Findings Of Fact Certificate of Need No. 1645 was issued to Respondent on July 27, 1981, for construction of a 120-bed nursing home at a cost of $1,830,000 in the city of Safety Harbor, Pinellas County, Florida. Termination date of the certificate was originally July 25, 1982, but was subsequently extended for a period of six months at the request of Respondent. The expiration date of the certificate, as extended, was January 25, 1983. At the time the six-month extension was granted, Petitioner advised Respondent that the project was required to be ". . . under physical and continuous construction prior to the new termination date to have a valid and continuing Certificate of Need." Subsequent to the issuance of the certificate, Respondent retained and engaged personnel and organizations to assist in pursuing the project. The architectural firm of Wilson and Associates ("the architect") was engaged in August of 1981. Additionally, Respondent engaged the Kissell Company to secure financing, and the Hermanson Construction Company ("Hermanson") as the general contractor for the project. Respondent obtained preliminary approval of its site plan for the project from the City of Safety Harbor ("the City"). Additionally, the City created a zoning ordinance specifically for the project to permit a health care facility to be constructed at the proposed site. On September 21, 1981, the architect met with representatives of the HRS Office of Licensure and Certification, Jacksonville, Florida, to submit and review schematic plans for the project. HRS gave preliminary approval to the schematic plans on that same date. The HRS plan review process consists of three stages. The first stage consists of the submission of schematic plans; the second stage is the submission of preliminary plans; and, the third stage consists of submission of construction documents together with the required fee for final plan review. On November 13, 1981, the architect submitted additional schematics to HRS to complete the first stage of the plan submission process. In addition, the architect provided additional information previously requested by HRS on that same date. On December 14, 1981, the architect submitted the second stage documents to HRS. The HRS Office of Licensure and Certification, however, never responded to or commented on the submissions made by the architect in November and December of 1981. In early January, 1982, Respondent closed the purchase of the project site in Safety Harbor. Respondent paid a total of $165,000 for the site. In April, 1982, Respondent met with representatives of the City to discuss the issuance of industrial revenue bonds by the City to finance the project. Further, on April 19, 1982, Respondent purchased a corporate office in Safety Harbor at a cost of $80,000. After meetings between representatives of the City and Respondent, the City agreed to consider the issuance of industrial revenue bonds. Respondent paid $10,000 to the City in June, 1982, to offset any costs that the City would incur in considering the bond issue proposal. In addition, Respondent paid $4,000 to the City to resolve a dispute between the City and the previous owner of the property on which the project was to be located. On June 1, 1982, Respondent entered into a construction contract with Hermanson to construct the proposed nursing home project. A copy of the contract was furnished to the HRS Office of Community Medical Facilities. In August of 1982 Hermanson commenced its activities under the contract. These activities included obtaining proposals from subcontractors for materials and services to be used in the project, and hiring engineers to survey the site, conduct soil borings, and to conduct a tree survey required by local governmental authorities. Respondent secured financing for the project in September, 1982. On September 20, 1982, the City passed a Resolution of Inducement agreeing to issue revenue bonds to finance acquisition, construction, equipping, and furnishing the project. On September 20, 1982, Respondent and the City also entered into a Memorandum of Agreement regarding issuance of revenue bonds. In the latter part of 1982, Respondent was required to obtain approval of the project from numerous other local governmental entities. Specifically, Respondent obtained approval of the Site Development Plan and an amendment to the Land Use Plan from the City's Planning and Zoning Board, the City Commission, and Pinellas County. As part of the Site Development Plan approval, the City required Respondent to agree to make a number of offsite improvements, including the dedication of a 25-foot right-of-way, the paving of an adjacent roadway at Respondent's expense, and the construction of sidewalks. Respondent agreed to the conditions and the City and Pinellas County approved the Site Development Plan and the amendment to the Land Use Plan. Because of the City's requirement that Respondent dedicate a 25-foot right-of-way, Respondent was required to obtain a setback variance from the City because the proposed building location did not meet the City's property line setback limitations. On November 5, 1982, the architect submitted the third stage construction documents and plan review fees to HRS to complete the plan review process. On that same date, the architect spoke with representatives of the HRS Office of Licensure and Certification about obtaining HRS permission for an early construction start on the foundation work for the project. The architect was advised that an early start could not be granted until the third stage submissions had been reviewed. Throughout 1982, Respondent made numerous submissions to the Federal Housing Authority (FHA) and the Department of Housing and Urban Development (HUD) to obtain an FHA commitment to insure project financing. On November 26, 1982, Respondent obtained a conditional commitment from HUD for that purpose. Subsequently, on January 21, 1983, Respondent obtained FHA approval for an early start of project construction. The early start permitted construction costs to be covered by the insurance guarantee, prior to the issuance of the firm commitment. On January 25, 1983, Respondent obtained a firm commitment from HUD to insure