GUARANTEED FLORIDA TITLE AND ABSTRACT, INC.,
Petitioner,
Case No. 20-5168BID
vs.
FLORIDA DEPARTMENT OF
TRANSPORTATION,
Respondent.
/
RECOMMENDED ORDER
The final hearing in this matter was conducted before J. Bruce Culpepper, Administrative Law Judge of the Division of Administrative Hearings, pursuant to sections 120.569 and 120.57(1) and (3), Florida Statutes (2020),1
on January 12, 22, and 28, 2021, and February 15, 2021, via Zoom video conference from Tallahassee, Florida.
APPEARANCES
For Petitioner: Myron E. Siegel, Esquire
Guaranteed Florida Title & Abstract, Inc. 1055 South Federal Highway
Hollywood, Florida 33020
For Respondent: Douglas Dell Dolan, Esquire
John Ashley Peacock, Esquire
Florida Department of Transportation 605 Suwannee Street, MS 58
Tallahassee, Florida 32399-0458
STATEMENT OF THE ISSUE
Whether the intended award of a contract for title search and examination services by Respondent, the Florida Department of Transportation, is contrary to its governing statutes, rules, or the solicitation specifications.
PRELIMINARY STATEMENT
This matter involves the protest by Petitioner, Guaranteed Florida Title and Abstract, Inc. ("Guaranteed"), to the Department of Transportation's (the "Department") intent to award Districtwide Title Search and Examination Services through Request for Proposal DOT-RFP-21-4002-JR (the "RFP").
The Department issued the RFP on August 7, 2020.
The Department posted a Proposal Tabulation on October 12, 2020. The Proposal Tabulation reported that the Department intended to award the RFP to American Government Services Corporation ("AGS").
On October 23, 2020, Guaranteed timely filed a notice of protest of the Department's notice of intent to award. On November 24, 2020, the Department referred Guaranteed's protest to the Division of Administrative Hearings ("DOAH") for assignment to an Administrative Law Judge ("ALJ") to conduct a chapter 120 evidentiary hearing.
The final hearing was held on January 12, 22, and 28, 2021, and February 15, 2021. Guaranteed's Exhibits 1, 3 through 15, 18, 19, 25, and 26 were
admitted into evidence. Department's Exhibits 5, 7 through 11, 16, and 17 were admitted into evidence. In addition, Joint Exhibits 5, 6, 10, and 11 were accepted into evidence.
1Unless otherwise stated, all citations to the Florida Statutes are to the 2020 version.
Myron E. Siegel testified on Guaranteed's behalf. The parties also called Jessica Rubio, Susanna Rowland, Erika Ventura, Joe Ricardo, and Amelia Rodriguez-Alers to testify at the final hearing.
A nine-volume Transcript of the final hearing was filed with DOAH on March 15, 2021. At the close of the hearing, the parties were advised of a
ten-day timeframe after receipt of the hearing Transcript to file post-hearing submittals. Following receipt of the Transcript, the Department requested additional time to file a proposed recommended order, which Guaranteed did not oppose. Finding good cause, the Department's request was granted.2 Both parties filed Proposed Recommended Orders, which were duly considered in preparing this Recommended Order.
FINDINGS OF FACT
The Department is the agency of the State of Florida charged with coordinating a safe, viable, and balanced transportation system serving all regions of the state. § 334.044(1), Fla. Stat. The Department is authorized to enter contracts and agreements to help fulfill this duty. §§ 20.23(6), 334.044(1), and 335.02, Fla. Stat.
The Department initiated this competitive procurement seeking a contract to provide title search and examination services (the "Title Services Contract"). The procurement's objective is to contract with a private vendor to provide title research services and reports to Department District 4.
The solicitation at the center of this protest is Request for Proposal for Districtwide Title Search and Examination Services, DOT-RFP-21-4002-JR (the "RFP").
2 By requesting a deadline for filing a post-hearing submission beyond ten days after the filing of the hearing transcript, the 30-day time period for filing the Recommended Order is waived. See Fla. Admin. Code R. 28-106.216(2).
The initial term of the Title Services Contract is 60 months (five years). The Title Services Contract offers a maximum award of $1,150,000.00 for the length of the contract. The contract may be extended for up to five years upon mutual agreement.
The Department issued the RFP on August 7, 2020.3
The Department received proposals from three vendors, including Guaranteed, AGS, and Entrust Abstrax, LLC ("Entrust").
Joe Ricardo served as the Department's Procurement Agent for the RFP, as well as drafted and prepared the RFP documents and forms. Mr. Ricardo expressed that the RFP's goal is to award the Title Services Contract to "the responsive and responsible Proposer whose proposal is determined to be the most advantageous to the Department." See RFP, Sections 1 and 7.
Upon the Department's receipt of the three proposals, Mr. Ricardo reviewed the responses to ensure that each complied with the solicitation documents and contained all the required information and mandatory materials. The RFP required each vendor to include with their submission both a Technical Proposal and a Price Proposal. After his review, Mr. Ricardo determined that all three proposals were "responsive" to the RFP, and each
3 No vendor challenged the specifications in the RFP within 72 hours after the posting of the solicitation.
vendor was qualified to perform the services for which the Department was seeking to contract.4
The Department opened the three Technical Proposals from Guaranteed, AGS, and Entrust on September 3, 2020. The Technical Proposals were to include responses explaining the vendor's "approach, capabilities, and means" to accomplish the tasks described in RFP, Exhibit "A," entitled "Scope of Services." See RFP, Sections 6 and 22.2.
The Department awarded separate points for the Technical Proposals and the Price Proposals. To score the Technical Proposals, the Department appointed three individuals to serve on a Technical Review Committee (the "Review Committee"). The Review Committee consisted of District 4 employees Erika Ventura, Amelia Rodriguez-Alers, and Susanna Rowland. Ms. Ventura, who also served as the Project Manager for the Title Services Contract solicitation, selected the Review Committee members (including herself).
After Mr. Ricardo opened the vendors' Technical Proposals,
Ms. Ventura distributed them to the Review Committee members for their individual evaluation and scoring. The Review Committee members were to independently review the Technical Proposals and assess the vendors' capabilities, experience, and qualifications to provide both the desired services, as well as a quality product.
4 RFP, Section 21.1, stated that:
A responsive proposal is an offer to perform the scope of services called for in this Request for Proposal in accordance with all requirements of this Request for Proposal and receiving seventy (70) points or more on the Technical Proposal.
RFP, Section 21.1, further warned that:
Proposals found to be non-responsive shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained.
Under the RFP's evaluation process, the vendors' Technical Proposals were awarded up to 100 points. The Review Committee graded the Technical Proposals on three criteria, with varying point values, as follows:
Prior Relevant Experience and Qualification of Firm and Employees (40 total points). This criteria was subdivided into three parts, consisting of:
Technical Staff Experience (25 points);
Organization and Management Plan (5 points);
Experience and Business History of the Proposer (10 points);
Proposer's Technical Plan (Point Value – 40 total points);
Quality Control Plan (Point Value – 20 total points).
The Review Committee members scored the Technical Proposals of AGS and Guaranteed as follows:
Ms. Ventura:
Prior Relevant Experience:
Technical Staff Experience (25 points): AGS: 24 points
Guaranteed: 23 points
Organization and Management Plan (5 points): AGS: 4 points
Guaranteed: 4 points
Experience and Business History of the Proposer (10 points):
AGS: 9 points
Guaranteed: 9 points
Proposer's Technical Plan (40 points): AGS: 38 points
Guaranteed: 35 points
Quality Control Plan (20 points): AGS: 17 points
Guaranteed: 15 points
Ms. Ventura's Total Technical Proposal Score (maximum of 100 points):
AGS: 92 points
Guaranteed: 86 points
Ms. Rodriguez-Alers:
Prior Relevant Experience:
Technical Staff Experience (25 points): AGS: 25 points
Guaranteed: 25 points
Organization and Management Plan (5 points): AGS: 5 points
Guaranteed: 5 points
Experience and Business History of the Proposer (10 points):
AGS: 10 points
Guaranteed: 8 points
Proposer's Technical Plan (40 points): AGS: 38 points
Guaranteed: 35 points
Quality Control Plan (20 points): AGS: 20 points
Guaranteed: 18 points
Ms. Rodriguez-Alers' Total Technical Proposal Score (maximum of 100 points):
AGS: 98 points
Guaranteed: 91 points
Ms. Rowland:
Prior Relevant Experience:
Technical Staff Experience (25 points): AGS: 25 points
Guaranteed: 23 points
Organization and Management Plan (5 points): AGS: 5 points
Guaranteed: 4 points
Experience and Business History of the Proposer (10 points):
AGS: 10 points
Guaranteed: 10 points
Proposer's Technical Plan (40 points):
AGS: 40 points
Guaranteed: 39 points
Quality Control Plan (20 points):
AGS: 20 points
Guaranteed: 19 points
Ms. Rowland's Total Technical Proposal Score (maximum of 100 points):
AGS: 100 points
Guaranteed: 95 points
All three Review Committee members testified at the final hearing. In describing how they approached the review process, the members uniformly stated that they did not receive any formal oral or written instructions or training on how to evaluate or score the vendors' Technical Proposals. Neither did they communicate or consult with each other after Ms. Ventura distributed the proposals. At the final hearing, each member described how they awarded points, as follows:
Erika Ventura: Ms. Ventura works in the Survey and Mapping section for District 4. As Project Manager for the solicitation, Ms. Ventura assisted in drafting the RFP and the Scope of Services. She also helped coordinate the RFP timelines and how the solicitation was issued.
