STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case by Zoom conference on June 24, 2021, before Administrative Law Judge Robert L. Kilbride of the Division of Administrative Hearings (“DOAH”).

APPEARANCES

For Petitioner: John R. Herin, Jr., Esquire

Fox Rothschild LLP

One Biscayne Tower, Suite 2750 2 South Biscayne Boulevard Miami, Florida 33131

For Respondent: Robert Paul Vignola, Esquire

Office of the General Counsel School Board of Broward County

600 Southeast Third Avenue, Eleventh Floor Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

The primary issues for determination in this case are: (1) whether DOAH has subject matter jurisdiction under section 120.57(3), Florida Statutes, to consider Petitioner, National Chemical Laboratories, Inc.’s (“NCL” or “Petitioner”), protest of Respondent, School Board of Broward County’s

(“SBBC” or “Respondent”), decision to purchase goods or services from a contract awarded to Pro-Link, Inc. (“Pro-Link”), by the Panhandle Area

Educational Consortium (“PAEC”); and (2) whether SBBC’s decision to make floor cleaning system purchases from Pro-Link under a piggyback contract is contrary to the law or its own governing laws, rules, policies, or the specifications of any applicable competitive solicitation, or is clearly erroneous, contrary to competition, arbitrary, or capricious.

PRELIMINARY STATEMENT

At a public meeting on March 10, 2021, SBBC approved Agenda Item OO-20 for the “piggyback” purchase of certain products using an existing contract award made by PAEC to Pro-Link in conjunction with Request for Proposal 17-08 (“RFP 17-08”) issued by PAEC.

NCL filed a notice of intent to protest the “piggyback” purchase and filed a Formal Written Protest of the “piggyback” purchase under section 120.57(3). NCL also raised issues in its protest regarding SBBC’s prior Request for Information 18-170B, “Floor Finish Systems” (the “RFI” or “RFI 18-170B”), as well as SBBC’s prior Invitation to Bid FY20-108, “Floor Finish System”

(“ITB FY20-108”).

NCL’s protest was referred by SBBC to DOAH on May 10, 2021. By agreement of NCL and SBBC, the formal hearing was scheduled by the undersigned for June 24, 2021. On June 3, and 18, 2021, respectively, SBBC filed an Amended Motion to Dismiss and Amended Motion in Limine, and NCL filed a Motion for Continuance. The motions were denied. Prior to the hearing, the parties filed a Joint Prehearing Stipulation which included a comprehensive set of stipulated facts. Those stipulated facts have been incorporated as Findings of Fact in this Recommended Order.

At the final hearing, Joint Exhibits JE-1 through JE-52 were admitted into evidence by agreement of the parties. In addition, NCL presented Petitioner’s Composite Exhibit 1, which was admitted into evidence after the conclusion of the June 24, 2021, hearing. NCL presented the testimony of Harry Pollack (NCL’s president), James Socha (NCL’s contracts specialist), and Mary Catherine Coker (SBBC’s director of the Procurement and Warehousing Services Department). SBBC presented the testimony of

Mauricio Stradiotti, (SBBC’s assistant director of the Task Assigned for Procurement and Warehousing Services), Sam R. Bays (SBBC’s director of the Physical Plant Operations Department), Israel Canales (SBBC’s supervisor II of the Custodial/Grounds Services), Larche Hardy (Florida Buy project manager for PAEC), and Mark A. Prosser (vice president of sales for Pro-Link). NCL was permitted to conduct expanded cross-examination of several of SBBC’s witnesses. In that manner, NCL likewise presented the testimony of Mauricio Stradiotti, Sam Bays, and Israel Canales as part of its case-in-chief.

A one-volume Transcript of the hearing was filed on July 14, 2021. The parties sought and were granted an extension of time to file their proposed recommended orders. The parties timely filed proposed recommended orders, which were reviewed and considered by the undersigned in the preparation of this Recommended Order. All references are to the Florida Statutes, rules, or policies in effect on the date of the action, occurrence, or omission.

FINDINGS OF FACT

After considering the evidence submitted, the record as a whole and the stipulation of the parties, the undersigned makes the following Findings of Fact:

Stipulations of the Parties1

1. SBBC is the district school board for the school district for Broward County, Florida, operating pursuant to Article IX, section 4 of the Florida Constitution, and section 1001.30, Florida Statutes. SBBC is the sixth largest school district in the United States and employs approximately 26,000 active, full-time employees. SBBC is an “educational unit” and meets the definition of an agency under the Administrative Procedure Act.

2. NCL is a Pennsylvania for profit corporation authorized to do business in Florida. NCL has provided floor finish system products to SBBC for all of its buildings for the last 15 years.

3. During its January 20, 2016, regular meeting, SBBC approved Agenda Item EE-7 and awarded Invitation to Bid 16-008B, “Floor Finish System” (“ITB 16-008B”), to NCL for a three-year contract from January 21, 2016, through January 20, 2019.

4. During its August 7, 2018, regular meeting, SBBC approved Agenda Item EE-6 for a renewal of its earlier award of ITB 16-008B to NCL for an additional one-year period from January 21, 2019, through January 20, 2020. The one-year renewal was requested by SBBC’s staff as custodial supervisors in SBBC’s Physical Plant Operations (“PPO”) Department identified a need to review and test new products in response to district staff’s request for safer products.

5. NCL’s contract with SBBC under ITB 16-008B for goods and/or services expired on January 20, 2020.

   1. The January 30, 2018, Request for Information

6. On January 30, 2018, SBBC’s Procurement and Warehousing Services (“PWS”) Department issued the RFI, requesting vendors, including NCL, to provide information about their available products that could meet the school district’s needs. Joint Ex. JE-37, RFI 18-170B.

   
   

   1 Citations to the record can be found in the original Joint Prehearing Stipulation. The stipulated facts have been adjusted to conform to DOAH standards.

7. Section 2 of the RFI was entitled “Introduction,” and stated, in part, as follows:

   This is a Request for Information (RFI). It is not intended, nor will this be used, as a procurement document. As such, the focus is on obtaining information that could possibly be used in a formal Invitation to Bid to purchase floor finish products. If it is determined that, based on responses to the RFI, there is only one provider that can meet the requirements, the District may, at its option, pursue a sole-source agreement. This RFI is issued solely for information and planning purposes. It does not constitute a Request for Proposal (RFP)/Bid or a promise to issue an RFP/Bid in the future. This RFI does not commit SBBC to a contract for any supply or service whatsoever. Further, SBBC is not seeking formal proposals at this time and will not accept unsolicited proposals. Respondents are advised that SBBC will not pay for any information or administrative costs incurred in response to this RFI; all costs associated with responding to this RFI will be solely at the interested parties' expense. Submissions will not be returned. Failure to respond to this RFI does not preclude participation in any future RFP/Bid, if any is issued. The information provided in this RFI is not binding on SBBC.

   
   

8. Section 4 of the RFI was entitled “General Information and

   Background,” and stated, in part, as follows:

   SBBC Physical Plant Operations' Custodial and the Procurement and Warehousing Services Departments, are issuing this Request for Information (RFI) to vendors interested in offering floor finish product systems to SBBC. The intent of this RFI is to obtain the information necessary to revise the District's purchase of floor finish products for future bids to ensure an up-to-date [sic], cost efficient, dependable and safe chemical system that meets the needs of the District.

9. The RFI specifically sought and required products that were “Environmentally Friendly Performance Based Floor Finish System for Ultra-High Speed Floor Care (> 1500 rpm).”

10. The RFI stated that “all vendors are required to submit information on floor finish systems as indicated in this RFI.”

11. The RFI stated that “the custodial department will be testing the

    products for performance to see if your product meets or exceeds the

    standards of the district.”

12. Vendors, including NCL, submitted Material Safety Data Sheets and labeled information that was reviewed and approved by Risk Management. Custodial supervisors coordinated product testing at various schools where vendors provided samples of their product at no cost to the school district. This testing was to evaluate the products’ performance, durability, and safety.

13. NCL submitted “Green Impact Stripper” to SBBC in response to the RFI.

14. With the information received through the RFI from various vendors, including NCL, SBBC’s PPO Department coordinated product testing, which included product performance, durability, and safety. SBBC’s Risk Management Department approved the products selected for testing and evaluation.

    1. The August 22, 2019, Invitation to Bid

15. On August 22, 2019, SBBC advertised ITB FY20-108, soliciting bids

    from vendors to replace SBBC’s existing award to NCL under ITB 16-008B.

16. Section 4, Special Conditions, Paragraph 1 of ITB FY20-108, stated as follows:

    1. INTRODUCTION AND SCOPE: The School Board of Broward County, Florida (hereinafter referred to as “SBBC”) desires bids on FLOOR FINISH SYSTEM as specified herein. Unit Price offered for each bid item shall be "all inclusive" to

       include all bid specification requirements (to include labels and dispensers where indicated), delivery, packaging, all shipping costs, training costs and be shipped F.O.B. Destination. No additional costs will be allowed. All deliveries, shall be made to SBBC’s Central Warehouse, 3800 NW 10th Avenue, Fort Lauderdale, Florida 33309. SBBC warehouse personnel will unload.

       
       

       In order to provide safe and effective cleaning products for the School District, the Risk Management Department and Custodial/Grounds Department evaluated new floor finish system products prior to the release of this bid. SBBC released RFI 18-170B (Request for Information – Floor Finish Systems) in January 30, 2018. Through this RFI, Custodial/Grounds evaluated new products available and physically field-tested the approved products listed on this bid prior to its release. The products on this bid have been approved by the Custodial/Grounds and Risk Management Departments and met the safety requirements and the cleaning and performance needs of the School District. Products evaluated and tested but not listed on the Bid Summary Sheets, were not approved to be used through the District. SBBC will not test any new custodial chemical products until the last year of this contract, or when needed. Bids will be accepted only on the approved brands stated on the Bid Summary Sheets.

