STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CTS AMERICA,
Petitioner,
vs.
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES,
Respondent,
and
OPEN PORTAL SOLUTIONS, INC.,
Intervenor.
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RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on August 11-12 and 24-25, 2011, in Tallahassee, Florida, before
Gary Early, a designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Fred G. Levin, Esquire
Robert Elliott Price, Esquire Levin, Papantonio, Thomas, Mitchell
Rafferty & Proctor, P.A.
316 South Baylen Street, Suite 600 Pensacola, Florida 32502
For Respondent: Douglas D. Sunshine, Esquire
Judson M. Chapman, Esquire Department of Highway Safety
and Motor Vehicles 2900 Apalachee Parkway
Neil Kirkman Building, Room A-432 Tallahassee, Florida 32399
For Intervenor: Robert H. Hosay, Esquire
James A. McKee, Esquire John A. Tucker, Esquire Foley & Lardner, LLP
106 East College Avenue, Suite 900 Tallahassee, Florida 32301
STATEMENT OF THE ISSUE
The issue in this case is whether Respondent's intended award of a contract to Intervenor pursuant to Invitation to Negotiate No. 013-11 is contrary to Respondent's governing statutes, Respondent's rules and policies, and the specifications of the Invitation to Negotiate.
PRELIMINARY STATEMENT
On March 11, 2011, Respondent, Department of Highway Safety and Motor Vehicles (Department or DHSMV), issued an invitation to negotiate, Solicitation Number 013-11, entitled "Florida Traffic Crash Report Records" (ITN). On April 4, 2011, the Department issued Addendum #1 to the ITN, which contained amendments, modifications, and explanations to the ITN in response to proposed vendor questions.
Responses to the ITN, in the form of a Statement of Qualifications and Services Offered, were submitted on April 18,
2011, by Petitioner, CTS America (CTS); Intervenor, Open Portal Solutions, Inc. (OPS); and Lexis-Nexis. Demonstrations were held from May 9 through May 13 for the three responders. On May 18, 2011, the Department issued Addendum #2 to the ITN, which contained further clarifications and additional information regarding the ITN.
On May 31, 2011, the three responders submitted their Best and Final Offers for consideration by the Department review team. On June 10, 2011, the Department posted its intent to award the contract to OPS. On March June 13, 2011, CTS filed its notice of intent to protest the award of the contract to OPS, and on
June 17, 2011, filed its formal written protest.
On July 8, 2011, the Department forwarded CTS’s Formal Written Protest to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct the final hearing. On July 12, 2011, OPS filed a Petition for Leave to Intervene, which was granted by Order dated July 14, 2011.
On August 3, 2011, OPS filed a Motion for Summary Recommended Order, which was accepted as a motion to relinquish jurisdiction. The motion was based on the non-responsiveness of the CTS bid as a result of CTS’s alleged failure to disclose that it had an employee of the Department on its payroll, which employee allegedly participated in the development of CTS’s response to the ITN. As a result, OPS asserted that since CTS
could not receive the award of the contract, it had no standing to maintain its protest. The Department concurred with the OPS motion. On August 10, 2011, CTS filed its response, and a hearing was held on the motion at 3:00 p.m. on August 10, 2011.
In its protest petition, CTS raised issues both as to the responsiveness of the OPS proposal and as to bias that called into question whether the Department’s evaluation and selection process was contrary to competition. Relying on Kenneth Walker
and R. E. Walker, d/b/a Walker/Oswalt v. Dep’t of Envtl. Prot., Case No. 96-4318BID (Fla. DOAH Dec. 16, 1996; Fla. DEP Mar. 11,
1997) and Derick Proctor v. Dep’t of HRS, Case No. 93-0263F (Fla. DOAH Sept. 3, 1993), the undersigned determined that even if the CTS proposal was non-responsive, CTS had standing to seek the rejection of all bids based on responsiveness or on matters that rendered the procurement process contrary to competition. Thus, the motion was denied. A separate order denying the motion was not entered given the commencement of the final hearing the next morning.
On August 11, 2011, OPS filed a series of four Motions in Limine, seeking the exclusion of evidence related to conversations between counsel; requirements regarding PRIDE, Inc.; the applicability of state preference; and actions occurring prior to the issuance of the ITN and after the posting of the Notice of Award. The motions were denied without
prejudice, thus allowing argument as to relevance and admissibility at the time the evidence was offered.
The parties filed a joint pre-hearing stipulation in which they stipulated to certain facts. Those facts, numbered 1 through 15, have been incorporated in this Recommended Order to the extent that they are relevant.
At the final hearing, the parties submitted Joint Exhibits 1-5, 101-103, 108, 109, and 117, which were admitted in evidence. Petitioner called as witnesses George Kay Stephenson, Chief Executive Officer for CTS; Dana Reiding, Assistant Division Director for the DHSMV Division of Motor Services and a member of the BAFO evaluation team; Maureen Johnson, the Bureau Chief of the DHSMV Bureau of Records and a member of the SQSO evaluation team, excerpts of whose deposition were read into the record in lieu of live testimony; Steven Williams, Director of Project Management for CTS; Jeffrey Succi, who was at various times an employee of DHSMV and CTS; Kevin P. Bailey, DHSMV Procurement Officer; and David Kaelin, President of OPS. Petitioner's Exhibits 106, 110a, 110b, 119, 123, 124, and 126 were admitted in evidence. Petitioner’s Exhibit 126 consisted of the deposition transcript of Martin Levin, General Counsel and Chief Financial Officer for CTS, which was offered in lieu of live testimony and which has been accepted and considered as though the witness testified in person. Petitioner's Exhibits 111 and 125 were
proffered but not admitted. The Department called as its witness Major Steven A. Williams, Sr., DHSMV Chief Technical Officer and a member of the evaluation team. Respondent's Exhibit 76 was admitted in evidence. OPS called no separate live witnesses.
Intervenor's Exhibits 7-16, 24-26, 34-41, 43, 45-48, 51-56, 59-
60, 64, 66, 74-75, 77-83, and 116 were admitted in evidence. Intervenor’s Exhibits 79-83 consisted of the deposition transcripts of James Edward Benson, Chief Operating Officer for CTS; Shane Lincke, Executive Vice President for Software Development for CTS; Melissa Smith, Documentation Manager for CTS; Christopher Larimer, Regional Sales Manager for CTS; and Harvey Harkness, Vice President for Human Resources for CTS, which were offered in lieu of live testimony and which have been accepted and considered as though the witnesses testified in person.
During the hearing, CTS served its Motion for Introduction of Certain Pleadings and for the Court to Apply an Adverse Inference Against Intervenor Open Portal Solutions. Ruling on the motion was reserved. The motion was based upon a discovery dispute regarding the production of certain documents that had been provided to OPS by Southern Strategies, Inc., a lobbying firm and consultant to Appriss, the parent company of OPS, and over which Southern Strategies had asserted trade secret protection. OPS timely objected to the production based on the
grounds that the request was overly broad and not calculated to lead to the discovery of admissible evidence, and on Southern Strategies’ notice of its assertion that the documents constituted trade secrets. The objection to discovery was timely made in accordance with the Uniform Rules and the Florida Rules of Civil Procedure. CTS did not move to compel production, or take any other steps that would have allowed the undersigned to perform an in camera review, or to craft a remedy allowed by the rules. The undersigned has reviewed the cases cited by CTS, each of which addresses inferences to be drawn from an assertion of the Fifth Amendment right against self-incrimination in a civil proceeding. The case of Baxter v. Palmigiano, 425 U.S. 308 (1976), cited by CTS, can be read as applying more broadly to assertions of other privileges. However, there is nothing to indicate that Baxter, or any other case, allows for the application of an adverse inference for the assertion of a trade secret privilege, along with other discovery objections, in a proceeding in which a remedy can be provided through application of the rules of discovery. Thus, the Motion for Introduction of Certain Pleadings and for the Court to Apply an Adverse Inference Against Intervenor Open Portal Solutions is hereby denied.
The seven-volume Transcript was filed on September 12, 2011. The parties timely filed their Proposed Recommended Orders, which
have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
ITN 013-11
On March 11, 2011, the Department issued ITN 013-11, the purpose of which was to select a contractor to develop “a solution to outsource the maintenance and sale of Florida Traffic Crash Report Records, submitted by Florida Law Enforcement Agencies at no additional cost to the Department.”
The scope of work for the contract was detailed in Section 3 of the ITN. Briefly, the Department sought to procure a no-cost contract for data entry services to convert paper traffic crash reports to electronic reports, a function currently performed under a fee contract by Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE), and to offer crash reports and crash report data on-line for a fee.
The ITN was not for the procurement of a system of electronic crash reports for use by the Department or other state agencies. Electronic crash reporting is a separate project being considered by the Department that is not directly tied to the objectives of ITN 013-11.
The ITN contemplated a two-stage process leading to selection of the contractor. In the first stage, interested vendors were to submit a Statements of Qualifications and
Services Offered (SQSO) responsive to each element of the ITN. After the Department’s evaluation, vendors selected to proceed to the next stage of negotiations would be invited to participate in a demonstration. The demonstration was designed to provide a depiction of the manner in which the vendor’s services were to be provided, including web portal and sales information. After receiving feedback in the form of the SQSO scores and comments related thereto, and discussion from the demonstrations, the vendors were to prepare their Best and Final Offers (BAFOs) and submit them to the Department. Price to the Department was not a consideration since the contracts were no-cost contracts, with all vendor revenue coming from the marketing and sale of the traffic crash reports.