Ms. Ventura explained that District 4 initiated the procurement to obtain outside support for when it acquires property for Department use. District 4 was looking for vendors who could: 1) identify property through legal descriptions and understanding the same, 2) use available programs and systems to conduct title searches, and 3) map property using legal descriptions. District 4 wanted to contract with a vendor who had the ability
to search property records and provide abstract and title reports at the Department's request.
In selecting the Review Committee members, Ms. Ventura chose Ms. Rodriguez-Alers and Ms. Rowland based on their experience with the services for which the Department was looking to contract. Ms. Ventura described Ms. Rodriguez-Alers as an "end user" who receives and uses title reports. Ms. Ventura conveyed that Ms. Rowland works in the District 4
document and title section and reviews documents produced using District 4's "eTitle" program.
When awarding points to the Technical Proposals, Ms. Ventura testified that she used the same analysis and evaluation process for each proposal. She read each Technical Proposal independently, and determined whether she believed the vendor could provide the services District 4 might request. She then awarded points as appropriate. Ms. Ventura formulated her scores based on the services described in the Scope of Services. For additional guidance, she referred to RFP, Section 30.4, which listed the criteria she was to evaluate.
Ms. Ventura stated that she reached her scores based only on the information contained in each proposal. She did not compare proposals. Neither did she rely upon any outside information or prior knowledge of the vendors. Ms. Ventura denied that she preferred one vendor over another or gave any vendor a scoring advantage.
At the final hearing, Ms. Ventura relayed that she could not recall the exact reasons why she awarded more points to AGS's Technical Proposal versus Guaranteed's Technical Proposal. However, generally, she commented that AGS provided an excellent organizational chart that clearly set forth the names, experience, and qualifications of the staff members AGS selected to manage the Title Services Contract. Ms. Ventura also appreciated how AGS described how its "well balanced team" would "tackle" the title search and examination tasks, as well as AGS's "Work Flow" flowchart that presented a
checklist for how AGS would approach its work. Summing up her score for AGS, Ms. Ventura voiced that AGS showed that it possessed the technical knowledge and "vast" experience to provide the services needed. Ms. Ventura added that AGS's Technical Proposal demonstrated that it could manage and perform all the services assigned sought through the RFP.
Amelia Rodriguez-Alers: Ms. Rodriguez-Alers is a certified surveyor and mapper for District 4. She believed that she was selected for the Review Committee based on her familiarity with mapping services. Ms. Rodriguez- Alers explained that she will be an "end user" of the title reports and abstract services sought through the RFP.
When scoring the proposals, Ms. Rodriguez-Alers stated that she independently evaluated each vendor's proposal. Further, to assess the vendors' abilities to perform the services requested, Ms. Rodriguez-Alers assigned the scores using only the information contained in the proposal.
Ms. Rodriguez-Alers described her scoring process as "comparative." First, she read through the RFP and the Scope of Services to familiarize herself with the terms of the solicitation. Next, she read each proposal individually. Ms. Rodriguez-Alers then assigned the maximum points she believed appropriate based on the information contained within each proposal. Once she had completed that step, Ms. Rodriguez-Alers then compared all the proposals with each other, and adjust her scores accordingly. If she determined that one vendor's Technical Proposal was not as comprehensive as another's, or did not satisfactorily provide the requested information, she discounted points.
Addressing why she awarded AGS a higher score after comparing it to Guaranteed's Technical Proposal, Ms. Rodriguez-Alers stated that both AGS and Guaranteed demonstrated that they were capable of performing the services requested. However, generally, she found that the manner in which AGS presented information was better, and more complete, than what Guaranteed provided.
For instance, AGS's Technical Proposal clearly identified each "team member" who would support the Title Services Contract, as well as the specific service he or she would perform for the contract. AGS also laid out the percentage of available time each team member would dedicate to District 4 service requests. Guaranteed's Technical Proposal, on the other hand, did not sufficiently explain how much time each staff member would actually dedicate to District 4 projects and responsibilities. AGS's Technical Proposal also recorded much more experience for each team member as opposed to that described in Guaranteed's Technical Proposal. Further,
Ms. Rodriguez-Alers commented that Guaranteed's Technical Proposal indicated that several of its employees were attorneys who also worked for Myron E. Siegel, P.A. Guaranteed, however, did not describe how each joint employee would divide their time between the two employers. Consequently, she reduced her score for Guaranteed's Technical Staff Experience. Finally, Ms. Rodriguez-Alers appreciated how AGS's Technical Proposal featured a chart tracking its "Work Flow," as well as included a more complete explanation of its Quality Control Plan and the innovative concepts AGS might employ to accomplish District 4 tasks.
Susanna Rowland: Ms. Rowland works as a Title Examiner for District
In her job, Ms. Rowland performs a variety of tasks including bookkeeping, researching properties and roadways, and general office support.
To prepare to score the Technical Proposals, Ms. Rowland read through the RFP and the Scope of Services to understand the criteria she was to consider. When scoring, Ms. Rowland testified that she read each proposal independently, then reviewed whether she believed the vendor could meet and provide the services requested in the Scope of Services. She did not compare the Technical Proposals directly to each other, but relied solely on the information contained within each submission. Ms. Rowland further expressed that she used the same standards to evaluate every proposal, and scored all proposals using the same method.
Ms. Rowland awarded AGS's Technical Proposal a perfect score (100 points). In describing why she assigned AGS this score, Ms. Rowland commented that she did not find AGS's Technical proposal "deficient in any way." She explained that AGS's Technical Proposal amply demonstrated its ability to provide all services sought through the RFP.
Testifying why she awarded AGS a higher score than Guaranteed, Ms. Rowland expressed that, generally, AGS showed that it possessed more experience in the services District 4 needed. For instance, AGS's Technical Proposal revealed that AGS's staff had "long-term" experience working on government projects. In addition, AGS had worked on a number of other contracts for government agencies handling right-of-way property issues. Conversely, Guaranteed's Technical Proposal only generally described its staff members' experience, and reported that Guaranteed had worked on fewer government contracts. Similarly, AGS outlined a "comprehensive" management plan, whereas Guaranteed's management plan was basic and contained less detail. Further, Ms. Rowland found that AGS's Technical Proposal provided a very thorough description of its Quality Control Plan. She was particularly impressed that AGS intended to conduct periodic audits of its examinations. Conversely, Petitioner's Technical Proposal proposed a minimal amount of internal audits.
Once the Review Committee members independently calculated the points they awarded to each Technical Proposal, they returned their scores to Mr. Ricardo in the Procurement Office. Mr. Ricardo then averaged the scores into one composite score for each vendor. AGS received the most points with an average score of 96.68. Guaranteed came in second with an average score of 90.66.
On September 28, 2020, the Review Committee met at a public opening to announce their scores for the Technical Proposals.
After scores for the Technical Proposals were read at the public meeting, the Price Proposals were opened. At that point, Mr. Ricardo, in his
role as the Procurement Agent, calculated and assigned points for the Price Proposals. Mr. Ricardo used the price evaluation procedure set forth in RFP Section 30.4.b. Each Price Proposal could receive up to 43 points based on a comparison of the vendors' respective prices. Mr. Ricardo explained that the low bidder would be awarded the maximum points for price (43 points).
Thereafter, the Department calculated each score based on the following formula: (Low Price/Proposer's Price) x Price Points = Proposer's Awarded Points. Mr. Ricardo recounted that the Department designed the price formula to establish a base line with which to compare all proposals.
Based on the formula, AGS's proposed price ($7,143,250.00) was the second highest price submitted of the three bidders and received 39.48 points. Guarantee's price ($8,000,250.00) was the highest price submitted and, correspondingly, received the lowest points awarded (35.25 points).
Regarding AGS's Price Proposal, at the final hearing, Mr. Ricardo testified that, while reviewing and verifying AGS's prices, he discovered a discrepancy in the number AGS wrote as its subtotal price to electronically process title information. However, as more fully discussed below,
Mr. Ricardo determined that the figure was actually a transcription error by AGS when it transferred a price calculation from a previous page.
