The Vendor shall respond, by telephone, to the Department within thirty
(30) minutes of initial contact.
The "Revenue Collection Services Vendor Team" was the subject of Section 6.0 of the Scope of Services, which read as follows:
Section 7.0 of the Scope of Services was entitled, "Work Force Diversity," and read as follows:
Section 8.0 of the Scope of Services addressed "Recruitment, Hiring and Employment Matters."
Subsection 8.1 discussed the "Screening Method" for prospective contract employees. It provided as follows:
The Vendor shall establish and maintain a screening process for potential employees assigned to the project. The focus of the screening process shall be the safe and proper handling of Department revenues, and the ability to effectively communicate and deal with the motoring public. The Vendor must obtain the Department's approval of the screening methods prior to their use.
Documentation of successful screening results shall be maintained in the employee's individual personnel file. Assignment of unqualified personnel may result in liquidated damages as stipulated in Section 21.
Subsection 8.2 indicated that contract employees who were related to one another could not be assigned to the same work location and that, "[a]dditionally, relatives of the
Vendor's management team [could] not be assigned to this project."
Subsection 8.3 prescribed the procedure the successful vendor would have to follow for "Reassignments and Rehires" of contract employees.
Subsection 8.4 set forth the requirements the successful vendor would have meet with respect to "maintain[ing] individual personnel files on each contract employee."
Subsection 8.5 was entitled, "Employment Matters," and read as follows:
The Vendor shall be responsible for all matters pertaining to the employment, scheduling, benefits, compensation (i.e. wages, salary, unemployment, worker's compensation, etc.), payroll administration, discipline, discharge, and similar matters of personnel such as, but not limited to: mandatory Sexual Harassment and Workforce Violence training, provided under this Contract. The Vendor shall be an independent contractor of the Department in performance of its duties herein. The Vendor's personnel performing services under the Contract, shall at all times be under the Vendor's exclusive control and shall be employees of the Vendor and not of the Department.
Subsection 8.6 was entitled, "Employee Direction," and read as follows:
Contract personnel shall follow the directions and instructions of the Department's designated representative and shall be subordinate to these individuals while on duty for the Department. The
Department will provide the Vendor written documentation on contract employee performance using an agreed upon form. The Vendor shall be responsible for initiating corrective and progressive disciplinary action with the contracted employee. The Vendor shall provide the Department with written notification of action initiated.
Subsection 8.7 was entitled, "Employee Evaluation," and read as follows:
The Department requires all contract employees receive, at a minimum, an annual performance appraisal in a format to be approved by the Department. The Vendor shall solicit input on the employee's performance from the appropriate Toll Facility Manager and/or Regional Toll Manager. The Department's input will be considered in final performance ratings and incorporated into the employee's reviews.
Subsection 8.8 was entitled, "Employee Removal," and stated that "[t]he Department reserve[d] the right to require the immediate removal of any contract employee whom the Department identifie[d] as a potential threat to the health, safety security or general well-being of the Department's customers, employees, agents, assets or whomever the Department determine[d] d[id] not meet the minimum performance requirements of the position."
The subject of Section 9.0 of the Scope of Services was "Staffing, Scheduling, Shift Reporting and Time Keeping."
Subsection 9.1 addressed "Staffing and Scheduling." It indicated, in its introductory paragraph, that the "vendor
w[ould] be required to provide contract employees, as described herein, for a 24/7 operation at times and locations required by the Department."
Subsection 9.1.5.2 discussed "replacement employees." It provided as follows:
The Vendor shall be responsible for providing replacement employees for scheduled Vendor employees who fail to report to work or are otherwise unavailable. The Vendor is required to provide replacement employees as quickly as possible, but no later than one (1) hour of the beginning of the schedule[d] shift, or at the beginning of the scheduled shift time if notified at least one (1) hour before the scheduled shift. Requests for replacement employees will be made verbally to the Vendor by the Department managers or their designee. The Department reserves the right to require another contract employee from the off-going shift to remain on-duty until the replacement employee arrives.
Compensation for such shift extensions will be billed at the Vendor's hourly rate. No overtime additive rate will be paid by the Department for any hours worked by the Vendor's employees.
Subsection 9.2 addressed "Shift Reporting and Timekeeping." It read as follows:
(40) hours in a week.
Section 10.0 of the Scope of Services dealt with "Employee Pay, Benefits, Recognition and Retention Programs." The prefatory language of this section read as follows:
The Department desires to maintain an experienced workforce through retention of quality employees and programs that reduce unnecessary turnover and training costs.
The Vendor shall minimize turnover rates by providing salaries that are competitive within the area and benefits to its full- time employees and maintain a well-trained staff by implementing timely performance recognition and feedback, incentive programs and an effective communication plan. The Department requests that the Vendor define in its technical proposal their evaluation, recognition, incentive and communication plan. Additional methods for staff retention may be presented by the Vendor to the Department for review and approval.

The Vendor shall be responsible for tracking contract employee turnover and providing monthly reports, in a format approved by the Department, by position, Region and toll facility. The Vendor shall provide its method for calculating and reporting turnover in its technical proposal for the Department.
Subsection 10.1 discussed "Stable Workforce." It read as follows:
The Vendor shall provide a stable workforce which will include both full-time and part- time employees. The Vendor shall be required to maintain a 75% minimum full-time contract employee workforce at each toll facility. Full-time employees are defined as employees whose position requires them to work a minimum of thirty-two (32) hours per week.

Subsection 10.2 discussed "Employee Pay." It read as follows:

The Vendor shall be required to pay the minimum hourly starting wages by position classification and Region as outlined in the table below. Should at any time the federal or state minimum wage rate laws change such that such governmental

minimum wage rates exceed the minimum wage rates established in this contract, the Contractor shall use the minimum wage rate required by governing law as the starting wages.

MINIMUM STARTING WAGES

Orlando:	TOLL COLLECTOR- TOLL COLLECTOR SUPERVISOR-	$7.25 $9.25
	TOLL FACILITY
	LABORER	$8.00
	COURIER	$9.00
Tampa:	TOLL COLLECTOR- TOLL COLLECTOR SUPERVISOR-	$7.00 $9.00
	TOLL FACILITY LABORER	$7.50
	COURIER	$9.00
Palm Beach:	TOLL COLLECTOR- TOLL COLLECTOR SUPERVISOR-	$7.00 $9.00
	TOLL FACILITY LABORER	$8.00
	COURIER	$9.00
North Broward:	TOLL COLLECTOR- TOLL COLLECTOR SUPERVISOR-	$7.00 $9.25
	TOLL FACILITY LABORER	$8.00
	COURIER	$9.00
South Broward:	TOLL COLLECTOR- TOLL COLLECTOR SUPERVISOR-	$7.00 $9.25
	TOLL FACILITY LABORER	$8.00
	COURIER	$9.00

Miami:	TOLL COLLECTOR- TOLL COLLECTOR SUPERVISOR-	$7.00 $9.25
	TOLL FACILITY
	LABORER	$8.00
	COURIER	$9.00

Effective July 1, 2007, and on each annual anniversary thereof, the minimum hourly starting wage for each position classification within each Region shall increase by 3%.

The Vendor shall be required to provide each retained contract employee hired at least their current rate as of December 13, 2005, or if the retained contract employee was earning less than the minimum required by this contract, such retained contract employees shall be paid at least the minimum required for their position. The current rate of pay, as of December 13, 2005, of retained contract employees is shown in Attachment D. The names of retained contract employees will be provided to the Vendor upon execution of the Contract.
The Vendor shall define in its proposal how it will address annual adjustment of salary rates for its employees to include, but not limited to, merit and cost of living increases. The Vendor shall also address any other programs it plans to implement that would increase the compensation paid an employee such as bonuses.

* * *

Subsection 10.3 discussed "Employee Benefits." It read as follows:
The Department desires to maintain an experienced work force through the recruiting and retention of quality
employees. In order to meet the Department's goal, the Vendor shall provide an employee benefits program that, at a minimum, provides the following:
Vendor shall include [an] individual's out of pocket expenses for group medical coverage for both single and family. The Vendor shall also include in its proposal the vacation and sick leave policy including the amount of hours earned annually and retention of such hours earned. The Vendor shall also include any other benefit programs available to employees.
Subsection 10.4 discussed "Incentive Program[s]." It read as follows:
The Department understands the need to reward its staff. Incentive programs are critical to maintain a dynamic and enthusiastic workplace. The following goals should be considered the basis for implementing incentive programs:
- To boost morale and provide challenge to a routine day.
- To create an atmosphere of healthy competition, thus providing enhanced customer care and overall work results.
- To challenge and strengthen the ability of a struggling employee.
Section 11.0 of the Scope of Services was entitled, "Employee Orientation and Training."11 It read as follows:
It is the Department's desire to have a well-trained and motivated staff focused on the mission.
The Vendor shall be required to maintain records on contracted employees' training history. The Vendor is responsible for ensuring that all employees have the proper training required for their position. The Vendor shall provide these reports as requested by the Department in a format that will be compatible with the Department's database.
Section 12.0 of the Scope of Services was entitled, "Uniforms." Subsection 12.1 provided that "[t]he Department
w[ould] provide uniforms to the Vendor to be issued to employees assigned to the contract." Subsection 12.2 read as follows:
Contract employees shall be expected to be in uniform within two weeks of assignment to their work unit. Employees shall be required to sign a toll uniform receipt, acknowledging receipt of the uniform items issued. A copy of the receipt shall be included in the employee’s individual personnel file.

The remaining subsections of Section 12.0 imposed additional requirements that the Vendor awarded the contract would have to meet with respect to "Uniforms."
Section 13.0 of the Scope of Services was entitled, "Photo Identification, Name Tags and Access Cards." Subsections
13.3.1 through 13.3.5 read as follows:
Section 15.0 of the Scope of Services was entitled, "Transportation." Subsection 15.1 addressed "Department Vehicles" and included the following provisions:
Subsection 15.2 discussed "Payment for Mileage" and provided as follows:
In the event that a Department vehicle becomes unavailable for use, for whatever reason, Contract employees will be required to use their personal vehicles for travel to and from the assigned toll facility administration building to remote ramps or other work locations. The Vendor shall be required to reimburse the employee for this mileage at the Department's reimbursement rate. Mileage reimbursement will be billed separately and should not be included in the price proposal.
Section 16.0 of the Scope of Services was entitled, "Reports." Subsection 16.4 discussed "Training Reports," and read as follows:
The Vendor shall be required to maintain records on contracted employees' training history. The Vendor shall provide these reports as requested by the Department in a format that will be compatible with the Department's database.
Section 17.0 of the Scope of Services addressed "Invoice Requirements." Subsection 17.2 set forth procedures for "Invoicing for Payment."
Section 19.0 of the Scope of Services concerned "Equipment, Manuals, Policies and Procedures" and read as
follows:
Section 20.0 of the Scope of Services was entitled, "Workday Shortages," and read as follows:
The Department routinely performs daily audits and security investigations on toll employees to ensure that vendor's employees are following proper cash handling procedures. The Vendor shall cooperate with the Department during these investigations and provide [the] Department with all information requested on a contracted employee as soon as possible. When an employee has a cash shortage(s), $50 or higher, that is determined, at the sole discretion of the Department, to be caused by contracted employee error, contracted employee theft or is unrelated to any equipment issues, the Vendor will be responsible for reimbursing the Department for the shortage(s). The Department will send a written notice informing vendor of the shortage(s) and Vendor will have thirty
(30) days to reimburse the Department for this amount. Historical information for toll collector shortages of $50 or higher invoiced under the current contract is provided in Attachment E.
Section 21.0 of the Scope of Services described circumstances under which the vendor awarded the contract would have pay the Department "Liquidated Damages."
Section 22.0 of the Scope of Services was entitled, "Implementation Plan," and provided as follows:
The Vendor shall provide an implementation plan in its technical proposal detailing how they would staff and train employees for toll facilities, as well as transition the current Vendor's staff to be operational within thirty (30) days from the execution of the contract. The implementation shall be sufficient in detail to clearly demonstrate the Vendor's knowledge of the steps necessary to implement this contract.

Within five (5) days of execution of the contract, the Vendor shall provide an update of the Implementation Plan, which will include a detailed schedule of when each activity is to commence and end. This schedule shall also provide the names of the responsible person(s) or parties that are to complete each activity. This implementation plan shall be in sufficient detail as to clearly demonstrate the Vendor's ability to manage the implementation process.
Section 23.0 of the Scope of Services was entitled, "Transition," and provided as follows:
The Department is currently under contract for staffing. Under this agreement, the current Vendor has paid its employees and provided them with certain employee benefits. The Vendor awarded this contract, shall engage with the current Vendor's staff as follows:
Retained contract employees will maintain their current anniversary date for leave calculation.
Section 24.0 of the Scope of Services was entitled, "Department Employment Opportunities," and read as follows:
The Department may periodically advertise for permanent Department positions. In the event that an employee of the Vendor is selected to fill a Department position, the Department will provide, at minimum, two (2) weeks notice to allow the Vendor time to replace the employee.

NON EXCLUSIVITY CLAUSE IN CASE OF DEFAULT OR
CONTRACT TERMINATION: The Contractor agrees that should they default or the contract is terminated, the Contractor’s staff will have the right with no penalties and at no cost to be hired by the Department or the new Vendor to conduct the work.
Section 25.0 of the Scope of Services discussed "Subcontracting or Assignment of Work" and read as follows:
Section 26.0 of the Scope of Services was entitled, "Licenses and Fees," and provided that the vendor awarded the contract would "be responsible for all licenses and fees associated with performance of this Contract."
Section 27.0 of the Scope of Services was entitled "Succession Planning." It advised that the vendor awarded the contract would be required to "provide a Succession Plan for the transfer of operations at the end of the contract, in the event the Vendor cannot, will not, or is not allowed to continue operations."
Method of Compensation
Section 3.0 of the Method of Compensation discussed "Progress Payments." It read as follows:
For the satisfactory performance of services, the Vendor shall be paid monthly for the following:
1. Hours worked by contract employees performing toll collection activities or receiving required training will be paid for at the contract hourly billing rates established in Exhibit "C" [Price Proposal], Schedule 1a, attached hereto and made a part hereof. The contract hourly billing rates shall include the cost of salaries, overhead, fringe benefits, overtime, contract management, administration, operating margin or profit, and all expenses except the expenses defined herein as allowable.
2. Regional Office expenses shall be paid for at the monthly lump sum amount established in Exhibit "C," Schedule 1b, attached hereto and made a part hereof.
3. Actual costs of the following items which shall be supported by receipts. Unless specifically approved in writing by the Department, there will be no direct reimbursement of any other items.
  1. Travel expenses associated with Department authorized travel of contracted employees. No travel expense shall be paid for contract employee[s] when reporting to work at their assign[ed] Toll Facility Administration Building.
  2. When directed by the Department, out of pocket expenses associated with obtaining a National Level background check on a contract employee assigned to this project.
  3. When directed by the Department, out of pocket expenses associated with participation in a customer services and satisfaction assessment.
"Minority Business Enterprise Utilization (MBE)" was discussed in Section 4.0 of the Method of Compensation, which read as follows:
When subcontracting services or making reimbursable purchases, the Vendor should take all necessary and reasonable steps to ensure that minority businesses have the opportunity to compete for and perform contract work for the Department in a non- discriminatory environment. An MBE certification form shall be submitted by the Vendor with each invoice.

Form 1: Qualifications Questionnaire
Form 1, with its various attachments, contained the "Qualifications Questionnaire" referred to in the ITN's Special Conditions.
The following "Instructions to the Qualifications Questionnaire" were set forth in the form:
The Proposer is required to complete and return this Qualifications Questionnaire (Form 1) and include as part of this questionnaire, a Dun & Bradstreet Report. This information shall be included as part of the Proposer's Proposal as set forth in the Special Conditions in ITN-DOT-05/06- 8007-EH. Failure to properly complete this Qualification[s] Questionnaire (Form 1) or to provide requested related information, either in part or in its entirety or fail[ure] to provide the Dun & Bradstreet Report may result in the rejection of the Proposer's application for qualification.[15]
If the Proposer's Qualification[s] Questionnaire is rejected, the Proposer's Proposal will not be considered.

When completing the Proposer's Qualification Statements, the Proposer is required to use either ink or typewriter (black ribbon) and affix signatures where required.