       
       

17. ITB FY20-108 did not include NCL’s products.

18. Part VIII, Section D. of School Board Policy 3320, “Purchasing

    Policies,” states, in pertinent part, as follows:

    D. With respect to a protest of the specifications contained in an invitation to bid or in a request for proposals, the notice of protest shall be filed in writing within 72 hours after the receipt of notice of the project plans and specifications or intended project plans and specifications in an invitation to bid or request for proposals, and the formal written protest shall be filed within 10 days after the date

    the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter. The formal written protest shall state with particularity the facts and law upon which the protest is based. Saturdays, Sundays, and days during which The School Board administration is closed shall be excluded in the computation of the 72-hour time periods provided by this Rule.

    
    

19. Section 3, General Conditions, Paragraph 36 of the ITB FY20-108, is entitled “Protesting of Bid Conditions/Specifications,” and states, in part, as follows:

    PROTESTING OF BID CONDITIONS/SPECIFICATIONS: Any person

    desiring to protest the conditions/specifications in this ITB, or any Addenda subsequently released thereto, shall file a notice of intent to protest, in writing, within 72 hours after electronic release of the competitive solicitation or Addendum and shall file a formal written protest within ten calendar days after the date the notice of protest was filed. Saturdays, Sundays, state holidays or days during which SBBC administration is closed shall be excluded in the computation of the 72 hours. If the tenth calendar day falls on a Saturday, Sunday, state holiday or day during which SBBC administration is closed, the formal written protest must be received on or before 5:00 p.m. ET of the next calendar day that is not a Saturday, Sunday, state holiday or day during which SBBC administration is closed. Section 3 b, Chapter 120.57, Florida Statutes, as currently enacted or as amended from time to time, states that “The formal written protest shall state with particularity the facts and law upon which the protest is based.”

    
    

    Failure to file a notice of protest or to file a formal written protest within the time prescribed by (Section 3, Chapter 120.57), Florida Statutes, or a failure to post the bond or other security required by SBBC Policy 3320, within the time allowed for

    filing a bond, shall constitute a waiver of proceedings. The bond shall be conditioned upon the payment of all costs which may be adjudged against the protestant in an Administrative Hearing in which the action is brought and in any subsequent appellate court proceeding. In lieu of a bond, SBBC may accept a cashier's check, official bank check or money order in the amount of the bond. If, after completion of the Administrative Hearing process and any appellate court proceedings, SBBC prevails, SBBC shall recover all costs and charges which shall be included in the Final Order or judgment, including charges made by the Division of Administrative Hearings, but excluding attorney's fees. Upon payment of such costs and charges by the protestant, the bond shall be returned. The failure to post the bond required by SBBC Policy 3320, Part VIII, as currently enacted or as amended from time to time, shall constitute a waiver of proceedings. Notices of protest, formal written protests, and the bonds required by SBBC Policy 3320, shall be filed at the office of the Director, Procurement and Warehousing Services, 7720 West Oakland Park Boulevard, Suite 323, Sunrise, Florida 33351-6704 (fax 754-321-0936). Fax filing shall not be acceptable for the filing of bonds.

    
    

20. NCL timely filed its notice of intent to protest with SBBC on Monday, August 26, 2019, as the intervening Saturday and Sunday following release of ITB FY20-108 are not included in the calculation of the 72-hour filing period for such notices.

21. NCL timely filed a formal written protest on September 5, 2019, along with a protest costs bond. The protest issues included the omission of NCL products from the list of approved products under ITB FY20-108. NCL’s alternate requests for relief were for the inclusion of its products in a revised invitation to bid or the withdrawal of the current invitation to bid.

22. Pursuant to section 120.57(3)(c), SBBC stopped the solicitation or contract award process.

23. Part VIII, Section J. of School Board Policy 3320, provides, in pertinent part, as follows:

    J. The School Board shall provide an opportunity to resolve the protest by mutual agreement between the parties.

    
    

24. Part VIII, Section M. of School Board Policy 3320, provides, in pertinent part, as follows:

    M. When attempting to resolve the subject of a protest by mutual agreement as described in Rule L., the persons representing The School Board shall be as follows:

    
    

    1. The Associate Superintendent, Human Resources, or designee;

    2. The Chief Financial Officer (CFO), or designee;

    3. The Superintendent’s designee(s) from the

       affected division; and

    4. The School Board Attorney or designee shall serve solely as the legal advisor.

    
    

25. Pursuant to section 120.57(3)(d), SBBC provided an opportunity to resolve the protest by mutual agreement between the parties on January 29, 2020, by conducting a meeting of SBBC’s Bid Protest Committee. A transcript of the meeting was made by SBBC.

26. A Bid Protest Committee binder containing documents pertaining to the solicitation was prepared by SBBC’s PWS Department staff and was distributed to the Bid Protest Committee members and to NCL in advance of the meeting.

27. Representatives of NCL and SBBC made presentations to the Bid Protest Committee during its January 29, 2020, meeting regarding the proposed invitation to bid terms and conditions for ITB FY20-108.

28. The meeting was recessed to allow SBBC’s staff to conduct additional research about the possibility of withdrawing ITB FY20-108 and instead purchasing floor cleaning products through any available contracts awarded

    by other agencies using a procedure under its governing rules and policies

    that is commonly known as “piggybacking.”

29. Subsequent to the January 29, 2020, Bid Protest Committee meeting, the COVID-19 pandemic struck and interrupted the normal conduct of school district business and the conduct of Sunshine Law meetings such as those of the Bid Protest Committee.

30. On February 3, 2020, James Socha (“Socha”) of NCL sent a letter and an email message to Larissa Seda (“Seda”) of SBBC’s PWS Department that stated, in part, as follows:

    If it is SBBC’s intent to move away from the Bare Bones Stripper, you would be able to purchase one of the floor strippers that were listed in ITB FY20-

    108 by “piggybacking” off another approved bid. Again, this would eliminate the need for a full transition and retraining of the custodial staff as testing is being done.

    
    

    Finally, if SBBC is not willing to extend contract #16-008, NCL can still provide its floor care program of One Floor Finish, Ku-Kleen Cleaner and Spit Shine Maintenance with [an] alternate stripper through our State of Pennsylvania CoStars Contract #005-098 or our Purchasing Cooperative of America contract

    #3-155-16.

    
    

31. In an email message dated December 3, 2020, from Seda of SBBC’s PWS Department to Maxwell Hampshire (“Hampshire”) of NCL stated as follows:

    We have several piggyback options for your consideration depending on which floor care program you are interested in using. We can provide the current floor finish system you have been successfully using for over 10 years at the same price as the recently, completed contract. This would include the One Floor Finish, Bare Bones Floor Stripper, Spit Shine Maintainer and Nu- Kleen Neutral Cleaner. We can also provide one of

    the recently tested floor finishes which included the One, Withstand and Invincible, if you so choose. We can also provide our Bare Bones Low Odor Floor Stripper which was previously tested and approved or several other, low odor, floor stripper options. Broward County Schools has been using the Nu- Kleen Neutral Cleaner, but we can also provide the Ready Set Cleaner #4 Earth Sense Neutral Cleaner that was recently tested.

    
    

32. In an email message dated December 4, 2020, sent to Seda, Socha stated, in part, as follows:

    In response to your request please be advised that since you are not sure as to which products you are wanting to go with, the best contract we can provide would be our Purchasing Cooperative of America Contract PCA OD-305-20 Janitorial Products, Equipment, and Related Items (see attached award letter). This contract incorporates our entire product line.

    
    

    Purchasing Cooperative of America 11811 North Freeway (I-45N), Suite 500

    Houston, TX 77060 www.pcamerica.org

    Here is the web page for our contract: http://www.pcamerica.org/vendor/ncl

    
    

    If for some reason you are unable to utilize this contract, we do have another one that we can provide. Also, depending on the products you choose we do have a number of contracts throughout the State of Florida that you may be able to piggyback from.

33. In an email message dated January 5, 2021, sent to Seda, Socha NCL stated as follows:

    I just wanted to provide some clarification on the piggyback we spoke about last month. Using our Purchasing Cooperative of America contract as a piggyback, NCL can hold the previous Broward County Schools’ contract prices for 2021. Those prices are as follows:

    Spit Shine Restorer - $43.28 per case (4 gallons per case)

    One Floor Finish - $46.85 per pail (5 gallon pail)

    Nu-Kleen Cleaner - $31.04 per case (4 gallons per case)

    Bare Bones Floor Stripper - $34.28 per case (4 gallons per case)[.]

    
    

34. In an email message dated March 2, 2021, sent to Seda, Socha of NCL stated as follows:

    Pursuant to your request, using our Purchasing Cooperative of America Contract PCA OD-305-20 Janitorial Products, Equipment, and Related Items as a piggyback, NCL can provide Broward County Schools’ the following prices for

    2021:

    
    

    Spit Shine Restorer - $36.36 per case (4 gallons per case)

    One Floor Finish - $46.85 per pail (5 gallon pail)

    Nu-Kleen Cleaner - $31.04 per case (4 gallons per case)

    Bare Bones Floor Stripper - $29.32 per case (4 gallons per case)

    
    

    These prices are delivered when shipped in a minimum mixed shipment of 20 pallets along with keeping the standard product minimums that were in the original floor care contract.

    
    

    I have attached a copy of the award and contract pricing for our Purchasing Cooperative of America Contract PCA OD-305-20 Janitorial Products, Equipment, and Related Items for your review. Purchasing Cooperative of America has been used by other schools districts in Florida such as Alachua County Public Schools and Polk County Public Schools just to name a couple.

    
    

    Purchasing Cooperative of America 11811 North Freeway (I-45N), Suite 500

    Houston, TX 77060 www.pcamerica.org

    Here is the web page for our contract: http://www.pcamerica.org/vendor/ncl[.]

    
    

35. Section 3, General Conditions, Paragraph 6 of the ITB FY20-108 is

    entitled “Awards,” and states, in part, as follows:

    AWARDS: In the best interest of SBBC, SBBC reserves the right to: 1) withdraw this ITB at any time prior to the time and date specified for the bid opening; 2) to reject any or all bids received when there are sound documented business reasons that serve the best interest of SBBC; 3) to accept any item or group of items unless qualified by Bidder; and 4) to acquire additional quantities at prices quoted on this ITB unless additional quantities are not acceptable, in which case, the bid sheets must be noted "BID IS FOR SPECIFIED QUANTITY

    ONLY." All awards made as a result of this bid shall conform to applicable Florida Statutes and shall be governed by the laws of the State of Florida, and must have venue established in the 17th Judicial Circuit Court of Broward County, Florida or the United States Court of the Southern District of Florida.