Consequently, because AGS's oversight did not require Mr. Ricardo to change either AGS's total price or the final points awarded to AGS's Price Proposal, Mr. Ricardo deemed the mistake a "minor irregularity." Consequently, he did not disqualify AGS's proposal and allowed it to be considered for award of the Title Services Contract.5
At that point, Mr. Ricardo combined the total points for the Technical Proposals and the Price Proposals for each vendor. AGS received the highest
5 Mr. Ricardo testified that Guaranteed's Price Proposal did not contain any errors. However, Entrust's Price Proposal did include several calculation errors, which Mr. Ricardo also adjusted to determine its final price score. As with AGS's Price Proposal, Mr. Ricardo did not believe that changes he made to Entrust's prices provided Entrust's proposal a competitive advantage or were unfair.
ranking with a total score of 136.16. Guaranteed received the second highest ranking with a score of 125.91.
On October 12, 2020, the District 4 Selection Committee met to review the total scores and to make the final award of the Title Services Contract. AGS's proposal was determined to hold the highest combined score. Thereafter, the Selection Committee awarded the RFP to AGS.
That same day, Mr. Ricardo posted the Proposal Tabulation which served as notice of the Department's intent to award the Title Services Contract to AGS. He asserted that, in selecting AGS, the Department determined that AGS's proposal was the most advantageous to the Department and the State of Florida.
Guaranteed's Protest:
Guaranteed contends that the methodology, processes, and procedures the Department followed in accepting and evaluating AGS's proposal were clearly erroneous, contrary to competition, arbitrary, or capricious. Guaranteed asserts that the Department should have rejected AGS's proposal as nonresponsive. Alternatively, Guaranteed contends that the Review Committee members awarded AGS's Technical Proposal points to which it was not entitled, and as a result, AGS improperly received the highest cumulative point total and was undeservedly awarded the Title Services Contract.
Myron Siegel testified on behalf of Guaranteed. Mr. Siegel is Guaranteed's President and sole owner. He is also a licensed Florida attorney, as well as a licensed Florida real estate broker and title agent. Mr. Seigel oversaw his staff's preparation and submission of Guaranteed's response to the RFP.
Mr. Siegel relayed that he started Guaranteed in 2013 in Hollywood, Florida. Guaranteed operates across the State of Florida offering "full services" in abstract, mapping, and title search and examination services.
Mr. Siegel represented that Guaranteed currently provides these services to the state through contracts with Department District 4 and District 6.
Guaranteed (through Mr. Siegel) presented a number of arguments contesting the Department's award to AGS. Each specific challenge, along with the Department's response, is discussed below.
AGS's Price Proposal Included a Material Mathematical Error:
Guaranteed asserts that the Department should have disqualified AGS's proposal based on a material mathematical error in AGS's Price Proposal. Specifically, Guaranteed argues that when Mr. Ricardo "reformed" AGS's Price Proposal to remedy a math error, he provided AGS an unfair competitive advantage. Consequently, by correcting AGS's mistake, then proceeding to score its Price Proposal, the Department acted "contrary to competition."
Department Response: As referenced above, Mr. Ricardo explained that, in its Price Proposal, AGS itemized its anticipated prices for twelve different title search and examination services. One of these services was "Electronic Processing of Title Information." On this price page, AGS recorded the unit price for eight "types of services" associated with this category.6 At the bottom of the price page, AGS calculated the subtotal for all the services related to Electronic Processing of Title Information as
$39,125.00.
Following the 12 price pages for the separate title search and examination services, AGS completed the final page entitled "Summary of Bid Totals." The Summary page listed the subtotal prices for each of the 12 categories, then calculated a "Grand Total/Proposer's Price Amount." According to AGS's Summary page, the Grand Total for all its services equaled $7,143,250.00.
6 Blank forms for the 12 price pages each vendor was to use to prepare its Price Proposal were provided as part of RFP Exhibit "C."
On the Summary page, however, in the block reflecting the subtotal for Electronic Processing of Title Information services, AGS incorrectly wrote the figure "$11,725.00" instead of "$39,125.00."7 Despite this mistake, in calculated its Grand Total/Proposer's Price Amount, AGS correctly used the number $39,125.00 to reach the total sum of $7,143.250.00, which was the official price AGS proposed to perform the Title Services Contract.
Mr. Ricardo, in reviewing and assigning the price score to AGS's Price Proposal, reached the conclusion that the "$11,725.00" subtotal AGS wrote on the Summary page for Electronic Processing of Title Information was a transcription error. To confirm his suspicion, Mr. Ricardo added all 12 subtotals together, including the correct amount for Electronic Processing of Title Information from the price page ($39,125.00), and confirmed that the Grand Total of AGS's Price Proposal equaled $7,143,250.00, just as AGS ascribed at the bottom of its Summary page.
Therefore, in preparing AGS's proposal for reviewed by the Selection Committee, Mr. Ricardo amended AGS's Price Proposal to reflect the correct number ($39,125.00). Mr. Ricardo testified that, in correcting this error, he did not modify or recalculate AGS's Price Proposal. Instead, he simply replaced an incorrect number with the number that AGS "obviously" intended to use and did, in fact use in adding up the subtotal to reach the Grand Total.
Mr. Ricardo called the mistake in AGS's proposal a "minor irregularity." Mr. Ricardo testified that a "minor irregularity" is any error or omission that does not affect competition or impact the outcome of the solicitation. Mr. Ricardo conveyed that the "math mistake" in AGS's proposal did not change its total price, or relieve AGS (as the winning vendor) from
7 In the Summary, the subtotals for the five services directly above "Electronic Processing of Title Information" are listed as "$11,725.00." It appears that the individual who transferred the subtotals from the 12 separate pricing spreadsheets to the Summary page in AGS's price proposal inadvertently inserted the number from the wrong category and overlooked the correct number ($39,125.00) from the previous page.
any responsibilities under the Scope of Services. Neither did it adversely prejudice the other vendors. Therefore, because he was simply inserting the correct number that was previously listed in AGS's submission, his corrective action did not alter AGS's ultimate price to perform the Title Services Contract. Consequently, the modification did not provide AGS's proposal a competitive advantage, nor did it affect the overall outcome of the solicitation. AGS still received the highest total score for the RFP based on the proposal it submitted in response to the solicitation.
Mr. Ricardo further testified that he did not consider the mistake in AGS's proposal "material." If he or the Department had determined that the discrepancy was "material," the Procurement Office would have disqualified AGS's proposal, and it would not have been eligible for award.
In response to questioning, Mr. Ricardo conceded that the term "minor irregularity" is not defined in the solicitation documents. Neither is he aware of any Department written instructions or policies for handling math errors in proposals. However, for authority to exercise the option to waive AGS's "minor irregularity," Mr. Ricardo pointed to State of Florida purchasing form PUR 1001 entitled "General Instructions to Respondents," which the RFP references in Sections 35.2 and 36. (The RFP also contained a hyperlink which enabled vendors to directly access the PUR 1001 through the internet.) PUR 1001 states at paragraph 16:
Minor Irregularities/Right to Reject. The Buyer reserves the right to accept or reject any and all bids, or separable portions thereof, and to waive any minor irregularity, technicality, or omission if the Buyer determines that doing so will serve the State's best interests. The Buyer may reject any response not submitted in the manner specified by the solicitation documents. (emphasis added).
PUR 1001 defines "buyer" as "the entity that has released the solicitation," i.e., the Department in this procurement.
The initial advertisement for the RFP also stated that, "The Department reserves the right to reject any and all bids or accept minor irregularities in the best interest of the State of Florida."
Based on the testimony at the final hearing, the Department witnesses credibly attested that the transcription mistake in AGS's Price Proposal was a "harmless error" that did not confer AGS a competitive advantage, either in competition or price. Neither was the mistake a "material" error that should have rendered AGS's proposal nonresponsive. Accordingly, the Department persuasively argued that it should not have disqualified AGS's proposal due to its transcription error.
AGS's Technical Proposal is Deficient in that it Fails to Include or Reference a Real Estate Attorney:
Guaranteed contends that certain services described in the RFP and the Scope of Services may only be performed by a licensed real estate attorney. AGS's Technical Proposal, however, does not identify a real estate attorney on its staff. Consequently, Guaranteed argues that the Department should have disqualified AGS's proposal because AGS cannot perform all the services required under the RFP.
Supporting its position, Guaranteed pointed to RFP Sections 9.1.2 and 22.2, and Scope of Services, Section 2.1, which required each vendor to:
Identify an active Florida licensed attorney practicing in real property or an active Florida licensed title (real property) agent.