NOTICE:

APPLICANTS FOR QUALIFICATION ARE HEREBY NOTIFIED THAT INTENTIONAL INCLUSION OF FALSE, DECEPTIVE OR FRAUDULENT STATEMENTS ON THIS APPLICATION CONSTITUTES FRAUD. FURTHERMORE, APPLICANTS ARE HEREWITH NOTIFIED THE STATE OF FLORIDA CONSIDERS SUCH ACTION ON THE PART OF AN APPLICANT TO CONSTITUTE GOOD CAUSE FOR DENIAL OF THE QUALIFICATION FOR BIDDING ON STATE PROJECTS LET TO CONTRACT BY THE STATE OF FLORIDA DEPARTMENT OF TRANSPORATION.
1. DUN AND BRADSTREET REPORT
  
  The Department has chosen Open Ratings (a partner of Dun & Bradstreet) to assist with the evaluation process of this ITN through a report that Open Ratings will generate about your company when you provide them with the requested information. The report is called "Past Performance Evaluation/Supplier Evaluation Review" (PPE/SER) and will provide an overall rating on timeliness, problem responsiveness, quality of purchased products or services, total cost, technical support, deliveries/quantities, and attitude of vendor personnel. This report must be submitted with your "Qualifications Questionnaire." Information and Forms are attached.
  
  It is mandatory that you order and pay for this report and submit the results with your reply to the "Questionnaire" in order to be considered for this contract.
  Because this Report takes approximately four weeks to complete, interested vendors are encouraged to submit their request to Open Ratings in a timely fashion.
  
  In the event your firm has obtained this report within the past twelve months, such report will be acceptable and will meet this requirement.
2. REQUIRED FORMS
  
  The Proposer shall complete the following required forms of this Qualification[s] Questionnaire:
  
  Form 1- Attachment No. 1A: Organization - Prime
  Form 1- Attachment 1B: Organization - Subcontractor
  Form 1- Attachment 1C: List of Completed Projects
  Form 1- Attachment 1D: List of Current Projects Under Contract
  Form 1- Attachment 1E: Required Background Information
  Form 1- Attachment 1F: Staffing - Program Director
  Form 1- Attachment 1G: Staffing - Other Key Personnel
  Form 1- Attachment 1H: Proposer's Surety History
  Form 1- Attachment 1I: Subcontractor Approval List
3. Reference Checks
1. The Department may choose to perform reference checks on one or more, but not necessarily all of the Proposers as a result of the Department's review of the Dun & Bradstreet Report or other information provided in this Qualification[s] Questionnaire. Some, but not necessarily all of the purposes for reference checks, if performed, will be to determine the level of satisfaction and quality of service provided
  by the Proposer to present and past clients in the areas of:
  - General performance of the proposed services
  - Technical Competency
  - Compliance with implementation plans
  - Project management
  - Working within the projected dollar amounts
  - General responsibilities
  - Contract compliance
  - Customer satisfaction
  - Adherence to project schedule
  - Employee satisfaction.
  Note: The results of the reference checks, if performed, may be graded as part of the overall evaluation.
2. The Proposer is advised that the Program Director named in this Questionnaire as well as any other named key staff may be contacted or required to attend an interview with the Department if additional information is required for the purpose of understanding or confirming the information furnished.
Form 1- Attachment 1C: List of Completed Projects, contained the following "attachment-specific" instructions:
The Proposer shall list representative[16] projects or programs the Proposer has completed during the past five (5) years in the area of providing staffing services for a client with employees of the Proposer.
The Proposer shall ensure that the Principal Contact and telephone number information is current so the Department may contact the customer (attach additional sheets if necessary).

There were spaces on the form for the vendor to provide: "Customer Name"; "Project Name & Brief Description"; "Principal
Contact Name"; "Principal Contact Title"; "Address"; "Telephone Number"; "Location of Work"; "Prime or Subcontractor"; "Number of Staff Provided"; "Contract Start Date"; "Scheduled Completion Date"; "Actual Completion Date"; "Value of Work Performed"; and "Other Pertinent Information."
Form 1- Attachment 1D: List of Current Projects Under Contract, contained the following "attachment-specific" instructions:
The Proposer shall list representative[17] projects or programs the Proposer has under contract in the area of providing staffing services for a client with employees of the Proposer. The Proposer shall ensure that the Principal Contact and telephone number information is current so the Department may contact the customer (attach additional sheets if necessary).

There were spaces on the form for the vendor to provide: "Customer Name"; "Project Name & Brief Description"; "Principal Contact Name"; "Principal Contact Title"; "Address"; "Telephone Number"; "Location of Work"; "Prime or Subcontractor"; "Number of Staff Provided"; "Contract Start Date"; "Scheduled Completion Date"; "Actual Completion Date";18 "Value of Work Performed"; and "Other Pertinent Information."
Form 1- Attachment 1F: Staffing - Program Director, directed that the following information "for the planned Program Director" be supplied on the form in the spaces provided: "Name"; "Title"; "What percentage of his/her time will this
person devote to this Project"; "Is this individual currently employed by Proposer"; "If yes, number of years employed"; "Is this individual currently employed by Proposer's subcontractor"; "If yes, number of years employed"; "If this individual is not currently employed by Proposer or Proposer's subcontractor, does the Proposer or subcontractor have a Letter of Commitment from this individual"; "Current employer name"; "Address"; "telephone number"; "Does this individual currently live in the State of Florida"; and "If no, does the Proposer or Subcontractor have a Letter of Commitment from this individual to move to the State of Florida." It then further directed that the vendor also supply on the form in the spaces provided "a list of project(s) where this individual has had the responsibilities and has performed the duties similar to the Project responsibilities and duties being proposed with the following information: Project name; Employer; Client name; Start and end dates of project assignment; Address; [and] Telephone number of Client."
Form 1- Attachment 1G: Staffing - Other Key Personnel, directed that the following information "for [the vendor's] planned key personnel" "(as determined by [the vendor])" be supplied on the form in the spaces provided: "Name"; "Title"; "What percentage of his/her time will this person devote to this Project"; "Is this individual currently employed by Proposer"; "If yes, number of years employed"; "Is
this individual currently employed by Proposer's subcontractor"; "If yes, number of years employed"; "If this individual is not currently employed by Proposer or Proposer's subcontractor, does the Proposer or subcontractor have a Letter of Commitment from this individual"; "Current employer name"; "Address"; and "telephone number." It then further directed that the vendor supply on the form in the spaces provided "a list of project(s) where this individual has had the responsibilities and has performed the duties similar to the Project responsibilities and duties being proposed with the following information: Project name; Employer; Client name; Start and end dates of project assignment; Address; [and] Telephone number of Client."
Form 1, Attachment 1I: - Subcontractor Approval List, contained the following additional "attachment-specific" instructions:
This form is included as a Proposal requirement to assist the Department in the evaluation of the subcontractor(s) proposed by the Proposer for the work under this ITN (attached additional sheets as necessary)

Once approved by the Department, subcontractor substitutions, additions, or replacements must receive prior written approval. All subcontractors assigned more than five percent (5%) of the Contract dollar value per year are considered Major Subcontractors and must be listed.

The Proposer shall also provide identification of all major subcontractors
who are Minority Business Enterprises (MBEs).

Form 5: Corporate Resolution
Form 5 contained the following form resolution:

NOW THEREFORE, IT IS RESOLVED, that the
(specify authorized officer; e. g. President, Vice President, Treasurer) of this corporation or LLC is hereby authorized and empowered on behalf of the corporation or LLC to enter into a contract with the State of Florida, Department of Transportation, in consideration of
Dollars ($ ), upon the terms and conditions contained in the proposed contract, a copy of which is attached hereto as Exhibit A, and made a part hereof.

Preparation of Faneuil's Reply, Including Ms. Stemle's Involvement
Anna McNider is Faneuil's Vice President and Managing Director of Government Services.
Ms. McNider was responsible for putting together Faneuil's reply to ITN 007.
She thought it would "helpful" to have a consultant with expertise in toll operations to not only "look over her proposal" before it was submitted, but to also commit to being a part of the "ongoing management of the contract" if it was awarded to Faneuil.
In late February 2006, Ms. McNider contacted TEAMFL, a Florida toll industry association, asking for the name of
someone who might be able to provide this help. Ms. Stemle was recommended.
Ms. Stemle was by now employed in the private sector.

She was working as a senior consultant - toll operations for Montgomery Consulting Group (MCG), a Department-certified Disadvantaged Business Enterprise, and had been in this position since accepting an "Offer of Employment" from MCG, dated
March 19, 2004, which read, in part, as follows:

The Montgomery Consulting Group, Inc. (MCG) is pleased to offer you a part-time position as a senior consultant - toll operations.
Your position centers on providing strategic planning and consulting services for specific task assignments on projects with the Florida Turnpike Enterprise Authority and their general consultant, Post, Buckley, Schuh & Jernigan (PBS&J) and others as may be appropriate.

. . . As project manager for MCG, Monty Gettys will coordinate your activities; however, specific PBS&J and Turnpike staff may direct your day-to-day activities. You should closely coordinate all contractual and budget matters with Monty Gettys.
As an MCG employee, Ms. Stemle had provided (and was continuing to provide) sub-consultant services to the Turnpike Enterprise.
In her capacity as a sub-consultant, she worked on projects for the Turnpike Enterprise's Toll Systems Support and Maintenance unit. This, at times, involved her serving on
committees and otherwise interacting with Ms. Burger and some (but not all) of the regional toll managers.
She also, as a sub-consultant, helped Mr. Suarez prepare a presentation he was going to give to the Department Secretary on the Turnpike Enterprise's experience with toll operations "over the years," including its "privatization effort[s]." Her task was to obtain the historical information Mr. Suarez needed for his presentation. On February 22, 2006, Ms. Stemle met with Ms. Burger in Ms. Burger's office to retrieve a "file" that contained such information. The meeting lasted approximately 15 minutes. During the meeting, Ms. Burger told Ms. Stemle that the toll facility staffing services contract "was out for bid again,"19 but provided no other information about the matter. Up until this point in time,
Ms. Stemle had not known anything about this solicitation. She had not been involved in any way in the drafting or issuance of either ITN 006 or ITN 007.
To enable her to more efficiently provide services to the Department as a sub-consultant, Ms. Stemle was given a Department e-mail address and a card that gave her access to the "offices and conference rooms" in the Turnpike Enterprise's Boca Raton facility (but not to the "computer room" in that building where computer hardware storing data relating to the Turnpike
Enterprise's toll operations is located). Other consultants that Ms. Stemle worked with had the same access.
On February 27, 2006, after having spoken with her attorney and finding out from him that Ms. Stemle was a former Director of Toll Operations with the Department, who was, in the attorney's opinion, "nice" and "very well respected,"
Ms. McNider telephoned Ms. Stemle to see if she would be interested in teaming with Faneuil to provide the Department with the services it was seeking through ITN 007. Ms. Stemle told Ms. McNider that "she might be interested but that she worked for a company called Montgomery Consulting, and that [Ms. McNider] would have to talk to her boss," Monty Gettys. During their conversation, Ms. Stemle truthfully assured
Ms. McNider that she had "absolutely nothing to do with the preparation of [ITN 007]."
After Ms. McNider spoke with Ms. Gettys, Faneuil and MCG entered into a "Teaming Agreement," dated March 1, 2006, which read, in pertinent part, as follows:
The Teaming Agreement is entered into by and between Montgomery Consulting Group, Inc. ("MCG") and Faneuil, Inc., each a "Party" and collectively the "Parties."
1. The Proposed Transaction. MCG and Faneuil desire to assess the commercial viability of providing Revenue Collection Services - Toll Operations to the Florida Department of Transportation (FDOT) with the intent of Faneuil submitting a proposal and
  making a presentation (if asked) for FDOT Advertisement Number ITN-DOT-05/06-8007-EH. If Faneuil is successful in obtaining a contract with FDOT for this project, it is the intention that MCG would provide professional consulting services as a subcontractor to Faneuil in support of this project.
2. The Draft Term Sheet. To assist in discussions on the proposed transaction if the team is successful, some of proposed principal terms and conditions that may be contained in future, definitive, written agreements are set forth on the Draft Term Sheet attached hereto as Exhibit "A." The Teaming Agreement and Term Sheet are intended to be and shall be construed only as the proposed framework for discussions between MCG and Faneuil and their respective representatives.
3. Non-Exclusive Arrangement. The Parties agree that teaming together for this project is not an exclusive arrangement. Faneuil and MCG may join in commercial pursuits and/or team with other firms pursuing this project. . . .
  
  * * *
  
  Exhibit "A" to the "Teaming Agreement" provided, in pertinent part, as follows:
  Pursuit Defined
  - FANEUIL intends to respond and pursue the above referenced project [ITN-DOT-05/06- 8007-EH].
  - MCG intends to assist FANEUIL in preparation of such response.
  - FANEUIL shall be the prime contractor and MCG shall be a subcontractor for any
    agreement that may arise from a successful effort in obtaining a contract with FDOT.
    
    * * *
    
    Services
  - FANEUIL desires to be the prime contractor for the project and would have the direct contractual relationship with FDOT.
  - MCG desires to be a subcontractor to FANEUIL to provide professional toll operations planning services throughout the contract period and provide a senior tolls consultant (i.e., Debbie Stemle) to act as subject matter expert on the Toll Collection Services contract, including, but not limited to:
  1. Initial Project Start-up/Initiation: Contract award to complete transition in each region providing overall operational support during transition and implementation including, but not limited to, integration with Turnpike Enterprise organization and business practices, staffing models, training program content, training delivery methodologies, contract requirement fulfillment strategies, resource utilization analyses and techniques to maximize efficiencies. Expected commitment level of MCG: Approximately 20-24 hours per week (on average) for senior tolls operation consultant.
  2. Screening Staff: MCG senior management (i.e. Debbie Stemle or other senior staff) would assist Team with screening of contract management employees. Expected commitment level of MCG: Be part of team throughout contract period for MCG Senior Management Staff.
  3. Ongoing responsibility as needed for review of routine business information
    reports and continuous improvement to operating processes and programs. Expected commitment level of MCG: Approximately 4-8 hours per week (on average) for senior tolls operation consultant.
  4. Special needs such as implementation of changes in contract scope, dispute resolution, quality assurance, and other identified needs. Expected commitment level of MCG: Be part of team throughout contract period for MCG Senior Management staff.
  * * *
Ms. Stemle met with Ms. McNider in Orlando on Friday, March 3, 2006, and Saturday, March 4, 2006, to go over Faneuil's reply to ITN 007, which was due on March 7, 2006. After reviewing the document, Ms. Stemle recommended that certain changes be made including adding two satellite offices (one in the Panhandle and one in Naples); "hav[ing] the head office [in Orlando physically] separate from the regional office [there]"; "ton[ing] down" the role of the other subcontractor, Imperial Parking US), Inc. (Impark); eliminating unnecessary layers of management; and deleting details regarding "cash controls and auditing functions."
Faneuil's reply was revised accordingly and subsequently submitted in a timely manner to the Department. Contents of Faneuil's Reply
Faneuil's reply was responsive to ITN 007 in all material respects.
As required by ITN 007, Faneuil's reply included a Technical Proposal, Price Proposal, and filled-out Forms 1 through 4 (including, as part of Form 1, a Dun and Bradstreet/Open Ratings report20 reflecting an "overall performance rating" of 87, with no "Negative Feedback"21). It also included a completed "Corporate Resolution" (Form 5).
As required by ITN 007, Faneuil's Technical Proposal included an Executive Summary; an Administration and Management Plan (supplemented by resumes of management personnel who would be assigned to the project22); a Staffing Plan; provisions relating to Recruitment, Hiring and Employment Matters; Employee Pay, Benefits, Recognition and Retention Programs23; and an Implementation Schedule and Plan.
As part of its Staffing Plan, Faneuil provided the following discussion (along with explanatory charts and diagrams) regarding its "change management philosophy":
Faneuil's change management philosophy includes two concurrent components: change monitoring and change execution. Faneuil uses a virtual command center method to view and respond to the effect of staff changes to schedules in real-time. The command center team comprised of six Scheduler/Dispatcher positions covering the 24/7 hours of operation executes schedule changes in order to minimize the impact on staffing coverage.[24]
On-duty command center staff as well as Department managers or Toll Supervisors will be able to monitor staffing levels across
all facilities via our workforce management system. Faneuil's use of integrated time collection software provides real-time staffing attendance information specific to each toll facility and region. Faneuil tracks employee attendance using the time collection system and provides trending reports so that long-term and near-term actions can be implemented to respond to absenteeism and attendance issues.