    
    

36. The Bid Protest Committee was reconvened on October 29, 2020, and the committee voted to withdraw ITB FY20-108, which was among the options requested in NCL’s bid specifications protest. A transcript of the meeting was made by SBBC.

37. The Committee directed the PWS Department staff to pursue such action regarding the goods and services as is permitted by SBBC’s governing laws, rules, and policies.

38. The PWS Department sent a letter to NCL on October 30, 2020, formally advising NCL of the Bid Protest Committee’s recommendation to withdraw ITB FY20-108 and take such other action as authorized by the agency’s governing laws, rules, and policies, as well as advising NCL of its opportunity to request referral of its Formal Written Protest to DOAH.

39. NCL did not request referral of its Formal Written Protest to DOAH, and the bid protest proceedings regarding ITB FY20-108 were concluded.

    SBBC returned the bid protest bond to NCL’s representative on November 4,

    2020.

40. Part VIII, Section I. of School Board Policy 3320, states as follows:

    I. When the contract award process is stopped due to the filing of a formal written protest, The School Board authorizes the extension of any existing contract for the goods or services contained in the bid or request for proposals being protested under whatever terms and conditions are determined by the Superintendent to be in the best interest of The School Board until such time as the new award under protest can be approved by The School Board.

    
    

41. Section 1010.04, Florida Statutes, is entitled “Purchasing,” and states, in part, as follows:

    1010.04 Purchasing.—

    
    

    (1)(a) Purchases and leases by school districts and Florida College System institutions shall comply with the requirements of law and rules of the State Board of Education.

    
    

    (b) Before purchasing nonacademic commodities and contractual services, each district school board and Florida College System institution board of trustees shall review the purchasing agreements and state term contracts available under s. 287.056 to determine whether it is in the school board’s or the board of trustees’ economic advantage to use the agreements and contracts. Each bid specification for nonacademic commodities and contractual services must include a statement indicating that the purchasing agreements and state term contracts available under s. 287.056 have been reviewed. Each district school board may also use the cooperative state purchasing programs managed through the regional consortium service

    organizations pursuant to their authority under s. 1001.451(3).

    
    

    * * *

    
    

    (3) In districts in which the county purchasing agent is authorized by law to make purchases for the benefit of other governmental agencies within the county, the district school board and Florida College System institution board of trustees shall have the option to purchase from the current county contracts at the unit price stated therein if such purchase is to the economic advantage of the district school board or the Florida College System institution board of trustees; subject to confirmation of the items of purchase to the standards and specifications prescribed by the school district or Florida College System institution.

    
    

    (4)(a) The State Board of Education may, by rule, provide for alternative procedures for school districts and Florida College System institutions for bidding or purchasing in cases in which the character of the item requested renders competitive bidding impractical.

    
    

42. Florida Administrative Code Rule 6A-1.012, “Purchasing Policies,” was adopted by the State Board of Education (“SBOE”), and subsection (8) provides as follows:

    (8) The district school board shall have the authority to reject any or all proposals submitted in response to any competitive solicitation and request new proposals or purchase the required commodities or contractual services in any other manner authorized by this section.

    
    

43. Rule 6A-1.012 was adopted by the SBOE, and subsections (4), (5), and (6) provide as follows:

    6A-1.012 Purchasing Policies.

    Each district school board shall establish purchasing rules which shall include but not be limited by the following:

    
    

    * * *

    
    

    1. In each school district in which the purchasing agent for any public agency is authorized by law to make purchases for the benefit of other governmental agencies within the county, the district school board shall have the option to purchase under the current contracts as may be established for any of the public agencies as set forth above at or below the unit price stated therein, if such purchase is to the economic advantage of the district school board, subject to conformance of the items of purchase to the standards and specifications prescribed by the superintendent for said district.

       
       

    2. As required by Section 1001.42(10)(j), F.S., the district school board shall receive and give consideration to the prices available to it under rules of the Department of Management Services, Division of Purchasing. District school boards may use prices established by the Division of Purchasing through its state purchasing agreement price schedule. If district school board policy provides for purchasing under this program of state purchasing agreements the conditions for use shall be those imposed on state agencies.

       
       

    3. In lieu of requesting competitive solicitations from three (3) or more sources, district school boards may make purchases at or below the specified prices from contracts awarded by other city or county governmental agencies, other district school boards, community colleges, federal agencies, the public or governmental agencies of any state, or from state university system cooperative bid agreements, when the proposer awarded a contract by another entity defined herein will permit purchases by a district school board at the same terms, conditions, and prices (or

    below such prices) awarded in such contract, and such purchases are to the economic advantage of the district school board.

    
    

44. Part II, Section D.1. of School Board Policy 3320, provides, in pertinent part, as follows:

    D. Except as authorized by law or rule, competitive solicitations shall be requested from three (3) or more sources for any authorized commodities or contractual services to the amount established in 6A-1.012(7) F.A.C. [This amount is currently$50,000.] The procurement of commodities or contractual services may not be divided so as to avoid this monetary threshold requirement. Any application of the exemptions to competitive solicitations allowed herein will be considered if determined to be in the best interest of the School Board.

    
    

    1. The School Board shall have the authority to reject any or all proposals submitted in response to any competitive solicitation and request new proposals or purchase the required commodities or contractual services in any other manner authorized by 6A-1.012 (F.A.C.).

    
    

45. Part II, Section M. of School Board Policy 3320, provides, in pertinent part, as follows:

    M. In lieu of requesting competitive solicitations from three (3) or more sources, The School Board may make purchases at or below the specified prices from contracts awarded by other city or county governmental agencies, other district school boards, community colleges, federal agencies, the public or governmental agencies of any state, or from state university system cooperative bid agreements. When the proposer awarded a contract by another entity defined herein will permit purchases by a district school board at the same terms, conditions and prices (or below such prices) awarded in such contract, and such purchases are to the economic advantage of the district school

    board. Purchases of $500,000 or more under this section must have prior Board approval.

    
    

46. Part II, Section L. of School Board Policy 3320, provides, in pertinent part, as follows:

    L. As required by Section 1001.42(12)(j), Florida Statutes, the School Board shall receive and give consideration to the prices available to it under rules of the Department of Management Services, Division of Purchasing. The School Board may use prices established by the Division of Purchasing through its state purchasing agreement price schedule. School board policy provides for purchasing under this program of state purchasing agreements. The conditions for use shall be those imposed on state agencies. Purchases of $500,000 or more under this section must have prior Board approval.

    
    

47. Part II, Section AA. of School Board Policy 3320, provides, in pertinent part, as follows:

    AA. In each district in which the purchasing agent for any public agency of the state is authorized by law to make purchases for the benefit of other governmental agencies within the county, The School Board shall have the option to purchase under the current contracts as may be established for any of the public agencies as set forth above at the unit price stated therein, if such purchase is to the economic advantage of The School Board, subject to conformance of the items of purchase to the standards and specifications prescribed by the Superintendent.

    
    

48. Section 1001.451, states, in part, as follows:

    
    

    1001.451 Regional consortium service organizations.—In order to provide a full range of programs to larger numbers of students, minimize duplication of services, and encourage the development of new programs and services:

    1. School districts with 20,000 or fewer unweighted full-time equivalent students, developmental research (laboratory) schools established pursuant to s. 1002.32, and the Florida School for the Deaf and the Blind may enter into cooperative agreements to form a regional consortium service organization. Each regional consortium service organization shall provide, at a minimum, three of the following services: exceptional student education; teacher education centers; environmental education; federal grant procurement and coordination; data processing; health insurance; risk management insurance; staff development; purchasing; or planning and accountability.

       
       

       * * *

       
       

       (3) In order to economically provide programs and services to participating school districts and members, a regional consortium service organization may establish purchasing and bidding programs, including construction and construction management arrangements, in lieu of individual school district bid arrangements pursuant to policies exercised by its member districts. Participation in regional consortium service organization bids shall be accomplished by action of an individual district school board through a letter of intent to participate and shall be reflected in official district school board minutes. [Emphasis added].

       
       

49. PAEC is a regional consortium service organization pursuant to section 1001.451, created by the district school boards of Bay, Calhoun, Franklin, Gulf, Holmes, Jackson, Liberty, Walton, and Washington counties. It is governed by a board of directors composed of the superintendents of schools of those member district school boards.

50. PAEC issued RFP 17-08 for office and custodial supplies and awarded a contract to Pro-Link on April 11, 2017, for an initial term of one calendar year with up to three additional extension years.

51. Section I of PAEC’s RFP 17-08 is entitled “Introduction and Background,” and provides, in relevant part, that PAEC’s Florida Buy program is designed to provide cost-efficient processes and pricing to Florida school districts and other eligible entities, including city and county government and non-profit organizations, and that:

    Components of this solicitation would include, but not be limited to:

    
    

    • A full line office and custodial supply catalog with best in class suppliers. A catalog bid is utilized when the products and services solicited are clearly identified with set and specific characteristics, attributes and configurations that are identifiable as a stand-alone single unit and can be listed and priced as a single unit with options that can be added to enhance and/or improve its operation and functionality. The Bidder offers a fixed discount(s) off retail price or prices in a Commercially Available Catalog. The discounts may be for the entire Commercially Available Catalog, for specific products, product lines, manufacturers or category of products as determined by the Bidder.

    
    

52. Section II of PAEC’s RFP 17-08 is entitled “Scope of RFP,” and states, in part, as follows:

    1. The respondent will be required to offer its products/services to educational, governmental, and non-profit organizations eligible to participate in PAEC’s statutorily created cooperative purchasing program, as well as entities in other states who allow its agencies and public institutions to utilize the purchasing contract.

       
       

    2. As a basis for the inventory offered, PAEC Florida Buy is seeking a catalog bid, adaptable to the PAEC Florida Buy marketplace which will

    allow customers/members to simultaneously shop entire product catalogs while comparing and contracting [sic] product pricing and quality. The ability to offer the products described herein is a critical component of the award.