project financing. The firm commitment insured both the construction and permanent financing. The FHA and HUD commitments and guarantees were still valid and effective at the time of final hearing in this cause, although a month-to-month extension had to be obtained by Respondent. Prior to January 25, 1983, Respondent had also obtained the following permits or approvals: an exemption from the Florida Department of Environmental Regulation from stormwater discharge permitting requirements; water and sewer service availability from the City; a City occupational license; a building permit from the City; a tree removal permit from Pinellas County; and business licenses from both the City and Pinellas County. Prior to January 25, 1983, the following work had been performed on the project site: a construction trailer was placed on the site; a fence removed and utilities, with the exception of water, were installed; a large lake and related storm sewer system had been relocated on the site; a survey had been performed and the site cleared and trees removed; the site was cut to subgrade and a pad prepared for the building foundation; and the building site had been roughed out and finished floor elevations had been set. As a result, the site is now ready for the placement of footers and foundations. Although the footers and foundation work have not been constructed, the record in this cause establishes that they could be in place within two weeks from the time approval is given for such work. At the time of final hearing in this cause, HRS had not given its approval for construction of the building foundation. Approximately $130,000 has been spent by Respondent on construction work at the site, which includes money paid to subcontractors for work and services provided. When contacted by the architect on January 24, 1983, one day prior to the expiration date of the certificate, the HRS Office of Licensure and Certification advised the architect that the third stage plan review process was at that time only 60 to 75 percent complete. On February 8, 1983, the HRS Office of Licensure and Certification first responded to Respondent's third stage construction documents which had been submitted by the architect on November 5, 1982. HRS advised the architect that it could not approve the project plans and submitted a number of comments and revisions to be incorporated into the plans. On February 17, 1983, the architect submitted the changes and corrections to HRS to comply with the February 8, 1983, HRS letter. On or about February 17, 1983, the architect again spoke with HRS representatives about obtaining permission for an early construction start but, again, permission was not granted. In the first week of March, 1983, Respondent contacted HRS to inquire about the status of his certificate. Respondent was concerned that HRS had not responded to his letter of January 14, 1983, in which he advised HRS that the project was under construction. HRS representatives advised Respondent in the first week of March, 1983, that an investigation of the matter would be made and that HRS would respond at a later date. In late March, 1983, after having received no notification from HRS, Respondent again contacted HRS representatives about the status of the certificate, and was advised that the certificate was considered to be null and void. Subsequently, on April 5, 1983, HRS sent a letter to Respondent advising him that the certificate was null and void since ". . . the project was not under physical continuous construction beyond site preparation by January 25, 1983." Effective June 5, 1979, HRS promulgated Rule 10-5.02(21), Florida Administrative Code, which defined the term "construction" to mean: . . . the commencement of and continuous activities beyond site preparation normally associated with erecting, altering or modifying a health care facility pursuant to construction plans and specifications approved by the department (Emphasis added.) That rule was challenged and ultimately invalidated by a DOAH Hearing Officer by Final Order entered April 18, 1980. The order of the Hearing Officer was subsequently upheld by the First District Court of Appeal in Westchester General Hospital v. State of Florida, Department of Health and Rehabilitative Services, 417 So.2d 261 (Fla. 1st DCA 1982). As a result, on January 25, 1983, the date of expiration of the Certificate of Need at issue in this proceeding, HRS had no "rule" that defined the terms "construction" or "commencement of construction." It is, however, clear from the record in this proceeding that the definition of "construction" contained in the invalidated rule is more restrictive than that generally utilized in the construction industry. In fact, the record in this cause establishes that "construction," as that term is used in the industry, "commences with the execution of a construction contract. Other factors indicative of "commencement of construction" would include the ordering of building materials, the solicitation and signing of contracts with subcontractors, the acquisition of required permits from various governmental entities, the preparation of drawings associated with the project, and the like. All of these activities necessarily precede "site preparation" and the pouring of footers and foundations and the placement of steel. It is undisputed that Respondent had not placed any concrete, steel, or footings on the project site prior to January 25, 1983. However, it is equally clear that those activities outlined above which Respondent had, in fact, accomplished prior to January 25, 1983, conformed to the definition of "commencement of construction" generally accepted by professionals in the construction industry. Conversely, there is no competent or persuasive evidence of record to "elucidate," "explicate," or otherwise support the purported HRS policy of requiring the placement of foundations, footings, concrete, or steel on the job site prior to the expiration date of a certificate of need. Neither is there any evidence of record in this cause to establish that HRS at any time advised Respondent of its policy requiring the placement of footers, foundations, or steel in order to comply with HRS's purported policy.