The integrated attendance data enable Dispatchers to react in real-time when employee[]s sign on late- the display uses color-coded schedule verification to view staff status based on actual sign in time. Schedules are highlighted in different colors based on user-defined parameters and thresholds to help monitor position status changes. Real-time monitoring of shift sign ins/sign outs allows command center personnel the ability to assess staffing shortages at any time.

The change management process includes:
- Monitoring real-time displays of actual shift sign in/sign out to identify staffing shortages due to absences or late shift sign in.
- Maintaining communication with Department Manager and Toll Supervisor on employee activities and schedule assignments.
- Escalating to Department Manager and Toll Supervisors when changes in personnel shift assignment occur within a 2-hour period.
- Maintaining communication with Toll Supervisors.
- Coordinating with Toll Supervisors to ensure proper staffing levels for each toll facility.
- Processing employee transactions such as vacation requests, status change requests, leave of absences, etc.
- Using workforce management software to adjust schedules, assign shifts, and determine on-call availability for replacement shifts or emergency call-in situations.
The command center will be able to view employees work availability so on-call employees can fill workforce shortages. Faneuil surveys employees to determine their work preferences, location, on-call availability, and on-call notice method.
This process allows the command center to quickly determine who is available to cover an open shift or a replacement shift.

* * *

Upon arranging alternate shift coverage, the Scheduler/Dispatcher will notify management of the change in personnel assignments immediately as well as update schedules with the new shift assignment. Staffing requirements will be monitored in real-time to continually assess Faneuil's ability to provide staffing for each toll facility.
Faneuil management teams will have access to past, present, future, and real-time schedules to ensure schedule adherence.

The command center will serve as a resource for on-duty Department managers and Toll Supervisors to help ensure staffing meets coverage needs. In the event an emergency arises that requires additional staff coverage to report to work on a temporary basis, the Department can rely on the command center to initiate Faneuil's on-call emergency process and alert employees of the situation.

These Workforce Management change processes and others will be reviewed and finalized
with Department staff prior to incorporating the processes as Standard Operating Procedures.
Faneuil's Staffing Plan, in addition, discussed its "time collection and tracking software," which would allow "Faneuil to track training activity and mark it as billable or non-billable."25
The following discussion regarding "overtime" was also included in Faneuil's Staffing Plan:
Faneuil's workforce management system integrated with time collection software provides the ability to minimize and control overtime. The integrated systems ensure that overtime does not occur through automated overtime reporting. The automated tracking process identifies real-time overtime on a daily basis. Additionally, Faneuil sets parameters for hours worked to prohibit unauthorized overtime. Faneuil can anticipate overtime situations on a daily/weekly basis to prevent overtime at the scheduling level. However, in the event that overtime occurs, Faneuil will pay employees in accordance with the FLSA- mandated employment overtime laws.[26]
Faneuil's Employee Pay Program, as delineated in its Technical Proposal, set minimum hourly rates for new, inexperienced employees that met or exceeded the minimum rates prescribed by ITN 007. Its program featured a "step and grade pay system" with two different grades (regular and senior) for each of the four contract positions, and three levels or steps
for each grade. Faneuil described the system as follows in its Technical Proposal:
. . . . Faneuil has structured a Step and Grade system that creates a process for supervisors and managers and illustrates to the employees opportunities for advancement.

* * *

All current employees will be designated into one of the grade and level sections as most appropriate for their current pay rate but in no case will they receive a lower rate of pay. New hires will start at Grade
1 Level 1 for their position and will move through the levels on average every two years. Note that these levels will increase over time as for example the Grade 1 Level 1 Toll Collector will increase by 3% annually as required in the ITN.[27] The Step and Grade system also brings peer recognition rewards as more experienced employees receive the designation of Senior.

Eventually an employee will progress to the top of their range of pay. In this case, lump sum re-earnable bonuses can be given annually dependent on performance. The amount of this bonus would typically be the annualized value of a one-step increment in the range. The bonuses are subject to regular deductions.
Among the recruitment strategies discussed in Faneuil's Technical Proposal was "Creative Network Recruiting," which it described as follows:
Creative Network Recruiting

Ongoing posting will be faxed or emailed to our community partners and posted in their locations. Our contact person will be knowledgeable about our open positions and
explain to their members what we are looking for and refer candidates to our Human Resource professionals.

Our community partners will mirror our community and assist with our diversity recruitment efforts. Community Partners include but are not limited to: Workforce Development Agencies, Agencies for Senior Citizens, Hispanic Human Resource Council, Haitian Center for Human Services, Chamber of Commerce, and Community Colleges.[28]
The section of its Technical Proposal devoted to Recruitment, Hiring and Employment Matters also contained the following discussion regarding "Training" and "Inventory Management":
Training

It is Faneuil's and Impark's practice to provide thorough and on-going training in order to ensure a highly competent and motivated work force. The first step to achieve this goal is to solicit and incorporate the Department's training objectives into our training system. The specially designed training is implemented utilizing the following systematic approach:

Orientation

Aware of the potential anxiety associated with employees changing employment, [the] new employee orientation program meets two objectives: a) welcome employees to the Company and b) train[] employees to practice and procedures. Human Resources welcomes new employees with a small gift and a comprehensive overview of the company, its history, scope of services and presence across North America. Human Resources discuss and instruct new employee on all company policies and procedures, inform the
new employee of job performance expectation, and criteria for performance appraisals, with a strong emphasis on the need for exceptional customer service and how the employee's job contributes to the overall performance of the organization.[29] Included in the orientation are the essential materials the employee needs to be successful from the start: his schedule, uniform and contact directory.

On the Job Training

Faneuil will utilize the expertise of our subcontractor Impark by working with [it] to assist the Department in improving the OJT program as needed. Impark has extensive experience developing on the job training programs for employees in the parking industry that will provide valuable in[sight] to the Department for future training needs.

* * * Inventory Management
During the transition Faneuil will request, from the current contractor, inventory data by employee as well as inventory on hand.
This data will be entered in Faneuil's web- based Inventory Management System to track security cards,[30] uniforms and transponders. New employees will be provided with the Department's standard issue as appropriate. Faneuil's Inventory Management System will track all issuances, returns, certified for destruction, losses and purchases as well as inventory in stock.[31] The Inventory Management System will be remotely accessible by the Department's inventory auditors and reports can be created by them. Quarterly audits will be streamlined with the introduction of the system.
Faneuil's Employee Benefits Program, as delineated in its Technical Proposal, included medical32 and dental benefits; "paid time off"; company holidays (which were the same as those listed in Subsection 10.3.4 of the Scope of Services); "double time" for holiday work; tuition reimbursement; life insurance; short-term disability insurance; paid bereavement leave; paid leave for jury duty; unpaid military leave; unpaid personal leave; unpaid leave to vote; unpaid leave to testify pursuant to a subpoena; day care benefits; Employee Assistance Program availability; and access to "[t]wo benefit coordinators . . . rotat[ing] between [Faneuil's] six regional offices and two satellite offices" who "w[ould] be available to enroll employees in benefit programs [and] answer employee questions."
At the end of its discussion in its Technical Proposal of its Employee Benefits Program, Faneuil provided an Employee Benefits Summary.
The medical benefits Faneuil proposed to offer were summarized in the Employee Benefits Summary as follows:
Who is Eligible-

Full time employees after 90 [] day[s] of employment.*[33]
Description-
- Coinsurance: 90% in-network
  70% Out-of-Network
- Preventative Care: 100% no deductible
- Health Reimbursement Acct: $500-1000- acct created by Faneuil for participating employees that pays first dollar coverage for medical expenses before any deductible. A percentage of unspent dollars at year end can be rolled over to the following years['] HRA Acct.[34]
- Deductible: $1000 after HRA Acct Who Pays-
Faneuil pays 70% employee and 50% family rate.
The dental benefits Faneuil proposed to offer were summarized in the Employees Benefits Summary as follows:
Who is Eligible-

Full time employees after 90 [] day[s] of employment.*[35]
Description-
- In Network Deductible- None
- Out of Network Deductible- $50/$150
- Plan Year Max- $1000
- Cleaning Copayment- $10
- Set Copayment Schedule for In Network
- Out [of] Network Copay- 100%/80%/50% Who Pays-
Faneuil pays 70% employee and 50% Family rate.[36]
The "paid time off" (PTO) benefits Faneuil proposed to offer were summarized in the Employee Benefits Summary as follows:
Who is Eligible-

Full time and eligible part-time employees after 90 [] days of employment.*[37]

Description-
- PTO is an all-purpose time-off policy for eligible employees to use for vacation, personal business, and an employee's own illness or an illness of a family member.
  It combines traditional vacation and sick leave plans as well as most traditionally company-sponsored holidays into one flexible paid time-off policy.
- PTO accrues based on length of employment accordingly:
  -0-5 years- 21 days or 168 hours
  -5 to 10 years- 26 days or 200 hours
  -10 to 20 years- 31 days or 248 hours
  -20+ years- 36 days or 288 hours
- Employees accrue PTO each pay cycle
- Employees are strongly encouraged to use PTO within the year it is earned as Faneuil recognizes the need for employees to take time away from work to refresh themselves periodically. Employees can, however, carryover up to 25% of their earned and unused time to a separate "reserve bank" up to a maximum of 100 hours at any one time. Faneuil's PTO policy offers a unique feature in that it allows employees to "sell back" up to 30% of their accrued and unused time at the end on an employee's vacation year at a rate of 50% of the employee's average base pay. Employees would forfeit any accrued and unused time remaining.
- Employees must schedule PTO in accordance with the Company Attendance Policy.
Who Pays-

The Faneuil Group
The tuition reimbursement benefits Faneuil proposed to offer were summarized in the Employee Benefits Summary as follows:
Who is Eligible-

Full time employees with 90 days of employment. Employee must start and complete course while retaining active full- time status.

Description-

- Reimbursement of percentage of allowable tuition costs for eligible, successfully completed courses as follows and not exceeding $2,500 per calendar year, per employee.
-Individual courses that are part of an accredited degree program must be related to the employee's current job duties or a foreseeable future position with the organization in order to qualify for tuition assistance. The percentage of tuition reimbursement (50% or 100%) will be determined based on the relevance of the course to the employee's job.
-Expenses will be reimbursed 100% up to
$2,500 per year, per employee if the course is directly related to the employee's job.
-Expenses will be reimbursed 50% up to
$2,500 per year, per employee if the course is not directly related to the employee's job, but is related to a future job at Faneuil.

Who Pays-

The Faneuil Group
Faneuil also described in its Technical Proposal a variety of Recognition and Retention Programs that it proposed to use as part of its effort to communicate effectively with contract employees.
Although Faneuil omitted certain information from the various attachments that comprised the Qualifications
Questionnaire (Form 1) it submitted as part of its reply, the information it did provide on these attachments, particularly when considered together with the other information contained elsewhere in its reply, was sufficient to show that it had the necessary qualifications and experience to provide the staffing services sought by the Department through ITN 007.
A completed Attachment 1A (Organization - Prime) was submitted. On it, Faneuil indicated, among other things, that it had 12 years of experience as a prime contractor "in staffing the needs of its clients with [its] employees . . . as would be required by this project."
Two completed Attachments 1B (Organization - Subcontractor), one for Impark and one for MCG, were submitted.
A completed Attachment 1C (List of Completed Projects) was submitted. On it, Faneuil provided the requested information concerning two of its "completed projects": the "TennCare" project for the State of Tennessee; and the "Megacenter Operations" project for Verizon.38
On the Attachment 1D (List of Current Projects Under Contract) that Faneuil submitted, nine "current projects" were listed: "SunPass Contact Center and Support Services" project for the Department; "SunPass Secondary Call Center" project for the Department; "Medicaid Appeals" project for the State of Tennessee; "Customer Sales and Service" project for Network
Solutions; "Bell Canada Holding 1B Sales" project for Bell Canada; "DSL, Long Distance and Future Sales" project for Sprint; "Private Education-Inbound" project for Collegiate Funding Services; "Private Education-Inbound" project for First Marblehead; and "ATX Tire Recall" project for Bridgestone/Firestone.
Faneuil did not provide on Attachment 1D the "Location of Work" for the Sprint "DSL, Long Distance and Future Sales" project.
Faneuil did not provide on Attachment 1D the requested "Prime or Subcontractor" information for the Sprint "DSL, Long Distance and Future Sales" project, the Collegiate Funding Services "Private Education-Inbound" project, the First Marblehead "Private Education-Inbound" project, or the Bridgestone/Firestone "ATX Tire Recall" project.
Faneuil did not provide on Attachment 1D the "Number of Staff Provided" for the Network Solutions "Customer Sales and Service" project or the Sprint "DSL, Long Distance and Future Sales" project.
Faneuil did not provide on Attachment 1D the "Contract Start Date" for the Network Solutions "Customer Sales and Service" project or the Sprint "DSL, Long Distance and Future Sales" project.
Faneuil did not provide on Attachment 1D the "Scheduled Completion Date" for the Network Solutions "Customer Sales and Service" project, the Sprint "DSL, Long Distance and Future Sales" project, or the Bridgestone/Firestone "ATX Tire Recall" project.
For none of the projects, except the Bridgestone/Firestone "ATX Tire Recall" project, did Faneuil provide on Attachment 1D the "Actual Completion Date."39
For none of the projects, except the State of Tennessee "Medicaid Appeals" project, did Faneuil provide on Attachment 1D the "Value of Work Performed."40
Except as noted above, Faneuil provided on Attachment 1D all of the information requested for the projects listed.
A completed Attachment 1E (Required Background Information) was submitted.
A completed Attachment 1F (Staffing - Program Director) was submitted. Ed Borchardt, Faneuil's Vice President for Service Delivery Support, was identified on the attachment as Faneuil's "planned Program Director,"41 who would devoting 100 percent of his time to the project.42
On the Attachment 1G (Staffing - Other Key Personnel) that Faneuil submitted, Faneuil identified the following individuals, in addition to Mr. Borchardt, as its "planned key personnel" "(as determined by [the vendor])": Tarsha Lehrr (of
Faneuil), Francine Andrieshyn (of Faneuil), Cynthia Selley (of Faneuil), Gregg Hickman (of Faneuil), Mike McKeon (of Impark), Colleen Niese (of Impark), and Bruce Cousin(of Impark).43 On the attachment, Faneuil provided all of the information requested about these individuals except: it did not indicate the number of years Ms. Selley had been employed by Faneuil, nor whether she was also "currently employed by Proposer's subcontractor"; no details were given regarding "similar" projects Ms. Niese and Mr. Cousin had been assigned other than the name of their employer at the time (Impark); and the "similar" project assignments listed for Ms. Lehrr, Ms. Andrieshyn, Ms. Selley, Mr. Hickman, and Mr. McKeon did not reveal a "start . . . date[] of project assignment."
As required by Attachment 1H (Proposer's Surety History), Faneuil appended to the attachment "a copy of a letter from a surety company [Acstar Insurance Company] that state[d] that [the] surety plan[ned] to bond [Faneuil] for this project."
The Attachments 1I (Subcontractor Approval List) that Faneuil submitted indicated that that MCG and Impark would each be working as a subcontractor for Faneuil on the project for "less than 1%" of the "prime contract value." Appended to this attachment was Ms. Stemle's resume.44
On the completed Form 3 that it submitted, Faneuil indicated that it was not a Department-certified Minority
Business Enterprise (MBE) or Disadvantaged Business Enterprise (DBE); that the "[e]xpected percentage of contract fees to be subcontracted to MBE/DBE's [was] .5%"; that MCG would be the "MBE/DBE" performing this subcontracting work; and that the "[t]ype of [w]ork" MCG would be performing was "management consulting."
Other Replies Submitted
The Department received five other timely submitted replies to ITN 007, in addition to Faneuil's.
These replies were submitted by Barton, Serco, Ampco System Parking, EG&G Technical Services, and Central Parking System.
One reply was submitted after the deadline and was rejected without further consideration because it was untimely. Evaluation, Scoring and Ranking of Replies
An evaluation committee was formed to evaluate and score the Qualifications Questionnaires and Technical Proposals that had been submitted by Faneuil, Barton, Serco, Ampco System Parking, EG&G Technical Services, and Central Parking System as part of their replies to ITN 007.
The RCS Deputy Director (Ms. Burger) and the six regional toll managers then under her supervision (Ms. Brantley, Ms. Cook, Mr. Spitzer, Mr. Abbadini, Ms. Greenawalt, and
Mr. Sneed) were selected to serve on the evaluation committee.45
They were logical choices given their job responsibilities and experience with RCS.
Regional toll managers46 had been on the evaluation committees for past procurements for RCS staffing services, and, more importantly, they had served as contract managers under the contracts (with Barton) resulting from those procurements, including the most recent contracts. Moreover, they would be deputy contract managers under the contract awarded pursuant to ITN 007, assisting the RCS Deputy Director (who would be the contract manager).
In short, Ms. Burger, Ms. Brantley, Ms. Cook,