Guaranteed advanced that the document preparation services described in Scope of Services, Section 4.1.8, which specifically included "conveyances, releases, satisfactions or any other document(s)," can only be legally prepared by a licensed real estate attorney, not a title agent. Consequently, because AGS's Technical Proposal did not identify a licensed real estate attorney on its staff, AGS could not fulfill the Scope of Services.
Department Response: In responding to this point, Mr. Ricardo, as well as every Review Committee member, commented that neither the RFP nor the Scope of Services required any vendor to identify a real estate attorney on its staff to perform any specific task as part of the Title Services Contract. Mr. Ricardo (and each Review Committee member) was quick to point out that the language found in RFP Sections 9.1.2 and 22.2 states that each vendor must employ a real property attorney "or" a licensed title agent. AGS's Technical Proposal lists three licensed title agents on its staff, which made it compliant with the RFP requirements. Consequently, Mr. Ricardo testified that no legal or procedural basis exists for the Department to find AGS's Technical Proposal ineligible for award due to its failure to include a real estate attorney.
During her testimony, Ms. Ventura further explained that, as part of the Title Services Contract, District 4 might request the vendor's assistance to prepare title documents in the event District 4 is shorthanded. However, if District 4 should need document support, Ms. Ventura anticipated that the vendor would be provided templates of the pertinent forms, which it could complete. For her part, Ms. Rowland added that, while AGS may not have a real estate attorney on its staff, AGS's proposal indicated that it did have access to outside legal support, if necessary.
Accordingly, based on the evidence testimony adduced at the final hearing, the Department persuasively countered Guaranteed's argument that AGS's Technical Proposal should have been deemed nonresponsive or its score reduced based on AGS's failure to identify a licensed real property attorney on its staff. AGS's decision to identify three Florida licensed title agents clearly meets the terms of the RFP.
AGS's Technical Proposal is Deficient in that it Fails to Describe its eTitle capability:
Guaranteed contends that AGS's Technical Proposal was deficient in that it did not address AGS's technological capability to use District 4's
electronic title report database software known as "eTitle." Scope of Services Section 4.1.7 obliged each vendor to have the ability to utilize the "eTitle" software, stating:
The Department has designed the electronic title report database software known as eTitle. … The Department requires that the Vendor have the appropriate staff and technological capability to process information and reports through said eTitle.
Section 4.1.9.5 adds that services a vendor may provide included, "Scanning and indexing hard copy title reports into eTitle."
Guaranteed complains that AGS's Technical Proposal is completely bereft of any information regarding its technological capability to use eTitle. Therefore, AGS's score should reflect this omission. Guaranteed alleges that the Review Committee members, however, did not deduct any points from AGS's proposal due to its failure to show its eTitle capability.
Guaranteed further claims that two of the Review Committee members (Ms. Rodriguez-Alers and Ms. Rowland) went outside the four corners of the AGS's Technical Proposal and assumed critical capabilities that AGS did not state it had. Consequently, the Review Committee acted arbitrarily and/or gave AGS a competitive advantage on this factor.
Department Response: Commenting on the RFP conditions regarding eTitle, Ms. Ventura explained that eTitle is a computer program that District 4 specifically developed to help process property title information. For the Title Services Contract, the vendor would be required to input a title report into the eTitle data base, which District 4 personnel could then access. Ms. Rowland added that eTitle is a program that captures information contained in a title report, such as encumbrances. Therefore, to comply with the Title Services Contract, each vender must be familiar with and have the ability to use eTitle.
At the final hearing, Ms. Ventura could not recall how she scored AGS's eTitle capability.
Ms. Rodriguez-Alers, on the other hand, explained that AGS's Technical Proposal referenced eTitle in its "Work Flow" chart, which provided "a summary of the specific procedures outlined … and will be used in our quality control section to illustrate the comprehensive checkpoint process we have identified." Ms. Rodriguez-Alers specifically pointed to the sixth step of the Work Flow that stated that, "Completed research is input into eTitles database." In addition, AGS's "Quality Control" flowchart relayed that "FDOT Research Form allows for quick input into eTitle database."
Ms. Rodriguez-Alers also observed that the biographical information AGS included for staff member Kimberly Haddix stated that Ms. Haddix had worked on a prior contract with District 4 as the "the lead abstractor for this contract since its inception in 2010." Therefore, Ms. Rodriguez-Alers surmised that Ms. Haddix was personally familiar with eTitle based on the fact that District 4 uses eTitle in all of its title report contracts.
Ms. Rodriguez-Alers conceded that AGS's Technical Proposal did not describe, in detail, the actual technological resources it would rely upon to process eTitle reports. However, she remarked that Section 4.1.7 did not require vendors to describe the specific office equipment they had available. The Scope of Services only instructed each vendor to represent whether it had "the appropriate staff and technological capability" to produce eTitle reports, which she believed that AGS did. Consequently, Ms. Rodriguez-Alers did not deduct points from AGS's Technical Proposal for not detailing the specific technological resources AGS would use to process eTitle reports.
Ms. Rowland, in awarding her (perfect) score, also acknowledged that AGS's Technical Proposal contained limited information discussing eTitle. However, she stated that she personally knew that AGS had eTitle experience based on her knowledge of a prior contract AGS worked on for District 4 from 2010 through 2017. Therefore, she assumed that AGS had the
present technological capability and resources to use eTitle for the Title Services Contract. Ms. Rowland subsequently clarified her testimony attesting that, like Ms. Rodriguez-Alers, she remembered that "there was a mention of [eTitle] in [AGS's] proposal somewhere."
The Department witnesses cogently testified that AGS presented sufficient information within its Technical Proposal regarding its eTitle staffing and technological capabilities to demonstrate that it could meet the performance requirements of the Scope of Services, as well as to be evaluated on the same. The Review Committee members satisfactorily established that the scores they awarded to AGS were based on information contained within the "four corners" of its Technical Proposal. Ms. Rodriguez-Alers and
Ms. Rowland effectively articulated that the RFP did not require a vendor to provide more information on eTitle other than to show that it was familiar with and had the ability to use the program.
Further, regarding their testimony that they were familiar with AGS's work on a prior contract, Ms. Rodriguez-Alers and Ms. Rowland identified provisions within AGS's Technical Proposal upon which they based their evaluation, and credibly relayed that they did not pull from extraneous information when formulating their scores. Significantly, they both pointed to the fact that AGS's Technical Proposal referenced eTitle in its "Work Flow" charts, as well as mentioned AGS's previous work with District 4, which sufficiently enabled them to evaluate AGS's eTitle aptitude when scoring its proposal. Accordingly, the Department persuasively negated Guaranteed's argument that the AGS's Technical Proposal lacked the requisite information regarding its eTitle capability in order to be effectively evaluated by the Review Committee.
AGS's Proposal should be Disqualified Because AGS Did Not Return the "Questions and Answers No. 1" Form to the Department Prior to the Award of the RFP:
On August 20, 2020, the Department issued a page entitled "Questions and Answers No. 1" (the "Q&A") to be added as part of the RFP. The Q&A notified vendors of a Department response to a question regarding the Scope of Services. The Q&A specifically announced that a prospective bidder inquired whether the Department would provide any waivers or flexibility in reporting Code Enforcement Liens filed against other property by industrial lenders. The Department answered:
In accordance with item Exhibit A, page A-3, Section 4.1, the Department may allow flexibility to follow title industry standards regarding Code Enforcement Liens and those type of lenders, however, the Vendor will be required to conform to the accepted standards of care in the title industry in compliance with the Florida Statutes, Florida Bar, Real Property, Probate and Trust Law Section, Uniform Title Standards, Florida Department of Transportation Right of Way Procedures Manual Land Title Section 7.15 …, the District Four Title Search and Examination Guidelines (dated November 2013 – see Exhibit D attached) and any applicable local, state, and federal guidelines.
The Q&A then stated:
AGS did not return the Q&A to the Department. Consequently, Guaranteed argues that AGS's proposal should be disqualified. (Guaranteed timely returned a signed Q&A.)
Department Response: At the final hearing, Mr. Ricardo explained that the Department issued the Q&A to ensure that vendors fully understood the Scope of Services.
Mr. Ricardo testified that he was aware that AGS did not return the Q&A with its proposal. However, he did not disqualify AGS based on two reasons. First, Mr. Ricardo was quick to point out that, according to the language in the Q&A, failure to return the document only "may" subject the vendor to disqualification. No conditions or terms in the solicitation documents required the Department to reject an otherwise responsive proposal based on the vendor's failure to submit a signed Q&A.