    
    

53. Section III of PAEC’s RFP 17-08 is entitled “Specifications/Terms and

    Conditions,” and states, in part, as follows:

    A. Specific Terms and Conditions:

    
    

    1. The awarded respondent will provide a broad- line of office and custodial supplies to cooperative participants at consortium level discounted pricing.

       
       

    2. Standard Terms and Conditions:

       
       

       a. The awarded vendor(s) agrees to:

       
       

       i. Have access to a full inventory of the awarded product line(s).

       
       

       * * *

       
       

       iv. Supply quoted pricing to PAEC Florida Buy customers upon their request. Quoted pricing should reflect the pricing submitted in form-C- Pricing Schedule.

       
       

       * * *

       
       

       vi. Pricing should be in the form of a percentage from catalog list, published price, or price list. Discounts may be for the entire catalog or for a specific product or manufacturer categories.

       
       

       * * *

       
       

       viii. New products may be added at the established discounts.

       
       

       * * *

    3. Product and/or category terms and conditions b. The awarded vendor(s) agrees to:

       
       

       * * *

       
       

       v. [sic] General custodial supplies and restroom products which include but are not limited to: … floor cleaner … and general custodial supplies.

       
       

       * * *

       
       

    4. Compliance/Deviation from Specifications.

    
    

    The proposer must check either the “Comply” or “Deviate” for each specification item. All deviations must be noted and explained on the attached form entitled “Deviations” at the end of this solicitation package in order to be considered.

    
    

    * * *

    Item: A.4

    
    

    Description: Products that result from new authorized sales and service dealer arrangements between the Bidder and the manufacturer during the term of this contract may be added and offered through the PAEC Florida Buy contract.

    
    

    Comply: Yes Deviate: [blank].

54. At “Form B – Questionnaire” of its response to PAEC’s RFP 17-08, Pro-Link stated as follows:

    [Question:] 17. State your company’s process for

    introducing new products to the catalog.

    
    

    [Response:] As we find new solutions for better cleaning at a reasonable price we will add them to our offering.

    
    

55. At “Form C.1 – Category Discount” of its response to PAEC’s

    RFP 17-08, Pro-Link stated as follows:

    Instructions: In the form below, please define all categories, sun-categories, manufacturers, etc. and the discount associated with each of those categories. Form C.1 has been formatted to print to one page width. Please note that this is a required form.

    
    

    Catalog/Category Discount Offered Comments Grouping

    
    

    * * *

    
    

    Chemicals Floor 25% Listed as

    Care Chemicals[.]

    
    

56. At “Form E – Level of Support” of its response to PAEC’s RFP 17-08, Pro-Link stated as follows:

    Instructions: Please indicate the level of support you will offer on this contract category. Check only on box in each action.

    
    

    * * *

    
    

     Other, please explain[:] 15% to 25% off Catalog Pricing[.]

    
    

57. Due to the COVID-19 pandemic, PAEC amended its contract with Pro- Link for an additional 12-month period that will expire on April 10, 2022.

58. SBBC’s PWS Department placed Agenda Item OO-7 on the public agenda for SBBC’s February 17, 2021, regular meeting requesting that SBBC approve the use of PAEC’s Contract 17-08 for the purchase of Pro-Link products.

59. Agenda Item OO-7 and its supporting documents were electronically

    posted on SBBC’s website pursuant to section 120.525(2).

60. In accordance with section 286.0114, Florida Statutes, SBBC provided members of the public with a reasonable opportunity to be heard regarding Agenda Item OO-7 at its regular meeting on February 17, 2021, and received public comment from a representative of NCL.

61. SBBC’s governing board deferred consideration of the agenda item until its next meeting to enable school district staff to report further up on the cost of the proposed purchases through the contract awarded by PAEC.

62. The proposed purchase of goods from Pro-Link under the PAEC contract was once again placed on an SBBC public agenda, this time as Agenda Item OO-20 for SBBC’s March 10, 2021, regular meeting. Agenda Item OO-20 again requested that SBBC approve the use of PAEC’s Contract 17-08 awarded to Pro-Link for the purchase Pro-Link products.

63. Agenda Item OO-20 and its supporting documents were electronically posted on SBBC’s website pursuant to section 120.525(2).

64. In accordance with section 286.0114, SBBC provided members of the public with a reasonable opportunity to be heard on Agenda Item OO-20 at its regular meeting on March 10, 2021, and received public comment from representatives of NCL who opposed the proposed purchase.

65. During the March 10, 2021, SBBC meeting, NCL’s attorney made the

    following statement to SBBC:

    I want to make it absolutely clear so you all understand, particularly for those who voted against this item, is that there is a mechanism to continue to procure the product from NCL. We provided that information to staff. They have failed to disclose that information to you all at any point today. There are several piggyback contracts that exist out there that we've made them aware of that they can continue to procure this product to allow then the proper process that you all speak of, and we don't -- we don't disagree with, okay, to take place.

    
    

    * * *

    
    

    We also believe, and we know, that we can provide the product that you need now to get you through this summer at a price equal to or less than what you're currently paying. We can provide that to you and we provided that information to staff. So when

    staff says there's no mechanism to continue to procure the existing product, that is an incorrect statement. That information is available to them. We can provide it to you here, if you wish. There's an existing contract that multiple school boards in the State of Florida have through a purchase consortium based out of Dallas, Texas that we have all of these products available to you if you so -- if you decide to go that route, and at a price equal to 4 or less than what you are currently paying.

    
    

66. During the March 10, 2021, SBBC meeting, NCL Representative Josh Levine made the following statement to SBBC:

    I would like to reiterate the fact that Mr. Herin stated, which is that NCL does have a contract that can be procured through a cooperative that can be piggybacked just as they would piggyback this other contract. And, on top of that, we have not -- no one's approached NCL to get their best and final price, so we could actually possibly negotiate even lower than what the prices that have been presented to you. And that has been presented to the staff, but, again, not forwarded to you.

    
    

67. During the March 10, 2021, meeting, SBBC’s staff reported to SBBC about the results of their review of the pricing for the products to be purchased under the PAEC-awarded contract.

68. SBBC’s governing board approved Agenda Item OO-20 and the purchase of products from Pro-Link from the contract awarded to it by PAEC.

69. The approval of Agenda Item OO-20 was electronically posted on

    SBBC’s website pursuant to section 120.525(2).

70. Section 120.57(3)(a) states, in part, as follows:

    1. ADDITIONAL PROCEDURES APPLICABLE TO PROTESTS TO CONTRACT SOLICITATION OR AWARD.—Agencies subject to this chapter shall use the uniform rules of procedure, which provide procedures for the resolution of protests arising from the contract solicitation or award process. Such rules shall at least provide that:

       1. The agency shall provide notice of a decision or intended decision concerning a solicitation, contract award, or exceptional purchase by electronic posting. This notice shall contain the following statement: “Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under chapter 120, Florida Statutes.”

          
          

       2. Any person who is adversely affected by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the notice of decision or intended decision. With respect to a protest of the terms, conditions, and specifications contained in a solicitation, including any provisions governing the methods for ranking bids, proposals, or replies, awarding contracts, reserving rights of further negotiation, or modifying or amending any contract, the notice of protest shall be filed in writing within 72 hours after the posting of the solicitation. The formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter. The formal written protest shall state with particularity the facts and law upon which the protest is based. Saturdays, Sundays, and state holidays shall be excluded in the computation of the 72-hour time periods provided by this paragraph.

          
          

       3. Upon receipt of the formal written protest that has been timely filed, the agency shall stop the solicitation or contract award process until the subject of the protest is resolved by final agency action…

    
    

71. Part VIII, Section D. of School Board Policy 3320, states, in pertinent part, as follows:

    D. Any person who is adversely affected by The School Board's decision or intended decision shall file with The School Board a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of The School Board's decision or intended decision, and shall file a formal written protest within 10 days after filing the notice of protest. … Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter. The formal written protest shall state with particularity the facts and law upon which the protest is based. Saturdays, Sundays, and days during which The School Board administration is closed shall be excluded in the computation of the 72-hour time periods provided by this Rule.

    
    

72. On March 12, 2021, NCL filed a notice of intent to protest with SBBC’s

    PWS Department.

73. Part VIII, Section N. of School Board Policy 3320, states, in pertinent part, as follows:

    N. Any person who files a formal written protest shall post with The School Board, at the time of filing the formal written protest, a bond, payable to The School Board of Broward County, Florida, in an amount equal to one percent (1%) of the school district's estimate of the total volume of the contract. The School Board shall provide the estimated contract amount to the vendor within 72 hours, excluding Saturdays, Sundays and other days during which the school district administration is closed. The estimated contract amount is not subject to protest pursuant to Section 120.57(3), Florida Statutes. The bond shall be conditioned upon the payment of all costs which may be adjudged against the protestant in a formal administrative hearing in which the action is brought and in any subsequent appellate court proceeding. In lieu of a bond, The School Board may accept a cashier’s check, official bank check or money order in the amount of the bond. If, after

    completion of the administrative hearing process and any appellate court proceedings, The School Board prevails, then The School Board shall recover all costs and charges which shall be included in the Final Order or judgment, including charges made by the Division of Administrative Hearings, but excluding attorney's fees. Upon payment of such costs and charges by the protestant, the bond shall be returned. If, after completion of the Administrative Hearing process and any appellate court proceedings, the protestant prevails, the protestant shall recover all costs and charges incurred in those formal administrative proceedings and appellate proceedings, which shall be included in the Final Order or judgment, but excluding attorney's fees.

    
    

74. On March 24, 2021, NCL filed a Formal Written Protest and a bid

    protest cost bond with SBBC’s PWS Department.

75. The parties agreed to waive the necessity of conducting another Bid Protest Committee meeting to provide an opportunity to resolve the protest by mutual agreement. NCL requested that its protest be referred to DOAH.

76. SBBC referred NCL’s protest to DOAH on May 10, 2021.

    
    

    Additional Evidence from the Hearing and Exhibits General Background Information

77. SBBC issued the RFI to identify the market for floor finish and cleaning products it needed and to decide which products to use. Through the RFI process, SBBC identified those products it wished to purchase and request by way of a future competitive solicitation.

78. SBBC’s “end-user” for the floor products was its PPO Department.

    That department identified products acceptable to SBBC’s PWS Department, which looked for a source from which to obtain the products.

