STATE OF FLORIDA DEPARTMENT OF MANAGEMENT SERVICES

SEVA TECHNOLOGIES, LLC,

Petitioner,

DMS Final Order No.: 20-0040 DOAH Case No. l 9-5504BID

V.

FLORIDA DEPARTMENT

OF MANAGEMENT SERVICES,

Respondent.

I

FINAL ORDER

This matter comes before the Department of Management Services ("Department") for entry of a Final Order in accordance with section 120.569(1), Florida Statutes. The above-styled matter was previously consolidated with DOAH Case No. 19-5502BID, but is hereby severed for purposes of this Final Order.

Preliminary Statement

On February 5, 2020, a Recommended Order ("RO") was issued by the Honorable J. Bruce Culpepper, Administrative Law Judge ("ALI"), recommending that the Department dismiss Seva's bid protest. A copy of the RO is attached hereto as Exhibit A. Seva filed written exceptions to the RO with the Department's Agency Clerk, and the Department responded. This matter is now before the Secretary of the Department for administrative review.

FINDINGS OF FACT

1. On June 24, 2019, at 3:11 p.m., the Department posted its "Revised Intent to Award - RFP #15-80101-507-SA-D - Information Technology Staff Augmentation Services" ("RFP") on the Vendor Bid System ("VBS").

   
   

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   Filed May 21, 2020 3:28 PM Division of Administrative Hearings

2. On June 25, 2019, Petitioner Seva Technologies, LLC ("Seva"), filed with the Department's Agency Clerk its notice of intent to protest the results of the RFP.

3. On July 8, 2019, Seva timely filed with the Department's Agency Clerk its "Formal Written Bid Protest and Petition for Formal Administrative Hearing" as well as its protest bond.

4. On October 14, 2019, the Department referred the matter to the Division of Administrative Hearings.

5. On October 22, 2019, the ALJ issued an Order of Consolidation, consolidating this matter with other protests related to the same procurement.

6. On November 4, 2019, Seva's "Amended Formal Written Bid Protest and Petition for Formal Administrative Hearing" was deemed filed by order of the ALJ.

7. On November 12-15, 2019, an administrative final hearing was held in Tallahassee, Florida.

   
   

8. On February 5, 2020, the ALJ issued a Recommended Order recommending that the Department dismiss Seva's protest.

9. On February 20, 2020, Seva filed exceptions to the ALJ's Recommended Order.

   
   

10. On March 2, 2020, the Department filed its responses to the exceptions.

    
    

    CONCLUSIONS OF LAW

    
    

11. This matter, DOAH Case No. 19-5504BlD, is hereby severed from the consolidated proceedings at DOAH for purposes of entry of this Final Order.

12. The Findings of Fact in the RO are adopted and hereby incorporated by reference, except to the extent they may be modified by this Final Order in ruling on the exceptions below. The Conclusions of Law in the RO are adopted and hereby incorporated by reference, except to the extent they may be modified by this Final Order in ruling on the exceptions below.

Rulings on Exceptions

The Department hereby rules on the four (4) exceptions filed by Seva, in accordance with section 120.57(3)(e), Florida Statutes, and Rule 28-106.217, Florida Administrative Code.

Having considered the DOAH pleadings, the transcript of the proceedings, exhibits entered into evidence, the exceptions filed by the Seva, and the responses to the exceptions, the undersigned finds as follow with the regard to Petitioner's exceptions:

Exception 1 (Conclusions of Law 151-153)

Seva' s first exception alleges that the ALJ improperly applied a "conclusive " burden of proof standard rather than a preponderance of the evidence standard. It likewise alleges that the ALJ improperly disregarded Seva's unrebutted expert testimony , which Seva contends was required to be accepted as fact. Specifically, Seva takes issue with the ALJ finding that Mr.

O'Donnell and Dr. Wu's testimonies and analyses did not conclusively support their conclusions. There is nothing in the record to support the claim that the ALJ applied the improper standard. In fact, the ALJ's own words in the RO reveal that Seva failed to establish by a preponderance of the evidence that the Department's decision was clearly erroneous, contrary to competition, arbitrary, or capricious. RO at 128.

Seva also claims that the ALJ was required to accept the expert testimony of Mr.

O'Donnell and Dr. Wu because it was unrebutted. This argument is misplaced. In an administrative hearing, the ALJ sits as both finder of fact and judge. It is axiomatic that a finder of fact may judge the persuasiveness and credibility of an expert's testimony and apply his own

knowledge and experience when weighing opinion evidence. Wiederhold v. Wiederhold, 696 So. 2d 923, 924 (Fla. 4th DCA 1997). When an expert has been hired and called to testify by one of

the adversaries to a contested proceeding, there is nothing unreasonable or improper when the

fact finder declines to accept the testimony of such an expert. Id. However, while the trial court can reject unrebutted expert testimony, it must offer a reasonable explanation for doing so, i.e., it

cannot arbitrarily reject unrebutted expert testimony. Id.

Here, the ALJ offered a reasonable explanation for rejecting Seva's expert testimony. The ALJ found that each evaluator conscientiously and consistently applied the RFP scoring criteria, credibly explained the basis for their specific scores, gave good faith considerations of the scoring, and otherwise gave rational, reasonable, logically derived, and uniformly applied scores. RO at 153. These conclusions were based on a voluminous record and hours of eyewitness testimony. The ALJ did not arbitrarily reject Seva's expert testimony.