Mr. Spitzer, Mr. Abbadini, Ms. Greenawalt, and Mr. Sneed were all capable of competently discharging their duties as members of the evaluation committee. Furthermore, there was no apparent impediment to them performing these duties in a fair and impartial manner.
Members of the evaluation committee were given copies of ITN 007, as well as the replies that had been submitted (which, prior thereto, had not been reviewed for responsiveness by Mr. Lawson or anyone else in the Turnpike Enterprise's "contracts office").
Evaluation committee members were also provided with, for each reply, score sheets that Ms. Burger had prepared, with Ms. Brantley's assistance. These score sheets (which were not
among the documents that comprised ITN 007) had spaces for the evaluators to write in their scores for each of the scoring categories (except "price proposal") specified in Special Condition 15 of ITN 00747 and for them to make written "comments" regarding their scoring.
The score sheets also contained information and instructions designed to help the evaluators perform their evaluative functions. "Submittal Requirements" imposed by ITN 007 were listed by scoring category and evaluators were "refer[red]" to pertinent sections of the Scope of Services: Section 9.0, for the "Technical Proposal: Staffing Plan" scoring category; Section 8.0, for the "Technical Proposal: Recruitment, Hiring and Employment Matters" scoring category; Section 23.0, for the "Technical Proposal: Implementation Schedule and Plan" scoring category; and Section 10.0, for the "Technical Proposal: Employee Pay, Benefits, Recognition and Retention" scoring category. For each scoring category, the maximum number of points, as established by Special Condition 15 of ITN 007, was indicated, as were three different ranges of point awards: one for "Exceeds Requirements"; another for "Meets Requirements"; and a third for "Fails to Meet Requirements."
The scoring sheets erroneously indicated that a completed "Corporate Resolution" (Form 5) was a "Submittal
Requirement." Pursuant to Special Condition 25 of ITN 007, such a submission was actually "optional." Also, the scoring sheets should have referred the evaluators to Section 22.0 of the Scope Services for the "Technical Proposal: Implementation Schedule and Plan" scoring category.48
The evaluation committee members met as a group before beginning their evaluations. At the meeting, Ms. Burger went over the scoring sheets with the other committee members and answered their questions about the evaluation process. Among other things, she advised them to address to Mr. Lawson any questions they might have, when reviewing a particular reply, concerning the reply's responsiveness.
The Department has a Procurement of Commodities and Contractual Services policy (Topic No. 375-040-020-j, effective July 21, 2005), Section 4.13.8 of which states the following regarding the ITN review process, including responsiveness determinations:
ITNs: The procurement unit and/or Project Manager[49] shall review all information submitted to the Department to ensure that the vendors were responsive to the ITN and are responsible and qualified.
Evaluations/reviews/negotiations should be conducted by at least three (3) persons for contracts of the threshold amount provided in Section 287.017, F.S., for Category Four or less. For contracts in excess of Category Four, the agency head or designee shall appoint at least three (3) persons to evaluate replies and at least three (3)
persons to conduct negotiations (can be the same) who collectively have experience and knowledge in negotiating contracts, contract procurement, and the program areas and service requirements for which commodities or contractual services are sought. The authority to appoint these persons is delegated to Senior Management Level Directors and above, who may delegate such authority to other office heads in writing. All meetings of these persons to discuss or evaluate replies will be conducted as public meetings. The procurement unit is responsible for tabulating the scores and completing the Negotiation Tabulation, 375- 040-2C.
Following the committee's pre-evaluation meeting, committee members went their separate ways and began their evaluations of the Qualifications Questionnaires and Technical Proposals submitted in response to ITN 007. They were given no formal training on how to analyze and compare employee benefit plans before commencing their evaluations.
During the time that the evaluation committee members were conducting their evaluations, Mr. Lawson received questions from three committee members concerning the responsiveness of certain replies.
In each instance, Mr. Lawson determined that the reply in question was "not nonresponsive," and he communicated his determination to the inquiring evaluator (but not to any of the other evaluators on the committee).50 Mr. Lawson did not tell any evaluator "how to score something."
Ms. Brantley was one of the three evaluators who addressed a responsiveness question to Mr. Lawson. Her question was whether Barton's failure to include a completed "Corporate Resolution" (Form 5) rendered its reply nonresponsive, to which Mr. Lawson responded in the negative. Mr. Sneed made a similar inquiry and received a like response.
Each member of the evaluation committee, independently and without collaboration or collusion with any other member of the committee, reviewed and evaluated the Qualifications Questionnaires and Technical Proposals and entered their scores on the score sheets they had been provided for that purpose. No member of the evaluation committee attempted to influence the evaluation of any other committee member in favor or against any vendor. Furthermore, there is no persuasive record evidence that anyone else, including
Ms. Stemle, acted through channels not authorized by ITN 007 in an effort to affect the scoring of any evaluation committee member.
ITN 007 granted the evaluators extremely broad discretion in determining how to score the Qualifications Questionnaires and Technical Proposals. Special Condition 15.1, which described the "Evaluation Process," merely identified the various scoring categories and the maximum number of points that could be awarded for each category. How the evaluators were to
determine the number of points to award a vendor within the maximum allowable for each category was a matter left to the judgment of the each evaluator based on the evaluator's assessment of the relative importance of the different components of that category and how well the vendor addressed each of those components in its Qualifications Questionnaire and Technical Proposal.
The evaluation committee members exercised the considerable discretion they were granted by ITN 007 in a good faith and consistent, "across-the-board" manner. They acted honestly and without any unfair bias, partiality, or favoritism, giving each of the Qualifications Questionnaires and Technical Proposals full and evenhanded consideration and scoring them, not in a manner designed to further their personal interests,51 but rather in accordance with the provisions of ITN 007, as they understood them.
How Ms. Stemle had treated Ms. Burger, Ms. Brantley, Mr. Spitzer, Mr. Abbadini, Ms. Greenawalt, and Mr. Sneed when they were her subordinates played no role in the scores these five evaluators gave Faneuil (or any other vendor).
Some of the evaluators compared services set forth in the Technical Proposals to those being provided under the requirements of the Department's existing contracts with Barton in order to help them gauge the quality and "pointworthiness" of
the proposals.52 Doing so was neither unreasonable, nor prohibited by ITN 007.53
After completing their evaluations, the evaluators turned in their completed score sheets.

The following are the scores that Faneuil, Barton, and Serco received from Ms. Burger:

Faneuil

Qualifications Questionnaire: 5

Technical Proposal:

Administration and Management:	4
Staffing Plan:	18
Recruitment, Hiring and Employment Matters:	8
Implementation Schedule and Plan:	7
Employee Pay, Benefits, Recognition and Retention	23
TOTAL POINTS:	65
Barton
Qualifications Questionnaire:	5
Technical Proposal:
Administration and Management:	2
Staffing Plan:	7
Recruitment, Hiring and Employment Matters:	5
Implementation Schedule and Plan: Employee Pay, Benefits,	6

Recognition and Retention: 15[54] TOTAL POINTS: 40

Serco
Qualifications Questionnaire:	5
Technical Proposal:
Administration and Management:	5
Staffing Plan:	7
Recruitment, Hiring and Employment Matters:	5
Implementation Schedule and Plan: Employee Pay, Benefits,	9
Recognition and Retention:	16
TOTAL POINTS:	47

The following are the scores that Faneuil, Barton, and Serco received from Ms. Brantley:

Faneuil

Qualifications Questionnaire: 6

Technical Proposal:

Administration and Management:	3
Staffing Plan:	19
Recruitment, Hiring and Employment Matters:	9
Implementation Schedule and Plan:	9
Employee Pay, Benefits, Recognition and Retention:	30
TOTAL POINTS:	76
Barton
Qualifications Questionnaire:	3[55]
Technical Proposal:
Administration and Management:	4
Staffing Plan:	10
Recruitment, Hiring and Employment Matters:	5
Implementation Schedule and Plan:	8

Employee Pay, Benefits,

Recognition and Retention:	20
TOTAL POINTS:	50
Serco
Qualifications Questionnaire:	7
Technical Proposal:
Administration and Management:	5
Staffing Plan:	10
Recruitment, Hiring and Employment Matters:	6
Implementation Schedule and Plan:	9
Employee Pay, Benefits, Recognition and Retention:	20
TOTAL POINTS:	57

The following are the scores that Faneuil, Barton, and Serco received from Ms. Cook (who was the only member of the evaluation committee who had never been a subordinate of

Ms. Stemle's):

Faneuil

Qualifications Questionnaire: 6

Technical Proposal:

Administration and Management: 4

Staffing Plan: 15

Recruitment, Hiring and

Employment Matters: 7

Implementation Schedule and Plan: 7

Employee Pay, Benefits,

Recognition and Retention: 33

TOTAL POINTS: 72[56]

Barton
Qualifications Questionnaire:	5
Technical Proposal:
Administration and Management:	2
Staffing Plan:	11
Recruitment, Hiring and Employment Matters:	6
Implementation Schedule and Plan: Employee Pay, Benefits,	9
Recognition and Retention:	30
TOTAL POINTS:	63
Serco
Qualifications Questionnaire:	7
Technical Proposal:
Administration and Management:	4
Staffing Plan:	13
Recruitment, Hiring and Employment Matters:	7
Implementation Schedule and Plan: Employee Pay, Benefits,	10
Recognition and Retention:	21

TOTAL POINTS: 62

The following are the scores that Faneuil, Barton, and Serco received from Mr. Spitzer:

Faneuil

Qualifications Questionnaire: 5

Technical Proposal:

Administration and Management: 4

Staffing Plan: 18

Recruitment, Hiring and

Employment Matters: 8

Implementation Schedule and Plan: 9

Employee Pay, Benefits,

Recognition and Retention:	24
TOTAL POINTS:	68
Barton
Qualifications Questionnaire:	5
Technical Proposal:
Administration and Management:	4
Staffing Plan:	13
Recruitment, Hiring and Employment Matters:	8
Implementation Schedule and Plan:	9
Employee Pay, Benefits, Recognition and Retention:	24
TOTAL POINTS:	63
Serco
Qualifications Questionnaire:	7
Technical Proposal:
Administration and Management:	4
Staffing Plan:	15
Recruitment, Hiring and Employment Matters:	6
Implementation Schedule and Plan:	9
Employee Pay, Benefits, Recognition and Retention:	21
TOTAL POINTS:	62

The following are the scores that Faneuil, Barton, and Serco received from Mr. Abbadini:

Faneuil

Qualifications Questionnaire: 6

Technical Proposal:

Administration and Management:	4
Staffing Plan:	17
Recruitment, Hiring and Employment Matters:	10
Implementation Schedule and Plan: Employee Pay, Benefits,	8
Recognition and Retention:	32
TOTAL POINTS:	77
Barton
Qualifications Questionnaire:	5
Technical Proposal:
Administration and Management:	2
Staffing Plan:	14
Recruitment, Hiring and Employment Matters:	6
Implementation Schedule and Plan:	10
Employee Pay, Benefits, Recognition and Retention:	32
TOTAL POINTS:	69
Serco
Qualifications Questionnaire:	8
Technical Proposal:
Administration and Management:	4
Staffing Plan:	12
Recruitment, Hiring and Employment Matters:	7
Implementation Schedule and Plan:	7
Employee Pay, Benefits, Recognition and Retention:	30

TOTAL POINTS: 68

The following are the scores that Faneuil, Barton, and Serco received from Ms. Greenawalt:

Faneuil
Qualifications Questionnaire:	6
Technical Proposal:
Administration and Management:	3
Staffing Plan:	12
Recruitment, Hiring and Employment Matters:	6
Implementation Schedule and Plan: Employee Pay, Benefits,	6
Recognition and Retention:	11
TOTAL POINTS:	44
Barton
Qualifications Questionnaire:	4
Technical Proposal:
Administration and Management:	3
Staffing Plan:	9
Recruitment, Hiring and Employment Matters:	6

Implementation Schedule and Plan: 6 Employee Pay, Benefits,

Recognition and Retention: 22

TOTAL POINTS: 50

Serco

Qualifications Questionnaire: 6

Technical Proposal:

Administration and Management: 4

Staffing Plan: 9

Recruitment, Hiring and

Employment Matters: 6

Implementation Schedule and Plan: 7

Employee Pay, Benefits,

Recognition and Retention: 20

TOTAL POINTS: 52

The following are the scores that Faneuil, Barton, and Serco received from Mr. Sneed:

Faneuil

Qualifications Questionnaire: 5

Technical Proposal:

Administration and Management:	3
Staffing Plan:	11
Recruitment, Hiring and Employment Matters:	6
Implementation Schedule and Plan:	6
Employee Pay, Benefits, Recognition and Retention:	17
TOTAL POINTS:	48
Barton
Qualifications Questionnaire:	6
Technical Proposal:
Administration and Management:	3
Staffing Plan:	12
Recruitment, Hiring and Employment Matters:	6

Implementation Schedule and Plan: 6

Employee Pay, Benefits,

Recognition and Retention: 19[57]

TOTAL POINTS:	52[58]
Serco
Qualifications Questionnaire:	5
Technical Proposal:
Administration and Management:	3
Staffing Plan:	11
Recruitment, Hiring and Employment Matters:	6
Implementation Schedule and Plan:	6

Employee Pay, Benefits,

Recognition and Retention: 18

TOTAL POINTS: 49

The total number of points each vendor received from the seven evaluators was divided by seven to obtain a "Qualification & Technical/Average Score" for that vendor.
Faneuil's "Qualification & Technical/Average Score" was 64.29.
Barton's "Qualification & Technical/Average Score" was 55.29
Serco's "Qualification & Technical/Average Score" was 56.71.
A "price proposal evaluation" was performed on the price proposals submitted, in accordance with the requirements of Special Condition 15.2 of ITN 007, to obtain a "Price Score" for each vendor.
Faneuil's "Price Score" was 8.98. Adding this "price Score" to its "Qualification & Technical/Average Score" gave it a "Total Score" of 73.27, which was the highest "Total Score" received by any vendor.
Barton's "Price Score" was 9.04. Adding this "price Score" to its "Qualification & Technical/Average Score" gave it a "Total Score" of 64.33, which was the third highest "Total Score" received by any vendor.
Serco's "Price Score" was 9.34. Adding this "Price Score" to its "Qualification & Technical/Average Score" gave it a "Total Score" of 66.05, which was the second highest "Total Score" received by any vendor.59
The awards committee met on March 23, 2006, and publicly announced the scores that the vendors had received and ranked the vendors based on their "Total Scores" as follows:
1: Faneuil; 2: Serco; 3: Barton; 4: EG&G Technical Services; 5: Central Parking System; and 6: Ampco System Parking.
These rankings were set forth on a "Posting Tabulation," which also indicated:
The Department will commence negotiations with the firm ranked number one by the Selection Committee. Should the Department be unable to negotiate a satisfactory contract with the number one ranked firm, negotiations with the firm shall be suspended. The Department may then undertake negotiations with the firm ranked number two by the Selection Committee.
Failing accord with the firm ranked number two, the Department may continue the negotiations process in the order of the ranking until the Department is able to negotiate a satisfactory contract. The Department reserves the option to resume negotiations that were previously suspended with any of the shortlisted vendors;

and further indicated:

