STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE A. D. MORGAN CORPORATION,
vs.
Petitioner,
Case No. 15-2362BID
SARASOTA COUNTY SCHOOL BOARD,
Respondent,
and
WILLIS SMITH CONSTRUCTION, INC.
Intervenor.
/
RECOMMENDED ORDER
The final hearing in this matter came before Administrative Law Judge J. Bruce Culpepper of the Division of Administrative Hearings (DOAH), pursuant to sections 120.569 and 120.57(1), Florida Statutes (2015),1/ on June 8, 9, 22, and 23, 2015, in Sarasota, Florida.
APPEARANCES
For Petitioner: Donald E. Hemke, Esquire
Carlton Fields, P.A. Suite 1000
4221 West Boy Scout Boulevard Post Office Box 3239
Tampa, Florida 33601-3239
For Respondent: Robert K. Robinson, Esquire
Kirk Pinkerton, P.A. 6th Floor
240 South Pineapple Avenue Sarasota, Florida 34236
For Intervenor: Philip Nathan Hammersley, Esquire
Norton, Hammersley, Lopez, and Skokos, P.A.
1819 Main Street, Suite 610
Sarasota, Florida 34236 STATEMENT OF THE ISSUE
The issue in this bid protest matter is whether the decision of Respondent, Sarasota County School Board, to rank Intervenor, Willis A. Smith Construction, Inc., as the top construction management firm with which to negotiate services for the construction of the Sarasota County Technical Institute South Campus (North Port) ahead of Petitioner, A.D. Morgan Corporation, was contrary to its governing statutes, rules or policies, or the solicitation specifications.
PRELIMINARY STATEMENT
On January 9, 2015, the Sarasota County School Board (School Board) issued a legal advertisement for construction management services for Sarasota County Technical Institute South Campus (North Port), now known as Suncoast Technical College South Campus (North Port) (STC-South Campus). A.D. Morgan Corporation (Petitioner), and Willis A. Smith Construction, Inc. (Willis Smith), submitted proposals for the project.
Pursuant to School Board Policy 7.71 (Policy 7.71), the School Board formed a Professional Services Selection Committee (PSSC) to conduct and score the initial proposal reviews and applicant interviews. After the interviews, the PSSC generated a
ranking of the top three applicants. The PSSC ranked Petitioner as the top firm. Willis Smith was ranked second.
In accordance with Policy 7.71, the PSSC submitted its ranking to the School Board Superintendent, who was to forward the ranking to the School Board. Upon reviewing the PSSC’s ranking, the Superintendent initiated the dispute resolution procedure authorized under Policy 7.71. Following a meeting with the PSSC to discuss the rationale for its ranking, the Superintendent created an alternative ranking of applicants with Willis Smith as the top-ranked firm and Petitioner second. The Superintendent presented both the PSSC’s recommended ranking and her alternative ranking to the School Board for its final determination of the firm with which the School Board would negotiate the construction management contract for the STC-South Campus project.
The School Board met on April 7, 2015. Following public testimony and School Board member discussion, the School Board voted to accept the Superintendent’s alternative ranking.
Accordingly, the School Board selected Willis Smith as the construction management firm with which it would negotiate the STC-Campus contract. Petitioner was the second-ranked firm.
On April 10, 2015, pursuant to section 120.57(3), Florida Statutes, Petitioner filed its notice of intent to protest the School Board’s decision to rank Willis Smith as the top-ranked
applicant over Petitioner. On April 20, 2015, Petitioner timely filed a Formal Written Protest and Petition for Formal Administrative Hearing. On April 27, 2015, the School Board referred the matter to the DOAH for the assignment of an Administrative Law Judge (ALJ) to conduct the hearing Petitioner requested in the Protest.
Willis Smith filed a Petition for Leave to Intervene and to File a Response to Protest, which the ALJ granted on April 30, 2015. Petitioner filed an Amended Formal Written Protest and Petition for Formal Administrative Hearing on May 29, 2015, which the ALJ also granted. At the final hearing, Petitioner moved for attorney’s fees. In its Proposed Recommended Order, Petitioner stated that it is entitled to attorney’s fees and costs pursuant to section 255.0516, Florida Statutes.
The final hearing was initially scheduled for May 26 through 28, 2015. The parties subsequently agreed to waive the statutory deadline, and the final hearing was held on June 8
through 9, 2015. The parties did not complete the hearing on the scheduled dates, and the hearing was continued on June 22 and 23,
2015.
At the final hearing, Petitioner called Curtis Todd Bowden
(Dr. Bowden), executive director of Career Technical and Adult Education for the School District of Sarasota County; Scott J. Lempe, deputy superintendent (Deputy Superintendent Lempe),
Schools of Sarasota County; Lori White, superintendent (Superintendent White), Schools of Sarasota County; John Kalaf, vice-president of Operations for Petitioner; Dave Sessions, president of Willis Smith (Mr. Sessions); and Rebecca Smith, president of Petitioner (Ms. Smith). Petitioner’s Exhibits 1 through 6, 8 through 13, 15 through 18, 20 through 23, 25 through 32, 36, and 37 were admitted into evidence. The School Board called Mark Smith, director of Construction Services for Sarasota County School Board, Deputy Superintendent Lempe, Dr. Bowden, and David Paul Wade (an employee with Petitioner). School Board Exhibits 2, 3, 5 through 8, 13, 16 through 22, 30, 31, 35, 40,
41, 43 through 45, and 48 through 50 were admitted into evidence. Willis Smith called Ms. Smith and Mr. Sessions to testify.
Willis Smith’s Exhibit 1 was admitted into evidence.
A Transcript of the final hearing was filed with DOAH on July 6, 2015. By agreement, the parties were allowed 20 days after the filing of the Transcript to submit proposed recommended orders. The parties timely submitted proposed recommended orders that were considered in the preparation of this Recommended Order.2/
FINDINGS OF FACT
Respondent, School Board, operates the public school system established for the School District of Sarasota County, Florida, pursuant to section 1001.30, Florida Statutes. The
School Board is an authorized governmental entity allowed to contract for construction management services using the competitive negotiation process set forth in section 287.055, Florida Statutes. See §§ 255.103 and 1013.45, Fla. Stat.
The School Board consists of five elected members. The School Board members include Chair Frank Kovach, Vice-Chair Shirley Brown, Jane Goodwin, Bridget Ziegler, and Caroline Zucker. The Superintendent for the Sarasota County School District is Lori White. Superintendent White has served in her position since 2008. Superintendent White works for and reports directly to the School Board. Scott Lempe is her deputy superintendent.
Petitioner is a construction management firm. Rebecca Smith, a certified general contractor, is Petitioner’s president and sole owner.
Willis Smith is also a construction management firm.
David Sessions, a certified general contractor and construction financial officer, is the majority owner and president of Willis Smith.
On January 9, 2015, the School Board placed a legal advertisement for construction management services. The School Board sought to contract with a qualified construction management firm to provide construction management services for a building
project located on the STC-South Campus. The advertisement provided, in pertinent part:
THE SCHOOL BOARD OF SARASOTA COUNTY, FLORIDA,
will select a qualified construction management firm pursuant to Section 287.055, Florida Statutes, and School Board Policy #7.71, to provide construction management services for SARASOTA COUNTY TECHNICAL INSTITUTE SOUTH CAMPUS (NORTH PORT) project.
The STC-South Campus project involved the construction of a facility that would include approximately 20,000 square feet of classroom space and 20,000 square feet of a shared media center/library, as well as associated site improvements within the City of North Port. The building could be expanded to 65,000 square feet. The preliminary project budget was $15 million dollars. Interested applicants were instructed to attend a pre- application meeting on January 14, 2015. Applications for the STC-South Campus project were due on January 29, 2015.
The STC-South Campus project contained several unique aspects. The School Board desired the STC-South Campus facility to appear as an extension of Suncoast Technical College’s main campus located in North Sarasota County (STC-North Campus). On several occasions throughout the application process, School Board staff specifically indicated that the STC-South Campus building should reflect the “brand” created at STC-North Campus. The School Board desired to instill continuity between the two campus locations. The branding concept between the two campus
sites included such details as to how the facility classrooms were to interact together with the building’s fixtures, finishes, and flow, as well as the style of classroom room numbers. As discussed in more detail below, Willis Smith served as construction manager for the STC-North Campus project.