79. The PPO Department requested that the PWS Department issue a request for information for floor finish system products. The existing contract

    with NCL had a floor stripper product that had been used for years in the school district. The contract was about to expire. The NCL product SBBC had been using generated a high volume of fumes when it was used by the school custodial staff.

80. In fact, the school district had received complaints from its personnel that the fumes from the NCL floor stripper products caused nausea, respiratory irritation, headaches, and created unpleasant work conditions.

81. SBBC’s Risk Management Department oversees the school district’s workers’ compensation claims. As a corollary to the complaints about the NCL product, the school district had received some workers’ compensation claims associated with the fumes from the NCL floor stripper product.2

82. The PPO Department tested several floor care products submitted by various vendors in response to the RFI by applying them at several schools over the course of the year. The products were applied by the school custodial staffs that would be responsible for their use during the contract term. The staffs would apply the potential floor stripper to remove the existing floor wax and then apply new wax in that area. That area would then be regularly maintained for a full school year, including cleaning and high-speed burnishing or polishing of the flooring. At or near the end of the school year, a team of PPO Department custodial supervisors went to the test sites and observed the on-site custodial staff’s removal of the floor wax using the stripping product that had been part of the family of chemical products that were applied a year earlier. SBBC’s school facilities throughout the district share common characteristics in terms of their condition and usage. The conditions of those schools naturally vary to some extent. Some floors will be newer, and others older. Some floors will have only a few coats of wax, and others much more. Regardless, SBBC wanted to ensure that the future floor

    
    

    2 The Risk Management Department also reviews the list of products under consideration to determine whether they are suitable for use in the public schools in Broward County.

    cleaning products to be used would successfully remove the existing floor wax and apply new wax, year-after-year.

83. Three families of floor care products were tested by the PPO Department. Those were manufactured by Proctor & Gamble, Pro-Link, and 3M. The PPO Department also tested the floor stripper product offered by NCL in response to the RFI. In the opinion of the PPO Department

    personnel, NCL’s product failed to successfully or adequately remove the floor wax.

84. NCL was given the opportunity to present two additional floor strippers for testing. Both of these products were tested and, in the opinion of the staff, failed to successfully or adequately remove the floor wax.3

85. More to the point, during the product testing, SBBC staff applied NCL’s Earth Sense Green Impact Stripper twice and found that the product still left old wax and residue on the floor. SBBC staff had to add in NCL’s Bare Bones (the current NCL product that SBBC wished to discontinue

    using) to NCL’s Earth Sense Green Impact Stripper during RFI product

    testing in order to remove all wax from the flooring.

86. Without adding the additional product, NCL’s Earth Sense Green Impact Stripper left some old wax on the flooring. When NCL’s Reveal Stripper and ZooooM Stripper products were used during product testing, SBBC staff found it necessary with each to apply additional stripper. Even then, floor finish remained on the floor after rinsing.

87. An NCL witness offered unsupported hearsay evidence that SBBC employee Israel Canales had verbally told another NCL employee that the ZooooM floor stripper product had passed the school district’s testing. However, this hearsay evidence was not persuasive or reliable.

88. While NCL might have chosen to conduct the testing differently,

    SBBC’s testing of the floor finish system products was fair, adequate, and

    
    

    
    

    3 No other vendor was given the opportunity by SBBC to submit additional products for testing during the RFI process.

    designed to replicate the real-world conditions in the school district’s extensive collection of school sites.

89. After the completion of product testing, the PPO Department informed the PWS Department that three floor finish product systems had been approved for use in the district’s schools: Proctor & Gamble, Pro-Link, and 3M. The list of approved floor finish systems did not include any NCL products due to their unsuccessful testing.

90. The PWS Department then issued an invitation to bid on August 22, 2019, seeking to purchase an approved floor finish system for district use.

91. During this process, and sometime after the initial Bid Protest Committee meeting was recessed on January 29, 2020, the PWS Department contacted some of the largest Florida school districts to inquire if they had any existing contracts to outsource and obtain the approved products.

92. When that inquiry did not produce results, the PWS Department contacted the manufacturers of the three approved products and asked them if they could identify any Florida contracts or competitive solicitations from which SBBC might make “piggyback” purchases. Pro-Link and 3M both referred SBBC to the contract awarded to them through RFP 17-08 issued in 2017 by PAEC.4

    
    

    Panhandle Area Educational Consortium

93. PAEC was created by the Florida Legislature in 1967 and has a cooperative purchasing program by which participating school districts, counties, and others may make purchases from competitively procured contracts secured by PAEC.

    
    

    4 The “piggybacking” process (also known as alternative source purchasing) is permitted by

    SBBC’s School Board Policy 3320, and other state laws and rules. Briefly defined, “piggybacking” allows an agency to make purchases from, and to “piggyback” off of, competitive solicitations or contracts already awarded by another public agency. The

    “piggybacking” agency gets the benefit of the prices, terms, and conditions of the previous competitively procured contract.

94. It is significant to note that the existing contracts SBBC sought to use, and ultimately did use to “piggyback,” had originally been competitively procured, including the PAEC contract with Pro-Link under RFP 17-08.

95. PAEC often issues competitive solicitations not only in acting for its 14-member school districts, but also in conjunction with two other educational consortiums which collectively include 35-member school districts. Every contract in PAEC’s portfolio can serve as an alternate

    purchase contract, intended to be used by other school districts and public agencies to make “piggyback” purchases.

96. The contract awarded by PAEC under RFP 17-08 to Pro-Link and 3M was a catalog bid for office supplies and chemicals. Again, it is significant to note that RFP 17-08 had been a widely advertised competitive solicitation seeking proposals from multiple vendors. Of the two SBBC-approved vendors receiving awards from PAEC under RFP 17-08, Pro-Link had the less expensive prices.

97. The catalog bid or catalog procurement, utilized by PAEC with Pro- Link, is typically used when an agency seeks a wide variety of items such as office supplies, computer equipment and accessories, janitorial supplies, and other chemicals. These frequently used products often have unstable price lists and the products themselves may change, be improved, or be replaced during the course of a contract award.

98. To address these variables and to meet its needs during the contract term, the agency, in this instance PAEC, frequently issues a competitive solicitation in which the agency defines a broad category of products and the vendors submit discounts in their proposals that will be applied during the contract to certain categories or groups of products or services.

99. With a catalog bid or procurement, the primary goal of the agency, in this instance PAEC, is to obtain a discount off the vendor’s prices on a wide range of products and services offered by the vendor. This method also

    provides a means for the agency to purchase new or improved product lines as they become available, and as others are discontinued.

100. Regarding the floor cleaning and stripping products at issue in this case, the specific Pro-Link named products that SBBC’s PPO Department approved during the RFI process were not among the products originally listed by Pro-Link when it responded to PAEC’s RFP 17-08.

101. Nonetheless, the new products needed to meet the requirements of

     SBBC’s RFI were subsequently formulated, added, or introduced by Pro-Link. In addition, those same new products could be, and were, later included within the existing PAEC contract through Form C.2B – Non-Core Items Price Schedule, which was submitted to PAEC by Pro-Link sometime between December 31, 2019, and January 2020. Joint Ex. JE-50.

102. Ultimately, to implement the “piggyback” arrangement approved by the SBBC, an agreement with Pro-Link was drafted and signed. Joint

     Ex. JE-13. The agreement speaks for itself, but one of several provisions material to this case permitted “SBBC to purchase their custodial goods from the Distributor through Contract #17-08 upon the same terms and conditions and at or below the prices set forth therein, and such purchases are to the advantage of SBBC.” (Emphasis added). Joint Ex. JE-13, Agreement, p. 1.

103. The agreement also provided at section 2.02 that: “Vendor shall provide custodial goods to SBBC through Distributor in accordance with the terms and conditions of Contract RFP#17-08.” (Emphasis added).

104. Finally, Section 2.04, entitled “Cost of Goods or Services,” provided that, “SBBC shall pay the Distributor for goods rendered under this Agreement at or below the pricing set forth in VENDOR’S Proposal, which is attached hereto and incorporated herein as Exhibit ‘C.’”

105. These terms captured the essence of the derivative relationship between SBBC and Pro-Link and reflected the “piggyback” nature of the relationship--that is, all goods and services were derived through and under the existing contract between PAEC and Pro-Link.

     The PAEC/Pro-Link Contract and the SBBC/Pro-Link Piggyback Agreement

106. In this case, an important and vital part of the factual findings and legal analysis is the extent to which the SBBC/Pro-Link “piggyback” arrangement aligns with or diverges from the provisions or contents of the original PAEC/Pro-Link contract. This point is analyzed and developed more in this section.

107. An important consideration for PAEC in RFP 17-08 was the ability to have the chosen vendor provide a mix of products that allowed the buyers to have access to emerging technology and new products at discounted prices throughout the life of the contract. Joint Ex. JE-2. A “catalog contract” fulfills that goal by creating pre-determined prices for existing products--while permitting new products to come onto the catalog throughout the life of the contract.5 Joint Ex. JE-2.

108. Catalog contracts typically involve a vast quantity and extensive list of products that are difficult to manage, and which are frequently subject to change. However, one method of controlling this uncertainty is by defining a “category” or “group” of desired products in the catalog and applying a pre- determined discount to those categories.

109. Additionally, catalog bids are well suited for PAEC or other group contracts because they create an easy way for products to slip in and out of the catalog seamlessly while the product category or group discount(s) remain the same.

110. This type of flexible contracting process helped to implement PAEC’s responsibility to provide the best goods and services to various governmental or nonprofit entities. In fact, in order to get the best available products, vendors were encouraged to update product lists and notify PAEC of the

     
     

     5 Figuratively speaking, new and improved products are “placed on the shelf,” and old or outdated products “fall off the shelf.” This is not uncommon in any wholesale or retail outlet where a variety of products are sold.

     newest and best products as they come on the market and are available to purchase through the PAEC contract with Pro-Link.

111. To that end, the PAEC RFP, ultimately awarded to Pro-Link, sought to purchase a broad range of school/custodial/janitorial supplies including, among other things, floor cleaners and floor strippers. Joint Ex. JE-2.