The ITN is explicit regarding a number of the issues raised in this proceeding. Provisions of the ITN that are material to this proceeding include:
1.3 PROCUREMENT OFFICER: The Procurement Officer, acting on the behalf of the Department, is the sole point of contact outside of official conferences and meetings with the agency’s team, with regard to all procurement matters relating to this solicitation, from the date of release of the solicitation until the Department’s Notice of Intended Award or Decision is posted. All questions and requests for clarification outside the above referenced meetings are to be directed to:
Jon Kosberg, Purchasing Manager Bureau of Purchasing and Contracts Florida Department of Highway Safety
and Motor Vehicles
Neil Kirkman Building, Room B 412, Mail Station 31
2900 Apalachee Parkway
Tallahassee, FL 32399-0524
Telephone: (850) 617-3203
Fax: (850) 617-5115
Florida Statute Section 287.057(23) requires that respondents to this solicitation or persons acting on their behalf may not contact, between the release of the solicitation and the end of the 72-hour period following the agency posting the notice of intended award, excluding Saturdays, Sundays, and state holidays, any employee or officer of the executive or legislative branch concerning any aspect of this solicitation, except in writing to the procurement officer or as provided in the solicitation documents. Violation of this provision may be grounds for rejecting a response.
Any questions arising from this solicitation must be forwarded, in writing, to the Procurement Officer identified above. The Department’s written response to those inquires will be posted on the Florida Vendor Bid System at http://vbs.dms.state.fl.us/vbs/search. criteria form and on the Department’s web site at http://www.flhsmv.gov/purchasing/ html/bid log.html under the above referenced solicitation number. It is the responsibility of all potential proposers to monitor this site for any changing information prior to submitting their proposal.
MANDATORY REQUIREMENTS: The Department
has established certain mandatory requirements which must be included as part of any proposal. The use of the terms “shall”, “must”, or “will” (except to indicate simple futurity) in this solicitation indicates a mandatory requirement or condition.
The words “should” or “may” in this solicitation indicate desirable attributes or conditions, but are permissive in nature.
Deviation from, or omission of, such a desirable feature will not itself cause rejection of a proposal.
NON – RESPONSIVE PROPOSALS, NON –
RESPONSIBLE RESPONDENTS: Proposals which do not meet all requirements of this solicitation or which fail to provide all required information, documents, or materials will be rejected as non – responsive.
Material requirements of the solicitation are those set forth as mandatory or without which an adequate analysis and comparison of proposals are impossible, or those which affect the competitiveness of proposals or the cost to the Department. Proposers whose proposals, past performance or current status do not reflect the capability, integrity or reliability to fully and in good faith perform the requirements of the Contract may be rejected as non – responsible. The Department reserves the right to determine which proposals meet the material
requirements of the solicitation, and which proposers are responsible. See also Section 1.5, “Exception”.
Proposals containing terms and conditions conflicting with those contained in this solicitation shall be rejected.
Solicitations will be considered only from respondents who are regularly engaged in the subject service/products business, are financially responsible and who have the necessary equipment and personnel to provide the services and goods required by the solicitation.
Responsible or qualified proposer means a person or firm with the capability in all respects to perform fully the contract requirements and the integrity and reliability to assure good faith performance. Failure to provide information to determine responsibility in response to a condition of a proposal requiring information may be cause for such proposal to be rejected.
1.9 ADDENDA: Any and all addenda to this solicitation will be issued in writing and posted on the Florida Vendor Bid System at: http://vbs.dms.state.fl.us/vbs/search. criteria form, and on the Department’s web site at http://www.flhsmv.gov/purchasing/ html/bid log.html. Proposers may be required to acknowledge receipt of addenda in writing.
1.25 DISCUSSIONS: Prior to the Department determining whether proposals have been submitted in accordance with the requirements of this solicitation, any discussion by the proposer with an employee or authorized representative of the State involving cost
information will result in rejection of said proposer’s response.
No negotiations, decisions, or actions shall be initiated or executed by a proposer as a result of any discussion with any state employee. Only those communications which are in writing from the Bureau of Purchasing and Contracts may be considered as a duly authorized expression on behalf of the Department. Any inquiries from proposers shall be submitted in writing as required in Section 1.3 or in accordance with the attached PUR 1001, Paragraph 5.
1.30 MINOR BID EXCEPTIONS: This Department reserves the right to waive minor deviations or exceptions in proposals providing such actions are in the best interest of the State of Florida. Minor deviations/ exceptions are defined as those that have no adverse effect upon the Department’s interest and would not affect the outcome of the award by giving a proposer an advantage or benefit not enjoyed by other proposers.
1.35 PRIDE: Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE).
The State supports and encourages the use of Florida Correctional work programs. See attached Form PUR 1000, Paragraph 40.
Suppliers will use PRIDE commodities/ services where applicable.
Form PUR 1000 is attached to and a part of ITN 013-11.
The provision of Form PUR 1000 that is relevant to this proceeding is:
corporation identified under Chapter 946 of the Florida Statutes (PRIDE) in the same manner and under the same procedures set forth in section 946.515(2) and (4) of the Florida Statutes; and for purposes of the Contract the person, firm, or other business entity carrying out the provisions of the Contract shall be deemed to be substituted for the agency insofar as dealings with such corporation are concerned." Additional information about PRIDE and the products it offers is available at http://www.pridefl. com.1/
Form PUR 1001 is attached to and a part of ITN 013-11.
The provision of Form PUR 1001 that is relevant to this proceeding is:
As part of the ITN process, each interested vendor was allowed to submit questions prior to the submission of the SQSOs regarding the terms of the ITN, and the services being sought. Questions were received from Lexis-Nexis; CTS; File Vision; PoliceReports.US; CFFG, Inc.; and Recall North America. OPS did not submit questions. The responses to the questions became part of the specifications of the ITN, and were subject to all of its terms and conditions.
On April 4, 2011, the Department issued Addendum #1, by which it provided responses to each of the 83 questions received, and provided a revised scoring page for the BAFO Technical Proposal. Among the questions for which the Department provided answers were the following:
Question #18:
Answer to Question #18:
No, it is not a requirement to utilize PRIDE for the data entry of reports.
Question #19:
Answer to Question #19:
Please see the answer to question #18.
Question #79:
Answer to Question #79:
Per PUR 1000, Paragraph 40. Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE). Section 946.515(2), F.S. requires the following statement to be included in the solicitation: "It is expressly understood and agreed that any articles which are the subject of, or required to carry out, the Contract shall be purchased from the corporation identified under Chapter 946 of the Florida Statutes (PRIDE) in the same manner and under the same procedures set forth in section 946.515(2) and (4) of the
Florida Statutes; and for purposes of the Contract the person, firm, or other business entity carrying out the provisions of the Contract shall be deemed to be substituted for the agency insofar as dealings with such corporation are concerned." Additional information about PRIDE and the products it offers is available at http://www.pridefl. com. However, this currently does not apply to this solicitation.
Questions 18 and 19 were submitted by CTS.
No prospective vendor filed a protest of any of the terms, conditions, or specifications of the ITN, including the terms established in Addendum #1.
Statements of Qualifications and Services Offered
Although there are hundreds of law enforcement software companies, including many providing services to various state and local governmental entities in Florida, only three, OPS, CTS, and Lexis-Nexis submitted SQSOs.
The Department appointed an Evaluation Committee to evaluate the SQSOs submitted by prospective vendors. The committee consisted of Major Steven Williams, Major Richard Mechlin, Stacy Arias, Brinson Taylor, and Maureen Johnson. At the time of the appointment, it was anticipated that the evaluation committee would handle all scoring of proposals through the final selection of a contractor. Each member of the evaluation committee had experience in the area of developing, maintaining or analyzing traffic crash reports, though each had a
different perspective of the issue. Major Williams represented the DHSMV technology section and, as a patrol officer and investigator, represented the “gun-toters.” Major Mechlin was the Florida Highway Patrol representative and represented the strategic services section that reports to the Governor’s office. Ms. Arias was in Motor Services. Mr. Tatum was a technology applications architect. Ms. Johnson was the bureau chief of the Records Management section.
The evaluation of the SQSOs was on a 210-point scale, with several pass/fail sections. A “fail” on any evaluation would result in the rejection of the proposal as non-responsive. Scoring was left to the sound discretion of the individual evaluators, with the scores to be based on the ITN criteria and the experience of the evaluator.
No member of the evaluation committee was allowed to discuss the proposals with any other member, except during the public evaluation meetings and demonstrations.
There was some discussion during the April 27, 2011, public SQSO evaluation committee meeting as to whether OPS would receive a “pass” or a “fail” on a mandatory evaluation item. The discussion, initiated by Ms. Arias, was related to a statement made by OPS expressing concerns as to the economic viability of the no-cost contract business model. After consideration and
discussion amongst the evaluation committee, all of the evaluators “passed” OPS and the other vendors.
The members of the evaluation committee independently scored each of the proposals. At the conclusion of the SQSO process, the three responding vendors were ranked as follows:
Vendor | Stacy Arias | Maureen Johnson | Maj. Richard Mechlin | Brinson Tatum | Maj. Steven Williams | Average Score |
CTS | 176 | 184 | 204 | 203 | 197 | 192.8 |
OPS | 113 | 153 | 181 | 157 | 171 | 155.0 |
Lexis | 185 | 192 | 204 | 196 | 199 | 195.2 |
The ITN was silent as to the number of vendors that would be invited to the next stage of the procurement process. However, it had been determined early in the process that three vendors would be asked to proceed after the SQSO evaluation to the demonstration and submission of the BAFO. After the scoring of the SQSOs was complete, each of the three responding vendors was invited to the next stage of the negotiations. Demonstrations
The demonstrations constituted the commencement of the process of negotiation with the three vendors.