Policy 7.71, Selection Policy for Professional Construction Related Services, and section 287.055, the Florida Consultants’ Competitive Negotiations Act or “CCNA”, governed the School Board’s procurement process for the STC-South Campus project. Policy 7.71 established how the School Board was to evaluate, select, negotiate, and contract with a construction management firm.
In accordance with Policy 7.71, Section I, the School Board created the PSSC consisting of five School Board employees. The PSSC was tasked to conduct the initial evaluation, interviews, scoring, and ranking of prospective vendors for the STC-South Campus project.
The PSSC’s primary purpose was to create a ranking of the top three applicants for the School Board’s ultimate consideration. In accordance with Policy 7.71, the PSSC conducted its review in a two-phase process. In the first phase, the PSSC reviewed and scored the written applications and prepared a short-list of the three highest scoring vendors. In the second phase, the PSSC interviewed the three short-listed
vendors. The PSSC then ranked the top three vendors. Following the PSSC’s ranking, Policy 7.71 instructed the PSSC to submit its ranking to the School Board Superintendent. The Superintendent, in turn, would forward the PSSC’s ranking to the School Board for the final determination.
The PSSC members consisted of Mark Smith, the director of Construction Services, who served as chair. Additional PSSC members included Jody Dumas, director of Facilities Services; Michael Foley, building code administrator for Construction Services; Sue Bofford, project manager for Construction Services as assigned to the STC-South Campus project; and Dr. Bowden, executive director of Career Technical and Adult Education for the Sarasota County School District. Dr. Bowden, as the executive director for the educational programs to be housed in the new facility, would be responsible for overseeing the STC- South Campus project and its overall construction. In addition, the School Board added Sarabeth Kalajian, director of the Sarasota County Public Library (Ms. Kalajian), as a sixth member of the PSSC. Ms. Kalajian joined the PSSC because the STC-South Campus project was intended to serve as a joint funding/joint use facility with Sarasota County.
On January 14, 2015, the PSSC held the mandatory pre- application meeting for all construction management firms interested in applying for the project. At the pre-application
meeting, the PSSC provided the firms an Information and Instruction Package. This document contained a scope of services, a proposed selection schedule, a set of general instructions, and an application format. Interested applicants were also provided aerial maps of the site, proposed concept plans, and space allocations.
The PSSC also discussed the concept of “branding” between the STC-North Campus and STC-South Campus during the pre- application meeting. The applicants were informed that the School Board desired the STC-South Campus facility to replicate the look of the STC-North Campus. The Information and Instruction Package also discussed the application format. Applicants were to include a section on experience which would provide the PSSC information on past projects that might be of interest.
In addition, the PSSC directed applicants to abide by a “cone of silence” during the PSSC’s review. Section III.G of the Information and Instruction Package contained a general instruction stating:
Any questions concerning applications or the project shall be directed to Doreen Kingsley via email: doreen.kingsley@sarasotacountyschools.net.
It is intended that the selection of the best qualified firms shall be made on the basis of the information provided through the application and the formal interviews. All applicants are cautioned not to contact any School Board member, [PSSC] member, or school
The School Board defined the “cone of silence” as a period of time during which applicants were not to speak with any PSSC members or School Board members or staff. The only individual applicants could contact during the PSSC review was the PSSC Chair, Mark Smith. For the STC-South Campus procurement, the “cone of silence” went into effect at the time of the PSSC pre-application meeting on January 14, 2015, and ended on February 26, 2015, when PSSC Chair, Mark Smith, publically announced the PSSC’s recommended rankings by calling the three short-listed firms.
Unlike the Information and Instruction Package, Policy
7.71 does not contain a “cone of silence” requirement for the School Board’s procurement process. No provision in the Information and Instruction Package related the “cone of silence” instruction to a specific obligation under Policy 7.71. More specifically, no language in Policy 7.71 imposed a “cone of silence” condition over School Board members or staff regarding the School Board’s final selection.
On January 29, 2015, Petitioner, Willis Smith, and five other applicants submitted proposals in response to the School Board’s advertisement.
On February 5, 2015, the PSSC convened to select a short-list of the top three applicants. As directed in
Policy 7.71, Section III.A.7, each PSSC member used five weighted criteria to score each proposal. The categories included Minority Company Status, Location, Team Qualifications, List of Projects, and Related Experience. The PSSC then averaged the individual scores of the six members and completed and signed the Major/Minor and Continuing Contract Project Score Sheet. The three highest scoring proposals made the PSSC’s short-list. The short-list included Willis Smith (48.8 points), Petitioner (44.8 points), and P.J. Hayes, Inc. d/b/a Tandem Construction (Tandem) (43.7 points).
The PSSC’s next step was to conduct a pre-interview meeting with the three short-listed firms. This meeting was held on February 10, 2015. At this meeting, the PSSC informed the three applicants that two of the eight factors it would specifically look for in the interviews included “Project Branding” and “previous projects of this nature.” Mr. Smith, the PSSC chair, reiterated to the three applicants that the School Board desired the STC-South Campus project to “replicate” the buildings on STC-North Campus. Mr. Smith stated that the STC- South Campus facility should reflect a “similar look” as and the “brand” of the STC-North Campus.
On February 19, 2015, the three short-listed firms were given a site tour of the STC-North campus. The purpose of the tour was to provide the applicants an opportunity to see the
particular building style and “brand” that the School Board desired for the STC-South Campus facility. Dr. Bowden led the tour. Dr. Bowden personally discussed the “branding” concept. He mentioned that the School Board wanted the STC-South Campus project to look like a branch of STC-North Campus and to replicate its functionality in its classrooms, fixtures, and flow.
On February 26, 2015, the three short-listed firms made oral presentations to the PSSC. Following the presentations, Policy 7.71, Section III.A.11, instructed the PSSC to begin a completely new scoring procedure. In other words, the PSSC’s short-list scores would not carry over to the interview scores, and all applicant scores started over from zero. Policy 7.71, Section III.A.11, established four categories for PSSC members to score the interviews, including Timelines and Budgets, the Ability to Perform/Team Strength, Interview Rating, and Problems and Solutions/Cost Control Measures. Policy 7.71, Section III.A.8, also instructed the PSSC to consider the applicants’ “understanding of the project, their philosophical approach to the resolution of the project’s challenges and other pertinent consideration regarding the project.” Each PSSC member individually scored the interviews using the four categories.
The average score became the applicants’ official scores for the purpose of ranking.
Based on the applicants’ interviews/oral presentations, the PSSC ranked the firms as follows: 1) Petitioner (66.3 points); 2) Willis Smith (64.7 points); and 3) Tandem
(61 points). Five PSSC members scored Petitioner as the top applicant. Willis Smith received one first-place score.
Testimony at the final hearing explained that Petitioner’s proposal may have jumped over Willis Smith to the top of the PSSC’s ranking based on Petitioner’s dynamic and enthusiastic presentation, while the Willis Smith presentation was dry and factual. Thereafter, the PSSC passed a motion recommending the School Board negotiate with the top three vendors, in order, starting with Petitioner, until a successful negotiation was reached for the STC-South Campus project.
After ranking the top three applicants, Policy 7.71, Section III.A.12, instructed the PSSC to submit its rankings to the Superintendent “for [School] Board approval.” Paragraph 12 states, in part:
Submission of Ranking – For major/minor single projects, the top three (3) ranked companies shall be submitted to the Superintendent or their Designee on the Project Assignment Sheet (substantially as in Appendix H) for Board approval.
Once the PSSC forwarded its rankings, the PSSC’s role in the procurement process was concluded.
On February 26, 2015, the PSSC members signed and submitted a Project Assignment Sheet to Superintendent Lori
White. The Project Assignment Sheet stated that the PSSC, “in accordance with School Board Policy 7.71, has selected the top three (3) firms and ranked them as indicated below: FIRST CHOICE: The A.D. Morgan Corporation, SECOND CHOICE: Willis A. Smith Construction, Inc., THIRD CHOICE: P.J. Hayes, Inc. DBA Tandem Construction.” The PSSC transmitted the Project Assignment Sheet to School Board Deputy Superintendent Scott Lempe, who was to forward the ranking to Superintendent White. Per Policy 7.71, Section III.A.12, the Superintendent was then charged with presenting the ranking to the School Board. If the School Board had approved the PSSC’s ranking, the School Board would have initiated negotiations for the construction management contract for the STC-South Campus with Petitioner as the top-ranked firm.