The Issue Whether land Santa Rosa County has zoned "Planned Business District" lies in a commercial or industrial zone within the meaning of Section 479.01(2), Florida Statutes (1985) and Rule 14-10.0051(2), Florida Administrative Code?
Findings Of Fact By applications dated July 18, 1986, petitioner Bill Salter Outdoor Advertising (Salter) sought permits to mount back to back signs, ten feet high and 36 feet wide, on a metal "unipole" 40 feet above the ground, Petitioner's Exhibit No. 1, on the south side of U.S. Highway 98 in Santa Rosa County, 11.5 miles east of State Road 399. The site proposed for the signs lies outside any incorporated municipality, about halfway between Gulf Breeze and the Okaloosa County line. The proposed site is near the northeast corner of a parcel with 1,300 feet fronting U.S. Highway 98. The signs would stand 50 feet from the highway right of way, some 1,066 feet east of the nearest building, which is part of a privately owned zoo, forthrightly named "The Zoo." Whether The Zoo will ever expand, as Pat Finn, the proprietor, reportedly hopes, is not clear from the evidence. Mr. Finn gave Salter written permission to apply for the permits, and executed a lease in Salter's favor. Petitioner's Exhibit No. 3. Salter applied for and obtained written approval from Santa Rosa County's planning department to erect the signs for which it now seeks permits. No other highway signs have been permitted in the immediate vicinity since October 1, 1984. Across the street, mechanics repair automobiles and motorcycles at a commercial garage. Also on the north side of the highway is a lumber company, about a quarter of a mile from the site, and an establishment selling campers, maybe half a mile from the site. For several miles in either direction, much of the property along this four-lane divided highway is undeveloped, but there are occasional shopping centers, Convenience stores, restaurants and other commercial establishments, including a boat dealer and tent merchant. For several miles in either direction, with the exception of one or two residences, all residential development is more than 300 feet back from U.S. Highway 98, and most of it is more than 500 feet back. In response to recent legislation, Santa Rosa County hired Robert Eugene Arn, Jr., in the spring of 1986, to head its planning department and to review zoning in the county, including in the area in question. According to Mr. Arn, erection of the proposed signs is permissible under Santa Rosa County's present zoning. Before his arrival, an ad hoc committee had examined aerial photographs, considered present and potential land uses in the area, and otherwise informed itself on the circumstances over a period of about a year. The county adopted a zoning ordinance, effective June 24, 1986, covering south Santa Rosa County. Consistently with the purposes of the ordinance, and with the comprehensive plan, the proposed site has been zoned "Planned Business District" (PBD), allowing commercial activity on parcels of adequate size, without requiring variances or special exceptions for commercial uses, which uses need not be incidental to other, primary land uses. In pertinent part, the ordinance provides: PLANNED BUSINESS DISTRICT Within this district as shown on the zoning map of the South Santa Rosa County Planning Area, Florida, the following regula- tions shall apply: INTENT AND PURPOSE, PERMITTED USES: Intent and Purpose: It is the purpose of this article to permit Planned Business Developments along major arterials and to encourage the development of this land with highway frontage as planned communities, and business and commercial centers; encourage flexible and creative concepts of site planning; preserve the natural amenities of the land by encouraging functional open areas; accomplish a more desirable environment that would not be possible through the strict application of the minimum requirements of these regulations; provide for an efficient use of land resulting in smaller networks of streets and utilities where access to regional systems is impractical and thereby lowering development and housing costs; and provide a stable environmental character compatible with surrounding areas; limit access on to major arterials to central locations in order to reduce safety hazards posed by unlimited or uncontrolled access. Permitted Uses: The uses permitted within this district shall include the following: Residential units, including single- family attached and detached dwellings, two-family dwellings and multiple-family dwellings. Churches, schools, community or club buildings and similar public and semi-public facilities. Non-residential uses, including commercial or retail uses, offices, clinics and professional uses. Mobile homes (as defined in Section 1.1.) are prohibited in Area #1 (as defined in Section 1.1.). The basis for this restric- tion is found in the already developed nature of Area #1 and the need to protect