Prior to the demonstrations, SQSO evaluator Maureen Johnson was excused from further participation as an evaluator due to an unexpected and serious family illness. At the hearing,
counsel for CTS stipulated that “we’re not contesting in any way that she would not have had to have been replaced.”
The DHSMV procurement officer, Mr. Bailey, replaced Ms. Johnson with Dana Reiding. Mr. Bailey would not have replaced Ms. Johnson unless the replacement possessed more knowledge and experience regarding the subject matter of the ITN. Before being promoted to Assistant Division Director, Ms. Reiding held Ms. Johnson’s current position as bureau chief of the DHSMV records management section. She participated in the development of the ITN specifications. Ms. Reiding attended all but approximately 15 minutes of the SQSO discussions, and knew what issues were discussed. According to Major Williams, Ms. Reiding knew what she was doing with regard to records management.
Neither the statutes, rules and policies governing this procurement process, nor the specifications of the ITN, required that the members of the evaluation team be identical throughout the stages of the process. Thus, there was no irregularity in the replacement of Ms. Johnson with Ms. Reiding.
The demonstrations took place from May 9, 2011 through May 13, 2011. Ms. Reiding participated in the demonstration for each of the three vendors. The demonstrations were conducted by representatives of the vendors, with frequent questions posed by the evaluators. The discussions that took place during the
demonstrations gave no hint of bias by Ms. Reiding or any other evaluator either for or against any of the vendors.
Best and Final Offers
At the conclusion of each demonstration, the vendors were to prepare and submit their BAFOs. Generally, the vendors were advised to concentrate on improving scores in which they were deficient at the SQSO level. However, the final selection was based solely on the BAFO evaluation and scoring. SQSO scores were not carried over.
The deadline for submission of the BAFOs was May 31, 2011. Each of the three vendors timely submitted a BAFO for consideration by the evaluation committee.
The evaluation of the BAFOs was on a 225-point scale, with several pass/fail sections. All of the vendors “passed.”
After the BAFO process, the three responding vendors were ranked as follows:
Vendor | Stacy Arias | Maj. Richard Mechlin | Dana Reiding | Brinson Tatum | Maj. Steven Williams | Average Score |
CTS | 204 | 209 | 177 | 209 | 221 | 204.0 |
OPS | 211 | 197 | 209 | 212 | 211 | 208.0 |
Lexis | 204 | 207 | 183 | 193 | 216 | 200.6 |
As a result of the BAFO scores, OPS was awarded the contract. The award was posted at 4:30 p.m. on June 10, 2011.
Protest Issues
Petitioner, CTS, timely filed a protest of the award of the contract to OPS. The June 17, 2011 protest petition identified three issues that formed the basis for its protest of the award of the contract to OPS. Those issues were the unfairness of the competitive process created by the replacement of Maureen Johnson with Dana Reiding as a member of the evaluation committee; the failure of both OPS and Lexis-Nexis to comply with a mandatory provision of the ITN - paragraph 1.35 - and with section 946.515(2), Florida Statutes, both of which required the use of PRIDE, Inc. services for the data entry of crash reports; and statistical evidence of bias on the part of Ms. Reiding, attributed to either her bias for OPS, or her lack of awareness of the criteria of the ITN as clarified and agreed to during the SQSO process. The issue of “best value” as a mandatory statutory requirement was raised in subsequent pleadings.
In its Answer to Open Portal Solutions’ Motion for Summary Recommended Order, filed on August 10, 2011, CTS stated that:
In order that they [sic.] be no surprises at the trial de novo, the position of CTS in this protest involves three issues:
The necessity that PRIDE (the correctional inmate program that is mandated by the State of Florida) had to be included
and that OPS did not include this in its proposal.
That Dana Reiding’s scoring bias violated Florida Statutes and case law as set forth in more detail in the State of Florida Division of Administrative Hearings Case No. 11-1662BID of Infinity Software Development, Inc. v. Department of Education. This decision entered by ALJ Harrell on the 7th day of June, 2011, sets forth the law.
That the highest overall value to the State is clearly the proposal submitted by CTS.
During the opening statement, counsel for CTS stated that “in regard to our protest, we had three things. Of course, the best value is what the ITN required. The other is PRIDE and the statute. . . . And then the third question is the scoring bias. There’s also, in regard to best value, the significance to Florida.”
On July 11, 2011, OPS filed its Petition for Leave to Intervene, in which it raised the responsiveness of the CTS ITN response as an issue. On August 3, 2011, OPS filed a Motion for Summary Recommended Order in which it narrowed the issue of the responsiveness of CTS’s proposal to the failure to disclose Captain Succi’s employment with CTS, as well as his involvement in the ITN. The Department concurred in the substance of OPS’s motion. The motion was denied not due to a determination that CTS’s proposal was responsive, but rather on applicable case law
that upheld the standing of a non-responsive bidder to demonstrate the non-responsiveness of the winning bidder or that the process was so skewed as to be contrary to competition. CTS was adequately put on notice that the responsiveness of its response is an issue for resolution in this proceeding.
In order for CTS to receive the award of the contract, it must have submitted a responsive proposal that will survive rejection under the terms of the ITN. If the CTS proposal is not responsive, its standing will be limited to proving that the other responses are likewise non-responsive, or to proving that the process was contrary to competition, either of which would require the Department to reject all proposals and reissue the ITN. The parties agreed that since Lexis-Nexis also failed to use PRIDE in its proposal, a determination that PRIDE was mandatory would apply with equal effect to the third-ranked vendor.
Given the limiting effect of a determination that the CTS proposal was non-responsive will have on the remainder of the proceeding, that issue is taken up first.
Responsiveness of the CTS Proposal
Jeffrey Succi was, until June 15, 2011, an employee of the Department. He was at all times relevant to this proceeding, and up to and including the June 15, 2011, effective date of his retirement, a Captain with the Florida Highway Patrol. From
April 4, 2011 until April 21, 2011, Captain Succi was also an employee of CTS, having received dual-employment authorization from the Department.
Paragraph 6 of Form PUR 1000, which was part of the terms, conditions and specifications of the ITN, provides that “Respondents shall disclose with their response the name of any officer, director, employee, or other agent who is also an employee of the State.” Thus, according to OPS, the failure of CTS to disclose that its employee, Captain Succi, was also an employee of the state violated a mandatory term of the ITN, rendering CTS’s proposal non-responsive.
As evidence that CTS’s failure to disclose was not a minor, waivable deviation in its proposal, OPS and the Department have also argued that Captain Succi was an active participant in the ITN process for CTS prior to and during his period of employment with CTS, information that was withheld from the Department.
CTS, or an affiliate, developed electronic crash reports for the Department and the Florida Highway Patrol under contracts extending back to 2001. Captain Succi had, for many years, been closely involved in managing the Department’s contracts with CTS, including the development of the edit rules that helped ensure their accuracy and consistency. The FHP crash reports are among those that will be marketed for sale by the
prevailing vendor in ITN 013-11. Although he was not the Department’s contract manager, Captain Succi was a primary contact person between his agency and CTS for the crash report contract.
The FHP crash reports were, as a result of years of refinement of the edit codes, extremely accurate. Due to the interaction between data fields, it is difficult to make an inadvertent error on a crash report, resulting in an error rate for the most recent reports of 0.001 percent. There is, consequently, no dispute that CTS has developed an excellent electronic crash report.
In late 2010, Captain Succi began to contemplate his retirement from the FHP. He determined that he had excess leave for which he would not be paid upon retirement. Therefore, he decided that he would take paid leave from April 1, 2011, until his projected date of retirement on December 31, 2011.
In early March 2011, Captain Succi engaged in discussions with CTS regarding employment opportunities. Since he was an employee of the state of Florida, Captain Succi understood that he would need to obtain authorization from the FHP to work secondary employment, whether he was or was not on leave from the FHP.
On March 10, 2011, Kay Stephenson executed a Request to Work Secondary Employment form, which identified CTS as Captain
Succi’s prospective employer, “Computer Applications” as the primary business, and “Project Coordinator” as Captain Succi’s specific duties. Captain Succi indicated that he desired his secondary employment to commence after April 1, 2011, which corresponded with the date on which he expected to go on paid leave.
On March 11, 2011, the ITN was issued. CTS, as the existing electronic crash report contractor for the FHP, was interested in having the ITN withdrawn, with the goal of having the data entry and crash report sales contract issued to it as a sole source contract.
Mr. Lincke contacted Captain Succi to advise him that the ITN had been issued. During the period of time that he was negotiating employment with CTS, and while still on active duty with the FHP, Captain Succi went to the Department website at the request of CTS and downloaded a copy of the ITN. Captain Succi reviewed the ITN, and developed his opinion that the contract resulting from the ITN would be financially disadvantageous to the winning responder. Captain Succi spoke with Mr. Stephenson on March 15, and advised him that the ITN was a terrible idea and that CTS could not make money on it.