After sending the Project Assignment Sheet to Deputy Superintendent Lempe, Mark Smith, as PSSC Chair, also notified each applicant of the PSSC ranking. On the afternoon of Thursday, February 26, 2015, Mr. Smith personally called each vendor informing them of their respective ranking. Later that evening, the PSSC’s scores and rankings were e-mailed to Superintendent White and the School Board members.
The final PSSC ranking with Petitioner as the top- ranked vendor over Willis Smith came as a surprise to several School Board staff and members. Dr. Bowden, the lone PSSC member who scored Willis Smith as the top applicant, was “surprised,
maybe even shocked,” that the PSSC ranked Petitioner ahead of Willis Smith. Based on his experience, Willis Smith did an excellent job on the STC-North Campus project. Dr. Bowden wanted to keep the team together. He felt that the PSSC had made a mistake.
In the evening of February 26, 2015, shortly after the PSSC’s released its ranking, Dr. Bowden received telephone calls from several individuals inquiring about the ranking including School Board members Jane Goodwin and Caroline Zucker.
Dr. Bowden informed Ms. Goodwin and Ms. Zucker of the PSSC’s process and the resulting ranking. Dr. Bowden also made at least two calls to the School Board’s general counsel.
Dr. Bowden also spoke two or three times with Deputy Superintendent Lempe on the evening of February 26, 2015. Their conversation was more pointed. Dr. Bowden informed Deputy Superintendent Lempe that he believed the PSSC “had gotten it wrong” in ranking Petitioner first. Deputy Superintendent Lempe told Dr. Bowden that he would relay his concerns to Superintendent White.
David Sessions, President of Willis Smith, was also surprised with the PSSC’s ranking. On the evening of February 26, 2015, Mr. Sessions called Deputy Superintendent
Lempe twice to discuss the ranking. Deputy Superintendent Lempe did not answer the phone calls that evening, but returned
Mr. Sessions’ calls the following Monday, March 2, 2015. Deputy Superintendent Lempe informed Mr. Sessions that he would not talk to him regarding the matter.
Mr. Sessions also communicated with several School Board members after he was notified of the PSSC’s ranking. On February 26, 2015, after receiving the phone call from the PSSC Chair, Mr. Sessions contacted School Board member, Carolyn Zucker, expressing his frustration at being ranked second. On the evening of Friday, February 27, 2015, Mr. Sessions also spoke to School Board Chair Frank Kovach, at an Education Foundation fundraiser. Mr. Sessions repeated his frustration that the PSSC’s scoring process had not led to his firm’s selection for the STC-South Campus project. Mr. Sessions wondered how his firm ended up second on the PSSC’s final ranking when it was ranked first on the short-list. That evening, Mr. Sessions approached School Board member Jane Goodwin at the same event. Ms. Goodwin, however, did not wish to discuss the issue with Mr. Sessions and declined to speak with him. Mr. Sessions also contacted School Board Vice-Chair Shirley Brown, who stated that she was aware of the PSSC’s rankings but was not sufficiently “up to speed” on the matter to engage in any discussion on the issue.
Deputy Superintendent Lempe also received phone calls from School Board members Jane Goodwin, Bridget Zeigler, and Caroline Zucker regarding the PSSC ranking. Deputy
Superintendent Lempe asked all three School Board members to be patient and let the procurement process unfold. On Friday morning, February 27, 2015, School Board Chair Frank Kovach
e-mailed Deputy Superintendent Lempe requesting Deputy Superintendent Lempe send to him the individual PSSC member score sheets from the applicant interviews/oral presentations. Later that morning, Deputy Superintendent Lempe forwarded to Mr. Kovach the PSSC member Major/Minor and Continuing Contract Project Score Sheets (Score Sheets).
On the morning of Friday, February 27, 2015, Deputy Superintendent Lempe briefed Superintendent White about the PSSC’s ranking as soon as she arrived at work. Deputy Superintendent Lempe provided Superintendent White the PSSC Project Assignment Sheet which listed the applicants’ interview scores. Deputy Superintendent Lempe also informed Superintendent White that several School Board members had contacted him, as well as Dr. Bowden, who had some “concerns.” Deputy Superintendent Lempe relayed that Dr. Bowden believed the PSSC got the ranking wrong. Deputy Superintendent Lempe and Superintendent White spoke about the dispute resolution provision set forth in Policy 7.71, Section III.A.13.
Superintendent White was also surprised to hear that the PSSC ranked Petitioner higher than Willis Smith. Superintendent White was familiar with Willis Smith’s past work
for the School Board on the STC-North Campus. Superintendent White thought that since Willis Smith had successfully served as the construction management firm for the completed STC-North Campus project, it was likely that the PSSC would select them for the same role for the STC-South Campus project.
Later on the morning of February 27, 2015, after reviewing Policy 7.71, Superintendent White initiated the dispute resolution process in Policy 7.71, Section III.A.13, which
states:
Dispute Resolution – If the Superintendent disputes the submitted rankings, the Superintendent or their Designee shall schedule a meeting with the [PSSC] to review the [PSSC’s] rational and the Superintendent’s or the Designee’s concerns. The Superintendent or their Designee shall then make a recommendation to the [School Board], accompanied by the [PSSC’s] rankings.
Policy 7.71, Section III.A.13, essentially adds an additional layer of review by the Superintendent during a procurement process. If the Superintendent disagrees with the PSSC’s ranking, Policy 7.71, Section III.A.13, allows the Superintendent to review its rationale, and, if appropriate, submit an independent, alternative ranking to the School Board.
This was the first time Superintendent White enacted the dispute resolution process in her tenure as Superintendent. Superintendent White’s concern with the PSSC ranking was based primarily on what she envisioned as the benefits in maintaining
“continuity” between the STC-North Campus construction project and the STC-South Campus project.3/
On Monday, March 2, 2015, based on Superintendent White’s decision to initiate the dispute resolution process, the School Board retracted the PSSC’s ranking of February 26, 2015, pending the outcome of the Superintendent’s review. Thereafter, Superintendent White issued a notice that she would hold a meeting with the PSSC on March 16, 2015, to review the PSSC’s ranking.
Immediately after Superintendent White initiated the dispute resolution process, Deputy Superintendent Lempe put together the package of pertinent information for her review. Prior to the March 16, 2015, meeting, Superintendent White reviewed the PSSC’s Score Sheet, the applicants’ interview/oral presentation materials, and the PSSC member interview notes.
On March 16, 2015, Superintendent White reconvened the PSSC. Superintendent White opened the meeting by stating that she believed all three short-listed applicants were highly qualified to provide construction management services for the STC-South Campus project. Superintendent White explained, however, that she held some reservations regarding the PSSC ranking because of the unique nature of the STC-South Campus project and because the construction management services should be consistent with the STC-North Campus to maintain “branding”
and “continuity.” Therefore, she was interested in hearing the PSSC members’ rationale for their ranking.
At Superintendent White’s behest, Mr. Smith recounted the applicant interviews and the fact that Petitioner had an impressive oral presentation. Thereafter, Dr. Bowden spoke about Willis Smith’s history constructing the STC-North Campus project and Willis Smith’s relationship with the Sarasota County School District. Jody Dumas commented in positive terms regarding the benefit of having three quality firms with which the School Board could negotiate a contract. Ms. Kalajian spoke about the benefits of competition and Petitioner’s experience with joint- use projects.
Following her meeting with the PSSC, Superintendent White determined that she would submit an alternative ranking to the School Board as authorized by Policy 7.71, Section III.A.13. Superintendent White felt an obligation and responsibility to offer another option for the School Board’s consideration. Superintendent White’s alternate ranking listed Willis Smith first and Petitioner second.
Superintendent White drafted a memorandum, dated March 24, 2015, explaining her alternative ranking to the School Board. In essence, Superintendent White focused on continuity
and “the uniqueness of this project in desiring a similar ‘brand’ in the building design and specifications.” Superintendent White
placed significant weight on Willis Smith’s prior construction management, design, and value engineering on the STC-North Campus project. Superintendent White also appreciated the knowledge Willis Smith would bring to the “unique nature of this project” so that the School Board would be sure it received the highest level of continuity and branding. At the final hearing, Superintendent White explained that “continuity” would ensure that the STC-South Campus facility would not be viewed as a separate entity, but an extension of the STC-North Campus facility with the same architectural features, specialized classrooms, and educational programs. Superintendent White described “branding” as meaning that the STC North and South Campuses would have a very distinct and unique look and feel.