Second, Mr. Ricardo considered AGS's failure to return the Q&A form a "minor irregularity," which did not require him to disqualify its proposal. Mr. Ricardo explained that the Q&A's purpose was simply to have vendors acknowledge receipt of the Department's answer to a question about the Scope of Services. Whether they returned the Q&A or not, the vendors were not supplementing their Technical or Price Proposals or changing the services to be provided under the RFP. Neither did AGS's failure to return the Q&A relieve it of any requirements of the RFP or materially affect either the Review Committee's final scores or the Selection Committee's determination that AGS's proposal presented the most advantageous terms for the Department. Accordingly, because, in his judgment, AGS's failure to submit a signed Q&A did not modify any information that was to be evaluated or scored, the Department was not required to declare AGS's proposal nonresponsive or subject to disqualification.
Mr. Ricardo's explanation of the Department's decision to treat AGS's failure to sign and return the Q&A as a "minor irregularity" was supported by the testimony of Jessica Rubio, the District 4 Procurement Officer.
Ms. Rubio described the Q&A as a "clarifying question" that had no impact on either AGS's total score or the final ranking of the vendors' proposals.
Based on this testimony, Mr. Ricardo's decision not to disqualify AGS's proposal for neglecting to submit the Q&A is credible and is credited. No evidence shows that the Department's decision to waive AGS's failure to return the Q&A conferred upon it any advantage over other vendors, either in competition or price. Neither did it render AGS's proposal nonresponsive to the terms of the RFP.
AGS's Proposal Should be Disqualified Because AGS Did Not Return Addendum No. 1 to the Department Prior to the Award of the RFP:
On September 24, 2020, the Department issued Addendum No. 1 (the "Addendum") to the three vendors who submitted proposals. The Addendum notified the vendors of a change to the RFP, stating:
Request for Proposal, page 4 (containing the Timeline) is hereby replaced with the attached, revised page 4 with a revised timeline. The changes are highlighted in yellow.
The Addendum further directed that:
AGS did not return the Addendum to the Department. Consequently, Guaranteed argues that AGS's proposal should be disqualified. (Guaranteed did timely return a signed Addendum.)
Department Response: At the final hearing, Mr. Ricardo explained that the original Timeline included in the RFP recorded the "critical dates and actions" for the solicitation process. Mr. Ricardo relayed that, prior to issuing the RFP on August 7, 2020, the Procurement Office felt comfortable calendaring certain key dates, such as when proposals were due (September 3, 2020), when the Department would hold the public opening (September 28, 2020), and when the Department would post the intended
award (October 12, 2020). For the two entries describing how vendors could attend the Public Selection Meetings on September 28, 2020, and October 12, 2020, however, the Procurement Office wrote on the Timeline "Location or GoToMeeting: TBD." Mr. Ricardo recounted that, at the time the RFP was publicized, he was still considering whether vendors would be allowed to attend in person, or should call in.
Consequently, to clarify the "TBD" entries, the Department issued the Addendum informing vendors of the updated "Location or GoToMeeting" information. Attached to the Addendum was a "revised page 4," which modified (and highlighted in yellow) the two TBD entries to read, respectively, "GoToMeeting Call-in: 1 (408) 650-3123 Access Code: 163-488- 789," and "GoToMeeting Call-in: 1 (571) 317-3122 Access Code: 230-006-965." Mr. Ricardo explained that the sole purpose of the Addendum was to inform the vendors how to remotely access two public meetings on the procurement schedule.
Mr. Ricardo testified that he was aware that AGS did not produce a signed Addendum to be included in its proposal. However, as with the Q&A form, he did not disqualify AGS based on two reasons. First, the Addendum contained the same qualifying language as the Q&A stating that the failure to return a signed Addendum only "may" subject the vendor to disqualification. No conditions or terms in the solicitation documents required the Department to automatically reject an otherwise responsive proposal if the vendor failed to submit the Addendum.
Second, like the Q&A, Mr. Ricardo considered AGS's lapse to be a "minor irregularity." Mr. Ricardo explained that the Addendum's purpose was simply to have vendors acknowledge how they could access two procurement events. By returning the Addendum (or not), the vendors were not supplementing their Technical or Price Proposals. Neither did AGS's failure to return the Addendum impact the Review Committee's final scores or the Selection Committee's determination that AGS's proposal represented
the most advantageous to the state. Mr. Ricardo characterized the Addendum as a "minor … informational posting." Accordingly, because (in his judgment) the Department had the ability to waive AGS's failure to submit a signed Addendum as a "minor irregularity," Mr. Ricardo believed that he was not required to disqualify AGS's proposal.
Ms. Rubio also supported Mr. Ricardo's decision to treat AGS's failure to return the Addendum as a "minor irregularity." Ms. Rubio expressed that the Addendum's purpose was to notify vendors of two changes to the solicitation Timeline. The Addendum, however, did not affect the services the vendors would provide through the Title Services Contract or a proposal's final score.
Based on this testimony, Mr. Ricardo's decision not to disqualify AGS's proposal for failure to submit the Addendum is credible and is credited. No evidence shows that the Department's decision to waive AGS's neglect to return the Addendum conferred upon it any advantage over other vendors, either in competition or price. Neither did it render AGS's proposal nonresponsive to the terms of the RFP.
AGS's Technical Proposal is Deficient in that it Failed to Include a Licensed Mapper:
Guaranteed asserts that certain services identified in the RFP may only be accomplished by a licensed "mapper." Specifically, Scope of Services Section 3.2, states that "[t]he Vendor must have the ability to follow out and map/plot complex legal descriptions and determine whether an instrument of record impacts the property under search." Guaranteed contends that only someone licensed as a surveyor and mapper by the State of Florida may legally perform these tasks. AGS's Technical Proposal, however, does not identify a licensed surveyor and mapper on its staff. Consequently, AGS's staff does not include persons qualified to provide all the services required under the RFP, and its Technical Proposal should have been evaluated accordingly.
Guaranteed further pointed to the fact that, in its Technical Proposal, AGS held out one of its employees, Kimberly Haddix, as a "mapping specialist." However, AGS's Technical Proposal did not contain any information showing that Ms. Haddix holds a license as a professional surveyor and mapper or is otherwise capable of providing mapping services. In awarding AGS points for its mapping services, Guaranteed argues that the Review Committee members made assumptions outside the four corners of AGS's proposal.
Department Response: Ms. Rodriguez-Alers, calling on her familiarity with mapping services, described "mapping" as "sketching the property."
Ms. Rodriguez-Alers explained that title reports contain the written description of property boundaries. A "mapper" puts property descriptions into a detailed, color-coded sketch or map. Ms. Rodriguez-Alers added that if the Department encounters a property dispute, mapping helps the Department verify its ownership rights to the property. Accordingly, District 4 desired the winning vendor to be able to prepare sketches of the property at issue.
Mr. Ricardo testified that the RFP only required vendors to have someone on their staff who is proficient in mapping. The RFP did not require vendors to employ someone who actually holds a surveyor and mapper license. Ms. Rodriguez-Alers agreed that the RFP does not require the vendor's "mapper" to hold a state license. Instead, District 4 simply needs someone who is able to create a drawing of the property using the appropriate software.
Further, in evaluating how AGS would provide mapping services requested through the Title Services Contract, every Review Committee member pointed to information within Ms. Haddix's resume that conveyed that AGS considered her to be its "mapping specialist." AGS's Technical Proposal further represented that Ms. Haddix is familiar with certain tools used to identify properties such as IcoMap and Deed Plotter.
During her testimony, Ms. Ventura also commented that the RFP did not require the vendor to have a professional mapper or surveyor on its staff. When she evaluated AGS's Technical Proposal, Ms. Ventura believed that Ms. Haddix appeared fully capable of providing the mapping services necessary under the RFP's Scope of Services. Ms. Rowland agreed with
Ms. Ventura's statement that AGS's Technical Proposal indicated that Ms. Haddix had mapping experience.
Based on this testimony, the Department's witnesses persuasively refuted Guaranteed's argument that AGS's proposal should be disqualified due to the fact that AGS does not employ a "licensed" mapper on its staff. Guaranteed did not prove that AGS is unable to meet the terms of the Scope of Services with the staff members it identified in its Technical Proposal. The Review Committee members credibly testified that, based on representations within AGS's Technical Proposal, AGS (through Ms. Haddix) is capable of providing any necessary mapping services to support the Title Services Contract.
AGS's Technical Proposal Failed to Identify Subcontractors:
Guaranteed asserts that the Review Committee members should have deducted points from AGS's Technical Proposal based on AGS's failure to identify subcontractors. See RFP Section 22.2. Guaranteed argues that the personnel listed in AGS's Technical Proposal were not qualified to perform all the tasks set forth in the Scope of Services. Consequently, AGS would be compelled to hire outside help to support the Title Services Contract. Therefore, when scoring AGS's Technical Proposal, the Review Committee members should have taken into account the fact that AGS omitted subcontractors.