On March 15 and 16, 2011, a series of e-mails were exchanged between Mr. Lincke, Mr. Stephenson, and others that indicate that Captain Succi was aware of and participating in
CTS’s efforts to have the ITN withdrawn. Those e-mails stated that Captain Succi was “in [Tallahassee] now and looking for info for [CTS],” was “digging into this thing,” and was to be “briefed on the latest.” Although the individuals involved in the
March 15 and 16 e-mails denied any direct involvement in the ITN by Captain Succi, the force and effect of the contemporaneous statements contained in that series of communications lead to the inescapable factual conclusion that Captain Succi was involved in efforts on behalf of CTS to derail the ITN within days of its issuance. The precise nature and extent of Captain Succi’s involvement in those efforts is not known, and in any event were unsuccessful.
Regardless of the success of its efforts to affect the course of the ITN, what is clear is that CTS was having material discussions with Captain Succi, an employee of the Department, regarding procurement matters relating to the ITN, and that Captain Succi was providing information to CTS, at the very least as to his opinion of the value of the ITN. Thus, immediately upon the release of the ITN, CTS engaged in a series of contacts and communications with an employee of the Department, other than the designated procurement officer, concerning aspects of the ITN.
On March 16, 2011, Captain Succi’s Request to Work Secondary Employment was approved by the FHP. The request was
expressly conditioned by Major Steven Williams upon Captain Succi having absolutely no involvement in any issues involving the Department or the state of Florida.
On or about April 4, 2011, Captain Succi started work at CTS. He was given the title of National Sales Director, despite having had no previous sales experience, and started at an annual salary of $100,000, plus a 3 percent commission. The fact that Captain Succi had no sales experience is not significant in and of itself since he was placed in that position to take advantage of his law enforcement background, rather than to exercise any heightened sales experience. The evidence was persuasive that in the field of law enforcement-related sales, “cops like to deal with cops.”
Immediately upon starting work, Captain Succi was called into a meeting regarding whether CTS should submit a response to the ITN. Captain Succi expressed his opinion that the ITN was nothing more than an effort by the Department to relieve itself of the effort, cost, and liability of converting and maintaining crash reports, while retaining the economic advantages. In short, he strongly advised against CTS involving itself in the ITN process because he thought CTS would lose money. He was at the meeting for approximately 15 to 20 minutes. Captain Succi’s opinion was generally shared by James Benson,
CTS’s Chief Operating Officer, who had doubts as to the financial viability of the contract.
In response to Captain Succi’s strong negative advice, CTS employee Steven Williams,2/ who was a proponent of CTS getting the ITN contract, prepared cost and revenue figures to support his position.
On Friday, April 8, 2011, Captain Succi returned to his home in Ocala for the weekend. On that same date, Mr. Benson sent an e-mail to JoEllen Martin, with the subject being “ITN,” in which he stated that “Jeff Succi needs for you to make him a room reservation for Sunday night, Monday night and Tuesday night. . . . He is coming back to work with us on the proposal.”
On April 11, 2011, a meeting was convened in which Mr. Williams presented his cost and revenue projections to CTS’S decision-making personnel. Captain Succi attended the meeting, where he observed Mr. Williams’ projections written on a large “white board.” Captain Succi discussed the proposal, and maintained his objection. He felt that the proposal would cost his new company more than it would generate in revenue.
Mr. Benson reviewed the proposal with Captain Succi, and despite his continued misgivings that the contract would lose money for several years, decided that “it is a go.”
The evidence demonstrates that by no later than
April 11, 2011, CTS was continuing to engage in discussions with
an employee of the Department, other than the designated procurement officer, which discussions now involved specific cost information related to the ITN.
The ITN called for the submission of a marketing plan to describe how to get potential customers to come to the contractor’s website to purchase crash reports and data. On April 12, 2011, Captain Succi was asked to provide a marketing plan to the group preparing the ITN response. Mr. Benson had previously provided Captain Succi with a skeletal “plan” and asked him to improve it for use as CTS’S generic marketing plan. As part of that amendment, Captain Succi added marketing on billboards and at trade shows to the plan, although the trade show suggestion originated with Mr. Benson. Captain Succi further modified the generic plan to make it specifically applicable to the ITN by incorporating Florida law enforcement agencies, and supplied the plan for inclusion in the ITN response. The plan was incorporated without change.
Captain Succi also was asked his opinion regarding the inclusion of language in the advertising that such advertising did not constitute the Department’s endorsement of the contractor’s services. Captain Succi sent a copy of the Florida statute requiring such a disclaimer to the ITN preparation team with a recommendation that the advertising section include the disclaimer. His recommendation was rejected by Mr. Benson.
Prior to the submission of CTS’S SQSO, Captain Succi was provided with a copy of the final draft for review. Though the evidence supports his testimony that he did not read the final draft, CTS nonetheless provided the opportunity.
On April 15, 2011, the SQSO was completed and put in FedEx for delivery on Monday, April 18, 2011. Captain Succi was then included as a recipient of a congratulatory e-mail, thanking the recipients for “the full team effort.”
The CTS SQSO was received by the Department on
April 18, 2011. At that time, Captain Succi was an employee of CTS, and had involvement with the ITN. CTS did not disclose in its response that Captain Succi was also an employee of the Department. In fact, the SQSO made no mention of Captain Succi at all.
On or about April 20, 2011, Captain Succi contacted Tom Austin, a Department employee, to inquire whether the FHP’s daily error log could be sent to Captain Succi’s CTS computer. The error log is a report generated daily by the Department as to errors detected on electronic crash reports on any given day, and is generated for each day whether there are errors or not. Captain Succi was receiving the error logs on his FHP-issued computer via his FHP e-mail address, which he continued to possess and use despite his leave status.
Mr. Austin reported Captain Succi’s request to the Department’s legal office and Ms. Reiding. Ms. Reiding contacted Major Williams to advise him of the request. Major Williams immediately contacted Mr. Austin and requested that Captain Succi’s e-mail be forwarded to him. He also advised Mr. Austin that he was absolutely not to send any Department business to a CTS e-mail address.
Ms. Reiding expressed her concerns regarding Captain Succi’s request to Major Williams. However, the more involved concerns were voiced by the Colonel of the Florida Highway Patrol, and by the Department’s legal counsel. Major Williams spent several hours discussing the matter with legal
counsel, at which time it was determined that the dual employment authorization would be rescinded. The decision was not directly related to the ITN response.
In his effort to locate Captain Succi, who was by that time in Idaho, Major Williams contacted Shane Lincke. During that conversation, Major Williams was advised that Captain Succi had no involvement in the ITN. In a subsequent call between Major Williams and Mr. Stephenson, it was represented that Captain Succi had no involvement but for being asked a few “generic questions.” The information provided to Major Williams was not accurate or complete.
On April 21, 2011, Major Williams advised Captain Succi that his dual employment approval was revoked. Captain Succi called Shane Lincke and Mr. Stephenson and resigned from CTS effective immediately. He then spoke and exchanged e-mails with Department counsel. He was advised that his options at that time were to resign from CTS, or to retire from the Department and work for CTS, in which case he would lose his accumulated excess leave. Captain Succi decided to remain an employee of the Department. His resignation from CTS became effective on
April 21, 2011.
On May 19, 2011, Captain Succi submitted his resignation from the Department, effective on June 15, 2011.
The CTS BAFO was submitted to the Department on May 31, 2011. At that time, Captain Succi was not a paid employee of CTS, although he continued to maintain a CTS e-mail account. Captain Succi and CTS both understood that he would be returning to CTS employment as soon as his retirement from the Department became effective on June 15, 2011.
On June 13, 2011, Captain Succi was involved in communications with CTS regarding “tcats.” Tcats is a pilot program being implemented in three counties involving the transmission of ticket data to counties. CTS developed the pilot program for the Department, and Captain Succi was involved. The June 13, 2011, e-mails were not directly relevant to the ITN.
Also on June 13, 2011, while he was still employed with the FHP, and while the revocation of his dual employment authorization was still operative, Captain Succi traveled to San Diego, California to attend the annual International Association of Chiefs of Police/Law Enforcement Information Management conference. He attended as a representative of CTS because he knew that he would be starting work for them on June 16, after his FHP retirement was effective, and felt he needed to get exposure as a private sector sales director. CTS paid all of his expenses for the conference. Captain Succi ran into Major Williams at the conference, and advised him that he was attending on his own, and paid his own way. That statement was false.
The evidence in this case demonstrates that Captain Succi was an employee of the Department from the date of the release of the ITN until June 15, 2011. At the time of the submission of the SQSO, Captain Succi was also an employee of CTS. CTS violated mandatory terms of the ITN by failing to identify that fact in its response.
The evidence in this case also demonstrates that during the period from the date of the release of the ITN until June 15, 2011, during which Captain Succi was an employee of the Department, CTS violated mandatory terms of the ITN by carrying on substantive and material communications with Captain Succi,
communications which included consideration of economic and cost information related to the ITN.
Captain Succi was not only an employee of the Department, a fact that by itself would have made the CTS proposal non-responsive, but was closely involved in the subject matter of the ITN, i.e., crash reports. CTS’s discussions with a Department employee who would reasonably be expected to have “insider” access and information, and the failure to disclose that information as required by the ITN terms, conditions, and specifications affect the competitiveness of proposals as that term is used in section 1.6 of the ITN.
The fact that Major Williams knew that Captain Succi had dual employment authorization for CTS does not constitute a waiver of the requirement in the ITN that CTS disclose, in its response, that an employee was also an employee of the state.