Superintendent White felt that any of the three ranked applicants could successfully serve the School Board as the project construction manager. However, only Willis Smith had history relative to this specific project. She explained that the School Board wanted the STC-South Campus “to appear to the community of North Port and the wider community of Sarasota as an extension of what we had at [the STC-North Campus].” She thought that Willis Smith would bring “continuity” in terms of the relationship and the synergy of the teams working on the projects. Superintendent White also felt it was important for her to recognize Dr. Bowden’s individual scoring placing Willis
Smith first. Dr. Bowden, as head of Suncoast Technical College, would play a key role in facilitating the STC-South Campus project. Superintendent White believed that using the same construction manager as the STC-North Campus project would save the School Board time and money and be “more seamless.”
Superintendent White, in making her alternative ranking, did not review the individual PSSC member scores from the initial short-listing process. Neither did she specifically utilize the weighted scoring range for each category listed in Policy 7.71, Section III.A.7, which the PSSC used to create its short-list. However, Superintendent White did consider the PSSC oral presentation/interview scoring criteria. These categories included timelines and budgets, the applicants’ ability to perform and team strength, and problems and solutions and cost control measures.
After reaching her decision following the dispute resolution process, Superintendent White placed both the PSSC ranking and her alternative ranking of vendors on the School Board agenda as a new business item for the School Board’s next regular meeting which was to be held on April 7, 2015.
By the time of the School Board meeting on April 7, 2015, Dr. Bowden had spoken with four of the five School Board members. He encouraged each School Board member to select Superintendent White’s alternative ranking of Willis Smith first
and Petitioner second. Mr. Sessions also called Chair Kovach prior to the April 7, 2015, School Board meeting to enquire as to the School Board’s review.
Superintendent White did not contact any representative from Petitioner or Willis Smith from the time the School Board advertised the project on January 9, 2015, through the School Board’s decision on April 7, 2015.
On April 7, 2015, the School Board held a regularly scheduled meeting during which it considered which construction management firm it would negotiate to manage the STC-South Campus construction project. The STC-South Campus project was placed on the School Board agenda as item No.: 32. The agenda item was identified as pertaining to “APPROVAL OF CONSTRUCTION MANAGER RANKINGS FOR THE SUNCOAST TECHNICAL COLLEGE NORTH PORT AND THE JOINT USE MEDIA CENTER/COUNTY LIBRARY.” The agenda item specifically read:
Description
The projects scope of work shall include construction management service for the pre- construction and construction phases of the Suncoast Technical College North Port campus (including the joint use media center/county library) and related site work. The project will be multi-phased. On 2/26/2015, the Professional Services Selection Committee (PSSC) met to select a construction manager. The PSSC ranked the firms in the following order: 1) The A.D. Morgan Corporation;
Willis A. Smith Construction Inc.; and
P. J. Hayes Inc., D/B/A Tandem
Construction. The Superintendent subsequently, and in accordance with School Board Policy 7.71, reconvened the PSSC and re-ranked the firms in the following order:
1) Willis A. Smith Construction Inc.; 2) A.
D. Morgan Corporation; and 3) P. J. Hayes Inc., DBA Tandem Construction. The Board may either accept the recommendation and rankings of the Superintendent, accept the rankings if the PSSC, or move to approve an alternate ranking. The cumulative total project budget is approximately $15,000,000.00. Funds for Suncoast Technical College portion of the project are available in the capital budget account. Funds for the County Library portion of the project will come from Sarasota County Government.
Recommendation
That the Superintendent’s rankings of Construction manager for Suncoast Technical College North Port and the Joint use Media Center/County Library project be accepted as presented and the Director of Construction Services be authorized to attempt negotiations with the top-ranked firm.
Policy 7.71 does not contain a provision that requires the School Board to automatically adopt the PSSC’s ranking. Further, Policy 7.71 did not prohibit the School Board from awarding negotiation rights to any construction management firm – whether it was ranked first by the PSSC or the Superintendent.
As Agenda Item No. 32 expressed, the School Board had three distinct choices in selecting a construction management firm. The School Board could accept PSSC’s recommended ranking with Petitioner first, Superintendent White’s alternative ranking with
Willis Smith first, or reject all rankings and approve another alternate ranking.
To assist in their review and decision during the April 7, 2015, meeting, School Board members were provided two attachments. These attachments included the PSSC ranking Score Sheet from the applicant interviews and Superintendent White’s March 24, 2015, memorandum listing her alternative ranking. In
addition, Petitioner’s counsel prepared a legal memorandum, dated April 6, 2015, regarding the procurement process and applicant rankings. This 22-page memorandum was transmitted to the School Board on Monday April 6, 2015, through the School Board’s general counsel.
The School Board opened discussion on the STC-South Campus project for public comments. Petitioner’s President Rebecca Smith and attorney Paul Ullom spoke on behalf of Petitioner. Mr. Sessions spoke on behalf of Willis Smith.
Following public comments, Superintendent White addressed the School Board. She recommended that the School Board adopt her alternative ranking of construction managers with Willis Smith as the top-ranked firm.
Following public comments and presentations, the School Board members began their deliberations on Agenda Item No. 32. School Board member Caroline Zucker moved for the School Board to accept, as presented, Superintendent White’s alternative rankings
of construction managers, and for the School Board to authorize the Director of Construction Service to attempt negotiations with the top-ranked firm. Ms. Zucker’s motion was seconded for discussion. The motion was then put forth for open discussion among the School Board members.
All five School Board members spoke about the vote.
School Board member Bridget Ziegler spoke first. Ms. Ziegler was apprehensive with adopting Superintendent White’s alternative rankings over the PSSC’s recommended ranking. Ms. Ziegler stated that her “major, major concern” was with “the process” which was designed to “avoid potential favoritism, discrimination, and bias.” She cautioned that the School Board was setting “a dangerous precedent by going against what the [PSSC’s] recommendation is . . . because . . . it’s important to have a competitive option out there.” Ms. Ziegler recognized the School Board’s desire for consistent “branding” on the STC Campuses.
However, she believed that both Petitioner and Willis Smith would be fully able to implement the “branding” the School Board desired. Ms. Ziegler ultimately voted against the motion to accept Superintendent White’s alternative ranking of Willis Smith first.
School Board member and Vice-Chair Shirley Brown, spoke next. Ms. Brown expressed that she had reviewed all the facts presented on the competing applicants, which included the PSSC
short-list scoring and the PSSC interview process. Ms. Brown placed weight on the School Board’s positive experience with Willis Smith on the STC-North Campus project where they finished the project on time and under budget. Ms. Brown also considered the slim 1.66 point differential between the final scores and whether the selection of Willis Smith would save the School Board money in the long run. Ms. Brown voted in favor of the motion to accept Superintendent White’s alternative ranking.
The next to speak was School Board member Jane Goodwin.
Ms. Goodwin commented that the School Board was presented three excellent construction management firms to consider. In selecting a top-ranked firm, however, Ms. Goodwin stated that she looked at the overall scoring, as well as the School Board’s prior experience with Willis Smith. Ms. Goodwin also voted to accept Superintendent White’s alternative ranking.
School Board member Caroline Zucker spoke next.
Ms. Zucker announced that she gave more weight to the initial short-list scores as opposed to the final PSSC interview scores in terms of judging the applicants’ capabilities. Ms. Zucker also gave weight to the working relationship that the School Board had with Willis Smith regarding the earlier project on STC- North Campus, as well as the cost savings that occurred in that project. She also commented that she appreciated the partnerships that the School Board had in the past between the
community, the Education Foundation, Willis Smith, and the School Board. Ms. Zucker voted in favor of the motion to accept Superintendent White’s ranking.
The last to speak was School Board Chair Frank Kovach.
He expressed his frustration with the subjectiveness of the ranking process and was otherwise frustrated with the media coverage on the matter. Chair Kovach voted in favor of the motion.
Thus, by a vote of 4-1, the School Board approved
Ms. Zucker’s motion to accept as presented Superintendent White’s alternative ranking of construction management firms.