Failure to file a protest within the time prescribed in Section 120.52(3), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Failure to file the proper bond
at the time of filing the formal protest will result in a denial of the protest.
The "Posting Tabulation" was posted from March 23, 2006, through March 28, 2006.
Petitioners' Protest
Barton timely protested the decision announced in the "Posting Tabulation."
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and the parties hereto pursuant to Chapter 120, Florida Statutes.
The Department is a "decentralized agency" that is headed by the Secretary of Transportation. § 20.23(1)(a), Fla. Stat.
Its "areas of program responsibility" include "[t]oll operations." § 20.23(3)(b)(7), Fla. Stat. Pursuant to Section 338.231, Florida Statutes, the Department must "at all times fix, adjust, charge, and collect such tolls for the use of the turnpike system[60] as are required in order to provide a fund sufficient with other revenues of the turnpike system to pay the cost of maintaining, improving, repairing, and operating such turnpike system; to pay the principal of and interest on all bonds issued to finance or refinance any portion of the turnpike
system as the same become due and payable; and to create reserves for all such purposes."
The Department is "authorized to contract with local governmental entities and with the private sector" to perform work within the Department's "areas of program responsibility," provided "the [D]epartment first determines that:
1. Consultants can do the work at less cost than state employees;
2. State employees can do the work at less cost, but sufficient positions have not been approved by the Legislature as requested in the department's most recent legislative budget request;
3. The work requires specialized expertise, and it would not be economical for the state to acquire, and then maintain, the expertise after the work is done;
4. The workload is at a peak level, and it would not be economical to acquire, and then keep, extra personnel after the workload decreases; or
5. The use of such entities is clearly in the public's best interest.
§ 20.23(6), Fla. Stat.
The "operations of the [D]epartment" are "organized into seven districts, each headed by a district secretary and a [T]urnpike [E]nterprise, headed by an executive director."
§ 20.23(4)(a), Fla. Stat.
Section 20.23(4)(e), Florida Statutes, addresses the operations of the "[T]urnpike [E]nterprise." It provides as

follows:

The responsibility for the turnpike system shall be delegated by the secretary to the executive director of the [T]urnpike [E]nterprise, who shall serve at the pleasure of the secretary. The executive director shall report directly to the secretary, and the [T]urnpike [E]nterprise shall operate pursuant to ss. 338.22- 338.241.
To facilitate the most efficient and effective management of the [T]urnpike [E]nterprise, including the use of best business practices employed by the private sector, the [T]urnpike [E]nterprise, except as provided in s. 287.055, shall be exempt from departmental policies, procedures, and standards, subject to the secretary having the authority to apply any such policies, procedures, and standards to the [T]urnpike [E]nterprise from time to time as deemed appropriate.
1. The Turnpike Enterprise's "powers and authority" are delineated in Section 338.2216, Florida Statutes, which provides, in pertinent part, as follows:
  (1)(a) In addition to the powers granted to the [D]epartment, the Florida Turnpike Enterprise has full authority to exercise all powers granted to it under this chapter. Powers shall include, but are not limited to, the ability to . . . operate the Florida Turnpike System.
  1. It is the express intention of the Florida Turnpike Law that the Florida Turnpike Enterprise be authorized to . . . operate[] and manage the Florida Turnpike
    System; . . . . and to cooperate, coordinate, partner, and contract with other entities, public and private, to accomplish these purposes.
  2. The executive director of the [T]urnpike [E]nterprise shall appoint a staff, which shall be exempt from part II of chapter 110. . . . The [T]urnpike [E]nterprise staff shall also include the Office of Toll Operations.
  (2) The [D]epartment shall have the authority to employ procurement methods available to the Department of Management Services under chapters 255 and 287 and under any rule adopted under such chapters solely for the benefit of the [T]urnpike [E]nterprise'
  
  * * *
2. The "procurement methods available to the Department of Management Services under chapter[] . . . 287," Florida Statutes, include those described in Section 287.057, Florida Statutes, which provides, in pertinent part, as follows:
  (1)(a) Unless otherwise authorized by law, all contracts for the purchase of commodities or contractual services in excess of the threshold amount provided in
  s. 287.017 for CATEGORY TWO[61] shall be awarded by competitive sealed bidding. . . .
  
  * * *
  
  (2)(a) If an agency determines in writing that the use of an invitation to bid is not practicable, commodities or contractual services shall be procured by competitive sealed proposals. . . .
  
  * * *
  (3)(a) If the agency determines in writing that the use of an invitation to bid or a request for proposals will not result in the best value[62] to the state, the agency may procure commodities and contractual services by competitive sealed replies. The agency's written determination must specify reasons that explain why negotiation may be necessary in order for the state to achieve the best value and must be approved in writing by the agency head or his or her designee prior to the advertisement of an invitation to negotiate.[63] An invitation to negotiate shall be made available to all vendors simultaneously and must include a statement of the commodities or contractual services sought; the time and date for the receipt of replies and of the public opening; and all terms and conditions applicable to the procurement, including the criteria to be used in determining the acceptability of the reply. If the agency contemplates renewal of the contract, that fact must be stated in the invitation to negotiate. The reply shall include the price for each year for which the contract may be renewed.
  
  (b) The agency shall evaluate and rank responsive replies[64] against all evaluation criteria set forth in the invitation to negotiate and shall select, based on the ranking, one or more vendors with which to commence negotiations. After negotiations are conducted, the agency shall award the contract to the responsible[65] and responsive vendor[66] that the agency determines will provide the best value to the state.[67] The contract file must contain a short plain statement that explains the basis for vendor selection and that sets forth the vendor's deliverables and price, pursuant to the contract, with an explanation of how these deliverables and price provide the best value to the state.
  1. Prior to the time for receipt of bids, proposals, or replies, an agency may conduct a conference or written question and answer period for purposes of assuring the vendor's full understanding of the solicitation requirements. The vendors shall be accorded fair and equal treatment.
  2. When the purchase price of commodities or contractual services exceeds the threshold amount provided in s. 287.017 for CATEGORY TWO, no purchase of commodities or contractual services may be made without receiving competitive sealed bids, competitive sealed proposals, or competitive sealed replies . . . .
  * * *
  
  (15) For each contractual services contract, the agency shall designate an employee to function as contract manager who shall be responsible for enforcing performance of the contract terms and conditions and serve as a liaison with the contractor. . . .
  
  * * *
  
  (17) For a contract in excess of the threshold amount provided in s. 287.017 for CATEGORY FOUR,[68] the agency head shall appoint:
  1. At least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought.
  2. At least three persons to conduct negotiations during a competitive sealed reply procurement who collectively have experience and knowledge in negotiating contracts, contract procurement, and the program areas and service requirements for
  which commodities or contractual services are sought.
  
  * * *
3. Section 120.57(3), Florida Statutes, sets forth the "procedures applicable to protests to contract solicitation[s] or award[s]" by "agencies," such as the Department, that are subject to the provisions of Chapter 120, Florida Statutes. See
  Department of Transportation v. Groves-Watkins Constructors, 530 So. 2d 912, 913 (Fla. 1988)("[T]he public bidding process is governed by the Florida Administrative Procedure Act ("APA"), chapter 120, Florida Statutes (1985), which provides a mechanism by which aggrieved parties may challenge agency decisions.").
  It provides as follows:
  
  Agencies subject to this chapter shall use the uniform rules of procedure,[69] which provide procedures for the resolution of protests arising from the contract solicitation or award process. Such rules shall at least provide that:
  1. The agency shall provide notice of a decision or intended decision concerning a solicitation, contract award, or exceptional purchase by electronic posting. This notice shall contain the following statement: "Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes."
  2. Any person who is adversely affected by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the
    posting of the notice of decision or intended decision. With respect to a protest of the terms, conditions, and specifications contained in a solicitation, including any provisions governing the methods for ranking bids, proposals, or replies, awarding contracts, reserving rights of further negotiation, or modifying or amending any contract, the notice of protest shall be filed in writing within 72 hours after the posting of the solicitation. The formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter. The formal written protest shall state with particularity the facts and law upon which the protest is based. Saturdays, Sundays, and state holidays shall be excluded in the computation of the 72-hour time periods provided by this paragraph.
  3. Upon receipt of the formal written protest that has been timely filed, the agency shall stop the solicitation or contract award process until the subject of the protest is resolved by final agency action, unless the agency head sets forth in writing particular facts and circumstances which require the continuance of the solicitation or contract award process without delay in order to avoid an immediate and serious danger to the public health, safety, or welfare.
  4. 1. The agency shall provide an opportunity to resolve the protest by mutual agreement between the parties within 7 days, excluding Saturdays, Sundays, and state holidays, after receipt of a formal written protest.
    1. If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and state
      holidays, after receipt of the formal written protest, and if there is no disputed issue of material fact, an informal proceeding shall be conducted pursuant to subsection (2) and applicable agency rules before a person whose qualifications have been prescribed by rules of the agency.
    2. If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and state holidays, after receipt of the formal written protest, and if there is a disputed issue of material fact, the agency shall refer the protest to the [D]ivision [of Administrative Hearings] for proceedings under subsection (1).
  5. Upon receipt of a formal written protest referred pursuant to this subsection, the director of the division shall expedite the hearing and assign an administrative law judge who shall commence a hearing within 30 days after the receipt of the formal written protest by the division and enter a recommended order within 30 days after the hearing or within
    30 days after receipt of the hearing transcript by the administrative law judge, whichever is later. Each party shall be allowed 10 days in which to submit written exceptions to the recommended order. A final order shall be entered by the agency within 30 days of the entry of a recommended order. The provisions of this paragraph may be waived upon stipulation by all parties.
  6. 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. In any bid- protest proceeding contesting an intended agency action to reject all bids, proposals, or replies, the standard of review by an administrative law judge shall be whether the agency's intended action is illegal, arbitrary, dishonest, or fraudulent.
  7. For purposes of this subsection, the definitions in s. 287.012 apply.
4. "To establish that one is adversely affected [within the meaning of Section 120.57(3), Florida Statutes, and therefore entitled to file a protest pursuant thereto], it must be shown that the proposed action [under challenge] will cause immediate injury in fact; and that the injury is of the type that the pertinent statute was designed to protect." Advocacy Center for Persons With Disabilities, Inc. v. Department of Children and Family Services, 721 So. 2d 753, 755 (Fla. 1st DCA 1998). A protester's lack of standing to file a protest is an affirmative defense that, if not timely raised, is waived.70 See
  Krivanek v. Take Back Tampa Political Committee, 625 So. 2d 840, 842 (Fla. 1993).
5. The "de novo proceeding" that an administrative law judge must conduct pursuant to Section 120.57(3)(f), Florida Statutes, when an "adversely affected" person's protest is referred to DOAH is "a form of intra-agency review. The [j]udge 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" based upon the information that was available to the agency at the time it took such action. State
  Contracting and Engineering Corporation v. Department of Transportation, 709 So. 2d 607, 609 (Fla. 1st DCA 1998); Cf. Fairbanks North Star Borough School District v. Bowers Office Products, Inc., 851 P.2d 56, 60 (Alaska 1992)("The determination of whether the school district had a reasonable basis for its decision should be made based on the information the school district had at the time it awarded the contracts.").
6. At this "de novo proceeding," the burden is on the protester to show, by a preponderance of the evidence, that the agency acted in a manner "contrary to the agency's governing statutes, the agency's rules or policies, or the solicitation specifications." See State Contracting and Engineering
  Corporation, 709 So. 2d at 609; Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d
  412, 415 (Fla. 4th DCA 1974)("'As a general rule the comparative degree of proof by which a case must be established is the same before an administrative tribunal as in a judicial proceeding- that is, a preponderance of the evidence. It is satisfied by proof creating an equipoise, but it does not require proof beyond a reasonable doubt.'"); School Food Service Systems, Inc.
  v. Broward County School Board, No. 01-0612BID, 2001 Fla. Div. Adm. Hear. LEXIS 2647 *41 (Fla. DOAH March 31, 2001)(Recommended Order)("Pursuant to Section 120.57(3)(f), Florida Statutes, the burden of proof rests with the party opposing the proposed agency action. School Food must sustain its burden of proof by a preponderance of the evidence.")(citation omitted); and § 120.57(1)(j), Fla. Stat. ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute. . . ."). "It is not sufficient, however, for the protester to prove merely that the agency violated [its governing statutes, its rules or policies, or the solicitation specifications]. By virtue of the applicable standards of review, the protester must in addition establish that the agency's misstep was: (a) clearly erroneous; (b) contrary to competition; or (c) an abuse of discretion [that is, arbitrary or capricious]." R. N. Expertise, Inc. v. Miami-Dade County School Board, No. 01-2663BID, 2002 Fla. Div. Adm. Hear. LEXIS
  163 *44-45 (Fla. DOAH February 4, 2002)(Recommended Order).
  
  Furthermore, the protester must make a showing that it was prejudiced (or, to use the language in Section 120.57(3), Florida Statutes, "adversely affected") by the "agency's misstep." See Juvenile Services Program, Inc. v. Florida Department of Juvenile Justice, No. 96-5982BID, 1997 Fla. Div. Adm. Hear. LEXIS 5417 *10-11 (Fla. DOAH April 23,
  1997)(Recommended Order)("Although there were several procedural discrepancies in the evaluation process, there was no demonstrated prejudice to Petitioner which would require that all bids be rejected."); cf. Statistica, Inc. v. Christopher,
  102 F.3d 1577, 1581 (Fed. Cir. 1996)("A protester must show not simply a significant error in the procurement process, but also that the error was prejudicial, if it is to prevail in a bid protest."). "[A]gency missteps" that are de minimis and have not disadvantaged the protester do not warrant reversal. See PCA Health Plans of Florida, Inc. v. School Board of Broward County, 1995 Fla. Div. Adm. Hear. LEXIS 4763 *32-33 (Fla. DOAH. December 8, 1995)(Recommended Order)("The few instances of arbitrary scoring that were actually proved were too few in number to have any material impact on the average scores. Accordingly, the Petition and Formal Protest should be dismissed and all relief requested in the Petition should be denied."); cf. Labarge Products, Inc.. v. West, 46 F.3d 1547, 1556 (Fed.
  Cir. 1995)("Even though the disclosures to Victaulic clearly violated the FAR, . . . LaBarge was not harmed by the disclosures in any concrete way contemplated by the FAR and, therefore, is not entitled to relief."); and Andersen Consulting v. United States, 959 F.2d 929, 932 (Fed. Cir.
  1992)("[O]verturning awards on de minimis errors wastes resources and time, and is needlessly disruptive of procurement activities and governmental programs and operations.").
7. Agency action will be found to be "clearly erroneous" if it is without rational support and, consequently, the administrative law judge has a "definite and firm conviction that a mistake has been committed." See U.S. v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)("Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous."); Legal Environmental Assistance Fund. v. Board of County Commissioners of Brevard County, 642 So. 2d 1081, 1084 (Fla. 1994)("When an agency's construction amounts to an unreasonable interpretation, or is clearly erroneous, it cannot stand."); Pershing Industries, Inc. v. Department of Banking and Finance, 591 So. 2d 991, 993 (Fla. 1st DCA 1991)("It is axiomatic that an agency's construction of its governing statutes and rules will be upheld unless clearly erroneous. If an agency's interpretation is one of several
  permissible interpretations, it must be upheld despite the existence of reasonable alternatives.")(citations omitted); and Hinton v. Judicial Retirement and Removal Commission, 854 S.W.2d 756, 758 (Ky. 1993)("The standard of review on appeals from the Judicial Retirement and Removal Commission is that the Supreme Court must accept the findings and conclusions of the commission unless they are clearly erroneous; that is to say, unreasonable.").
8. An act is "contrary to competition" if it unreasonably interferes with the objectives of competitive bidding, which, it has been said, are:
  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 various forms; to secure the best values for the [public] at the lowest possible expense; and to afford an equal advantage to all desiring to do business with the [government], by affording an opportunity for an exact comparison of bids.
  