As to the waiver issue, the requirement established in the ITN is clear, unequivocal, and mandatory that the disclosure be made part of the ITN response. The undersigned will not graft a responsibility on a procurement officer to inquire throughout their agency whether a proposed vendor employs an employee of the state. Compliance with a mandatory item of a public procurement, particularly one with the public policy implications of ensuring that an agency’s procurement office knows whether state employees are actively assisting vendors in the preparation of competitive
proposals, cannot be left to the chance that a state employee might remember that another state employee is also employed by a vendor, and to understand the significance of that involvement.
In addition to the foregoing, the established elements of waiver are conditioned upon the waiving party having all of the material facts. L. R. v. Dep’t of Child. & Fams., 822 So. 2d
527 (Fla. 4th DCA 2002); Zurstrassen v. Stonier, 786 So. 2d 65,
70 (Fla. 4th DCA, 2001). In this case, Major Williams, who was Captain Succi’s commanding officer, conditioned his dual employment approval on Captain Succi having absolutely no involvement in any matters involving the State of Florida. He had no reason to believe that Captain Succi would be insubordinate by violating that direct order. Furthermore, Major Williams and others in the Department were provided, after-the- fact, with descriptions of Captain Succi’s involvement that were, at best, inaccurate. The Department did not have the material facts regarding Captain Succi’s involvement in the ITN until provided through discovery in this case. Thus, the facts of this case do not support a finding that the failure to disclose Captain Succi’s employment by both CTS and the Department in the CTS response could have been subject to a legal waiver, or was a minor irregularity that could be waived under the terms of the ITN.
Based on the foregoing, the CTS response to ITN 013-11 was non-responsive due to non-compliance with the mandatory provisions of sections 1.3 and 1.25 of the ITN, and paragraph 6 of Form PUR 1001. Given Captain Succi’s direct involvement with the ITN, involving subject matter that is directly related to his duties as a Department employee, the items that rendered the CTS proposal non-responsive were not minor irregularities, and could not be waived under the terms of the ITN.
CTS was non-responsive, and is not eligible to receive the award of the contract under ITN 013-11, regardless of the outcome of this proceeding. Therefore, CTS can only prevail if it can demonstrate either that OPS’s proposal is also non- responsive, or that the process itself was contrary to competition, thus requiring that the proposed award be withdrawn, and the ITN process started anew.
Responsiveness of the OPS Proposal PRIDE Utilization
CTS has alleged that the failure of OPS to use PRIDE for the data entry component of its proposal violated mandatory provisions of the ITN and state law, thus rendering the OPS proposal non-responsive.
The issue of PRIDE utilization was directly addressed in paragraph 1.35 of the ITN, and paragraph 40 of Form PUR 1000. Standing alone, those sections could be construed to support
CTS’s contention that PRIDE utilization was mandatory. However, both sections are vague, and impose no clear and direct instruction. Paragraph 1.35 requires that PRIDE commodities and services be used “where applicable,” citing Form PUR 1000, paragraph 40. Form PUR 1000, paragraph 40, which consists of a recitation of statutory language that is required to be included in all solicitations, requires only that “any articles which are the subject of, or required to carry out, the Contract” be purchased from PRIDE. The term “article” is commonly defined as “an individual thing in a class, an item.” THE AMERICAN HERITAGE DICTIONARY 74 (1981). The data processing services contemplated by the ITN are not “articles.”
As part of the scheduled process of refining and clarifying the terms, conditions, and specifications of the ITN, potential responding vendors were allowed to submit questions to the Department. Three questions concerning the requirement to use PRIDE were submitted, two of them by CTS. In the most direct of the three questions, CTS asked, “[i]s it a requirement to utilize PRIDE for the entry of data reports?” The answer to the question, set forth as Question 18 of Addendum #1, was “[n]o, it is not a requirement to utilize PRIDE for the data entry of reports.” (emphasis added). The answers to questions 19 and 79 of Addendum #1 were equally unequivocal that utilization of PRIDE was not required.
The answers were posted by the Department, and became part of the ITN’s terms, conditions, and specifications. Vendors were required to file an acknowledgement of receipt of the answers with their proposals. CTS, OPS, and Lexis-Nexis all acknowledged receipt of the answers.
No prospective vendor filed a protest of the terms, conditions, and specifications of the ITN presented by the posted responses.
OPS’s proposal called for a short transitional period during which it would use PRIDE to transcribe paper crash reports to electronic format, consistent with PRIDE’s current fee contract with the Department. PRIDE’s role would be phased out as OPS personnel were brought into the process.
The ITN, including the answers to vendor question Nos.
18, 19, and 79, does not require that a vendor use PRIDE for data processing of paper crash reports. Therefore, OPS’s failure to make PRIDE a permanent part of the contract services was compliant with the ITN terms, conditions, and specifications, and did not make its proposal non-responsive.
Best Value
CTS has argued that items constituting “best value,” particularly as related to state preference points, were statutorily required, potentially making the failure to address those issues one of responsiveness. Generally, the issue of best
value is an evaluation and scoring issue, and not a threshold responsiveness issue. However, to ensure that all issues potentially addressing responsiveness have been addressed, best value is addressed as follows.
Both Mr. Bailey and Ms. Reiding testified that best value to the state is determined by the extent to which a vendor meets the criteria established in the ITN. Issues not specifically identified in the ITN are not ones that can affect the outcome, either as to responsiveness or scoring. The vendor that achieves the highest score from the evaluation committee, based solely on express ITN criteria, has demonstrated that its proposal is the best value to the state. That standard allows for a degree of certainty on the part of vendors when responding to a public solicitation, and is the most reasonable construction of the term.
CTS argues that best value may encompass any number of factors, whether or not they are included with specificity in the ITN, including job creation, performance on previous contracts, having Florida vs. out-of-state headquarters, and application of out-of-state preferences. CTS further argues that those issues within the ambit of best value that are based on statute may form the basis for a determination that OPS failed to meet a mandatory requirement, thus rendering its proposal non-responsive. The application of criteria that are not identified in the terms,
conditions, and specifications of a solicitation would impose an element of uncertainty into the procurement process that would make it nearly impossible for a vendor to adequately and accurately respond, and would likely raise the issue of whether an agency’s reliance on unspecified criteria was arbitrary and capricious. Therefore, an item cannot be used as a threshold responsiveness item if it is not specified in the public solicitation, under the rubric of best value.
Bias as Affecting the Competitive Balance of ITN 013-11
Dana Reiding was primarily in charge of developing the terms, conditions and specifications of ITN 013-11, and was knowledgeable and experienced as to its subject matter.
At the end of 2010 or in early 2011, prior to the posting of the ITN, Captain Succi was contacted by Shane Lincke to request that CTS be allowed to demonstrate an application for the electronic sale of crash reports. CTS’s communication with Captain Succi was not unusual, as he was a primary contact for its crash report contracts. Captain Succi took the request to Tom Austin, who referred him to Ms. Reiding. Although several informal demonstrations had been allowed earlier in the year, including one by OPS, the Department denied the request due to the fact that it had since begun the active development of the ITN that is the subject of this proceeding. Under the circumstances, it was not improper to deny the request, nor does
the denial constitute evidence of wrongdoing or bias by the Department or any employee thereof against CTS.
After the release of the ITN on March 11, 2011, Ms. Reiding remained involved in the process. Ms. Reiding attended all but approximately 15 minutes of the SQSO
presentations and discussions. Thus, she was familiar with the substance of the discussions and concerns regarding each of the vendors.
When Ms. Johnson advised Kevin Bailey of her need to step down from the evaluation committee due to a family emergency, Mr. Bailey appointed Ms. Reiding as her replacement. The replacement of Ms. Johnson with another evaluator was not improper, a fact stipulated by CTS. There been no allegation that Ms. Reiding was not qualified to serve as an evaluator.
Ms. Reiding’s appointment to the committee was announced at the beginning of each of the three demonstrations without objection by any vendor.
Ms. Reiding attended the demonstrations, each of which lasted several hours. She was an active participant in discussions, but made no statements and exhibited no conduct to indicate that she was biased for or against any vendor.
Major Williams was the evaluator with the closest ties to CTS, having served as the contract manager for CTS contracts since 2002. Major Williams, who attended all of the discussions
and demonstrations, testified that he was aware of no evidence of any bias shown by Ms. Reiding, or by any other member of the committee. In that regard, he believed that Ms. Reiding brought an understanding to the committee of the role of the records and contract management side of the evaluation. Major Williams discussed each of the evaluators, and the different perspectives and skill sets each brought to the process, and concluded that together they formed “a very good panel.”
Ms. Reiding testified that she evaluated each proposal objectively, and that she assigned scores based on her honest evaluation of the relative merits of each proposal. Her testimony was credible, and it is so found.
The scoring criteria as established in the ITN involved the application of judgment, and the use of a scoring scale for the various sections without any exact score for any section.
The ITN questions were subjective, and there was no “correct” score. Under these circumstances, it is not unreasonable to expect disagreement in the evaluation of the vendors.
While Ms. Reiding’s score of the CTS BAFO was lower than that of either OPS or Lexis-Nexis, there is no evidence of any kind to support a finding of improper conduct or bias. CTS did not offer a single statement, incident, or act to show that Ms. Reiding had a bias against CTS or a bias for OPS, or any basis to claim that scorers, including Ms. Reiding, were not
motivated to be conscientious and fair. There was no evidence that Ms. Reiding had any conflict or bad experience with CTS, or that Ms. Reiding had any relationship or outside contacts with OPS. In short, no evidence of any kind was offered that could support even an inference that Ms. Reiding had any reason whatsoever to favor OPS over CTS.