The Petitioner has failed to provide the Department with a sufficient legal basis for rejecting or modifying the ALJ's Conclusions of Law under section 120.57(1)(/), Florida Statutes. Based on the foregoing, Seva's Exception 1 is denied.

Exception 2 (Findings of Fact 57-70, 84; Conclusions of Law 143, 151-154)

Seva' s second exception alleges that it fully met its burden of proof beyond any reasonable doubt. Seva claims that the ALJ failed to capture the full nature and extent of Seva's expert opinions, but these arguments are merely disagreements with the ALJ's findings of fact. Seva did not allege that the challenged findings were not based on competent substantial evidence, but rather disputed the substance of the findings themselves. A review of the record demonstrates that the ALJs Findings of Fact for paragraphs 57-70 and 84 were based on competent substantial evidence and there is no basis to disturb those.findings.

Seva also takes issue with Conclusions of Law 143 and 151-154. Seva's exceptions as to Conclusions of Law 151-153 are hereby denied for the same reasons cited in above in Exception

1. As to Conclusion of Law 143, the ALJ found that the evaluators competently executed their duties. The conclusions in this paragraph are based upon findings of fact which are supported by competent substantial evidence. These conclusions are the result of the ALJ's findings and the voluminous record and should not be disturbed. As to Conclusion of Law 154, the ALJ concluded that the Department's award should not be set aside. Seva takes exception to this paragraph, but the substance of the exception is a disagreement with the ALJ's Findings of Fact. The ALJ properly applied the law to the facts and therefore this exception is due to be denied.

   The Petitioner has failed to provide the Department with a sufficient legal basis for rejecting or modifying the ALJ's Findings of Fact or Conclusions of Law under section 120.57(1 )(/), Florida Statutes. Based on the foregoing, Seva's Exception 2 is denied

   Exception 3 (Findings of Fact 124-126, including Footnote 16; Conclusions of Law 148-150)

   
   

   In exception 3, Seva contends that the ALJ improperly determined that the Department was not required to reject bidders based solely on unrealistic or artificially low bids. However, the ALJ's Findings of Fact were based on competent substantial evidence and the Conclusions of Law should not be disturbed. The ALJ correctly concluded that the bid specifications did not prevent vendors from presenting "unbalanced" proposals and that no statute or rule required the Department to reject unbalanced bids. He also found that the bid specifications were clear and informed all vendors of the scoring criteria that would be used. These conclusions are based on competent substantial evidence and will not be disturbed.

   As to Conclusions of Law 148-150, the ALJ correctly concluded that Seva's challenge to the pricing formula is misplaced. Specificaily, he found that the bid specifications did not require the Department to reject low bids. He also found that the Department credibly articulated how

   the pricing formula created a level playing field. There is no basis in Seva's exceptions or the record to overturn these conclusions.

   The Petitioner has failed to provide the Department with a sufficient legal basis for rejecting or modifying the ALJ's Findings of Fact or Conclusions of Law under section 120.57(1)(/), Florida Statutes. Based on the foregoing, Seva's Exception 3 is denied Exception 4 (Conclusion of Law 124 and Footnote 16)

   Seva alleges that the ALJ improperly found that the pricing formula did not contain a latent defect. In support of this contention, Seva alleges that the pricing fonnula caused an extreme and very narrow band compression of price points which resulted in price neutralization. This exception is denied.

   As a preliminary matter, the RO does not contain a Conclusion of Law in paragraph 124, but does contain a Finding of Fact in paragraph 124. To the extent Seva challenges this Finding of Fact, it was clearly supported by competent substantial evidence, including footnote 16. To the extent this finding includes a Conclusion of Law, the conclusion was correct as Seva's failure to challenge the pricing formula at the bid specifications stage was a waiver of its right to protest on such grounds.

   The Petitioner has failed to provide the Department with a sufficient legal basis for rejecting or modifying the ALJ's Conclusion of Law under section 120.57 (1)(/), Florida Statutes. Based on the foregoing, Seva's Exception 4 is denied.

   It is hereby ORDERED AND ADJUDGED:

   
   

   1. The "Amended Fonnai Written Bid Protest and Petition for Formal Administrative Hearing" is hereby DISMISSED;

   2. The Department's Agency Clerk shall return Seva's protest bond; and

   3. This Final Order shall become effective on the date of filing with the Department's Agency

.2.l

Clerk.

DONE and ORDERED on this day of

--+ t-- - r------ ' 2020.

AN SATTER, Agency Secretary nt of Management Services

planade Way, Suite 285 Tallahassee, Florida 32399

Copies Furnished To:

Seva Technologies, LLC

c/o SMITH & ASSOCIATES

Timothy B. Elliott, Esq.

3301 Thomasville Road, Suite 201

Tallahassee, Florida 32308 tim i;smithlawtlh.com

William Chorba, General Counsel

Florida Department of Management Services 4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

NOTICE OF RIGHT TO APPEAL

Unless expressly waived by a party such as in a stipulation or in other similar fonns of settlement, any party substantially affected by this Final Order may seek judicial review by filing an original notice of appeal with the agency clerk of the Department of Management Services, and a copy, accompanied by the filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. The notice of appeal must be filed within thirty (30) days of rendition of this order, in accordance with Rule 9.110, Florida Rules of Appellate Procedure, and Section 120.68, Florida Statutes.

Certificate of Clerk:

Filed in the Office of the Agency

Clerk of the Department of Management Services on this c;:) J .::H day of

(Yl {,(,4 ' 2020

6

Di Wint u):

Agency Clerk 1 0-e{J

Docket for Case No: 19-005502BID

Orders for Case No: 19-005502BID