  Wester v. Belote, 138 So. 721, 723-24 (Fla. 1931); and Harry
  
  Pepper & Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190, 1192 (Fla. 2d DCA 1977).
9. "An action is 'arbitrary if it is not supported by logic or the necessary facts,' and 'capricious if it is adopted without thought or reason or is irrational.'" Hadi v. Liberty
  Behavioral Health Corp., 927 So. 2d 34 (Fla. 1st DCA 2006); see also Board of Clinical Laboratory Personnel v. Florida
  Association of Blood Banks, 721 So. 2d 317, 318 (Fla. 1st DCA 1998)("An 'arbitrary' decision is one not supported by facts or logic. A 'capricious' action is one taken irrationally, without thought or reason."); and Dravo Basic Materials Company, Inc. v.
  Department of Transportation, 602 So. 2d 632, 634 n.3 (Fla. 2d DCA 1992)("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 [not] arbitrary."). It has been said that "[t]he greater the discretion granted to a contracting officer, the more difficult it will be to prove the [action or] decision was arbitrary and capricious." Galen Medical Associates v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004).
10. The instant case involves Barton's protest of the Department's announced intention to commence negotiations with Faneuil, as the first ranked vendor, for the contract advertised in ITN 007.
11. In its Amended Formal Protest, Barton complained that Faneuil was "neither a responsible nor responsive vendor and should be disqualified from this solicitation"; that "bias and favoritism tainted the procurement process"; that "the evaluation committee members lacked the requisite training and
  experience to evaluate and score the vendors' proposals properly"; and that "the evaluation and scoring of the proposals was undertaken in a manner that was contrary to the ITN specifications and in an inconsistent manner." Responsiveness/Responsibility
12. Faneuil substantially complied with ITN 007's submittal requirements, providing sufficient information to establish its status as a "responsive and responsible Vendor" and to warrant the further consideration of its reply by the Department. To the extent that it omitted requested materials or information from its reply (such as the information it failed to include on the attachments to Form 1, as described above), these omissions constituted "minor irregularities" that, in accordance with Special Condition 7 and General Instruction to Respondents 15 of ITN 007, can be, and should be, waived by the Department inasmuch as doing so would serve the best interests of the Department (by enabling it to negotiate with another "responsive and responsible vendor"), but would not give Faneuil an unfair competitive advantage.71 See Hubbard Construction Co. v. Department of Transportation, 642 So. 2d 1192 (Fla. 1st DCA. 1994)("The department rejected the hearing officer's findings that the discrepancy was minor and that the irregularity did not result in a competitive advantage to the appellant, and thus concluded that it had not acted arbitrarily in rejecting the
  appellant's bid. Contrary to the department's position, we conclude that the record contains competent substantial evidence to support the hearing officer's findings and that the department thus erred in rejecting those findings on that basis."); and Intercontinental Properties, Inc. v. Department of Health and Rehabilitative Services, 606 So. 2d 380, 386-87 (Fla. 3d DCA 1992)("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. . . . [T]here is a strong public policy in favor of awarding contracts to the low bidder, and an equally strong public policy against disqualifying the low bidder for technical deficiencies which do not confer an economic advantage on one bidder over another.").
13. While Barton complained in its Amended Formal Protest that Faneuil was "neither a responsible nor responsive vendor and should be disqualified from this solicitation," in its Proposed Recommended Order it changes course, arguing that, "[w]hether or not omissions rendered FANEUIL['s] and SERCO’s proposals or any other proposal non-responsive is unknown since no proper responsiveness review was completed by the DEPARTMENT and therefore this procurement should be withdrawn and re-bid."72 Barton contends that it was Mr. Lawson's responsibility to
  conduct such a review and he failed to so, contrary to the Department's "intra-agency procurement policies and procedures dealing with responsiveness." It is true that Mr. Lawson did not review the replies in their entireties (although Ms. Burger, the "Project Manager" for this procurement within the meaning of Section 4.13.8 of the Department's Procurement of Commodities and Contractual Services policy, did, and she had no questions concerning the responsiveness of any reply); however, even assuming that Mr. Lawson's failure to conduct a complete responsiveness/responsibility review of all replies was contrary to the Department's policy on the matter, there has been no showing that this dereliction in any way harmed or prejudiced Barton (by allowing a vendor who was not "responsive and responsible" to be ranked ahead of it) and therefore "adversely affected" it. Such being the case, no relief on this ground is warranted.
  Bias and Favoritism
14. Barton's assertion of bias and favoritism centers around one person— Ms. Stemle, the employee of one of Faneuil's subcontractors, MCG, which would be receiving .5% of the "contract fees" were Faneuil to be awarded the contract. According to Barton, "[Ms.] Stemle's continued association with the DEPARTMENT opened every conceivable avenue for favoritism and anti-competitiveness in various forms offend[ing] the very
  purpose of competitive bidding" and her "continued association with the DEPARTMENT also allowed for the possibility of collusion as well as the temptation for collusion and impropriety at the public expense."
15. It is true that, after she left the employ of the Department, Ms. Stemle "continued [her] association with the Department" by doing consulting work for the Department, and that, in performing this work, interacted with Department employees, including having contact, albeit infrequently, with some of the Department employees who served on the ITN 007 evaluation committee. Her consulting work for the Department, however, did not have anything to do with ITN 007. She did not even know about ITN 007 until February 22, 2006, which was after the ITN had been publicly advertised. On this date, Ms. Burger mentioned to Ms. Stemle that the RCS staffing services contract "was out for bid again." This advisement by Ms. Burger was the only communication between Ms. Stemle and any member of the ITN 007 evaluation committee regarding ITN 007 (and it occurred prior to Ms. Stemle's employer, MCG, agreeing to "provide professional consulting services as a subcontractor to Faneuil in support of the project [described in ITN 007]." There simply is no proof of any "collusion" or "impropriety" involving
  Ms. Stemle and any Department employee concerning ITN 007. While it may be true, as Barton argues, that Ms. Stemle "has a
  strong and continued presence at the [Turnpike] Enterprise Headquarters and that her opinions are valued and highly regarded," the record evidence does not establish that she expressed any "opinions" or said anything to any Department employee about ITN 007 that would have compromised the integrity of the procurement process. It may have been a competitive advantage for Faneuil to have had Ms. Stemle as part of its team because of her background and the "high[] regard[]" in which she was held "at the [Turnpike] Enterprise Headquarters," but it was not an unfair competitive advantage. See WinStar Communications
  v. United States, 41 Fed. Cl. 748, 763 (Fed. Cl. 1998)("[A]n agency is not required to neutralize the competitive advantages some potential offerors enjoy simply because of their own particular circumstances rather than any government action.").
16. Barton suggests that it was "anti-competiti[ve]" for Ms. Stemle to perform consulting work for the Department "that required her to work shoulder to shoulder with [Turnpike] Enterprise employees, including senior management and personnel she previously supervised" and then "put[] on a different hat and [be] hired by FANEUIL to consult on a current ITN proposal geared to get business from the very people ([Turnpike] Enterprise employees) [she] consults with." Barton, however, does not cite any statute, rule, policy, or specification in ITN 007 prohibiting such conduct; nor does there appear to be any
  compelling public policy justification for imposing such a prohibition. The Department's barring a current provider of contractual services to the Turnpike Enterprise (be it a prime contractor/consultant or subcontractor/subconsultant) from competing (as a member of a team or otherwise) for another, unrelated Turnpike Enterprise contract, simply because of the access the provider has to high-ranking Turnpike Enterprise employees as a result of its current status as a prime contractor/consultant or subcontractor/subconsultant, would tend to lessen competition, not promote it, and therefore make it less likely the procurement process would result in "best value to the state." Cf. Galen Medical Associates, 369 F.3d at 1335 ("'Plaintiff highlights Dr. Downing's incumbent status and her close ties with the VA as evidence of bias. For example, two of Dr. Downing's references participated as evaluators during the solicitation process. Accepting plaintiff's argument, however, would improperly penalize Dr. Downing simply for the experience and familiarity with the agency she acquired as the incumbent contractor. The mere fact that Dr. Downing's references were included on the panel as evaluators does not support a presumption of bias.'"); and Joseph L. DeClerk & Associates, Inc. v. United States, 26 Cl. Ct. 35, 46-47 (Ct. Cl. 1992)("The same level playing field which must be maintained to ensure prospective contractors are treated evenly and fairly must also
  allow an opportunity for an incumbent contractor to compete for a subsequent, follow-on contract. A company should not be disqualified just because an existing contractual relationship exists with the defendant at the time the solicitation is issued."). Moreover, Barton itself (not just one of its subcontractors) provided the Department with services "that required [its representatives] to work shoulder to shoulder with [Turnpike] Enterprise employees," and it had no less access to those Turnpike Enterprise employees involved in the ITN 007 procurement process than did Ms. Stemle.73 Barton therefore is in no position to complain about the access Ms. Stemle had to those employees. Cf. Intercontinental Properties, Inc., 606 So. 2d at 384 ("At the least, 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.").
17. With respect to the conduct of the members of the evaluation committee during the evaluation process, Barton has alleged that "[c]learly the evaluators (1) allowed outside factors to influence their scoring or (2) utilized their positions to secure a special privilege or benefit to a business entity or person," contrary to the provisions of the Code of Ethics for Public Officers and Employees (found in Chapter 112, Part III, Florida Statutes). Such an allegation is a very
  serious one, which brings into question the integrity of, not only the evaluation process, but of those who participated in it as evaluation committee members. A determination that these individuals engaged in such intentional wrongdoing must be based upon "hard facts," not mere "suspicion or innuendo." See CACI, Inc.-Federal v. United States, 719 F.2d 1567, 1581-82 (Fed. Cir. 1983)("We have carefully reviewed the record in this case. We conclude that the Claims Court ruling that the Department's award of the contract to Sterling would be 'arbitrary, capricious, and an abuse of discretion' because of the possibility and appearance of impropriety is not supported by the record and therefore is not a proper basis for enjoining award of the contract. The Claims Court based its inferences of actual or potential wrongdoing by the Department on suspicion and innuendo, not on hard facts. The kind of inquiry and analysis the Claims Court made in this case, which is without factual basis, ascribed evil motives to four members of the Technical Evaluation Committee in their handling of the bids, was clearly erroneous and did not justify an injunction against the government's award of the contract to Sterling."); and Filtration Development Co., LLC v. United States, 60 Fed. Cl.
  371, 380 (Fed. Cl. 2004)("The United States Court of Appeals for the Federal Circuit (Federal Circuit) has made clear that conflict violations must be established through 'hard facts.'").
  An examination of the evidentiary record in the instant case reveals no such "hard facts."
18. No showing has been made that any evaluation committee member had a personal stake or interest in the outcome of the procurement process or for any other reason was unable to fairly and impartially evaluate the Qualifications Questionnaire and Technical Proposal of any vendor;74 nor has it been shown that any evaluator gave any score to any vendor that was not based on the evaluator's fair and honest judgment as to the number of points the vendor deserved in light of the provisions of ITN 007, as the evaluator understood them.
19. Barton contends that "[e]vidence of bias and favoritism is found in the arbitrary scoring of the proposals submitted in response to this ITN." Five of the seven evaluators (Ms. Burger, Ms. Brantley, Ms. Cook, Mr. Spitzer, and Mr. Abbadini) did give Faneuil higher overall scores than they gave to Barton, but the record evidence does not establish that their doing so represented anything other than reasonable exercises of their discretion, within the very wide parameters set by ITN 007, that were not based on any unfair bias in favor of Faneuil or against Barton.75 While these five evaluators, along with their two other colleagues on the evaluation committee, may have had varying opinions, as reflected by their scoring, regarding the relative quality and "pointworthiness" of
  Faneuil's and Barton's submissions, it cannot be said, based on the record evidence, that any of these opinions, including those most disparate from the others, falls outside the realm of reason or logic or was tainted by unfair bias or favoritism.
  See SDS International v. United States, 48 Fed. Cl. 742, 757 (Fed. Cl. 2001)("[T]wo sets of evaluators can reasonably reach different conclusions . . . ."); and Hemophilia Health Services, Inc. v. Agency for Health Care Administration, No. 05-2804BID, 2005 Fla. Div. Adm. Hear. LEXIS 1382 *25-26 (Fla. DOAH
  November 14, 2005)(Recommended Order)("Because each evaluator worked independently, the scores on each proposal differed. It can be expected, and was true in this case, that some evaluators will generally assign lower scores than other evaluators; some evaluators will tend to assign higher scores."). The undersigned therefore may not second-guess any of these discretionary scoring decisions, regardless of what scores he would have given had he been tasked to serve on the evaluation committee. Cf. E.W. Bliss Co. v. United States, 77 F.3d 445,
  449 (Fed. Cir. 1996)("Bliss' twelve other substantive challenges to the procurement primarily are either repetitive of the arguments with regard to the crankshaft, or deal with the minutiae of the procurement process in such matters as technical ratings and the timing of various steps in the procurement, which involve discretionary determinations of procurement
  officials that a court will not second guess."); Herbert F. Darling, Inc. v. Beck, 442 F. Supp. 978, 981 (W.D. N.Y.
  1977)("The question before the court on the defendants' motion for summary judgment is whether the Regional Administrator's decision disapproving the proposed award to Darling had a rational basis. This standard of review is designed to ensure that judicial deference is given to the well-reasoned decisions of E.P.A. officials in interpreting the agency's own procurement and contracting regulations. A court may not set aside agency action solely because it would have interpreted the bidding procedures or the regulations differently had it made the initial determination.")(citations omitted); Rig Masters, Inc. v. United States, 70 Fed. Cl. 413, 420 (Fed. Cl. 2006)("'Indeed, a protestor's burden is particularly great in negotiated procurements because the contracting officer is entrusted with a relatively high degree of discretion, and greater still where, as here, the procurement is a best-value procurement.' Courts afford agencies broad discretion because there is 'a strong presumption that government officials act correctly, honestly, and in good faith when considering bids.' We cannot substitute our judgment for that of the agency if its decision is grounded in reason.")(citations omitted); Avtel Services, Inc. v. United
  States, 70 Fed. Cl. 173, 187 (Fed. Cl. 2005)("The wide discretion afforded contracting officers extends to a broad
  range of procurement functions, including the determination of what constitutes an advantage over other proposals. As noted above, the question is not whether the court would reach the same conclusions as the agency regarding the comparison of proposals, but rather, whether the conclusions reached by the agency lacked a reasonable basis and were, therefore, arbitrary or capricious.")(citation omitted); Cincom Systems, Inc. v.
  United States, 37 Fed. Cl. 663, 671-72 (Fed. Cl. 1997)("Contracting officials may properly exercise wide discretion in their evaluation of bids and the application of procurement regulations. . . . It is well-settled that courts should respect acts of procuring officials when they exercise their discretionary functions. The court should not substitute its judgment for that of a procuring agency and should intervene only when it is clear that the agency's determinations were irrational or unreasonable. It is the burden of the aggrieved bidder to demonstrate that there is no rational basis for the agency's determination.")(citations omitted); and Hemophilia
  Health Services, 2005 Fla. Div. Adm. Hear. LEXIS 1382 *36-37 ("In the absence of evidence showing fraud or misconduct, or evidence of mistake or illogical reasoning by evaluators, it is not the role of the Administrative Law Judge to second guess the evaluators ").
  Evaluators' Training and Experience
20. Barton complains that "none of the evaluators had any formal training or experience in actuarial or valid and reliable comparative analysis of the total compensation packages being offered"; that "[m]any of the evaluators also did not have any formal training or experience to evaluate the ability to recruit and retain low-wage employees"; and that "[s]everal of the evaluators d[id] not have experience . . . extend[ing] to human resource matters and/or recruitment or the analysis of benefit plans." These complaints are unpersuasive.
21. Pursuant to Section 287.057(17)(a), Florida Statutes, the ITN 007 evaluation committee had to have been comprised of "[a]t least three persons . . . who collectively ha[d] experience and knowledge in the program areas and service requirements for which . . . contractual services [were] sought." Each and every one of the seven members of the ITN 007 evaluation committee had the "experience and knowledge" that Section 287.057(17)(a) mandated the members "collectively" have. They needed to possess no other "experience and knowledge" to qualify to serve on the committee. ITN 007 did not prescribe any additional requirements, relating to "experience and knowledge" or any other attribute, for evaluation committee members. If Barton believed that the training and experience it claims the ITN 007 evaluators lacked were necessary for a proper
  evaluation of replies, it should have timely protested, in accordance with the procedures set forth in Section 120.57(3), Florida Statutes, ITN 007's failure to have required that evaluation committee members have such training and experience. Having failed to do so, it cannot now complain, after the evaluation committee members have completed their work, about their lack of training and experience.76 See Consultech of Jacksonville, Inc. v. Department of Health, 876 So. 2d 731, 734 (Fla. 1st DCA 2004)("A further bar to appellant's attempt to inject the cost issue into this proceeding is its failure to timely protest the provisions of the RFP with respect to the financial aspects of the project. Because Consultech failed to file a protest to the terms and conditions of the RFP as required by section 120.57(3), Florida Statutes, its belated attempt to challenge the award to ISF on this basis must fail.")77
  Manner of Scoring
22. The evidentiary record, viewed in light of the standard of proof mandated by Section 120.57(3), Florida Statutes, does not support Barton's assertion that the evaluators scored the Qualifications Questionnaires and Technical Proposals in a manner inconsistent with the scoring instructions set out in ITN 007. These instructions (to which no timely protest had been made) gave the evaluators wide
  latitude in deciding how they were to go about determining the number of points to award within the maximum allowable for each scoring category, thereby permitting the evaluators to each take different approaches in accomplishing this task. In predicting how well services offered in response to ITN 007 would meet the Department's needs (as those needs were described in ITN 007), some evaluators relied upon the knowledge they had acquired, as contract managers under the Department's contracts with Barton, concerning the effectiveness of services provided under these contracts.78 There was nothing in ITN 007 that prevented them from using this pertinent knowledge to help them in determining the quality and "pointworthiness" of proposed services. Indeed, any such prohibition would have been in derogation of the legislative intent, expressed in Section 287.057(17)(a), Florida Statutes, that, in a procurement of this type, evaluators not be "blank slates," but that they have relevant experience and knowledge upon which it is expected they will rely in discharging their evaluative duties. See Old Tampa Enterprises,
  Inc. v. Department of Transportation, No. 98-5225BID, 1999 Fla. Div. Adm. Hear. LEXIS 5358 *59-60 (Fla. DOAH May 27,
  1999)(Recommended Order)("Old Tampa Bay argued that Mr. Ooms should have been excused from his duties in this procurement, due to his 'outside knowledge not confined to the documents submitted in the RFP' regarding the qualifications of the
  personnel in question. Old Tampa Bay attempts to analogize the procurement evaluation process to a court proceeding, in which a judge or juror may indeed be dismissed for knowledge of disputed evidentiary facts or suspicion of partiality. The analogy does not hold. There was no evidence that Mr. Ooms was partial to GE in this procurement, and 'outside knowledge' is not a disqualifying factor in evaluating a bid. Rather, agencies making major procurements of services are required by statute to appoint 'a selection team of at least three employees who have experience and knowledge in the program areas and service requirements for which contractual services are sought.' Section 287.057(15), Florida Statutes (Supp. 1998)(emphasis added). Contrary to Old Tampa Bay's suggestion that FDOT should have appointed evaluators who were blank slates regarding the performance history of the existing contractors, FDOT had an affirmative duty to appoint a selection team with experience and knowledge of the bridges. Such experience necessarily subsumes knowledge of the individuals working on the bridges."). As was stated in South Florida Jail Ministries, Inc. v. Department of Juvenile Justice, No. 00-1366BID, 2000 Fla. Div. Adm. Hear.
  LEXIS 5340 *84-85 (Fla. DOAH June 23, 2000)(Recommended Order):
  