CTS introduced the deposition testimony of Martin Levin in order to establish that a bias in favor of OPS was evident through a statistical analysis of Ms. Reiding’s scores.
Mr. Levin was neither identified nor qualified as an expert witness, though he is clearly an intelligent and accomplished individual. Mr. Levin’s analyses was offered in an effort to show that Ms. Reiding’s scores, which were lower for CTS than OPS in 14 of 16 categories, could only be the result of bias against CTS. However, Mr. Levin’s non-expert statistical analysis was limited to determining whether Ms. Reiding’s scores could be explained by chance. He could not determine whether her scores were influenced by bias, or by one of multiple other factors.
Mr. Levin has no expertise in any of the substantive areas of the ITN, or in the development, evaluation, or scoring of the ITN proposals. The statistical analysis does not prove actual bias, prejudice, or impropriety, because statistical tests do not demonstrate such matters. In that regard, Mr. Levin admitted that he had no reason to believe that any of the scorers
was not conscientious and diligent, or that they used any improper scoring method or standard.
Since Mr. Levin was not offered as an expert, his testimony was received subject to the standards established for the consideration of opinion testimony of lay witnesses under section 90.701, Florida Statutes, which provides:
If a witness is not testifying as an expert, the witness’s testimony about what he or she perceived may be in the form of inference and opinion when:
The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
The opinions and inferences do not require a special knowledge, skill, experience, or training.
The type of opinion testimony that may be elicited from a lay witness has generally been that necessary to accurately describe what has been personally observed by the witness, e.g., distance, time, size, weight, form, or identity. CHARLES W. EHRHARDT, EHRHARDT’S FLORIDA EVIDENCE § 701.1 (2010 Ed.). However, as summarized by Professor Ehrhardt, “[i]f the opinion concerns a matter of specialized knowledge which requires an expert witness to draw the conclusion, section 90.701(2) prohibits a lay witness from testifying as to an opinion.” Id.
Mr. Levin’s testimony was largely based on his training in statistical analysis, and presented as his opinion based on his standard deviation analysis of the scores of Ms. Reiding,
Ms. Johnson, and others on the evaluation committee. His testimony clearly relied on his specialized education and training, and requires a degree of expertise to formulate and present.
If CTS wanted Mr. Levin’s opinion testimony regarding the specialized field of statistical analysis to carry any weight, it was incumbent upon it to identify Mr. Levin as an expert in accordance with the Order of Prehearing Instructions. As it is, the Department and OPS were not provided with the required and necessary notice to allow them to meet what is clearly testimony of an expert nature. Therefore, although
Mr. Levin’s deposition testimony was admitted in evidence, the undersigned has ascribed no weight to those elements of
Mr. Levin’s testimony that offer his opinion as to the statistical analysis of the consistency of the scoring of the evaluators, the explanation of whether Ms. Reiding’s scores could be attributed to “chance,” or whether Ms. Reiding’s scoring demonstrates a statistical bias in her evaluation of the CTS proposal.
There is little question but that reasonable persons could, and did, disagree on the score to be awarded for
individual ITN categories, and to the overall vendor proposals. However, inconsistencies and differences in the scoring, without some admissible, persuasive, and specific evidence of wrongdoing or bias, are not sufficient to demonstrate that the purpose of the competitive bidding process was subverted in this case, or justify a finding that the evaluation process was arbitrary, capricious, fraudulent, or dishonest. There having been no persuasive evidence of wrongdoing or bias in this case, CTS failed to demonstrate by a preponderance of the evidence that the award of the contract to OPS was clearly erroneous, contrary to competition, arbitrary, or capricious.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. See §§ 120.569 and 120.57, Fla. Stat. (2010).
Section 120.57(3)(f) provides that:
. . .the burden of proof shall rest with the party protesting the proposed agency action. In a competitive-procurement protest, other than a rejection of all bids, proposals, or replies, the administrative law judge shall conduct a de novo proceeding to determine whether the agency’s proposed action is contrary to the agency’s governing statutes, the agency’s rules or policies, or the solicitation specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious.
The nature of the de novo review in a bid protest proceeding has been established as follows:
[T]he phrase 'de novo hearing' is used to describe a form of intra-agency review. The judge may receive evidence, as with any formal hearing under section 120.57(1), but the object of the proceeding is to evaluate the action taken by the agency. See Intercontinental Properties, Inc. v. State Department of Health and Rehabilitative Services, 606 So. 2d 380 (Fla. 3d DCA 1992).
State Contracting and Eng’g Corp v. Dep’t of Transp., 709 So. 2d, 607, 609, (Fla. 1st DCA 1998).
The standard of review of the agency’s proposed action in a bid protest proceeding provides that an administrative law judge:
. . . need not, in effect, second guess the members of evaluation committee to determine whether he and/or other reasonable and well- informed persons might have reached a contrary result. Rather, a "public body has wide discretion" in the bidding process and "its decision, when based on an honest exercise" of the discretion, should not be overturned "even if it may appear erroneous and even if reasonable persons may disagree." Department of Transportation v. Groves- Watkins Constructors, 530 So.2d 912, 913 (Fla. 1988) (quoting Liberty County v.
Baxter's Asphalt & Concrete, Inc., 421 So.2d
505 (Fla. 1982)) (emphasis in original).
"The hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly." Groves-Watkins, 530 So.2d at 914.
Scientific Games, Inc. v. Dittler Brothers, Inc., 586 So. 2d 1128, 1131 (Fla. 1st DCA 1991).
Section 120.57(3)(b) provides in pertinent part that “[t]he formal written protest shall state with particularity the facts and law upon which the protest is based.” In order to place the parties on notice of the issues for disposition in a bid protest proceeding, a petitioner must allege specific facts and how the agency’s proposed action is contrary to the agency’s governing statutes, the agency’s rules or policies, or the solicitation specifications. See Hamilton v. Dep’t of Bus. and Prof’l Reg., 764 So. 2d 778 (Fla. 1st DCA 2000), (citing Cottrill v. Dep’t of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996)); Anchor Towing, Inc. v. Dep’t. of Transp. and Sunshine Towing,
Inc., Case No. 04-1447BID (Fla. DOAH Sept. 23, 2004; Dep’t of Transp. Dec. 1, 2004, remanded on other grounds Apr. 18, 2005).
Based on the pleadings filed in this case by each of the parties, the issues for consideration in this proceeding are limited to the responsiveness of the CTS proposal due to CTS’s failure to identify Captain Succi as a CTS employee in the proposal; the responsiveness of the OPS proposal due to its failure to utilize PRIDE for its data entry functions and whether the award of the contract to OPS was the “best value” to the state3/; and the effect of Ms. Reiding’s alleged bias, if any, on the competitive goals of the procurement.
CTS, as the petitioner, has the burden to establish either that OPS’s reply was non-responsive or that the alleged scoring bias was so pervasive that the Department’s decision to award the contract to OPS was clearly erroneous, contrary to competition, arbitrary, or capricious. Section 120.57(3)(f); Dep’t of Transp. v. J. W. C. Co., Inc., 396 So. 2d 778, 787 (Fla. 1st DCA 1981).
OPS has the burden to establish that CTS’s proposal was nonresponsive due to the failure to disclose Captain Succi as an employee of CTS. Dep't of Transp. v. J. W. C. Co., supra. It is not necessary for OPS to prevail on its issue to receive the award of the contract. However, it is necessary for CTS to prevail on its issues to either receive the award or have the contract rebid.
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." U.S. v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Pershing Industries, Inc. v. Dep’t of Bank. and Fin., 591 So. 2d 991, 993 (Fla. 1st DCA 1991). Agency action may also be found to be "clearly erroneous" if the agency's interpretation of the applicable law conflicts with its plain meaning and intent. Colbert v. Dep't of Health, 890 So. 2d
1165, 1166 (Fla. 1st DCA 2004). In such a case, "judicial deference need not be given" to the agency's interpretation. Id.
An act is "contrary to competition" if it runs contrary to the objectives of competitive bidding, which have been long held:
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. . . .
Wester v. Belote, 138 So. 2d 721, 723-24 (Fla. 1931); see also
Harry Pepper & Assoc., Inc. v. City of Cape Coral, 352 So. 2d 1190, 1192 (Fla. 2d DCA 1977). In that regard, public officials do not have the power “to make exceptions, releases and modifications in the contract after it is let, which will afford opportunities for favoritism, whether any such favoritism is practiced or not.” Wester v. Belote at 724. The public policy regarding exceptions and releases in contracts applies with equal force to the contract procurement.
Section 287.001 establishes the legislative intent that public procurement be intrinsically fair and open, and that it also eliminate the appearance and opportunity for favoritism so as to preserve public confidence in the process, and provides as follows:
The Legislature recognizes that fair and open competition is a basic tenet of public procurement; that such competition reduces the appearance and opportunity for favoritism and inspires public confidence that contracts are awarded equitably and economically; and that documentation of the acts taken and effective monitoring mechanisms are important means of curbing any improprieties and establishing public confidence in the process by which commodities and contractual services are procured.
That legislative intent has been applied to determine whether an action is contrary to competition as follows:
Thus, from Section 287.001 can be derived an articulable standard of review. Actions that are contrary to competition include those which:
create the appearance of and opportunity for favoritism;
erode public confidence that contracts are awarded equitably and economically;
cause the procurement process to be genuinely unfair or unreasonably exclusive; or
are unethical, dishonest, illegal, or fraudulent.