112. As part of their formal response, bidding companies were to fill out an RFP Form B Questionnaire. Question 17 asked the responding party to explain their process for introducing new products to the catalog. Pro-Link responded to this question by answering: “As we find new solutions for better cleaning at a reasonable price we will add them to our offering.” Joint Ex. JE-3.

113. This provision to provide updated and new products was confirmed subsequently in an email between Larche Hardy (“Hardy”) of PAEC and Seda, a purchasing agent for SBBC. Hardy informed Seda that “by requesting a catalog, we expect items to change based on availability, addition of new products (such as PPE), and discontinued items removed.” Joint Ex. JE-10.

114. As outlined in Pro-Link’s Vice President of Sales Mark A. Prosser’s testimony regarding how Pro-Link updates its product offerings, new items or chemicals are added to the line from Pro-Link’s suppliers. Further, the catalog contract is “truly kind of a living document, because if you have a three-year contract, time doesn’t stand still on the first day of your

     contract … new products are created, new technologies come about.”

115. PAEC awarded the contract to Pro-Link and finalized the agreement on or about May 10, 2017. The agreement detailed that Pro-Link was obligated to offer and sell the products listed in Pro-Link’s response, and comply with the terms, conditions, specifications, and amendments set forth in the RFP issued by PAEC. Joint Ex. JE-5. Contained within the PAEC RFP awarded to Pro-Link were floor chemical products, including floor stripper products, offered at a 25 percent discount. Joint Ex. JE-4.

116. Indisputably, the specific floor stripping products listed when the contract between PAEC and Pro-Link was originally signed are not the exact same products as the floor stripping products required when SBBC contemplated piggybacking onto the PAEC contract.

117. As a result, prior to signing the “piggyback” agreement with Pro- Link, SBBC asked Pro-Link whether the floor stripper product SBBC desired could be added to Form C.2B – Non-Core Items Price Schedule of the PAEC contract, even though it was not currently listed. SBBC received adequate assurances that this could be done.

118. This was important to SBBC--to confirm that the floor stripper product it selected was an acceptable product that could be added under the existing PAEC contract. Said another way, even though the specifically desired floor stripping product SBBC was attempting to obtain through piggybacking was not listed in the PAEC contract when first signed with Pro- Link, PAEC’s contract permitted and, in fact, contemplated that Pro-Link would add new and improved products to the contract categories.

119. Unless a lower price was negotiated by SBBC, new products added to the PAEC/Pro-Link contract, which was piggybacked by SBBC through its agreement with Pro-Link, would receive the same category discounts as was offered by Pro-Link for items under that same category. The category discount established in the PAEC award was a pricing ceiling, and a larger discount could be negotiated--as was anticipated for SBBC’s piggyback purchases.6

120. After identifying the PAEC contract with Pro-Link, SBBC’s purchasing officials asked whether PAEC would authorize it to make purchases from the contract awarded to Pro-Link. In response, PAEC instructed SBBC to contact Pro-Link directly to make any purchases.

     
     

     6 Any larger discount negotiated would, of course, be of an even greater benefit to SBBC, or other similarly situated agencies.

121. SBBC’s purchasing officials contacted Pro-Link who agreed to permit SBBC to make purchases under the PAEC contract, and also agreed to provide SBBC with price reductions, in certain instances, below the competitively awarded price established under the original PAEC contact.

122. It is also noteworthy that NCL had referred SBBC to NCL’s contracts with other governmental entities following the recess of the January 29, 2020, Bid Protest Committee meeting.

123. More directly, during the process leading up to SBBC’s decision to piggyback onto the PAEC contract, NCL had urged SBBC to consider piggybacking a contract award it had received from another agency. The “piggyback” contract that NCL suggested for SBBC’s consideration was also a catalog type contract.

124. Likewise, one of NCL’s employees testified that with a catalog bid, if the vendor has a new product that becomes available, all the vendor needs to do is inform the procuring agency of the new product and confirm that it will be made available at the discount originally agreed upon in the vendor’s bid.

125. SBBC’s purchasing officials ultimately determined that it was to its economic advantage to make purchases from Pro-Link through the PAEC contract, particularly with the further reductions in pricing offered by Pro- Link. SBBC’s purchasing officials took into account the pricing as well as other factors including inflation rates.

126. SBBC staff concluded that the Pro-Link system and products would provide the school district with an approved floor care system with low odor or fumes, with pricing only slightly higher than the prices it had been paying in the past for NCL products that had presented problems during use.

127. An NCL witness acknowledged at the hearing that SBBC invited NCL during the October 29, 2020, Bid Protest Committee meeting to submit for SBBC’s consideration any contracts NCL had with other governmental entities. The transcript of that meeting shows that NCL was informed that it was free to bring to SBBC’s attention any NCL contracts

     that it thought would be advantageous for SBBC to consider only after

     SBBC’s ITB FY20-108 was withdrawn and the agency’s “Cone of Silence” was

     lifted.

128. ITB FY20-108 was withdrawn by SBBC on October 30, 2020, and NCL’s bid specifications protest concluded on or about November 4, 2020. However, the record shows that NCL began submitting information to SBBC about its own contracts with other governmental entities to piggyback before the conclusion of its bid specifications protest and the withdrawal of the ITB.

     
     

     Ultimate Findings of Fact

129. In summary, the undersigned finds that the floor stripper category of products listed by Pro-Link in its response to the PAEC RFP 17-08 served the same purpose and were substantially the same as the products later formulated, added, or introduced by Pro-Link for the use and benefit of SBBC.

130. This finding is supported not only by the testimony of several witnesses but also by the bid documents related to PAEC’s RFP 17-08 and Pro-Link’s responses to it.

131. In short, the floor cleaner products Pro-Link agreed to provide to SBBC through the piggyback agreement for the benefit and use of SBBC were: (1) the types of additional and new or improved cleaning products contemplated by the original contract between PAEC and Pro-Link, and

     1. were substantially the same as those contained in the existing contract between PAEC and Pro-Link.

132. Furthermore, the addition of new and improved products by Pro-Link for the use and benefit of SBBC, particularly floor stripper products, did not represent a significant expansion of the existing contract provisions between PAEC and Pro-Link under RFP 17-08.

     CONCLUSIONS OF LAW

133. DOAH has jurisdiction of this matter pursuant to sections 120.569, 120.57(1), and 120.57(3).7

     Standing and Jurisdictional Arguments Raised by SBBC

134. SBBC has argued extensively during the proceedings, and in its Proposed Recommend Order, that DOAH lacks jurisdiction to consider or rule in this matter. While careful consideration has been given to this argument, the undersigned is not persuaded by SBBC’s argument.

135. Although the PAEC/Pro-Link “piggyback” contract NCL objected to may not fit neatly within the traditional definition of a “bid protest” under section 120.57(3), the undersigned is nonetheless convinced that NCL has standing to pursue this case at DOAH. This is based, in part, on a review of several cases addressing the intent and spirit of the public procurement laws, which are designed to ensure integrity and fairness in the broad and diverse public contracting process in Florida.

136. Under chapter 120, SBBC is an agency subject to the Administrative Procedure Act. Volusia Cty. Sch. Bd. v. Volusia Homes Builders

     Ass'n, Inc., 946 So. 2d 1084, 1089 (Fla. 5th DCA 2006). Accord, Sublett v. Dist. Sch. Bd. of Sumter Cty., 617 So. 2d 374, 377 (Fla. 5th DCA 1993).

137. Broadly speaking, under section 120.57, a party may petition for an administrative evidentiary hearing to contest any proposed final state agency action where the proposed final agency action would affect that party's substantial interest, and where there is a disputed issue of material fact which formed a basis for the proposed final agency action. Fla. Sugar Cane League, Inc. v. S. Fla. Water Mgmt. Dist., 617 So. 2d 1065, 1066 (Fla. 4th DCA 1993)(citing Friends of the Hatchineha, Inc. v. State, Dep't of Envtl. Reg., 580 So. 2d 267 (Fla. 1st DCA 1991)).

     
     

     7 While this is generally an undisputed issue in most cases at DOAH, lack of jurisdiction has been raised by SBBC. It was previously denied by the undersigned in a pre-hearing Order dated June 17, 2021. That denial is reconfirmed and explained in more detail herein.

138. Likewise, it is axiomatic that to have standing to challenge a proposed award of a public contract, an applicant must have a substantial interest to be determined in the case. See Madison Highlands, LLC v. Fla. Hous. Fin. Corp., 220 So. 3d 467, 473 (Fla. 5th DCA 2017).

139. As noted by the Fifth District Court of Appeal, standing is granted to a person or entity who at least has some potential stake in the public contract to be awarded. Advocacy Ctr. for Pers. with Disab., Inc. v. State, Dep’t of Child & Fam. Servs, 721 So. 2d 753, 755 (Fla. 5th DCA 1998).

140. Clearly, these principles apply and concerns exist in this case

     involving NCL’s objection to the piggyback contract with Pro-Link which was approved by SBBC.

141. Moreover, NCL has standing to challenge whether the SBBC decision to pursue a “piggybacking” arrangement with Pro-Link violates Florida law, and has raised disputed issues of material fact sufficient to confer jurisdiction at DOAH to resolve this issue. See Asphalt Paving Sys., Inc. v. Columbia,

     264 So. 3d 1110, 1113 (Fla. 1st DCA 2019); and Keystone Peer Review Org., Inc. v. Ag. for Health Care Admin., 26 So. 3d 652 (Fla. 1st DCA 2010).

142. More specifically, the standing test outlined in Asphalt Paving Systems has been met in this case. As noted by the First District Court of Appeal:

     “Whether a party has standing to bring an action is a question of law that is to be reviewed de novo.” Mid-Chattahoochee River Users v. Fla. Dep't of Entvl [sic]. Prot., 948 So. 2d 794, 796 (Fla. 1st DCA 2006). “To establish entitlement to a section 120.57 formal hearing, one must show that its ‘substantial interests will be affected by proposed agency action.’” Fairbanks, Inc. v. State, Dep't of Transp., 635 So. 2d 58, 59 (Fla. 1st DCA 1994);

     §§ 120.52(13)(b); 120.57, Fla. Stat. (2018). “This, in

     turn, requires a showing that (1) the proposed action will result in injury-in-fact which is of sufficient immediacy to justify a hearing; and

     1. the injury is of the type that the statute

        pursuant to which the agency has acted is designed to protect.” Id. (citing Agrico Chem. Co. v. Dep't of Envtl. Regulation, 406 So. 2d 478 (Fla. 2d DCA 1981).