  It would make little or no sense to require the members of an evaluation committee to be experienced and knowledgeable, as does Section 287.057(15), Florida Statutes, in cases, like the instant one, and then, once
  they have been appointed to the committee, to forbid them, in discharging their duties as evaluators, from relying on the experience and knowledge that qualified them to serve on the committee.
  
  Ultimate Conclusion
23. The evidentiary record lacks the proof required by Section 120.57(3), Florida Statutes, to establish that the ranking of vendors announced in the "Posting Tabulation" for ITN 007 was the product of action contrary to any applicable statute or agency rule or policy or to the specifications in the ITN. Accordingly, Barton's protest cannot be sustained.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department enter a final order rejecting Barton's protest.

DONE AND ENTERED this 20th day of July, 2006, in Tallahassee, Leon County, Florida.

STUART M. LERNER

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 20th day of July, 2006.

ENDNOTES

1 All references to Florida Statutes herein are to Florida Statutes (2005).

2 Barton did not specify the "FDOT personnel" the Department should select as evaluators for this "new procurement."

3 Although Serco had indicated in its Petition to Intervene that it desired to participate in this proceeding, in part, to "support Barton in seeking Faneuil's disqualification" as a

"non-responsible" vendor that submitted a "non-responsive" reply, Serco did not, in its "Statement of Issues, mention anything about Faneuil's non-responsibility or the non- responsiveness of its reply.

4 From June 1985, until her promotion to RCS Deputy Director, Ms. Stemle was an Operations Management Consultant with the Department.

5 Ms. Cook started working for the Department after Ms Stemle had already left the Department's employ.

6 In her role as a supervisor, Ms. Stemle did not take any action benefiting her subordinates with the expectation or understanding that they would "pay [her] back one day."

7 During her employment with the Department, Ms. Stemle was headquartered in the northern part of the state (in Tallahassee), not in any of the six regions where the regional toll managers were stationed.

8 In a post-submission addendum (Addendum No. 3) issued March 17, 2006, the Department added the following to its description of this "step" of the "Invitation to Negotiate Process":

An Awards Committee, composed of at least three members, will review in a public meeting the evaluations of the Evaluation and Selection Committee. The public meeting

will be on the date, and at the time and location shown in Section 11, Schedule of Events. The scores of each Evaluation and Selection Committee member will be announced as well as the overall scores. The Awards Committee shall rank the firms.

9 No resumes needed to be provided to comply with Special Condition 14.2c if the individuals who would be filling these positions were not "known."

10 The last sentence of Subsection 9.2.5 was added by Addendum No. 1.

11 This section was originally entitled, "Employee Training," but was retitled "Employee Orientation and Training" by Addendum No. 1.

12 This sentence was inserted by Addendum No. 1.

13 This sentence was also inserted by Addendum No. 1.

14 The words, "by Department employees," were inserted by Addendum No. 1.

15 The use of the word "may" indicates that it was intended that rejection, under the cited circumstances, not be automatic.

E. g., Malkamaki v. Sea Ray Boats, Inc., 411 F. Supp. 2d 737, 749 (D. Ohio 2005)("The General Assembly's use of the word may indicates the award is discretionary, not automatic.").

16 The instructions originally required that "all" staffing projects or programs completed within the last five years be listed. Pursuant to Addendum No. 1, "representative" was substituted for "all."

17 The instructions originally required that "all" ongoing staffing projects or programs completed within the last five years be listed. Pursuant to Addendum No. 1, "representative" was substituted for "all."

18 This request that vendors give the "Actual Completion Date" for projects still "under contract" (and therefore not yet completed) was obviously made in error.

19 This information had already been made available to the general public on the State of Florida's myflorida.com website.

20 The undersigned rejects the suggestion made by Serco in its Proposed Recommended Order that this report did not contain all of the information required by ITN 007 (that is, an "overall rating on timeliness, problem responsiveness, quality of purchased products or services, total cost, technical support, deliveries/quantities, and attitude of vendor personnel").

21 Barton, in comparison, had a Dun and Bradstreet/Open Ratings "overall performance rating" of 82, with "Negative Feedback." None of the other vendors that submitted a reply to ITN 007 had a lower rating. (One other vendor, Ampco System Parking, also had a rating of 82.)

22 Included were the resumes of Ed Borchardt, Ms. McNider, Brian Cornick, Gregg Hickman, Peter Gordon, Tarsha Lehrr, Cynthia Selley, Francine Andrieshyn, Rubylyn Engstrom, Mary Coopland, Wendy Czajkowski, and Gisele Popiel (all of Faneuil); Mike McKeon, Bruce Cousin, and Colleen Niese (all of Impark); and

Ms. Stemle (of MCG). There were no resumes for either Roland Fernandez (headquartered in Miami), Corrin Mussey (in "HR & Recruiting"), or Francoise Cassidy (in "Payroll"), all of whom were identified as individuals who would be on Faneuil's "implementation team" (but whose specific duties as members of the team were not detailed); nor was there a resume for Ryan Campbell, who was identified as Faneuil's "SVP - Finance" and a "corporate executive" who would "provide support for the transition with ongoing management support."

23 In its discussion of its Employee Pay, Benefits, Recognition and Retention Programs, Faneuil, among other things, gave the details of its plan to evaluate employee performance, as required by Special Condition 14.2d. Serco therefore is mistaken when it asserts in its Proposed Recommended Order that Faneuil's Technical Proposal did not address this requirement.

24 Faneuil's "workforce experts" had determined that six Scheduler/Dispatcher positions would be sufficient to man the command center. No persuasive evidence was elicited at hearing showing that these "workforce experts" had erred in their calculations.

25 This would enable Faneuil "to maintain records on contracted employees' training history," as required by Subsection 11.6 of the Scope of Services.

26 This is not in any way inconsistent with the requirements of Subsection 9.1.5.2 or Subsection 9.2.6 of the Scope of Services concerning billing for overtime. Neither in this discussion, nor anywhere else in its Technical Proposal, did Faneuil state that, contrary to these requirements, it would "bill [the Department] at an overtime hourly billing rate." Rather, it affirmatively stated (on page 39) of its Technical Proposal that it would be "calculat[ing] billing invoices based on contract rates and parameters."

27 In its Proposed Recommended Order, Serco erroneously contends that "Faneuil's proposal does not mention or provide for annual salary increases at all."

28 In view of this discussion, it cannot be said, as Serco does in its Proposed Recommended Order, that "[n]o reference is made in Faneuil’s proposal with respect to diversity."

29 This is the type of "additional training" referenced in Subsection 11.4 of the Scope Services. The statement made in Serco's Proposed Recommended Order that "Faneuil does not propose to develop any such additional training programs" is therefore inaccurate.

30 These "security cards," it would appear, are the "access cards" discussed in Subsections 13.3.1 through 13.3.5 of the Scope of Services that Serco claims, in its Proposed Recommended Order, "Faneuil's proposal . . . makes no reference to."

31 Section 12.0 of the Scope of Services provided that the vendor awarded the contract would be required to "develop such a "uniform inventory data base" so that uniforms issued by the Department could be "track[ed]."

32 The undersigned disagrees with the assertion made by Serco in its Proposed Recommended Order that Faneuil, in its Technical Proposal, did not propose to provide contract employees with medical coverage "in compliance with the ITN."

33 The "*" indicated that the "90 day waiting period w[ould] not apply to existing employees." This provision is consistent with the requirement of Subsection 23.3 of the Scope of Services that

"[t]he probationary period for any health benefits shall be waived for the retained contract employee participating in the current contractor's medical plan" and that "benefits shall become effective as of the date the Vendor hires the employees." Serco therefore is mistaken when it asserts in its Proposed Recommended Order that Faneuil's Technical Proposal did not address this requirement.

34 Faneuil appended to its Technical Proposal, "in case someone didn't understand what [an HRA Account] was," a copy of a "promotional brochure" published by CIGNA Healthcare that provided information about "HRA Acct[s]."

35 The "*" indicated that the "90 day waiting period w[ould] not apply to existing employees."

36 Earlier in its discussion in its Technical Proposal of its proposed medical and dental benefits, Faneuil had stated the following:

Faneuil pays 70% of employee health and dental coverage and 50% of family coverage. Monthly rates are projected at:

Medical Coverage	Employer Employee	Total
Single	$193.20 $82.80	$276.00
Employee Plus 1	$420.00 $180.00	$600.00
Family	$449.50 $449.50	$899.00
Dental
Coverage	Employer Employee	Total
Single	$13.56 $5.81	$19.37
Employee Plus 1	$29.52 $12.65	$42.17
Family	$33.08 $33.08	$66.16
Our cost	is based on similarly paid	employee

groups in the State of Florida. The exact costs of the plan will not be known until we receive full demographic and medical

information on the increased population. However, based on our experience in managing health plans and input from our advisors these costs are a reasonable proxy.

Faneuil plans on creating a health reimbursement account between $500 and $1000 for each employee participating in the medical benefit plan that would cover first dollar expenses. If the employee does not use the entire amount of the fund during the course of the year, Faneuil will allow the employee to roll over a certain percentage of the fund to the next year, assuming continued employment, encouraging smart choices in health care and will provide an additional incentive to remain with the company.

Preventative care such as annual exams, wellness, and mammograms will be covered at 100%.

37 The "*" indicated that the "90 day waiting period w[ould] not apply to existing employees."

38 In its Technical Proposal, Faneuil added the following about this "Megacenter Operations" project: "It should be noted that Faneuil's contract with Verizon to staff its Mega-Center was as large or larger than this prospective RCS - Toll Operations contract."

39 Faneuil indicated on Attachment 1D that the "Actual Completion Date" of the Bridgestone/Firestone "ATX Tire Recall" project was 2001. Inasmuch as this project had already been completed, Faneuil erred in listing it as a "current project under contract."

40 The Department, however, presumably had this "Value of Work Performed" information concerning the "SunPass Contact Center and Support Services" project and the "SunPass Secondary Call Center" project inasmuch as these were both contracts with the Department.

41 In its Technical Proposal, Faneuil indicated that its Program Director would be its "senior representative on-site" (working

out its Orlando "Head Office") and would "be the focal point to work with all Department Management personnel to ensure the RCS team delivers the service and culture expected by Turnpike customers." By naming Mr. Borchardt on Attachment 1F as the person who would be filling this position, Faneuil met ITN 007's submittal requirement relating to the identification of the vendor's "planned Program Director."

42 Faneuil indicated in its Technical Proposal that Mr. Borchardt would be the Program Director "through

transition," after which he would still have a role in the project, but one requiring less of his time.

43 Written statements summarizing the professional experience and qualifications of all seven of these individuals were appended to Faneuil's Technical Proposal.

44 In its Technical Proposal, Faneuil noted that "Deborah Stemle, a former Director of Toll Operations for the Department, ha[d] been retained to act as a prime consultant for Faneuil," that she would be "provid[ing] ongoing management support and expertise in all aspects of the contract," and that this would involve her "commit[ting] 40% of her time during the transition and 10% of her time throughout the contract."

45 Ann Marie Cummings, a Barton vice-president, had been told by Department personnel, prior to the submission of Barton's reply, "who the evaluators [for] this ITN would be."

46 As noted above, before becoming the RCS Deputy Director in July 2002, Ms. Burger had been the Orlando Regional Toll Manager.

47 These scoring categories were: "Qualifications Questionnaire"; "Technical Proposal: Administration and Management"; "Technical Proposal: Staffing Plan"; "Technical Proposal: Recruitment, Hiring and Employment Matters"; "Technical Proposal: Implementation Schedule and Plan"; and "Technical Proposal: Employee Pay, Benefits, Recognition and Retention."

48 There has been no allegation, nor showing, however, that their failure to have done so in any way affected the scoring of the replies.

49 For ITN 007, Ms. Burger was the "Project Manager," within the meaning of this policy. Mr. Lawson testified that, because she was also a member of the evaluation committee, Ms. Burger could not "be involved in determining responsiveness." Section 4.13.8, however, contains no such limitation on a "Project Manager's" authority to make responsiveness determinations.

50 Mr. Lawson did not make any other responsiveness determinations regarding these or any of the other replies that had been submitted.

51 It has not been shown that any member of the evaluation committee had a personal stake in the outcome of the procurement process.

52 In engaging in such an exercise, these evaluators were merely relying on the knowledge and experience that made them logical choices to serve on the evaluation committee.

53 There was no persuasive evidence presented at hearing that any evaluator ignored what Barton had proposed in its reply and instead based its scoring on how well it thought Barton was performing under its existing contracts with the Department.

54 A "Holiday Pay Compensation Plan" was one of the "Submittal Requirements" listed on the score sheets for this scoring category. On Ms. Burger's score sheet for Barton, the space to left of this listed "Submittal Requirement" was a " to indicate inclusion." To the right of this listed "Submittal Requirement," Ms. Burger wrote in what appears to be either the number "0" or the letter "o." Why she did so, and what this entry was intended to signify, the record evidence does not reveal.

55 Ms. Brantley "deducted two points" from Barton's score because its reply did not include a completed "Corporate Resolution" (Form 5). She should not have done so. Not only was the submission of a completed "Corporate Resolution" (Form

5) optional, the form was not a part of the Qualifications Questionnaire. This error, however, which appears to have been the product of an honest mistake, had no bearing on the outcome of the scoring. Barton still would have finished in third place even if this two-point deduction had not been made by

Ms. Brantley.

56 This was the highest score Ms. Cook gave any vendor. The next highest score she gave was a 63 (that Barton received).

57 For Mr. Sneed, with respect to this scoring category, "pay was the number one issue." Barton's proposed minimum hourly rates for new, inexperienced employees were higher than those proposed by Faneuil (to whom Mr. Sneed gave two fewer points than he gave to Barton for this scoring category). While Faneuil's "Employee Pay, Benefits, Recognition and Retention Programs" were more generous to employees in some other respects (such as "paid time off," tuition reimbursement, and holiday pay), from Mr. Sneed's perspective, given the importance he attached to the "pay . . . issue," Barton's programs nonetheless deserved to receive more points than did Faneuil's programs.