Department Response: The Review Committee members uniformly rejected this challenge by pointing out that AGS's Technical Proposal clearly states that "AGS does not anticipate using subcontractors or sub-consultants to provide any services set forth herein." Instead, based on AGS's
representations, all work required under the contract could and would be performed by the AGS employees identified in its Technical Proposal.
The Department's witnesses convincingly confutes Guaranteed's argument on this point. The Review Committee members credibly testified that the information in AGS's Technical Proposal indicated that AGS could perform all the desired services without requiring support from subcontractors, and Guaranteed did not sufficiently show otherwise. Accordingly, the Department persuasively rejected Guaranteed's argument that the Department should devalue AGS's Technical Proposal based on AGS's failure to identify subcontractors.
AGS's Technical Proposal Contains Misleading Statements on its "Disadvantaged Business Enterprise" ("DBE") Participating Statement:
At the final hearing, Guaranteed called attention to the fact that AGS submitted an Anticipated DBE Participation Statement (the "DBE Statement") with its Technical Proposal, which represented that it intended "to subcontract *100 % of the contract dollars to DBE(s)." As with the previous challenge, Guaranteed raised the point that the RFP required every vendor to identify services which the vendor anticipated to be subcontracted, as well as include resumes of all subcontractors. See RFP Section 22.2. Guaranteed argued that AGS's DBE Statement is either false or misleading because AGS also stated that it will not use any subcontractors for the Title Services Contract. Consequently, the Department should have either scored AGS's Technical Proposal accordingly or disqualified AGS's proposal as nonresponsive.
Guaranteed's allegation on this point, however, is easily reconcilable and discounted. The DBE Statement, after instructing the vendor to record the percentage of work that would be subcontracted, asks the vendor to list its proposed subcontractors. AGS, after reporting its intent on its DBE Statement to subcontract "*100%," then lists itself stating, "*AGS is a certified DBE, so 100% of the work completed will be handled by a DBE." The
logical conclusion is that AGS intended to report that 100% of the Title Services Contract will be performed by itself, as the "DBE." And, it does not anticipate using any other subcontractors who are DBEs.
Accordingly, the Department's treatment of AGS's reference to subcontractors in its DBE Statement (i.e., not finding AGS's proposal nonresponsive) was not clearly erroneous, arbitrary, or capricious. Guaranteed's assertion that AGS's DBE Statement contains false or misleading information or inappropriately refers to unidentified subcontractors is unsupported by the record.
I. AGS Used an Improper Font Size in Its Technical Proposal:
Guaranteed asserted that AGS used an improper font on some of its Technical Proposal entries. To support this challenge, Guaranteed referred to the explicit requirement in RFP Section 22.4 that "[t]ype size shall not be less than 11-point font." RFP Section 22.4 further restricted Technical Proposals to a maximum of 25 pages, excluding resumes, certificates, licenses, organization charts, and indexes.
Guaranteed maintained that some of the passages in AGS's Technical Proposal appeared to be written in 10-point font. Guaranteed speculated that AGS used the smaller font in order to fit its Technical Proposal within the
25-page limit. Consequently, Guaranteed argues that the Department failed to provide a level playing field when it, either knowingly or negligently, allowed AGS's proposal to be scored despite the presence of less than 11-point font type in its Technical Proposal. Such action gave AGS an unfair competitive advantage.
Department Response: During his testimony, Mr. Ricardo did not believe that the font size was a "material" deficiency that should disqualify AGS's proposal. Upon visual inspection of AGS's Technical Proposal,
Mr. Ricardo observed that AGS apparently copied the questions/requests for information directly from the RFP document, then pasted the relevant verbiage onto its submission. AGS then inserted its response beneath each
question. In preparing its submission, AGS appears to have used an appropriately sized font for its responses. Only the RFP sections that were copied/pasted were ascribed in font smaller than 11 point. Mr. Ricardo asserted that, as presented, AGS's Technical Proposal totaled 23 pages (excluding resumes, certificates, licenses, organization charts, and indexes). Consequently, he believed that even if AGS used 11-point font for all of its Technical Proposal passages, AGS's proposal would still have fit within the RFP's 25-page limit. Therefore, Mr. Ricardo did not believe that AGS's use of a smaller-than-authorized font type compelled the Department to disqualify its proposal.
The Department persuasively refutes Guaranteed's complaint on this issue. Mr. Ricardo credibly testified that AGS did not receive a competitive advantage by inserting some language into its Technical Proposal that was written in smaller than 11-point font.
To summarize the findings in this matter, Guaranteed did not establish, by a preponderance of the evidence, that the Department's decision to award the Title Services Contract to AGS was clearly erroneous, contrary to competition, arbitrary, or capricious. The evidence does not demonstrate that AGS received a competitive advantage in this solicitation. Neither is there evidence that the Department conducted this procurement in a manner that was contrary to its governing statutes, rules or policies, or the provisions of the RFP.
Guaranteed's Cone of Silence Violation:
Notwithstanding the above findings, at the final hearing, the Department broached the issue of Guaranteed's violation of the "cone-of- silence" provision in section 287.057(23), which prohibits responding vendors in a bid solicitation from contacting government employees or officers within 72 hours following notice of the award. The implication is that, as a result of Guaranteed's actions, the Department may now dismiss Guaranteed's bid protest because Guaranteed lacks standing to initiate this action due to the
fact that it cannot participate in a re-bid proceeding for the Title Services Contract. The undersigned has not included a recommendation on Guaranteed's "cone-of-silence" violation in this Recommended Order based on the conclusion that Guaranteed's protest fails on the merits. However, the undersigned observes that the facts found in this matter would support such action by the Department. See AHF MCO of Fla., Inc. v. Ag. for Health Care Admin., 308 So. 3d 1136 (Fla. 1st DCA 2020).
Section 287.057(23) states:
Each solicitation for the procurement of commodities or contractual services shall include the following provision: "Respondents to this solicitation or persons acting on their behalf may not contact, between the release of the solicitation and the end of the 72-hour period following the agency posting the notice of intended award, excluding Saturdays, Sundays, and state holidays, any employee or officer of the executive or legislative branch concerning any aspect of this solicitation, except in writing to the procurement officer or as provided in the solicitation documents. Violation of this provision may be grounds for rejecting a response."
The Department included the required quoted language in Special Conditions, Section 3, of the RFP.
The Department "released" this solicitation on August 7, 2020. The Department posted the notice of intended award on October 12, 2020. Accordingly, the 72-hour period following the posting of the intended award ended on October 15, 2020.
However, on October 12, 2020, at 2:57 p.m., after the Department announced its intent to award the Title Services Contract to AGS, but well within the 72-hour period following the posting, Mr. Siegel sent an email to Ms. Ventura with the subject line "DOR-RFP-21-4002-JR." The email stated:
Erika,
Now that the award on the DOT-RFP-21-4002-JR has been officially posted, I need to ask you some questions.
I have consistently asked how we are doing and what we need to do to improve. I have also asked that you alert me to any performance issues. I have heard nothing.
So, you can imagine I was quite surprised to see how you rated us for this RFP, and how we ended up scoring below America [sic] Government which I understood to be a source of substandard work product.
I am concerned that if we are rated so low, it makes no sense for us to continue to bid on RFP's from FDOT4 because I am not sure what we can do to improve.
Can you please explain the rating you gave us and what it was that you found to be less than perfect.
Mr. Siegel sent an identical email, also dated October 12, 2020, at 2:57 p.m., to Ms. Rowland (addressed to "Susie"). Both emails were transmitted from Mr. Siegel's work email address (Myron.Siegel@gftitle.com) and were written over his signature block as President of Guaranteed.
Consequently, the evidence clearly establishes that Guaranteed committed a cone-of-silence violation, to wit:
Guaranteed (or a person acting on its behalf) contacted (via email) two employees of the Department;
Guaranteed's emails were sent prior to the end of the 72-hour period following the Department's posting of the notice of its intent to award the Title Services Contract to AGS;
Guaranteed's emails concerned "any aspect of this solicitation" in that Mr. Seigel specifically commented about, 1) the ratings Ms. Ventura and Ms. Rowland gave to Guaranteed's Technical Proposal; 2) how AGS's Technical Proposal received a higher score; 3) how AGS received a higher score despite "substandard work product;" 4) that Guaranteed is considering not bidding on future District 4 contracts based on its rating in this RFP; and 5) what part of Guaranteed's proposal the evaluators found "to be less than perfect;" and
Mr. Ricardo is the Procurement Officer for the RFP. The RFP does not set forth any additional representatives (such as Ms. Ventura or Ms. Rowland) to contact regarding "any aspect" of the solicitation.