established property values from uses that could potentially adversely affect such values. DEFINITIONS: In addition to the definitions contained in Section 1 of this ordinance, the following terms, phrases, words and derivations shall have the following meaning: Planned Business Development: An area of land of at least fifteen (15) acres devoted by its owner to development as a single entity for a number of dwelling units, and/or commercial uses in accordance with a plan which does not necessarily comply with the provisions of Sections 3 through 6 of this ordinance with respect to lot size, lot coverage, setbacks, off-street parking, bulk or type of dwelling, density and other regulations. Plan: The proposal for development of a Planned Business Development, including a plat of subdivision, all covenants, grants of easements and other conditions relating to use, location and bulk of buildings, density of development, common open space and public facilities. The plan shall include such information as required by Article D of this Section. PROCEDURE FOR APPROVAL OF A PLANNED BUSINESS DEVELOPMENT: When a parcel of land is zoned for Planned Business District (PBD), such parcel shall not be subdivided into smaller parcels less than fifteen (15) acres in size without first complying with the provisions of this Section for Master Planning. The procedure for obtaining approval for the purpose of undertaking a Planned Business Development shall be as follows: Preliminary Planned Business Development and Master Plan Approval: The applicant shall submit to the Planning Director, his application for the approval of the Planned Business Development and shall submit the following exhibits at the same time: (a) A statement of objectives describing: The general purpose of the proposed development. The general character of the proposed development. A Master Plan. A Master Plan, drawn at a scale suitable for presentation, showing and/or describing the following: Proposed Land Uses. Final Development Plan: If approval for the Planned Business Development is granted, the applicant shall submit a Final Planned Business Development Plan covering all or part of the approved Master Plan within twelve (12) months, to the Planning Director. The Final Development Plan shall include the following exhibits. A statement of objectives: The general purpose of the proposed development. The general character of the proposed development. (5) Revision of a Planned Unit Development: Any proposed major and substantial change in the approval Preliminary Planned Business Development Master Plan which affects the intent and character of the development, the density or land use pattern, proposed buffers, the location or dimensions or arterial or collector streets, or similar substantial changes, shall be reviewed by the Planning Department in the same manner of the initial site plan approval. A request for a revision of the Preliminary Planned Business Development Master Plan, shall be supported by a written statement and by revised plans demonstrating the reasons the revisions are necessary or desirable... By use of the master plan mechanism, the ordinance reserves many areas for future designations. But, at the same time that it adopted its zoning ordinance, Santa Rosa County adopted maps showing a corridor in which commercial development is contemplated, extending 300 to 500 feet either side of the highway. Single family residences would normally be 300 to 500 feet back from the highway, although nothing in the ordinance precludes single family residences adjacent to the highway. The property across the road from the proposed site has been zoned PBD and "HCD", or highway commercial development. Land zoned HCD can be developed commercially, but multiple family housing is also allowed. DOT has granted permit applications for sites zoned HCD. DOT has never denied such an application, as far as the record reveals, but DOT's Mr. Culpepper testified that DOT would deny an application for a site zoned HCD if it were located in a (multi-family) residential area. DOT's stated reason for proposing to deny Salter's most recent applications is "unpermittable zoning": "PBD is not acceptable zoning for a state sign permit." Petitioner's Exhibit No. 2. At hearing, Mr. Culpepper explicated the Department's position, testifying that, if the area in question were the subject of a master plan specifying commercial uses, the signs could be permitted; but that, because PBD zoning allows both residential and commercial uses, and the ultimate fate of the property is not yet legally specified, no permit can issue. Of course, as much of the property as has been developed is now given over to a commercial use, The Zoo, with its parking lot and gift store. Santa Rosa County's current policy is to allow land uses antedating adoption of zoning ordinances to persist, even if they are non-conforming. No master plan covering the area in question has been filed.