SYSLOGIC Tech. Servs., Inc. v. So. Fla. Water Mgmt. Dist., Case No. 01-4385BID (Fla. DOAH Jan. 18, 2002; SFWMD Mar. 6, 2002).
An "arbitrary" action is "one not supported by facts or logic, or despotic." A "capricious" action is "one which is taken without thought or reason or irrationally." Agrico Chemical Co. v. Dep’t of Envtl. Reg., 365 So. 2d 759, 763 (Fla. 1st DCA 1978); see also Hadi v. Liberty Behavioral Health Corp.,
927 So. 2d 34, 38-39 (Fla. 1st DCA 2006). If agency action is justifiable under any analysis that a reasonable person would use to reach a decision of similar importance, the decision is neither arbitrary nor capricious. Dravo Basic Materials Co., Inc. v. Dep’t of Transp., 602 So. 2d 632, 634 n.3 (Fla. 2d DCA 1992).
Chapter 287, Florida Statutes, establishes the various methods for the procurement of commodities and services by state agencies. The Department utilized an invitation to negotiate as the method for procurement of the contract at issue. Section 287.057(1)(c) describes that method of procurement as follows:
(c) Invitation to negotiate.--The invitation to negotiate is a solicitation used by an agency which is intended to determine the best method for achieving a specific goal or solving a particular problem and identifies one or more responsive vendors with which the agency may negotiate in order to receive the best value.
Before issuing an invitation to negotiate, the head of an agency must determine and specify in writing the reasons that procurement by an invitation to bid or a request for proposal is not practicable.
The invitation to negotiate must describe the questions being explored, the facts being sought, and the specific goals or problems that are the subject of the solicitation.
The criteria that will be used for determining the acceptability of the reply and guiding the selection of the vendors with which the agency will negotiate must be specified.
The agency shall evaluate replies against all evaluation criteria set forth in the invitation to negotiate in order to establish a competitive range of replies reasonably susceptible of award. The agency may select one or more vendors within the competitive range with which to commence negotiations. After negotiations are conducted, the agency shall award the contract to the responsible and responsive vendor that the agency determines will provide the best value to the state, based on the selection criteria.
The contract file for a vendor selected through an invitation to negotiate must contain a short plain statement that explains the basis for the selection of the vendor and that sets forth the vendor’s deliverables and price, pursuant to the contract, along with an explanation of how these deliverables and price provide the best value to the state.
Section 287.012(25) defines a “responsive” submission to a solicitation as “a bid, or proposal, or reply submitted by a responsive and responsible vendor that conforms in all material respects to the solicitation.” A “responsive vendor” is defined by section 287.012(26) as “a vendor that has submitted a bid, proposal, or reply that conforms in all material respects to the solicitation.”
Responsiveness of the CTS Proposal
Section 287.057(23) provides that:
Each solicitation for the procurement of commodities or contractual services shall include the following provision: “Respondents to this solicitation or persons acting on their behalf may not contact, between the release of the solicitation and the end of the 72-hour period following the
agency posting the notice of intended award, excluding Saturdays, Sundays, and state holidays, any employee or officer of the executive or legislative branch concerning any aspect of this solicitation, except in writing to the procurement officer or as provided in the solicitation documents.
Violation of this provision may be grounds for rejecting a response.”
The ITN contained the statutory prohibition against contacting any agency employee except the procurement officer in section 1.3.
The ITN prohibited discussions between a vendor and a state employee in section 1.25, which provides, in pertinent part, that:
any discussion by the proposer with an employee or authorized representative of the State involving cost information will result in rejection of said proposer’s response.
The requirement that an entity submitting a proposal disclose the identity of an employee who is also a state employee is explicit in paragraph 6 of Form PUR 1001, attached to and a part of ITN 013-11. The disclosure requirement states, in pertinent part, that:
Respondents shall disclose with their response the name of any officer, director, employee or other agent who is also an employee of the State. (emphasis added)
The requirement is clear that the disclosure must be made part of the solicitation response.
The evidence demonstrates that CTS failed to disclose with its response that Captain Succi, who was an employee of CTS at the time CTS’s ITN response was developed and submitted, was also an employee of the Florida Highway Patrol, an arm of the Department.
Every deviation from the ITN does not make a proposal non-responsive to the ITN. The Department reserved the right to waive minor irregularities. The standard for determining whether a variance is a material deviation or a minor irregularity is as follows:
“Although a bid containing a material variance is unacceptable, not every deviation from the invitation is material." Robinson Elec. Co. v. Dade County, 417 So. 2d 1032, 1034 (Fla. 3d DCA 1982); Tropabest Foods, Inc. v. State, Dep't of Gen. Servs., 493 So. 2d 50, 52 (Fla. 1st DCA 1986)(citation omitted); Glatstein v. Miami, 399 So. 2d 1005 (Fla. 3d DCA) review denied, 407 So. 2d 1102 (Fla. 1981). "It is only material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition." Tropabest, 493 So. 2d at 52; Harry Pepper & Assocs., Inc. v. City of Cape Coral, 352 So. 2d 1190, 1193 (Fla. 2d DCA 1977).
Procacci Commer. Realty v. Dep’t of HRS, 690 So. 2d 603, 606 (Fla. 1st DCA 1997).
Having Captain Succi as an undisclosed employee of CTS, even if he had no involvement in the ITN, created an appearance that his contacts and insider knowledge could have
been used to CTS’s advantage in a manner that subverted the goal of a fair and open procurement process. As such, Captain Succi’s involvement created a distinct “appearance of and opportunity for favoritism” that, if allowed, would undermine the public’s confidence that public procurement is a process that is dependent solely on the merits of a proposal.
If, as was represented by CTS to the Department, Captain Succi was in Idaho working exclusively on matters related to a future contract with Carfax, a more plausible argument could be made that his employment was so far removed from the ITN in both distance and subject matter that the failure to disclose his employment was a minor, and therefore waivable, irregularity. However, that was not the case. Captain Succi’s involvement was not far removed from the ITN.
Captain Succi was, while employed by the Department and involved with the CTS crash report contract, contacted by CTS in violation of section 1.3 of the ITN - contact that standing alone is sufficient to reject the CTS proposal - and asked to look into the matter. Captain Succi subsequently offered his opinion as to whether it was worth it for CTS to respond. The fact of the initial contact and Captain Succi’s efforts to gather information for a potential withdrawal of the ITN occurred while Captain Succi was actively negotiating his employment with CTS
aggravates the appearance of impropriety and the possibility that fair competition was being subverted.
Captain Succi was made privy to the economic calculations of the proposal, and participated in the discussions leading to the decision to go forward with the submission of a response to the ITN. That his recommendation was not accepted as the decision of the company makes his participation in the process no less material.
Captain Succi contributed a section of the ITN response, and made recommendations as to the inclusion of legal disclaimers. His contributions to the development of the ITN may have been comparatively minor, but they were real and, more importantly, were made without the mandatory disclosure in the ITN response that he was an employee of both CTS and the Department.
Captain Succi was provided with a final draft of the ITN response for review, and congratulated upon its submission. Though Captain Succi was not a primary drafter of the ITN, the greater weight of the evidence demonstrates that he was, and was considered by CTS to be, part of the ITN team.
CTS’s failure to disclose Captain Succi as an employee of CTS in accordance with the mandatory requirement of paragraph
6 of Form PUR 1001 of the ITN was a material and substantial irregularity in the terms, conditions, and specifications of the
ITN. It was not a minor irregularity. See Center for Independent Living v. Dep’t of HRS, Case No. 94-5627BID (Fla. DOAH Jan. 17, 1995; Dep’t of HRS Feb. 21, 1995). Such failure rendered CTS’s proposal nonresponsive. Because CTS’s bid was not responsive, CTS cannot be awarded the contract.4/
The finding of non-responsiveness does not mean that the entire proceeding should be dismissed. CTS does have standing to request that the other party’s proposal be rejected, or that the process was so fundamentally flawed that the contract must be re-bid. Vertex Standard v. Fla. Dep’t. Transp., Case No. 07-0488BID (Fla. DOAH Apr. 30, 2007; Fla. Dep’t of Transp.
May 30, 2007); The NTI Group, Inc., v. Dep’t. of Educ., Case No. 06-4449BID (Fla. DOAH Jan. 9, 2007; Fla. Dep’t of Educ. Jan. 31, 2007); NCS Pearson, Inc. v. Dept. of Educ., Case No. 04-3976BID (Fla. DOAH Feb. 8, 2005; Fla. Dep’t of Educ. Feb. 21. 2005); Kenneth Walker and R. E. Walker, d/b/a Walker/Oswalt v. Dep’t of Envtl. Prot., Case No. 96-4318BID (Fla. DOAH Dec. 16, 1996; Fla. DEP Mar. 11, 1997), Derick Proctor v. Dep’t of HRS, Case No. 93- 0263F (Fla. DOAH Sept. 3, 1993). See also Capeletti Bros., Inc. v. Dept. of Gen. Servs., 432 So. 2d 1359 (Fla. 1st DCA 1983).
Responsiveness of the OPS Proposal
The Department determined OPS to be a responsive and responsible vendor. The greater weight of the credible evidence supports that determination.