Accordingly, Willis Smith was ranked first for competitive negotiations on the STC-South Campus project. Petitioner was ranked second. According to testimony from School Board witnesses, the School Board’s action was the first time the School Board has not selected the PSSC’s top-ranked applicant.
After the School Board makes its final determination on the rankings for competitive selection, Policy 7.71, Section III.A.14, sets forth the process for contract negotiations, which is essentially the contract-negotiation process expressed in section 287.055(5). Concomitant, with the School Board’s vote on Agenda Item No.: 32, the School Board authorized its Director of Construction Services to initiate negotiations with Willis Smith on the STC-South Campus project.
Due to this bid protest proceeding, the School Board has not awarded the construction management contract. At this time, it has only instructed School Board staff to commence negotiations with Willis Smith as the top-ranked firm.
As discussed in detail below, the evidence and testimony presented at the final hearing does not establish, by a preponderance of the evidence, that the School Board’s decision to select Willis Smith as the top-ranked construction management firm with which to negotiate the STC-South Campus project was clearly erroneous, contrary to competition, or arbitrary or capricious. Accordingly, Petitioner has not proven that the School Board’s action was contrary to its governing statutes, rules or policies, or solicitation specifications as prohibited by section 120.57(3)(f).
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to sections 120.569, 120.57(1), and 120.57(3), Florida Statutes.
Pursuant to section 120.57(3)(f), the burden of proof rests with Petitioner as the party opposing the proposed agency action. State Contracting & Eng'g Corp. v. Dep't of Transp., 709
So. 2d 607, 609 (Fla. 1st DCA 1998). Petitioner must meet its burden of proof by a preponderance of the evidence. Dep't of
Transp. v. J.W.C. Co., Inc., 396 So. 2d 778, 787 (Fla. 1st DCA
1981).
Section 120.57(3)(f) provides that in a protest to a proposed contract award pursuant to a request for proposal procurement:
Unless otherwise provided by statute, the burden of proof shall rest with the party protesting the proposed agency action. In a competitive-procurement protest . . . 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 phrase “de novo proceeding,” as used in
section 120.57(3)(f), describes a form of intra-agency review. In a bid protest proceeding under section 120.57(3), the ALJ is charged with reviewing the agency's proposed action against appellate-like standards of proof. The purpose of the ALJ’s review is to “evaluate the action taken by the agency.” J.D. v. Fla. Dep't of Child. & Fam., 114 So. 3d 1127, 1132 (Fla. 1st DCA
2013); and State Contracting, 709 So. 2d at 609. A de novo
proceeding “simply means that there was an evidentiary hearing .
. . for administrative review purposes,” and does not mean that the ALJ “sits as a substitute for the [agency] and makes a determination whether to award the bid de novo.” J.D., 114 So.
3d at 1133; Intercontinental Props., Inc. v. Dep't of HRS, 606
So. 2d 380, 386 (Fla. 3d DCA 1992). “The judge may receive evidence, as with any formal hearing under section 120.57(1), but the object of the proceeding is to evaluate the action taken by the agency.” State Contracting, 709 So. 2d at 609.
Because the ALJ is a finder of facts charged with resolving disputed issues of material fact based upon the evidence presented at the final hearing and because bid protests are fundamentally de novo proceedings, the undersigned is not required to defer to the School Board’s findings of objective fact made prior to its proposed action. It is exclusively the undersigned's responsibility, as the trier of fact, to ascertain from the competent, substantial evidence in the record what actually happened in the past or what facts presently exist, as if no findings previously had been made. Phil's Expert Tree Serv., Inc. v. Broward Cnty. Sch. Bd., Case No. 06-4499BID, 2007
Fla. Div. Admin. Hear. LEXIS 161, *17-18 (Fla. DOAH Mar. 19, 2007); Care Access PSN, LLC v. Ag. for Health Care Admin., Case No. 13-4113BID, 2014 Fla. Div. Admin. Hear. LEXIS 3, *46-47 (Fla. DOAH Jan. 2, 2014).
Further, in framing the ultimate issue for this de novo proceeding as “whether the agency’s proposed action is contrary to the agency’s governing statutes, the agency’s rules or policies, or the solicitation specifications,” section 120.57(3)
effectively establishes a standard of conduct for the School Board. Accordingly, the School board, in soliciting, evaluating, and awarding the STC-South Campus procurement, must obey its governing statutes, rules, and the project specifications. If the School Board fails to meet this standard of conduct, its proposed action is subject to reversal. Phil's Expert Tree Serv., Inc., 2007 Fla. Div. Admin. Hear. LEXIS 161, at *13-14;
Care Access PSN, LLC, 2014 Fla. Div. Admin. Hear. LEXIS 3,
*42-43.
Consequently, the party protesting the intended award must prove, by a preponderance of the evidence, that the School Board's proposed action is either: (a) contrary to its governing statutes; (b) contrary to its rules or policies; or (c) contrary to the bid or proposal specifications. Phil's Expert Tree Serv.,
Inc., 2007 Fla. Div. Admin. Hear. LEXIS 161, at *13-14; Care Access PSN, LLC, 2014 Fla. Div. Admin. Hear. LEXIS 3, at *43.
To meet its standard of proof that the agency’s proposed action violated its required standard of conduct, Petitioner must establish that the School Board’s intended award to Willis Smith was: (a) clearly erroneous; (b) contrary to competition; or (c) arbitrary or capricious. § 120.57(3)(f), Fla. Stat.
The “clearly erroneous” standard has been defined to mean “the interpretation will be upheld if the agency’s
construction falls within the permissible range of interpretations.” Colbert v. Dep’t of Health, 890 So. 2d 1165, 1166 (Fla. 1st DCA 2004); see also, Holland v. Gross, 89 So. 2d
255, 258 (Fla. 1956) (when a finding of fact by the trial court “is without support of any substantial evidence, is clearly against the weight of the evidence or . . . the trial court has misapplied the law to the established facts, then the decision is “clearly erroneous.”) However, if “the agency's interpretation conflicts with the plain and ordinary intent of the law, judicial deference need not be given to it.” Colbert, supra.
The “contrary to competition” standard of review in section 120.57(3)(f) is unique to bid protests. The “contrary to competition” test applies to agency actions that: (a) create the appearance of and opportunity for favoritism; (b) erode public confidence that contracts are awarded equitably and economically;
cause the procurement process to be genuinely unfair or unreasonably exclusive; or (d) are unethical, dishonest, illegal, or fraudulent. Phil's Expert Tree Serv., Inc., 2007 Fla. Div. Admin. Hear. LEXIS 161, at *23; Care Access PSN, LLC, 2014 Fla.
Div. Admin. Hear. LEXIS 3, at *54. An agency action is “contrary to competition” if it unreasonably interferes with the purpose of competitive procurement. As described in Wester v. Belote, 138 So. 721, 722 (Fla. 1931):
The object and purpose . . . is to protect the public against collusive contracts; to
secure fair competition upon equal terms to all bidders; to remove not only collusion but temptation for collusion and opportunity for gain at public expense; to close all avenues to favoritism and fraud in its various forms; to secure the best values . . . at the lowest possible expense; and to afford an equal advantage to all desiring to do business with the [public entity], by affording an opportunity for an exact comparison of bids.
Finally, section 120.57(3)(f) requires an agency action be set aside if it is “arbitrary, or capricious.” An “arbitrary” decision is one that is “not supported by facts or logic, or is despotic.” Id. Agrico Chemical Co. v. Dep't of Envtl. Reg., 365 So. 2d 759, 763 (Fla. 1st DCA 1978), cert. denied, 376 So. 2d 74
(Fla. 1979). A “capricious” action is one which is “taken without thought or reason or irrationally.” The inquiry to be made in determining whether an agency acted in an “arbitrary, or capricious” manner involves consideration of “whether the agency:
has considered all relevant factors; (2) given actual, good faith consideration to the factors; and (3) has used reason rather than whim to progress from consideration of these factors to its final decision.” Adam Smith Enter. v. Dep't of Envtl. Reg., 553 So. 2d 1260, 1273 (Fla. 1st DCA 1989). The standard
has also been formulated by the court in Dravo Basic Materials
Company v. Department of Transportation, 602 So. 2d 632, 632 n.3 (Fla. 2d DCA 1992), as follows: “If an administrative decision is justifiable under any analysis that a reasonable person would
use to reach a decision of similar importance, it would seem that the decision is neither arbitrary nor capricious.”