58 This was the most "Total Points" any vendor received from Mr. Sneed.

59 The instant protest does not involve any challenge to the "Price Score" component of the "Total Score" received by any vendor.

60 "Turnpike system," as that term is used in Sections 338.22 through 338.241, Florida Statutes, "means those limited access toll highways and associated feeder roads and other structures, appurtenances, or rights previously designated, acquired, or constructed pursuant to the Florida Turnpike Enterprise Law and such other additional turnpike projects as may be acquired or constructed as approved by the Legislature." § 338.221(6), Fla. Stat.

61 "[T]he threshold amount provided in s. 287.017 for CATEGORY TWO" is $25,000.

62 "Best value," as that term is used in Section 287.057, Florida Statutes, "means the highest overall value to the state based on objective factors that include, but are not limited to, price, quality, design, and workmanship." § 287.012(4), Fla. Sta.

63 An "invitation to negotiate," as that term is used in Section 287.057, Florida Statutes, is defined in Section 287.012(17), Florida Statutes, as follows:

"Invitation to negotiate" means a written solicitation for competitive sealed replies

to select one or more vendors with which to commence negotiations for the procurement of commodities or contractual services. The invitation to negotiate is used when the agency determines that negotiations may be necessary for the state to receive the best value. A written solicitation includes a solicitation that is electronically posted.

64 A "responsive reply," as that term is used in Section 287.057, Florida Statutes, is a "reply submitted by a responsive and responsible vendor that conforms in all material respects to the solicitation." § 287.012(25), Fla. Stat.

65 A "responsible vendor," as that term is used in Section 287.057, Florida Statutes, "means a vendor who has the capability in all respects to fully perform the contract requirements and the integrity and reliability that will assure good faith performance." § 287.012(24), Fla. Stat.

66 A "responsive vendor," as that term is used in Section 287.057, Florida Statutes, "means a vendor that has submitted a bid, proposal, or reply that conforms in all material respects to the solicitation." § 287.012(26), Fla. Stat.

67 Determining what will "provide the best value to the state" is an exercise that involves substantial discretion. Cf. E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996)("Procurement officials have substantial discretion to determine which proposal represents the best value for the government.").

68 "[T]he threshold amount provided in s. 287.017 for CATEGORY FOUR" is $150,000.

69 These "uniform rules of procedure" are found in Florida Administrative Code Rule Chapter 28-110.

70 Barton's lack of standing to protest the pre-negotiation, pre-award ranking of vendors has not been raised as an affirmative defense in the instant case.

71 There is no impediment to these omissions being remedied by post-reply deadline submissions by Faneuil, if the Department desires Faneuil to provide it with what Faneuil omitted from its reply. Pursuant to Section 120.57(3)(f), Florida Statutes, the

Department is authorized to consider any submissions made up until the time "the agency announces its intent to award a contract."

72 For its part, Serco, in its Proposed Recommended Order, does not deviate from the position it took in its Petition to Intervene regarding the responsiveness of Faneuil's reply (wherein Serco stated that it intended to "support Barton in seeking Faneuil's disqualification" on this ground). Serco's Proposed Recommended Order, however, does raise a host of responsiveness issues not previously raised in any prior pleading. None of the arguments Serco makes in support of its position that Faneuil should be "disqualifi[ed]" based on the nonresponsiveness of Faneuil's reply is persuasive. The vast majority of the requirements that Serco alleges Faneuil failed to address are not submittal requirements (that is,, requirements that have to be met by a vendor through submission of its reply), but rather are service or contract requirements (set forth in ITN 007's Scope of Services (Exhibit "A")) that the successful vendor must meet after being awarded the contract. Although not required by ITN 007 to do so, Faneuil submitted, as part of its reply, a completed Corporate Resolution (Form 5), through which it indicated to the Department that it was prepared to enter into a contract containing these and the other contract requirements set forth in Exhibit "A." In any event, even if Faneuil had not made such a submission or otherwise expressly agreed in its reply to comply with all of these contract requirements, its failure to have done so would not provide the Department with a basis to find Faneuil not to be a "responsive and responsible Vendor" since this was not something that ITN 007 directed vendors to do as part of their reply. Cf. State Contracting and Engineering Corporation, 709 So. 2d at 610 ("Other subsections of rule 14-78 impose requirements concerning the sources of labor and materials that qualify as a part of the DBE goal, but the rule does not suggest that these requirements must be met at the time the bid is submitted to the agency. As the Department interprets the rule, these requirements are enforced at the time the subcontracts are reviewed. . . . We find nothing in the text of rule 14-78 to show that the Department's interpretation is incorrect, much less to suggest that it is clearly erroneous, as required by section 120.57(3)(f), Florida Statutes (Supp. 1996). Therefore, we conclude that the Department properly approved the initial award of the bid."). With respect to Faneuil's compliance with the submittal requirements imposed by

ITN 007, as noted above, its reply was not so deficient as to warrant its "disqualification" from further consideration.

73 That access enabled a Barton vice-president (Ms. Cummings) to find out, before Barton submitted its reply, who was going to be on the ITN 007 evaluation committee.

74 That an evaluator entered the evaluation process having had prior work-related dealings, in his or her capacity as a Department employee, with Ms. Stemle or with Barton was not an impediment to their conducting such a fair and impartial evaluation. Cf. Galen Medical Associates, 369 F.3d at 1336 ("VA officials with direct knowledge of an incumbent service provider's past performance would seem to have enhanced utility as evaluators. It was Kirkpatrick's prior work experience at the VA that gave him insight into Downing's performance. The incumbent service provider then included Kirkpatrick as a past- performance reference. This fact alone does not disqualify Kirkpatrick as a technical evaluator in a bid solicitation involving that service provider, and neither reason nor precedent so requires. Here, Galen has not shown any active close or pecuniary relationship between Downing and either evaluator at any time. Therefore, the mere fact that Downing listed an evaluator as a past performance reference does not constitute a conflict of interest.").

75 While Ms. Brantley's deducting two points from Barton's score because its reply did not include a completed "Corporate Resolution" (Form 5) was clearly erroneous, this was an honest mistake that was not the product of any bias against Barton or favoritism toward Faneuil, and, in any event, it had no impact on Barton's ranking.

76 While it is unnecessary to determine how such a protest would have been resolved, the undersigned would point out that the apparent task of the evaluation committee members was to determine the attractiveness of the vendors' pay and benefits packages, not from the perspective of an actuary or a benefits specialist, but from the perspective of the contract employees (both prospective and existing), who likely would not have any more training or experience than the evaluation committee members in the areas in which Barton claims the latter were deficient.

77 In a footnote, the court in Consultech of Jacksonville, Inc. observed that "[s]pecification challenges under section

120.57(3) are intended to allow an agency to correct or clarify plans and specifications prior to accepting bids in order to save expense to the bidders and to assure fair competition among them." Id. at 734 n.5.

78 One of these evaluators was Mr. Sneed. Mr. Sneed testified that he believed that Barton had "done a pretty good job" in terms of the services it had provided under its contracts with the Department. He gave Barton a higher overall score than he gave any other vendor.

COPIES FURNISHED:

Thomas F. Panza, Esquire Mark A. Hendricks, Esquire Diane Lindstrom, Esquire Panza, Maurer & Maynard, P.A.

Bank of America Building, Third Floor 3600 North Federal Highway

Fort Lauderdale, Florida 33308-6225

C. Denise Johnson, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Roy C. Young, Esquire Timothy R. Qualls, Esquire Young Van Assenderp, P.A.

225 South Adams Street, Suite 200 Tallahassee, Florida 32301

Paul R. Linder, Esquire Griffin & Linder, P.A.

28 East Washington Street Orlando, Florida 32801

Bruce A. Norris, Esquire Kirwin Norris, P.A.

338 West Morse Boulevard, Suite 150 Winter Park, Florida 32789

Steven A. Diaz, Esquire

Law Office of Steven A. Diaz 2300 M Street NW, Suite 800

Washington, DC 20037

Robert Rivas, Esquire Sachs Sax Klein

200 West College Avenue, Suite 216 Tallahassee, Florida 32301-7710

James C. Meyers, Clerk of Agency Proceedings Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Denver Stutler, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

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.

Docket for Case No: 06-001541BID

Issue Date	Proceedings
Sep. 20, 2006	Notice of Administrative Appeal filed.
Aug. 21, 2006	Final Order filed.
Jul. 20, 2006	Recommended Order (hearing held May 30-June 1, 2006). CASE CLOSED.
Jul. 20, 2006	Recommended Order cover letter identifying the hearing record referred to the Agency.
Jun. 29, 2006	Department`s Proposed Recommended Order filed.
Jun. 29, 2006	Intervenor Serco, Inc.`s Proposed Recommended Order filed.
Jun. 29, 2006	Department`s Notice of Filing Proposed Recommended Order filed.
Jun. 29, 2006	Intervenor Serco, Inc.`s Notice of Service of Proposed Recommended Order filed.
Jun. 29, 2006	Petitioner, Barton Protective Services, LLC`s Proposed Recommended Order filed.
Jun. 29, 2006	Proposed Recommended Order (Faneuil, Inc.) filed.
Jun. 29, 2006	Notice of Filing Proposed Recommended Order (Faneuil, Inc.) filed.
Jun. 20, 2006	Order Concerning Proposed Recommended Orders (proposed recommended shall be filed by June 29, 2006).
Jun. 09, 2006	Final Hearing Transcript (Volume III) filed.
Jun. 09, 2006	Video Teleconference Transcript (Volumes II and III) filed.
Jun. 09, 2006	Notice of Filing Transcript; Volumes II and III filed.
Jun. 08, 2006	Video Teleconference Hearing Transcript filed.
May 31, 2006	Letter to Judge Lerner from D. Lindstrom enclosing recently provided Petitioner Exhibit No. 120 filed.
May 30, 2006	CASE STATUS: Hearing Held.
May 26, 2006	Pre-hearing Statement filed.
May 26, 2006	Letter to J. Lambert from D. Lindstrom enclosing Hearing exhibits filed (hearing exhibits not available for viewing).
May 26, 2006	Notice of Compliance with Order Concerning Hearing Exhibits filed.
May 25, 2006	Department`s Response to Request for Production filed.
May 24, 2006	Notice of Taking Telephonic Deposition filed.
May 24, 2006	Disclosure.
May 23, 2006	Notice of Taking Video Deposition filed.
May 23, 2006	Petitioner, Barton Protective Services LLC`s Response to Faneuil`s First Set of Interrogatories filed.
May 23, 2006	Order on Serco, Inc.`s Petition to Intervene (Serco is granted Intervenor status).
May 22, 2006	Petitioner, Barton Protective Services LLC`s Response to Respondent`s First Set of Interrogatories filed.
May 22, 2006	Order on Pending Motions.
May 19, 2006	Intervenor, Faneuil, Inc.`s Notice of Service of Responses to Petitioner`s First Request for Production filed.
May 19, 2006	Intervenor, Faneuil, Inc.`s Notice of Service of Responses to Petitioner`s First Set of Interrogatories filed.
May 19, 2006	Order Accepting Qualified Representative (S. Diaz).
May 19, 2006	Serco`s, Inc.`s Motion for Telephonic Hearing filed.
May 19, 2006	Serco, Inc.`s Renewed Request for Approval of Qualified Representative filed.
May 18, 2006	Intervenor, Faneuil, Inc.`s Notice of Service of First Set of Interrogatories to Petitioner, Barton Protective Services LLC filed.
May 18, 2006	Objection to Serco, Inc.`s Petition to Intervene filed.
May 18, 2006	Respondent, Department of Transportation`s Response to Serco, Inc.`s Petition to Intervene filed.
May 18, 2006	Notice of Taking Video Deposition filed.
May 18, 2006	Order Denying Motion for Approval of Qualified Representative without Prejudice.
May 16, 2006	Serco, Inc.`s Request for Approval of Qualified Representative filed.
May 16, 2006	Serco, Inc.`s Petition to Intervene filed.
May 16, 2006	Notice of Appearance (filed by R. Rivas).
May 15, 2006	Certificate of Service; First Set of Interrogatories filed.
May 15, 2006	Petitioner Barton Protective Services LLC`s First Request for Production to Intervenor, Faneuil Group Inc. filed.
May 15, 2006	Re-notice of Taking Deposition Duces Tecum filed.
May 15, 2006	Petitioner Barton Protective Services LLC`s Response to Department`s Motion for Protective Order filed.
May 12, 2006	Notice of Taking Deposition Duces Tecum (4) filed.
May 12, 2006	Notice of Taking Video Deposition Duces Tecum filed.
May 12, 2006	Order Concerning Hearing Exhibits.
May 11, 2006	Petitioner Barton Protective Services LLC`s Second Request for Production to Respondent Department of Transportation filed.
May 11, 2006	Petitioner Barton Protective Services LLC`s Notice of Service of First Set of Interrogatories to Intervenor, Faneuil Group Inc. filed.
May 10, 2006	Department`s Motion for Protective Order filed.
May 10, 2006	Order Granting Intervenor Status (Faneuil, Inc.).
May 10, 2006	Order of Pre-hearing Instructions.
May 10, 2006	Notice of Hearing by Video Teleconference (video hearing set for May 30 through June 2, 2006; 9:00 a.m.; Fort Lauderdale and Tallahassee, FL).
May 08, 2006	Notice of Taking Deposition Duces Tecum filed.
May 08, 2006	Department`s Response to Request for Production filed.
May 08, 2006	Department`s Notice of Serving Answers to Interrogatories filed.
May 05, 2006	Petitioner`s Response to Intervenor`s Motion to Dismiss filed.
May 05, 2006	Notice of Taking Deposition Duces Tecum filed.
May 04, 2006	Petitioner Barton`s Motion for Leave to Amend Formal Written Protest filed.
May 03, 2006	Notice of Filing (exhibits); Exhibits referenced in Petitioner`s Barton Protective Services, LLC Formal Written Protest filed.
May 02, 2006	Petitioner Barton Protective Services LLC`s Notice of Service of First Request for Production and First Set of Interrogatories to Respondent, Department of Transportation filed.
May 02, 2006	Petitioner Barton Protectice Services LLC`s First Request for Production to Respondent Department of Transportation filed.
May 02, 2006	Petitioner`s Response to State of Florida, Department of Transportation`s Request for Change of Venue filed.
May 01, 2006	Petition to Intervene (Faneuil, Inc.) filed.
Apr. 28, 2006	Notice of Protest of the Posting of the Ranking filed.
Apr. 28, 2006	Notice of Appearance (filed by R. Young).
Apr. 28, 2006	Formal Written Protest and Petition for Formal Administrative Proceeding filed.
Apr. 28, 2006	Invitation to Negotiate Posting Tabulation filed.
Apr. 28, 2006	Agency referral filed.

Orders for Case No: 06-001541BID

Issue Date	Document	Summary
Aug. 21, 2006	Agency Final Order
Jul. 20, 2006	Recommended Order	Petitioner protester failed to show that the ranking of vendors replying to an Invitation to Negotiate (ITN) was contrary to statute, rule, policy or the ITN`s specifications.

Source: Florida - Division of Administrative Hearings

BARTON PROTECTIVE SERVICES, LLC vs DEPARTMENT OF TRANSPORTATION, 06-001541BID (2006)

Docket for Case No: 06-001541BID

Orders for Case No: 06-001541BID

Jeff Goodman

Diane Lindstrom Beach

Roy Carroll Young

Robert Rivas

Thomas Francis Panza

Paul R Linder

Christopher Bruce Norris

Stephen Hunter Johnson

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Fiscal Period	Department Funding
6/1/06-6/30/06	$7,000,000
7/1/06-6/30/07	$55,500,000
7/1/07-6/30/08	$57,165,000
7/1/08-6/30/09	$58,880,000
7/1/09-6/30/10	$60,647,000
7/1/10-5/31/011	$57,261,000
14.3.2 Preparation

BARTON PROTECTIVE SERVICES, LLC vs DEPARTMENT OF TRANSPORTATION, 06-001541BID (2006)

Docket for Case No: 06-001541BID

Orders for Case No: 06-001541BID

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