At the final hearing, Mr. Siegel argued that his emails did not concern "any aspect of this solicitation" for the Title Services Contract. Instead, he was only asking Ms. Ventura and Ms. Rowland, the two individuals with the Department with whom he regularly communicated, to comment on Guaranteed's performance in its current work for District 4. Mr. Siegel asserted that he used language regarding Guaranteed's rating in this RFP simply as a frame of reference for his question.
Mr. Siegel's attestation that his two emails did not raise issues regarding the RFP or this solicitation for the Title Services Contract is not credited.
Accordingly, the undersigned finds that the facts establish a "cone-of- silence violation," under section 287.057(23), which would support a Department determination that Guaranteed is a non-responsive bidder. Thereafter, the Department, in its discretion, may issue a Final Order dismissing Guaranteed's formal bid protest for lack of standing because Guaranteed has no chance of obtaining the Title Services Contract in a re-bid proceeding. See AHF MCO, 308 So. 3d at 1139.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter and the parties to this competitive procurement protest pursuant to sections 120.569, 120.57(1), and 120.57(3), Florida Statutes.
Guaranteed challenges the Department's decision to award the Title Services Contract to AGS. Pursuant to section 120.57(3)(f), the burden of proof in this matter rests on Guaranteed as the party protesting the proposed agency action. See State Contracting & Eng'g Corp. v. Dep't of Transp., 709 So. 2d 607, 609 (Fla. 1st DCA 1998). Section 120.57(3)(f) further provides that in a competitive procurement protest:
[T]he 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 "governing statute" for the Department's use of the request for proposal process to procure contractual services is found in section 287.057(1)(b). Section 287.057(1)(b) states:
An agency shall use a request for proposals when the purposes and uses for which the commodity, group of commodities, or contractual service being sought can be specifically defined and the agency is capable of identifying necessary deliverables. Various combinations or versions of commodities or contractual services may be proposed by a responsive vendor to meet the specifications of the solicitation document.
Section 287.057(1)(b)4. further states:
The contract shall be awarded by written notice to the responsible and responsive vendor whose proposal is determined in writing to be the most advantageous to the state, taking into
consideration the price and other criteria set forth in the request for proposals.
The phrase "de novo proceeding" in section 120.57(3)(f) describes a form of intra-agency review. The purpose of the administrative law judge's ("ALJ") review is to "evaluate the action taken by the agency." J.D. v. Fla. Dep't of Child. & Fams., 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 Health & Rehab. Servs., 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.
Accordingly, Guaranteed, as the party protesting the Department's intended award, must prove, by a preponderance of the evidence, that the Department's proposed action is either: (a) contrary to its governing statutes;
(b) contrary to its rules or policies; or (c) contrary to the specifications of the RFP. The standard of proof that Guaranteed must meet to establish that the Department's intended award violates this statutory standard of conduct is that the Department's decision was: (a) clearly erroneous; (b) contrary to competition; or (c) arbitrary or capricious. §§ 120.57(3)(f) and 120.57(1)(j), Fla. Stat.; and AT&T Corp. v. State, Dep't of Mgmt. Servs., 201 So. 3d 852, 854 (Fla. 1st DCA 2016).
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, 809 So. 2d at 1166.
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, 723-24 (Fla. 1931):
[T]he object and purpose [of the bidding process] … 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 ... , by affording an opportunity for an exact comparison of bids.
In other words, the "contrary to competition" test forbids agency actions that:
(a) create the appearance and opportunity for favoritism; (b) reduce public confidence that contracts are awarded equitably and economically; (c) cause the procurement process to be genuinely unfair or unreasonably exclusive; or
(d) are abuses, i.e., dishonest, fraudulent, illegal, or unethical. See § 287.001, Fla. Stat.; and Harry Pepper & Assoc., Inc. v. City of Cape Coral, 352 So. 2d 1190, 1192 (Fla. 2d DCA 1977).
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." 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." Id.
To determine whether an agency acted in an "arbitrary" or "capricious" manner, consideration must be given to "whether the agency: (1) 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 Co. 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 Merits of Guaranteed's Protest:
Turning to the merits of Guaranteed's protest, the undersigned concludes that the Department's decision to award the Title Services Contract to AGS is not contrary to its governing statutes, rules or policies, or the solicitation specifications. The evidence presented at the final hearing shows that AGS was a responsible and responsive vendor. Further, the testimony from the Review Committee members established that their evaluation of the vendors' proposals fully complied with applicable statutes, rules, and the criteria set forth in the RFP, and their scores reflect an objective, rational, and reasonable review of the information the vendors submitted in response to the RFP. In addition, any mistakes or omissions in AGS's proposal were "minor irregularities" and, therefore, waivable by the Department. Accordingly, the facts in the record establish that the Department's intended award to AGS is not clearly erroneous, contrary to competition, arbitrary, or capricious.
Regarding Guaranteed's specific allegations, the merits of Guaranteed's individual challenges are comprehensively discussed in paragraphs 42 through 100 above. To reprise and summate, Guaranteed principally argues that the proposal AGS submitted to the Department was
not "responsive" or "responsible" under chapter 287. See § 287.012(25)-(27), Fla. Stat. In other words, according to Guaranteed, AGS's Technical and Price Proposals did not conform to the procurement documents and failed to show that AGS was capable of fully performing the Title Services Contract. Therefore, the Department neglected to follow its governing statutes, rules, and the RFP specifications in awarding the contract to AGS instead of rejecting AGS's proposal.
Focusing on three primary points that Guaranteed highlights, Guaranteed contends that the inequity and unfairness of the Department's award is glaringly evident in the following: 1) the Department overlooked AGS's failure to use the required minimum 11-point font size in portions of its Technical Proposal; 2) Mr. Ricardo "reformed" the transcription error in AGS's Price Proposal; and 3) the Review Committee members allegedly used arbitrary and preferential standards when scoring AGS's Technical Proposal. The evidence in the record, however, does not support Guaranteed's allegations. Recapping these findings:
The Font Size in AGS's Technical Proposal:
Mr. Ricardo persuasively testified that the font size AGS used in its Technical Proposal sufficiently complied with the RFP's formatting requirements, and any deviation therefrom was not a "material" change that required disqualification. Guaranteed did not show, nor does the record support, that AGS's choice of font bestowed upon it a competitive advantage or had any beneficial impact on the amount of information AGS was able to include in its Technical Proposal. Neither did the font size affect the score given to AGS's Technical Proposal, or the Department's decision to award AGS the Title Services Contract. Accordingly, AGS's use of a font size smaller than 11 point in parts of its Technical Proposal was a "minor irregularity" and waivable by the Department.
The Transcription Error in AGS's Price Proposal:
The facts established at the final hearing do not substantiate Guaranteed's claim that the Department (i.e., Mr. Ricardo) acted improperly in "reforming" a "material" error in AGS's Price Proposal. The evidence does not show that Mr. Ricardo's decision to correct the single entry on AGS's Price Proposal placed Guaranteed at an unfair competitive disadvantage or caused the Department to inequitably evaluate AGS's proposal. Neither did Guaranteed prove that Mr. Ricardo's actions resulted in the Department awarding the Title Services Contract to a non-responsible or nonresponsive vendor.
Further, Mr. Ricardo credibly justified his use of discretion to waive AGS's transcription error as a "minor irregularity." The evidence supports Mr. Ricardo's assertion that, in revising the number on AGS's Price Proposal, he did not change the total price of AGS's proposal, relieve AGS of any contractual responsibilities under the Scope of Services, or affect the overall outcome of the solicitation. See Sci. Games, Inc. v. Dittler Bros., Inc., 586 So. 2d 1128, 1131 (Fla. 1st DCA 1991)("a 'public body has wide discretion' in the bidding process and 'its decision, when based on an honest exercise' of the discretion, should not be overturned 'even if it may appear erroneous and even if reasonable persons may disagree.'"). Accordingly, Guaranteed did not prove that, in "reforming" AGS's Price Proposal, the Department created an arbitrary, capricious, or inequitable result for Guaranteed.
The Review Committee Members' Varied Scoring Methodology:
Guaranteed questioned the fact that the three Review Committee members did not follow the same scoring methodology or procedure when evaluating the Technical Proposals. In particular, Guaranteed objected to Ms. Rodriguez-Alers's decision to use a "comparative" process when formulating her score.
However, Guaranteed did not prove that the Review Committee members' individual application of the RFP criteria to the vendors' Technical
Proposals inequitably or unfairly affected Guaranteed. On the contrary, the testimony shows that each Review Committee member conscientiously and consistently applied the RFP scoring criteria to each Technical Proposal they evaluated. While each Review Committee member may have independently exercised a different approach, Guaranteed did not persuasively demonstrate that the Review Committee members conducted their reviews in an arbitrary, capricious, or improper manner, or that their individual scoring standards created an ineffective or unjust evaluation system or placed Guaranteed at an unfair disadvantage. Further, neither Department rules nor the RFP specifications prescribed the exact scoring methodology that the Review Committee members were to follow. Neither did they prohibit the scoring process that Ms. Rodriguez-Alers chose to employ.