The central question in this bid protest dispute is whether the School Board, in selecting Willis Smith as the top- ranked vendor and Petitioner second for competitive negotiations, violated its governing statutes, rules, policies, or solicitation specifications. If the School Board did not follow its governing statutes, rules, policies, or the solicitation specifications, i.e., by making a determination that is clearly erroneous, contrary to competition, or arbitrary, or capricious, then the School Board’s decision must be set aside.
As stated in the School Board’s advertisement for construction management services, the School Board conducted this procurement in accordance with section 287.055 (the “Consultants’ Competitive Negotiation Act” or ”CCNA”) and School Board
Policy 7.71.
Section 287.055 establishes a statutory framework for a school board to solicit construction management services. Under section 287.055(4), the agency competitively selects, in order of preference, at least three firms “deemed to be the most highly qualified to perform the required services.” After the agency formulates its order of preference under section 287.055(4), pursuant to section 287.005(5), the agency begins contract negotiations with the most qualified firm. If no contract is
negotiated with the top-ranked firm, the agency proceeds to attempt to negotiate a contract with the second-most qualified firm. (If necessary, the agency continues down the list of qualified firms in the order of preference until a contract is negotiated). Section 287.001 sets forth the legislative intent behind chapter 287 and states: “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 . . . .” Policy 7.71 applies the procedures set forth in section 287.055(4) and (5) to the School Board’s procurement process for professional construction services, including construction management and design/build services.
In addition, any challenge to the specification terms and conditions must be protested within 72 hours of the solicitation’s posting in order to be timely. See Capeletti
Bros., Inc. v. Dep’t of Transp., 499 So. 2d 855, 857 (Fla. 1st DCA 1986). Petitioner did not challenge the provisions of the solicitation. Therefore, it cannot now be heard to complain about them. See Consultech of Jacksonville, Inc. v. Dep’t of
Health, 876 So. 2d 731, 734 (Fla. 1st DCA 2004).
Based on the evidence presented at the final hearing, Petitioner did not establish, by a greater weight of the
evidence, that the School Board’s action was clearly erroneous, contrary to competition, or arbitrary, or capricious. Therefore, the undersigned concludes, as a matter of law, that the School Board’s decision to select Willis Smith as the construction management firm with which to negotiate the STC-South Campus project did not contravene the statutes, School Board Policy, or solicitation specification that apply to this procurement.
Accordingly, the School Board’s action should not be set aside.
The School Board’s selection of Willis Smith as the top-ranked vendor was not “clearly erroneous.” The actions of the PSSC, the Superintendent, and School Board members and staff complied with provisions and terms of section 287.055,
Policy 7.71, and the solicitation specifications.
Pursuant to Policy 7.71, Section III, the School Board created the PSSC to assist with its selection of a construction management firm for the STC-South Campus project. The PSSC complied with the provisions of section 287.055 and Policy 7.71, Section III.A.7–11, during its evaluation of the applications, short-listing of three applicants, and the applicant interviews/oral presentations. The categories the PSSC used to formulate the short-list included Minority Company Status, Location, Team Qualifications, List of Projects, and Related Experience as specifically set forth in Policy 7.71, Section
III.A.7. Policy 7.71, Section III.A.8, also allowed the PSSC to
consider the applicants’ understanding of the project, philosophical approach to resolve project challenges, and other pertinent considerations regarding the project. Following the applicants’ oral presentations, the PSSC applied the criteria set forth in Policy 7.71, Section III.A.11, by scoring Timelines and Budgets, the Ability to Perform/Team Strength, Interview Rating, and Problems and Solutions/Cost Control Measures. All of these interview scoring factors are identified in
section 287.055(4)(b). The PSSC Score Sheets reflect that the PSSC considered each and every category to short-list, score, and rank the applicant firms in order of preference.4/
Superintendent White’s submission of an alternative ranking for the School Board’s consideration listing Willis Smith over Petitioner was not contrary to the School Board’s governing statute or procurement policy. Superintendent White validly exercised her prerogative to dispute the PSSC’s ranking and submit her own recommendation to the School Board under
Policy 7.71. Policy 7.71, Section III.A.13, clearly allowed Superintendent White to disagree with the PSSC’s ranking at her discretion. Superintendent White also met with the PSSC to review its rationale as directed. Thereafter, the plain reading of Policy 7.71, Section III.A.13, authorized Superintendent White to make her own recommendation to the School Board to accompany the PSSC’s ranking.
The fact that Policy 7.71, Section III.A.13, allowed Superintendent White to dispute the PSSC’s ranking and then make her own recommendation shows that Policy 7.71 did not require Superintendent White to automatically adopt or endorse the PSSC ranking. Neither did Policy 7.71 require Superintendent White to rank the applicants in the same manner as the PSSC or complete a separate Score Sheet. Superintendent White believed that she could dispute the PSSC ranking for any reason (although she believed she should have a rational basis). Policy 7.71 does not contain any provisions to the contrary. Therefore, Superintendent White’s recommendation to the School Board of an alternative ranking of applicants that differed from the PSSC’s ranking did not violate the express terms of Policy 7.71,
Section III.A.13. Superintendent White’s application of the Dispute Resolution provision in Policy 7.71, Section III.A.13, was not “clearly erroneous.”
Further, the evidence does not establish that Superintendent White considered information beyond the criteria set forth in section 287.055(4), Policy 7.71, or the solicitation specifications. Superintendent White, in her memorandum, dated March 24, 2015, comprehensively detailed the reasons she recommended her alternative ranking of Willis Smith as the top- ranked construction management firm. Superintendent White’s ranking was based in large part on her knowledge of Willis
Smith’s successful management of the STC-North Campus construction project. Superintendent White considered the benefit of “continuity” in having the same team manage both the STC-South Campus and STC-North Campus projects. She believed that Willis Smith’s understanding of the School Board’s expectations and knowledge of the STC-North Campus “brand” made them the best choice for the School Board.
Policy 7.71, Section III.A.13, did not restrict what factors Superintendent White could rely upon in determining whether an applicant was qualified to perform the School Board’s proposed project. However, Superintendent White’s considerations are found in section 287.055 and Policy 7.71. Policy 7.71, Section III.A.7, includes “Team Qualifications,” “List of Projects,” and “Related Experience.” Policy 7.71,
Section III.A.8, lists considerations such as an applicant’s “understanding of the project,” “philosophical approach to the resolution of the project’s challenges,” and “other pertinent considerations regarding the project.” In addition,
section 287.055(4) includes the “ability of professional personnel,” “past performance,” willingness to meet time and budget requirements,” and “recent, current, and projected workloads of firms.”
In exercising her discretion, Superintendent White may have placed more emphasis on the applicants’ previous work
experience and performance than the PSSC members. Superintendent White applied these factors to what she perceived to be the “unique” nature of the STC-South Campus project, and what she understood to be the School Board’s desire to create a “brand” tying together the STC-South Campus and STC-North Campus facilities. Superintendent White’s reliance on these factors stayed within the boundaries established by section 287.055 and Policy 7.71. Accordingly, based on the evidence produced in the final hearing, Superintendent White’s decision to use the dispute resolution process in Policy 7.71 as well as her decision to provide an alternative ranking with Willis Smith as the top- ranked vendor for the School Board’s consideration was not “clearly erroneous.”
Finally, the evidence shows that the School Board’s action in ranking Willis Smith first complied with the competitive solicitation process under section 287.055 and Policy
7.71. In accordance with Policy 7.71, Section III.A.12, the PSSC submitted its ranking “for Board approval.” Policy 7.71, however, does not contain provisions that require the School Board to automatically adopt, “approve,” or ratify the PSSC’s ranking. On the contrary, neither Policy 7.71 nor section
287.055 restrict the School Board from exercising its independent discretion to select any of the three short-listed applicants which it “deemed to be the most highly qualified” to manage the
STC-South Campus contract. The School Board was free to vote for the PSSC’s ranking, Superintendent White’s alternative ranking, or to ignore both recommended rankings and generate its own order of preferred applicants. Accordingly, the School Board’s vote to accept Superintendent White’s alternative ranking was a valid application of its governing statutes, rules, policies, and the solicitation specifications. Therefore, the School Board’s selection of Willis Smith as the top-ranked construction management firm for competitive negotiations was not “clearly erroneous.”