        
        

        Asphalt Paving Systems, 264 So. 3d at 1112.

143. The undersigned concludes that NCL’s “substantial interests,” as that term is defined and understood, will certainly be affected by SBBC’s decision to utilize the provisions of rule 6A-1.012 and School Board

     Policy 3320 to “piggyback” onto PAEC’s contract with Pro-Link. Agrico Chem. Co. v. Dep't of Envtl. Reg., 406 So. 2d at 482.

144. Further, the proposed piggyback arrangement and purchase of products from Pro-Link would result in injury-in-fact to NCL, which is of sufficient immediacy to justify a hearing, and the injury would be of the type that the law is designed to protect. Id.

     Consideration of General Law Applicable in Traditional Bid Protest Cases

145. Despite the issues of this case being ones of first impression at DOAH, the undersigned concludes that the extensive body of case law related to traditional “bid protests” under section 120.57(3) apply with equal force and effect to objections by NCL related to the use of a “piggyback” contract by SBBC.

146. The same integrity and fairness concerns that exist with respect to the traditional public bidding and protest process apply with equal vigor to public contracts formulated using the alternative approach of a “piggyback” contract.

147. The parties correctly stipulated that NCL has the burden to prove that SBBC’s posted and intended purchase under PAEC’s RFP 17-08 is contrary to SBBC’s governing statutes, rules or policies, or solicitation specifications. See generally State Contracting & Eng'g Corp. v. Dep't of Transp., 709 So. 2d 607, 609 (Fla. 1st DCA 1998)

148. Additionally, since piggybacking is a competitive process, analogous to bidding or sealed proposals, it is both appropriate and necessary to analyze and determine if SBBC acted arbitrarily or capriciously in entering into a “piggyback” agreement with Pro-Link. Accela, Inc. v. Sarasota Cty. 993 So. 2d 1035, 1042 (Fla. 2d DCA 2008).

149. An action is “arbitrary if it is not supported by logic or the necessary facts,” and “capricious if it is adopted without thought or reason or is irrational.” Hadi v. Liberty Behav. Health Corp., 927 So. 2d 34, 38-9 (Fla. 1st DCA 2006); Agrico Chem. Co., 365 So. 2d 759, 763 (Fla. 1st DCA 1978). If agency action is justifiable under any analysis that a reasonable person would use to reach a decision of similar importance, the action is neither arbitrary or capricious. Dravo Basic Materials Co. v. Dep’t of Transp., 602 So. 2d 632, 635 n.3 (Fla. 2d DCA 1992).

150. The "de novo" review undertaken by the undersigned in this case is a form of ‘inter-agency review,” the object of which is to evaluate the action taken by the agency. The undersigned 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.

151. The method of review of an agency's proposed action in a bid protest proceeding has been summed up, and judges have been reminded that:

     The Hearing Officer need not, in effect, second guess the members of evaluation committee to determine whether he and/or other reasonable and well-informed persons might have reached a contrary result. Rather, a “public body has wide discretion” in the bidding process and “its decision, when based on an honest exercise” of the discretion, should not be overturned even if it may appear erroneous and even if reasonable persons may disagree. The hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly.

     Scientific Games, Inc. v. Dittler Bros., Inc., 586 So. 2d 1128, 1131 (Fla. 1st DCA 1991)(citations and quotation marks omitted). See also Sutron Corp. v. Lake Cty. Water Authority, 870 So. 2d 930 (Fla. 5th DCA 2004).

152. The standards of review in a bid protest case arising under

     section 120.57(3) have been explained by several courts over the years. These principles are also relevant to the procurement of goods or services by a public agency using a “piggyback” contract. A brief review of those cases is helpful.

153. If agency action is justifiable under any analysis that a reasonable person would use to reach a decision of similar importance, the decision is neither arbitrary nor capricious. Further, "[w]hether [an agency] acted arbitrarily is generally controlled by a determination of whether [the agency] complied with its own proposal criteria as outlined in the [procurement document]." Emerald Corr. Mgmt. v. Bay Cty. Bd. of Cty. Comm'rs, 955 So. 2d 647, 653 (Fla. 1st DCA 2007).

154. As long as the agency acted in good faith, its judgment should not be interfered with, even if reasonable persons could differ, and even if the decision may seem erroneous to some people. Volume Servs. Div. of Interstate United Corp. v. Canteen Corp., 369 So. 2d 391, 397 (Fla. 2d DCA 1979)(citing Culpepper v. Moore, 40 So. 2d 366, 370 (Fla. 1949)).

155. It is worth repeating that the objectives of competitive bidding by public agencies are the following: to protect the public against collusive contracts; to secure fair competition upon equal terms to all bidders; to remove not only collusion but temptation for collusion and opportunity for gain at public expense; to close all avenues to favoritism and fraud in various forms; to secure the best values for the public at the lowest possible expense; and to afford an equal advantage to all desiring to do business with the government, by affording an opportunity for an exact comparison of bids.

     Harry Pepper & Assoc., Inc. v. City of Cape Coral, 352 So. 2d 1190, 1192

     (Fla. 2d DCA 1977). See also Wester v. Belote, 138 So. 721, 723-24 (Fla. 1931).

156. All of these listed objectives of competitive procurement were met or facilitated by SBBC’s approval of the “piggyback” arrangement under the PAEC contract.

157. In sum, the law is clear that overturning an agency's award in a competitive procurement scenario is permitted, but only under well-defined and limited circumstances. This is true since judges reviewing a contract award are not authorized to second-guess or substitute their own judgment for that of the agency. See generally Scientific Games, Inc., 586 So. 2d

     at 1131.

158. The “clearly erroneous” standard has been applied to both factual determinations and interpretations of statute, rule, or specification. A factual determination is “clearly erroneous” only when the reviewer is “left with a definite and firm conviction that [the fact-finder] has made a mistake.” Tropical Jewelers, Inc. v. Bank of Am., N.A., 19 So. 3d 424, 426 (Fla. 3d DCA 2009).

159. The “clearly erroneous” standard has been defined in Colbert v. Department of Health, 890 So. 2d 1165, 1166 (Fla. 1st DCA 2004), to mean that “the interpretation will be upheld if the agency’s construction falls within the permissible range of interpretations. If, however, the agency’s interpretation conflicts with the plain and ordinary intent of the law, judicial deference need not be given to it.” (citations omitted).

     Applicable Rule and Policy

160. Rule 6A-1.012(6), which was adopted by SBOE, states as follows:

     6A-1.012 Purchasing Policies.

     
     

     Each district school board shall establish purchasing rules which shall include but not be limited by the following:

     
     

     * * *

     
     

     (6) In lieu of requesting competitive solicitations from three (3) or more sources, district school

     boards may make purchases at or below the specified prices from contracts awarded by other city or county governmental agencies, other district school boards, community colleges, federal agencies, the public or governmental agencies of any state, or from state university system cooperative bid agreements, when the proposer awarded a contract by another entity defined herein will permit purchases by a district school board at the same terms, conditions, and prices (or below such prices) awarded in such contract, and such purchases are to the economic advantage of the district school board.

     
     

161. SBBC adopted its own “Purchasing Policies,” which are nearly identical to rule 6A-1.012(6). It states as follows at Part II, Section M. of School Board Policy 3320:

     M. In lieu of requesting competitive solicitations from three (3) or more sources, The School Board may make purchases at or below the specified prices from contracts awarded by other city or county governmental agencies, other district school boards, community colleges, federal agencies, the public or governmental agencies of any state, or from state university system cooperative bid agreements. When the proposer awarded a contract by another entity defined herein will permit purchases by a district school board at the same terms, conditions and prices (or below such prices) awarded in such contract, and such purchases are to the economic advantage of the district school board. Purchases of $500,000 or more under this section must have prior Board approval.

     
     

     Application and Impact of the Accela Decision

162. Both parties have extensively briefed and argued that the Accela opinion is applicable in support of their respective positions. Accela appears to be the only appellate case in Florida that extensively addresses the processes and procedures related to the use of a “piggyback” contract by a

     public agency. Accela is instructive, and provides considerable guidance to arrive at the proper outcome in this case.

163. In Accela, Sarasota County decided to obtain a new computer software system to track its zoning, building permits, and other aspects of land management within the county. After reviewing several available systems, the County determined that none of the systems it evaluated would meet its needs.

164. Shortly thereafter, it learned of a software system made by CSDC, Systems, Inc. (“CSDC”), called “Amanda,” and determined, after some evaluation, that the Amanda system would best meet its needs.

165. As in this case, Sarasota County decided that the most appropriate way to purchase the Amanda system from CSDC would be to utilize and take advantage of the terms of an existing contract between CSDC and a state agency in Wisconsin, which had acquired the same system. This process is called “piggybacking,” and was similar, in several respects, to the process used by SBBC.

166. Of particular significance to the Court in Accela, Sarasota County made fairly extensive changes to the existing contract between CSDC and the Wisconsin state agency. The more extensive changes made by Sarasota County were found in the tabular or appendix sections of the new agreement.

167. For instance, the Court noted that the existing contract between CSDC and the Wisconsin state agency had only nine modules at a cost of

     $176,200.00, while the new “piggyback” contract between Sarasota County and CSDC listed 40 modules at a total cost of $711,120.00. Moreover, there was additional installation, training, and maintenance costs involved for Sarasota County that resulted from the extra modules purchased and the larger number of users in the county.

168. Accela, Inc., and CRW Systems, Inc., who were competing vendors, filed a complaint alleging that Sarasota County had violated its own procurement code by not going through a competitive process before

     purchasing the Amanda software. Ultimately, the trial court denied the relief requested by Accela, Inc., and CRW Systems, Inc., and they appealed.