PRIDE Utilization
As to the allegation of non-compliance with PRIDE standards, the term, condition, and specification that PRIDE was not a required element of the ITN was clearly announced in Addendum #1 to the ITN, in direct response to a question posed by CTS. CTS did not file a written protest of that term, condition, and specification within 72 hours of the posting of the answers to the prospective vendor’s questions. Rather, CTS proceeded to develop, submit, and negotiate its proposal based on the posted ITN criteria. It was not until it learned that it was not selected to receive the contract that CTS raised the issue of PRIDE utilization as a mandatory requirement of the ITN. As such, any challenge to the Department’s determination that “it is not a requirement to utilize PRIDE for the data entry of reports” has been waived. Section 120.57(3)(b); accord, Consultech of Jacksonville v. Dep’t of Health, 876 So. 2d 731, 734 (Fla. 1st DCA 2004); Optiplan, Inc. v. Sch. Bd. Of Broward Co., 710 So. 2d 569, 572 (Fla. 4th DCA 1998); Capeletti Bros., Inc. v. Department
of Transportation, 499 So. 2d 855 (Fla. 1st DCA 1986), rev. denied, 509 So. 2d 1117, (Fla. 1987).
The assertion that PRIDE utilization advances state policy favoring the utilization of inmate labor as a path to rehabilitation, and is arguably required by chapter 946, does not alter the fact that the issue was waived by CTS’s failure to file a challenge to the specification. The waiver of the right to challenge specifications has been found to apply even in the face of allegations that the specifications fail to comply with constitutional provisions (Optiplan, Inc., at 572), or with federal or state law or agency policy (U.S. Foodservice, Inc. v. Sch. Bd. of Hillsborough Co., Case No. 98-3415BID (Fla. DOAH Nov. 17, 1998; Final Order not available).
OPS was responsive to the terms, conditions, and specifications of the ITN with regard to its decision not to use PRIDE services for its data entry services.
Best Value
Section 287.057(1)(c), provides, in part, that
(c) Invitation to negotiate. — The invitation to negotiate is a solicitation used by an agency which is intended to determine the best method for achieving a specific goal or solving a particular problem and identifies one or more responsive vendors with which the agency may negotiate in order to receive the best value.
* * *
The criteria that will be used for determining the acceptability of the reply and guiding the selection of the vendors
with which the agency will negotiate must be specified.
The agency shall evaluate replies against all evaluation criteria set forth in the invitation to negotiate in order to establish a competitive range of replies reasonably susceptible of award. The agency may select one or more vendors within the competitive range with which to commence negotiations. After negotiations are conducted, the agency shall award the contract to the responsible and responsive vendor that the agency determines will provide the best value to the state, based on the selection criteria. (emphasis added)
Section 287.012(4), defines “best value” as follows:
(4) “Best value” means the highest overall value to the state based on objective factors that include, but are not limited to, price, quality, design, and workmanship.
The issue of best value must be read in the context of the requirement that the ITN criteria must be specified, and
that the determination that a proposal will provide the best value be based on the selection criteria. Thus, best value must be measured as a function of the terms, conditions, and specifications of the ITN. If a proposal best meets the terms, conditions and specifications, then it is, for purposes of that procurement, the best value to the state.
Best value is not an open-ended list of factors that could render a competitor’s proposal non-responsive for failure to meet a mandatory, statutorily required condition. Therefore, factors outside of the direct scope of the ITN are not
applicable to the Department’s decision as to the best value of the responses to the state, and cannot be used to determine responsiveness of OPS’s proposal to the terms, conditions, and specifications of the ITN.
Bias as Affecting the Competitive Balance
The preponderance of the evidence demonstrates that Ms. Reiding’s scores were awarded based on her honest evaluation of the proposals, and their overall value to the state of Florida as determined by the criteria in the ITN. The record is absolutely devoid of evidence that Ms. Reiding was predisposed to score CTS lower than other vendors, or that she had any bias either for or against any vendor. That her scores differed from other evaluators is not evidence of bias or prejudice, rather it is evidence that she saw things differently. That is within her role as an evaluator.
The evidence derived from Mr. Levin’s statistical analysis of Ms. Reiding’s scores is not admissible as opinion testimony of a lay witness under section 90.701. It was not the type of opinion testimony that may be derived from lay observation and ordinary experience. Rather, it was the type of testimony that “require[s] a special knowledge, skill, experience, or training” that is not allowed to be provided by a non-expert witness pursuant to section 90.701(2). Thus, it would be improper to rely upon Mr. Levin’s opinion testimony as
persuasive on the issue of bias. Floyd v. State, 569 So. 2d 1225, 1231-1232 (Fla. 1990); Serrano v. State, 15 So. 3d 629, 638
(Fla. 1st DCA 2009); Fino v. Nodine, 646 So. 2d 746, 748-749 (Fla. 4th DCA 1994).
Even if Mr. Levin’s evidence of statistical bias were accepted as admissible evidence, “statistical analysis of divergent bid scoring is not generally accepted as probative of anything.” Psychotherapeutic Servs. of Fla., Inc. v. Dep’t of
Child. & Fam. Servs., Case No. 05-2800BID (Fla. DOAH Feb. 21, 2006; Fla. DCFS May 2, 2006). Rather, as stated by Judge Davis:
It does not measure capriciousness, fairness, arbitrariness, or any other deficiency of the public entity bid process recognized by custom, rule, policy, or statute. . . .
Petitioner's expert acknowledged that ICC deals in assuming that being able to get all reviewers' scores close to a mean, so that they are "repeatable," suggests what a "true score" might be, but that a "true score" is a purely theoretical concept, and that divergence of scores between reviewers does not necessarily indicate unfair competition.
Id.
The numerical differences in Ms. Reiding’s scores from
those of the other evaluators are not sufficient to support either a finding or a conclusion that the Department’s award of the contract in ITN 013-11 was contrary to the agency’s governing statutes, the agency’s rules or policies, or the solicitation specifications, nor is there anything in her scoring and
evaluation that would support a finding or conclusion that the Department’s award was clearly erroneous, contrary to competition, arbitrary, or capricious.
Ultimate Conclusions
The CTS proposal was not responsive to the ITN due to its failure to comply with mandatory, non-waivable provisions of the ITN. Thus, the CTS proposal should be rejected.
CTS failed to establish that the OPS proposal was not responsive to the terms, conditions, and specifications of the ITN, based either on the issue of OPS’s failure to use PRIDE services for its crash report data entry, or on the issue of OPS’s failure to meet unspecified best value criteria.
CTS failed to establish that the competitive process was adversely affected by bias, prejudice, or predisposition of any scorer.
OPS was the highest ranked responding vendor based upon its BAFO score, and is entitled to the award of the contract.
Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Respondent, Department of Highway Safety and Motor Vehicles, enter a final order that adopts the Findings of Fact and Conclusions of Law set forth herein. It is further recommended that Petitioner, CTS America’s proposal be
rejected because it is non-responsive for failure to disclose Captain Succi’s employment with CTS, and his involvement in the ITN. It is further recommended that the contract in ITN 013-11 be awarded to Intervenor, Open Portal Solutions, Inc.
DONE AND ENTERED this 19th day of October, 2011, in Tallahassee, Leon County, Florida.
E. GARY EARLY Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 2011.
1/ The statutory language is now located in section 946.515(6).
2/ Department employee Steven Williams, who is a Major with the Florida Highway Patrol, will be referred to as Major Williams. CTS employee Steven Williams will be referred to as Mr. Williams.
3/ During the hearing, CTS sought to, or did, introduce evidence that OPS failed to timely register with the MyFloridaMarketplace.com website; that CTS was not awarded a preference in scoring due to a corresponding preference in OPS’s state of incorporation; that CTS should be given a preference in scoring due to the fact that it is a Florida-based company with its headquarters in Florida; and that it should be given a preference due to its long-term relationship with the Department as a contracted developer of electronic traffic crash reports.
However, none of those issues were pled in the protest petition or identified in the prehearing stipulation. The general allegation that CTS’s proposal constituted the “best value” to the state is not a sufficient vehicle for bringing issues into this proceeding that could have been specifically pled, and fails to provide notice of the issues with the specificity required by chapter 120, the Uniform Rules of Procedure, and the Order of Prehearing Instructions. Thus, those issues are not at issue in this proceeding.
4/ OPS has urged the undersigned to make a determination that CTS was not a responsible party, alleging that its relationship with Captain Succi caused it to lack the integrity to receive an award under section 1.6 of the ITN. Given the findings and conclusions herein, such a determination is unnecessary, and is not a part of this Recommended Order.
COPIES FURNISHED:
Douglas Sunshine, Esquire Department of Highway Safety
and Motor Vehicles
2900 Apalachee Parkway, A432
Neil Kirkman Building, Room A-432 Tallahassee, Florida 32399
James A. McKee, Esquire Foley and Lardner LLP
106 East College Avenue, Suite 900 Tallahassee, Florida 32301
Robert Elliott Price, Esquire Levin, Papantonio
316 South Baylen Street, Suite 600 Pensacola, Florida 32502
John A. Tucker, Esquire Foley and Lardner, LLP
1 Independent Drive, Suite 1300 Jacksonville, Florida 32202
Julie L. Jones, Executive Director Department of Highway Safety
and Motor Vehicles 2900 Apalachee Parkway Neil Kirkman Building
Tallahassee, Florida 32399
Steve Hurm, General Counsel Department of Highway Safety
and Motor Vehicles 2900 Apalachee Parkway Neil Kirkman Building
Tallahassee, Florida 32399
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit exceptions within 10 days from the date of the Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 14, 2011 | Agency Final Order | |
| Oct. 19, 2011 | Recommended Order | Petitioner's proposal was non-responsive to the terms of the ITN. Petitioner failed to demonstrate that the proposals of the other vendors were non-responsive, or that the process was contrary to competition. Award of the contract to Intervenor upheld. |
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