Petitioner alleges that the School Board’s action violated Policy 7.71 because School Board members referred to factors other than those categories expressed in Policy 7.71. To the contrary, however, as with Superintendent White’s dispute resolution option, Policy 7.71 does not specify what criteria the School Board was to consider in making its final ranking.
Policy 7.71 delegates to the PSSC the responsibility to create a short-list and then to score applicant interviews/oral presentations. Nothing in Policy 7.71 prohibited the School Board members from considering their prior experience with Willis Smith on the STC-North Campus project to determine the most highly qualified construction management firm. Past construction projects were specifically identified in the Information and Instruction Package as information the PSSC would be interested
in. In addition, from the beginning of the procurement process, the School Board repeatedly expressed its desire for the STC- South Campus project to replicate the “brand” created at STC- North Campus site. Applicants were clearly notified of the importance to the School Board for the STC-South Campus facility to match the STC-North Campus “brand.” Therefore, the selection criteria the School Board members considered to support their selection of Willis Smith as the top-ranked firm was not contrary to the factors included in Policy 7.71 or section 287.055.
In addition to alleged statutory and policy violations, Petitioner asserts that communications between Mr. Sessions, President of Willis Smith, and School Board members and staff violated the “cone of silence” obligation as set forth in Section
III.G of the Information and Instruction Package. The facts, however, do not establish that the School Board or Willis Smith violated any “cone of silence” prohibitions during the procurement process.
The most logical reading of section III.G is that the School Board intended the “cone of silence” to apply only during the PSSC review –- not to the School Board’s entire STC-South Campus procurement process. As such, the “cone of silence” went into effect at the time of the PSSC pre-application meeting on January 14, 2015, and ended on February 26, 2015, when the PSSC Chair announced the PSSC’s ranking to the short-listed
applicants. No evidence was presented that during this period of time, any applicant representative, PSSC member, Superintendent White, or any School Board member or staff violated the “cone of silence.” While Mr. Sessions did contact School Board members and staff on several occasions before the School Board’s final vote, the unrefuted testimony establishes that Mr. Sessions’ communications occurred after the PSSC had concluded its review and released its ranking. (Issues regarding the specific communications with and between the Willis Smith President and School Board members and staff are discussed in more detail below.)
More significantly, neither Policy 7.71 nor
section 287.055 contain a “cone of silence” requirement for the School Board’s procurement process. At the final hearing, the School Board described the “cone of silence” included in the Information and Instruction Package as a “best practice” used only during the PSSC’s initial application review and interview process.5/ The School Board’s interpretation that the statute and policy does not incorporate or otherwise adopt the “cone of silence” provision is reasonable. Consequently, Willis Smith’s communications with School Board members and staff (as well as Petitioner attorney’s letter to the School Board’s general counsel on April 6, 2015), prior to the School Board’s vote but after the PSSC’s announcement of its ranking, did not violate
Policy 7.71 or any other governing statutes or solicitation specifications.
Accordingly, the evidence establishes that the PSSC members, Superintendent White, and the School Board members and staff properly followed the applicable provisions of
section 287.055, Policy 7.71, and the solicitation specifications. Their conduct from the PSSC’s initial short- listing of the applicants through the School Board’s final vote on April 7, 2015, was not impermissible, beyond their authority or discretion, or based on an erroneous application or interpretation of the School Board’s governing statutes, rules, or policies. The School Board, throughout its procurement process, properly and reasonably considered, evaluated, and ranked Petitioner’s proposal as the governing law and policy directed before making its decision. Therefore, Petitioner has not shown, by a preponderance of the evidence, that the School Board’s ultimate determination to select Willis Smith as the top- ranked construction management firm for the STC-South Campus project was conducted in a manner that was “clearly erroneous.”
Petitioner also alleges that the School Board’s decision to rank Willis Smith ahead of Petitioner is effectively an after-the-fact “sole source” award to Willis Smith in violation of Florida Administrative Code Rule 6A-1.012. However, as discussed above, the facts demonstrate that the School Board
complied with the competitive solicitation process set forth in section 287.055 and Policy 7.71. Consequently, Petitioner’s assertion that the School Board’s decision should be set aside as an improper “sole source” award is without merit.
A more problematic issue for the School Board is whether the actions of School Board members and staff created an environment that was impermissibly contrary to competition. Petitioner’s complaint that the activities of several individuals involved in the selection process created the impression that the School Board’s selection of Willis Smith was unfair or unreasonably exclusive is not without any factual basis. At the very least, testimony presented at the final hearing exposed several aspects of the procurement process that might insinuate that the School Board’s selection of Willis Smith was either predetermined or did not afford all applicants an equal opportunity to win the construction management contract.
Addressing the procurement process temporally, regarding the PSSC’s initial review, one PSSC member clearly demonstrated favoritism during the procurement process.
Dr. Bowden openly preferred Willis Smith as the top-ranked applicant. Immediately after the PSSC publicly announced its ranking of Petitioner first and Willis Smith second, Dr. Bowden, the lone PSSC member to vote Willis Smith first, began actively
contacting School Board members and staff to push for Willis Smith’s selection for the STC-South Campus project.
No other applicant had a “champion” on the PSSC who used their access to and influence with the School Board staff and Superintendent White to argue on their behalf. The School Board’s appointment of someone so overtly biased towards one applicant, in no small part, led to this protest in which the School Board finds itself embroiled. A more prudent approach for the School Board to avoid the “appearance of and the opportunity for favoritism” and “secure fair competition upon equal terms to all bidders”, might have been to designated more disinterested or neutral individuals to conduct the short-listing, applicant interviews, scoring, and ranking.
Nevertheless, one reason a committee has multiple members is to balance out (and hopefully overcome) individual prejudices. If the PSSC’s ranking of Petitioner first had not been submitted for the School Board’s consideration, then clearly the whole PSSC analysis, review, and ranking would have been meaningless. Undoubtedly, that would have been contrary to competition (as well as a clearly erroneous application of
Policy 7.71). However, in this STC-South Campus procurement process, the PSSC’s recommended ranking of Petitioner as the top- ranked applicant was presented to the School Board for equal consideration alongside of Superintendent White’s alternative
ranking. Petitioner’s position at the top of the PSSC ranking shows that it was afforded an equal and fair opportunity during the PSSC’s review to compete for and win the STC-South Campus construction management contract. Likewise, the facts do not show that Dr. Bowden acted in any manner that was dishonest, illegal, or fraudulent or violated any of the provisions set forth in section 287.055, Policy 7.71, the solicitation specifications, or other applicable Florida Statutes. Once the PSSC announced its final ranking, Policy 7.71 did not prevent any PSSC member from contacting School Board members or staff to push for their favorite. Therefore, as a matter of law, the facts do not establish that the PSSC’s ranking of applicants was “contrary to competition.”
Also problematic for the School Board are the numerous communications in the midst of the procurement process between Willis Smith President, Mr. Sessions, and School Board members and staff expressing frustration with finishing second in the PSSC’s final ranking. Mr. Sessions plainly attempted to take advantage of his past access to and friendship with certain School Board members and staff to continue to campaign for this contract. Mr. Sessions used his relationships with the School Board members and staff to exploit an advantage not readily available to other applicants.
However, as with Dr. Bowden’s communications with School Board members and staff following the PSSC ranking, the evidence does not demonstrate that Mr. Sessions acted dishonestly, illegally, or fraudulently or violated any of the conditions or prohibitions of section 287.055, Policy 7.71, or the solicitation specifications. Nothing in Policy 7.71 disallowed or prohibited Mr. Sessions from communicating with School Board staff after the PSSC announced its ranking but prior to the School Board’s final decision.6/ Likewise, Policy 7.71 did not prevent Petitioner, or any other applicant, from freely seeking out School Board members or staff during the procurement process to continue to lobby for the contract. Willis Smith engaged in an activity that any other vendor could also have exercised.
Therefore, while several aspects of the School Board’s procurement process might have created “the appearance of an opportunity for favoritism,” the evidence does not establish that Willis Smith obtained an illegal or improper competitive advantage over rival bidders. The numerous communications between the Willis Smith President, Dr. Bowden, and School Board members or staff did not violate any express terms of Policy 7.71 or other School Board rules or governing statutes. All applicants were given an equal and reasonable opportunity to apply for and win the STC-South Campus contract.