In addition, at the final hearing, each Review Committee member credibly explained the basis for their specific scores for AGS's Technical Proposal. The Review Committee members' testimony confirmed that their individual scores were rational, reasonable, logically derived, and uniformly applied and that AGS's Technical Proposal did not receive an advantage or preference. The evidence on record demonstrates that each score was based on actual, good faith considerations of the RFP scoring criteria, as well as the specific information found in AGS's submission.
In sum, based on the evidence and testimony introduced at the final hearing, Guaranteed did not demonstrated that the Department's award of the Title Services Contract was made in a manner that was clearly erroneous, contrary to competition, arbitrary, or capricious. At the final hearing, the Department presented good faith, factual, and logical reasons why AGS's proposal received the score that it did. Further, the Department persuasively argued that, to the extent that AGS's proposal contained mistakes or omissions, these errors were waivable as "minor irregularities."
In addition, the evidence shows that the scoring methodology used by the Review Committee members was rationally and reasonably devised, and,
as applied, followed the RFP's specifications to determine the most responsible and responsive vendor who would offer the most advantageous service to the state. Guaranteed did not prove that the Department's evaluation process imposed upon it an unfair competitive disadvantage.
Accordingly, Guaranteed did not meet its burden of proving that the Department's decision to award the Title Services Contract to AGS is contrary to its governing statutes, rules, or policies, or the RFP's terms or specifications. Therefore, no legal basis exists to set aside the Department's award to AGS.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order dismissing the protest of Guaranteed. It is further recommended that the Department of Transportation award Request for Proposal DOT-RFP-21- 4002-JR as set forth in the Proposal Tabulation issued on October 12, 2020.
DONE AND ENTERED this 5th day of May, 2021, in Tallahassee, Leon County, Florida.
S
J. BRUCE CULPEPPER Administrative Law Judge 1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Filed with the Clerk of the
Division of Administrative Hearings this 5th day of May, 2021.
COPIES FURNISHED:
Douglas Dell Dolan, Esquire
Florida Department of Transportation 605 Suwannee Street, MS 58
Tallahassee, Florida 32399-0458
John Ashley Peacock, Esquire
Florida Department of Transportation 606 Suwannee Street, MS 58
Tallahassee, Florida 32399
Sean Gellis, General Counsel
Florida Department of Transportation Haydon Burns Building
605 Suwannee Street, MS 58
Tallahassee, Florida 32399-0450
Myron E. Siegel, Esquire
Guaranteed Florida Title & Abstract, Inc. 1055 South Federal Highway
Hollywood, Florida 33020
Amber Greene, Clerk of Agency Proceedings
Florida Department of Transportation Haydon Burns Building
605 Suwannee Street, MS 58
Tallahassee, Florida 32399-0450
Kevin J. Thibault, P.E., Secretary Florida Department of Transportation Haydon Burns Building
605 Suwannee Street, MS 57
Tallahassee, Florida 32399-0450
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 10 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 04, 2021 | Agency Final Order | |
| Jun. 04, 2021 | Agency Final Order | image 1 - page 1
Counsel for Guaranteed Florida Title & Abstract, Inc. 
For Respondent: Douglas Dell Dolan, Esquire 
John Ashley Peacock, Esquire Department ofTransportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 
Guaranteed Florida offered the testimony ofits President Myron E. Siegel, and Department employees Jessica Rubio, Susanna Rowland, Erika Ventura, Amelia Alers-Rodriguez, and Joe Ricardo. The Department offered the testimony of Susanna Rowland, Erika Ventura, Amelia Alers-Rodriguez, and Joe Ricardo. Guaranteed Florida's Exhibits 1, 3, 15, 18, 19, 25, and 26 were admitted into evidence. Department Exhibits 5, 7 through 11, 16, and 17 were admitted into evidence. The transcript of the hearing was filed with DOAH on March 15, 2021. Both parties filed Proposed Recommended Orders that were subsequently considered by the ALJ. ALJ Culpepper issued his Recommended Order on May 5, 2021 . 
Neither party filed exceptions to the Recommended Order. Accordingly, any claim of error is not preserved for appeal. Comm 'n on Ethics v. Barker, 677 So. 2d 254, 256 (Fla. 1996) ("A party cannot argue on appeal matters which were not properly excepted to or challenged before the Commission and thus were not preserved for appellate review.") (internal marks omitted); Mehl v. Office ofFin. Reg., 859 So. 2d 1260, 1263 (Fla. 1st DCA 2003) ("Because appellants' argument ... was not preserved due to appellants' failure to timely file exceptions to the recommended order, the ALJ's factual finding is binding; therefore, we affirm as to it."). 
STATEMENT OF THE ISSUE 
The issue presented was whether the Department's intended action to award to American Government Services DOT-RFP-21-4002-JR, relating to title search and examination services, was contrary to its governing statutes, rules, or the solicitation specifications. 
FINDINGS OF FACT 
1. 
The Findings ofFact set forth in paragraphs 1-109 ofthe Recommended Order are supported by competent, substantial evidence and the Department adopts the Findings of Fact set forth in paragraphs 1-1 09 of the Recommended Order and incorporates them by reference. 
2. 
The Department has incurred $5,425.63 in taxable costs for a transcript of the proceeding. 
CONCLUSIONS OF LAW 
3. 
The Conclusions of Law set forth in paragraphs 110-129 of the Recommended Order are supported by law and the Department adopts the Conclusions of Law set forth in paragraphs 110-129 of the Recommended Order and incorporates them by reference. 
4. 
Additionally, the Department concludes, consistent with Recommended Order paragraphs 102-109, that Guaranteed Florida is a non-responsive bidder and thus lacks standing to protest. AMF MCO ofFla., Inc., v. Agencyfor Health Care Admin., 308 So. 3d 1136, 1139 (Fla. 1st DCA 2020). 
ORDER 
Based on the foregoing Findings ofFact and Conclusions of Law, it is 
ORDERED that Request for Proposal DOT-RFP-21-4002-JR is awarded as set forth in the Proposal Tabulation issued on October 12, 2020. Guaranteed Florida's protest is dismissed. 
It is further ORDERED that the Motion for Costs by the Department ofTransportation is granted. Guaranteed Florida shall pay the sum of $5,425.63 to the Department within 30 days of 
the date of this order or the amount shall be deducted from the cashier's check in lieu of bond 
posted by Petitioner. 
DONE AND ORDERED this Y~ day ofJune, 2021 . 
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NOTICE OF RIGHT TO APPEAL 
THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY ANY PARTY PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULES 9.110 AND 9.190, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(d), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET, 
M.S. 58, TALLAHASSEE, FLORIDA 32399-0458, WITHIN 30 DAYS OF RENDITION OF THIS ORDER. 
Copies furnished to: 
Myron E. Siegel Guaranteed Florida Title & Abstract, Inc. 1055 S. Federal Highway Hollywood, Florida 33020 myron.siegel@gftitle.com 
Counsel for Guaranteed Florida Title & Abstract, Inc. (Petitioner) 
Douglas D. Dolan John Ashley Peacock Assistant General Counsel Florida Department ofTransportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 
Counselfor Florida Department ofTransportation 
Jessica Rubio District 4 Procurement Manager Florida Department ofTransportation 3400 West Commercial Boulevard Fort Lauderdale, Florida 33309-3421 
Amber Greene Clerk ofAgency Proceedings Florida Department ofTransportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 
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Florida Department ofTransportation 
RON DESANTIS 605 Suwannee Street KEVJN J. miBAULT,P.E. 
GOVERNOR 
Tallahassee, FL 32399-0450 SECRETARY 
DELEGATION OF AUTHORITY 
I, Ke~n J. Thibault, P.E., Secretary of the Florida Department of Transportation, delegate to Torey Alston as the Chief of Staff and Courtney Drummond, P.E. as the Assistant Secretary for Engineering and Operations, and Stacy Miller, P.E., as the Assistant Secretaryfor Finance and Administration, the authority and responsibility to take action on my behalf at anytime during my absence from the Department headquarters in Tallahassee. I also rescind any prior delegations to the contrary. 
Kevin . Thibault; P .E., Secretary Florida Department ofTransportation 
4·2-~·'Z.otO 
Date 
v.rww.fdot.gov |
| May 05, 2021 | Recommended Order | Petitioner failed to show that FDOT?s intended award of a title search and examination services contract was contrary to its governing statutes or the solicitation specifications or was clearly erroneous, contrary to competition, arbitrary, or capricious. |
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