169. In reviewing Sarasota County’s “piggyback” contract documents in Accela, the Second District Court of Appeal started by examining the provision within the county’s procurement code which authorized “piggybacking.” That code provision stated:

     The Purchasing and Contracts Manager shall have the authority to utilize contracts of other local governments or recent Sarasota County contracts or other public entities to procure goods and services if the vending contractor extends the terms and conditions of the contract to the County of Sarasota and the contract has been awarded through procedures substantially equivalent to the requirements of [the Sarasota County Procurement Code]. Id. at 1039.

     
     

170. In describing the essential components of a “piggyback” contract under Sarasota County’s procurement code, the Second District Court of Appeal noted:

     Restated as elements, the provision allows the County to utilize an existing contract to procure goods and services when (1) the purchasing party to the existing contract is a local government or other public entity, or Sarasota County itself; (2) the vendor-party to the existing contract extends the terms and conditions of that contract to the County; and (3) the other government entity, in awarding the vendor the earlier *1040 contract, used procedures substantially similar to those that the Code requires the County to use.

     
     

171. In addressing the merits of these elements, the District Courts of Appeal found that there was no argument on appeal that the proposed “piggyback” contract was not from a “public entity,” as contemplated by the county’s procurement rule (element 1), nor had it been persuasively argued or proven that the public agency’s procedures in Wisconsin were not

     substantially similar to those required by the county’s procurement code (element 3). Id. at 1040. As a result, the Court concluded that elements 1 and 3 above had been satisfied.

172. The Court in Accela recognized and approved the use of a “piggyback” contract by a public agency under the appropriate circumstances. It recognized that the original contract that CSDC had entered into with the State of Wisconsin, which was piggybacked by Sarasota County, had itself involved a competitive RFP (or perhaps bidding) process undertaken by Wisconsin before it awarded its contract to CSDC.

173. The court noted with approval the efficacy of using a “piggyback”

     contract and recognized that:

     As occurred here and is apparently often the case, the County uses the piggyback process when it already knows which vendor's product or service it prefers. If another government entity has already purchased that product or service and as long as the other entity used procedures “substantially equivalent” to those of the Code to do so, the County need not go through its own competitive process but can utilize the other entity's contract with the vendor.

     
     

     Footnote 3: In practice of course, the County and the vendor must draw up a fresh contract. The degree to which this contract can diverge from the other government entity's contract is a significant issue in the present lawsuit.

     
     

174. In this case, and to the extent a conclusion should be drawn, the

     undersigned concludes that NCL failed to prove that PAEC’s procurement procedures were substantially different than those required by School Board Policy 3320.

175. The evidence revealed that PAEC utilized an adequate, fair, and competitive procurement process before ultimately contracting with Pro-Link,

     and this process was substantially equivalent to the process required by rule and School Board Policy 3320.

     
     

     Does SBBC’s Piggyback Agreement with Pro-Link Extend or Offer the Same Terms and Conditions as the PAEC Contract with Pro-Link?

176. In Accela, the Court’s disagreement with the Trial Court, and the primary basis for its ultimate reversal, was that Sarasota County had not satisfied the second element. Specifically, Sarasota County had not accepted or used the same terms and conditions as the state agency in Wisconsin. Instead, Sarasota County had used the other public agency’s contract as a “basis to begin negotiations” and made significant changes to the scope of the original contract. Id. at 1042-43. This is a significant point. The court explained:

     Thus, the only element of the piggyback exception at issue is the second: whether CSDC “extend[ed] the terms and conditions of the [Wisconsin] contract to the County” as contemplated by the Code. We conclude that the second element was not satisfied.

     
     

177. Nonetheless, and despite reversing the Trial Court and finding that Sarasota County had not been extended or offered the terms and conditions of the Wisconsin contract, the Second District Court of Appeal laid out several guiding principles to use when a piggyback arrangement is contested and under review. Those principles have a significant bearing on the outcome of this case. The Court outlined the following principles:

     In short, we must conclude that the only reading under which the “extends the terms and conditions of the [existing] contract to the County” element allows the piggyback provision to be competitive is that the terms, including the scope, of the County contract must be substantially the same as those of the existing contract. That is, it is the terms that appear in a final County-vendor contract that constitute the terms that that the vendor has

     extended to the County. Because the terms of the three County–CSDC agreements represent a significant expansion beyond those of the Wisconsin–CSDC agreements, we must conclude that the County acted arbitrarily and capriciously when it violated the terms of the piggyback provision of its Code in entering into the three agreements. The agreements must therefore be deemed void and of no effect.

     
     

     * * *

     
     

     In reaching this conclusion, we are mindful of the discretion allowed to a public body in dealing with bids and competitive proposals. As argued by the County and cited by the trial court as the basis of its order denying relief to Accela and CRW, “a public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when based on an honest exercise of this discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree.” Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So. 2d 505, 507 (Fla. 1982). The same principle applies to competitive proposals as well as bids. See Emerald Corr. Mgmt., 955 So. 2d at 651. However, we conclude that that County went beyond the bounds of its discretion when it violated its Procurement Code. [Emphasis added].

     
     

     993 So. 2d at 1043-44.

     
     

178. The Second District Court of Appeal concluded that because the terms of the three Sarasota County agreements represented a significant expansion beyond those of the other public entity, Sarasota County had acted arbitrarily and capriciously and violated the terms of the piggyback provision of its procurement code when entering into the agreements with CSDC. Id. at 1044.

179. When outlined as elements as done in Accela, the provisions of rule 6A-1.012(6) and Part II, Section M. of School Board Policy 3320, permit SBBC

     to utilize an existing contract to purchase goods and services when: (1) the contract is awarded by other city or county governmental agencies, other district school boards, community colleges, federal agencies, the public or governmental agencies of any state, or from state university system cooperative bid agreements; (2) the proposer awarded a contract by another entity defined herein will permit purchases by SBBC at the same terms, conditions, and prices (or below such prices) awarded in such contract; and

     1. such purchases are to the economic advantage of the district school board.

180. Regarding the first element, PAEC is a regional consortium service organization pursuant to section 1001.451, and its contract awarded to Pro- Link as a result of PAEC’s RFP 17-08 qualifies as another agency’s contract from which SBBC may make purchases. The first element was satisfied under the evidence presented.

181. The second element of rule 6A-1.012(6) and Part II, Section M. of School Board Policy 3320, is whether the proposer awarded a contract by another entity defined herein will permit purchases by SBBC at the same terms, conditions, and prices (or below such prices) awarded in such contract. Unlike the situation with Sarasota County in Accela, SBBC did not make or request significant changes to the scope of the original contract awarded by PAEC. SBBC was permitted to purchase new and improved products as authorized and contemplated by the original contract with PAEC. Pro-Link was doing no more for SBBC than it was obligated to do for any PAEC member.

182. While Pro-Link agreed to provide new, improved, or modified floor stripping products to SBBC not specifically named in the original contract with PAEC, this was consistent with and contemplated by the terms of the original PAEC/Pro-Link contract. Pro-Link extended to SBBC the same, if not better, terms, conditions, and prices as it had to PAEC. Pro-Link also agreed to allow SBBC a greater discount than that it was bound to under the contract with PAEC.

183. Unlike Sarasota County, extensive changes to the PAEC contract were not made by SBBC in its “piggyback” agreement with Pro-Link. Rather, purchases were permitted upon the same terms and conditions as the PAEC contract. This is a significant distinction from the facts in Accela. See Accela, 993 So. 2d at 1038.

184. The third and final element is whether purchases under PAEC’s contract with Pro-Link are to the economic advantage of the district school board. As stated above, Pro-Link agreed, as permitted by SBBC’s purchasing rules, to charge SBBC prices lower than those of the PAEC contract, which prices SBBC staff found to be to SBBC’s economic advantage.

185. In addition, the Pro-Link system would provide the school district with an approved floor care system with low odor or fumes and with pricing only marginally higher than the prices SBBC had been paying in the past for NCL products, which had presented problems for its workers during their use.

186. After carefully considering all of the evidence presented, the undersigned concludes that NCL failed to meet its burden to demonstrate that SBBC’s actions were contrary to SBBC’s governing statutes, rules, policies, or the RFP’s specifications. NCL further failed to carry its burden to prove that SBBC’s decision to make “piggyback” purchases from the contract awarded to Pro-Link by PAEC under RFP 17-08 was clearly erroneous, arbitrary or capricious, or was contrary to competition.

187. Instead, the evidence confirmed the propriety of SBBC’s action. SBBC’s purchases through the PAEC contract would not be contrary to competition, but rather was an alternative to competitive solicitation permitted by rule 6A-1.012(6) and School Board Policy 3320.

     
     

     Other Relevant Conclusions

188. NCL has also challenged the business judgments made by SBBC in conjunction with that agency’s RFI 18-170B released in 2018. Aside from a

     conclusion that proper business judgment was exercised by the SBBC staff, this determination has little relevance to this protest.

189. SBBC was free to conduct the RFI as it saw fit and to utilize or disregard the results of the RFI. It had the right to use its own best judgment to determine which floor stripper products worked best for its staff. Furthermore, it was made very clear that SBBC was making no commitments as to what product, if any, it might eventually use. It was simply collecting information to evaluate products that might be available to meet its needs--no more, no less.

190. Based on the Findings of Fact, particularly those related to the fact that the catalog arrangement between PAEC and Pro-Link under RFP 17-08 permitted the purchase of new and improved products by SBBC that are substantially the same as those offered to PAEC, and because the “piggyback” contract does not substantially change the types of products offered by Pro-Link to PAEC, the undersigned concludes that SBBC properly and lawfully utilized the “piggyback” contract provisions of rule 6A-1.012(6) and School Board Policy 3320, consistent with the legal principles outlined in Accela.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Broward County dismiss with prejudice the protest filed by National Chemical Laboratories, Inc. The Division of Administrative Hearings reserves jurisdiction for the sole purpose of assessment of costs in favor of the School Board of Broward County and against National Chemical Laboratories, Inc., upon proper application and proof, and as may be authorized by law.

DONE AND ENTERED this 8th day of September, 2021, in Tallahassee, Leon County, Florida.

S

ROBERT L. KILBRIDE

Administrative Law Judge 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings this 8th day of September, 2021.

COPIES FURNISHED:

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 10 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 21-001530BID

Orders for Case No: 21-001530BID