As with the PSSC, Superintendent White’s decision to submit an alternative ranking to the School Board recommending Willis Smith as the top applicant was not “contrary to competition.” No evidence shows that Superintendent White acted in a dishonest, unfair, or unreasonable manner in this procurement process. Although her decision to invoke the dispute resolution process set forth in Policy 7.71, Section .III.13, was the first such moment in her tenure as superintendent, such a decision was entirely authorized and within her discretion. Further, as discussed above, the facts show that she conducted a very reasoned and thorough review of the applications, as well as the PSSC members’ rationale prior to submitting her alternative ranking. Her decision to rank Willis Smith first was logical, well-substantiated, and based on criteria set forth in
section 287.055, Policy 7.71, and the solicitation specifications. Therefore, the evidence does not establish that Superintendent White’s alternative ranking of Willis Smith as the top applicant was “contrary to competition.”
Further, the evidence does not establish that the School Board’s decision to award the bid to Willis Smith was “contrary to competition” so that it created an unfair environment or predetermined decision to award the competitive negotiation to Willis Smith. The evidence shows that the School Board’s final decision complied with the procurement process
outlined in section 287.055, Policy 7.71, and the solicitation specifications. All applicants were given an equal and reasonable opportunity to have their proposals considered by School Board members at its meeting on April 7, 2015. Petitioner and Willis Smith were measured by the same standards. As shown by the School Board’s public deliberation, its consideration of both proposals was thorough and thoughtful. When determining the most highly qualified vendor, however, the majority of School Board members ultimately determined that Willis Smith’s past experience on the STC-North Campus, which it completed on time and under budget, moved Willis Smith to the top of its order of preference. The evidence does not establish that the School Board’s selection of Willis Smith was predetermined or resulted from collusion or fraud.
Accordingly, based on the evidence presented in the final hearing, despite activities that might suggest unfair or inequitable favoritism between certain School Board officials and Willis Smith, the preponderance of the evidence does not establish that the School Board’s selection of Willis Smith as the top-ranked applicant rose to the level of “contrary to competition.” Therefore, the evidence does not support Petitioner’s contention that the School Board’s selection of Willis Smith as the top construction management firm should be set aside.
Finally, the evidence produced at the final hearing does not establish that the School Board’s decision to select Willis Smith as the top-ranked applicant was “arbitrary or capricious.” The School Board’s vote during its meeting on April 7, 2015, followed a full and open discussion in which each of the five School Board members voiced the reasons why they accepted (or rejected) Superintendent White’s alternative ranking. The School Board members’ reasons were cogent and comprehensive. The School Board’s ultimate determination was factual, logical and based on a good faith consideration of the criteria and factors listed in the solicitation specifications and Policy 7.71. The agenda, minutes, and transcript from the April 7, 2015, meeting, document that the School Board members considered the application materials, the applicants’ interviews/oral presentations, the PSSC Score Sheets and ranking, and Superintendent White’s evaluation and recommendation. The School Board’s ultimate decision was reasonably based upon the unique “brand” it desired for the STC-South Campus project, the closeness of short-list and interview scores, and Willis Smith’s past experience on a similar project (STC-North Campus) which it completed on time and under budget.
Policy 7.71 did not require the School Board to adopt or ratify either the PSSC’s or Superintendent White’s recommended rankings. The School Board retained the ultimate authority to
select the construction management firm it considered the most highly qualified for competitive negotiation. The School Board’s decision to place Willis Smith at the top on their final ranking was a good faith exercise of its discretion in consideration to the merits of both Petitioner and Willis Smith’s proposals.
Based on the information before it, the School Board’s decision to rank Willis Smith first for competitive negotiations was not “arbitrary or capricious.” Therefore, the evidence does not support Petitioner’s contention that the School Board’s selection of Willis Smith as the top proposal should be set aside.
Based upon the above Findings of Fact and Conclusions of Law, the School Board’s selection of Willis Smith as the top- ranked construction management firm was not contrary to the School Board's governing statutes, the School Board's rules or policies, or the solicitation specifications for the STC-South Campus project. Petitioner did not demonstrate, by a preponderance of the evidence, that the School Board’s proposed action was clearly erroneous, contrary to competition, arbitrary, or capricious. Accordingly, Petitioner failed to establish that the School Board’s determination to rank Willis Smith first for competitive negotiation should be set aside.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Sarasota County School Board
enter a final order upholding its ranking of Intervenor, Willis Smith, first and denying the Amended Petition for bid protest filed by Petitioner, A.D. Morgan Corporation, Inc. It is further recommended that Petitioner’s request for attorney’s fees under section 255.0516 be denied as Petitioner did not prevail in this matter.
DONE AND ENTERED this 17th day of September, 2015, in Tallahassee, Leon County, Florida.
S
J. BRUCE CULPEPPER 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 17th day of September, 2015.
ENDNOTES
1/ References to Florida Statutes are to the 2015 codification, unless otherwise provided.
2/ Petitioner, in addition to its Proposed Recommended Order, submitted a separate letter, dated July 27, 2015, presenting additional argument on the statutory standard of proof. The undersigned did not consider this letter in drafting this Recommended Order as the letter was filed after the due date for post-hearing submittals and exceeded the length agreed upon by the parties. The undersigned notes, however, that Petitioner
adequately expressed its legal position in its Proposed Recommended Order.
3/ “Continuity” refers to Superintendent White’s perception of Willis Smith’s performance on the prior construction management contract for the School Board’s STC-North Campus project. The School Board awarded the STC-North Campus contract to Willis Smith in 2007. Initially, the STC-North Campus project solicitation included the STC-South Campus project which is the subject of the present bid dispute. The STC-North Campus project consisted of three phases and was completed in December, 2014. The STC-South Campus project was eventually dropped from the initial contract due to a lack of funding and never constructed. Willis Smith reportedly completed the STC-North Campus project on time and under budget.
4/ Petitioner states in its Proposed Recommended Order that there is “no scintilla of evidence” that the PSSC failed to comply with Policy 7.71 in generating its ranking or that the PSSC acted anything other than professionally. The evidence at the final hearing supports this finding.
5/ Because the School Board simply uses the “cone of silence” as a “best practice” during the PSSC review period, one wonders how the School Board would react if an applicant (or PSSC member) did contact School Board members or staff before the PSSC announced its ranking. Since Policy 7.71 does not impose or recognize a “cone of silence” requirement, neither does it contain any method to enforce a “cone of silence” violation. As such, the “cone of silence” language in the Information and Instruction Package, as implemented, is basically just a School Board request for applicants to follow.
6/ Mr. Sessions testified that, in response to his overtures to discuss the PSSC ranking at the Education Foundation fundraiser on February 27, 2015, School Board member Jane Goodwin informed him that she did not want to talk to him. To avoid even the appearance of favoritism, collusion, or unethical behavior,
Ms. Goodwin’s response to a vendor, in the middle of an ongoing procurement process, was by far the most judicious reply. Other active discussions between Willis Smith and School Board members and staff prior to the School Board’s final vote clearly left the impression with at least one competitor in the business community that vendors are not afforded equal opportunities to bid for and win School Board contracts.
COPIES FURNISHED:
Robert K. Robinson, Esquire Kirk Pinkerton, P.A.
6th Floor
240 South Pineapple Avenue Sarasota, Florida 34236 (eServed)
Philip Nathan Hammersley, Esquire Norton, Hammersley, Lopez
and Skokos, P.A.
1819 Main Street, Suite 610
Sarasota, Florida 34236 (eServed)
Donald E. Hemke, Esquire Carlton Fields, P.A. Suite 1000
4221 West Boy Scout Boulevard Post Office Box 3239
Tampa, Florida 33601-3239 (eServed)
Lori White, Superintendent Sarasota County School Board 1960 Landings Boulevard
Sarasota, Florida 34231-3365 (eServed)
Matthews Mears, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
10 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 01, 2015 | Agency Final Order | |
| Sep. 17, 2015 | Recommended Order | Petitioner failed to show that the School Board's intended award for competitive negotiations was contrary to its governing rules, policies or solicitation specifications. |
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