The Issue The issues in this case are those which arise through the allegations set forth in an Amended Administrative Complaint brought by the State of Florida, Department of Professional Regulation against the Respondent. In its operative terms, Respondent is said to have committed violations of Sections 472.033(1)(g) and (h) and 472.005(4)(b), Florida Statutes. Factually, Respondent is said to have entered into a contract with Leonard Freed for the performance of land surveying services on a parcel of property which Freed owned. The contract price is said to be $6,000.00. Allegedly the Respondent began and had partially performed the work and had received $3,000.00 from Freed in payment. Respondent is alleged to have been negligent in his performance of the job in that he based an initial survey on a preliminary lot layout in contravention of the requirements of Chapter 21HH-6, Florida Administrative Code. It is further alleged that the contract entered into between the Respondent and Freed was such that the Respondent was called upon to design streets and layouts to include grades and drainage and that this arrangement exceeds the scope of the Respondent's land surveyors license. Finally, some reference is made to the fact that Respondent had previously been disciplined by the Board of Land Surveyors in Case No. 54633 for which he was fined $1,000.00 and ordered to serve 27 months probation, through the terms of a Final Order entered by that Board on October 1, 1985.
Findings Of Fact Those persons who are engaged in the profession of land surveying in the State of Florida are licensed by and subject to the discipline of the State of Florida, Department of Professional Regulation, Board of Professional Land Surveyors. This arrangement is in conjunction with the requirements of Chapters 120, 455, and 472, Florida Statutes and rules associated with those statutory provisions. At all times relevant to this case, Respondent, Frederick R. Bolt, was licensed as a Professional Land Surveyor through the State of Florida, Department of Professional Regulation and held license number LS 0003510. On or about July 31, 1987, Respondent entered into a contract with one Leonard Freed to perform land survey services on a parcel of property owned by Freed. Said parcel of property is described in the contract as the Dorcas property. Total contract price was $6,000.00. According to the contract, a copy of which may be found as part of Petitioner's Composite Exhibit No. 2, part of the work to be done by Respondent related to the Dorcas parcel was "street design & layout to include all grades and drainage." At the point and time where the contract was signed Respondent was paid $1,000.00. Subsequently, on August 18, 1987, a second installment of payment was given to the Respondent in the amount of $2,000.00. As related in Petitioner's Exhibit No. 8, Respondent had been the subject of disciplinary action by the Board of Professional Surveyors on a prior occasion. In that instance, the Respondent was found in violation of Sections 472.021 and 472.027, 472.033(1)(a), (g) and (h) and 455.227(1)(b) Florida Statutes, as well as Rules 21HH-2.01 and 21HH-6, Florida Administrative Code. The gravamen of the Administrative Complaint which underlies this prior disciplinary action related to the performance of his land surveying work and the performance of that work through a firm which had utilized a fictitious name and that had not been possessed of a certificate of authorization as required by Chapter 472, Florida Statutes. A $1,000.00 fine was imposed and the Respondent was placed on a period of probation for 27 months from the date of the Final Order, which date is October 1, 1985. During the probationary period Respondent was required to submit 25 surveys over to the Board for its review, representative of his practice and accompanied by field notes and record plat.
The Issue The issues to be determined in this case are whether amendments CPA-09-13 and CPA-09-14 (“Plan Amendments”) to the Citrus County Comprehensive Plan, which were adopted by Ordinance 2009-A24, are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2009).1/
Findings Of Fact The Parties The Florida Department of Community Affairs is the state land planning agency and is statutorily charged with the duty of reviewing comprehensive plan amendments and determining they are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. Citrus County has adopted a comprehensive plan that it amends from time to time pursuant to Chapter 163, Part II, Florida Statutes. Petitioner, Robert Schweickert, Jr., is a resident of the City of Inverness in Citrus County. Petitioner made oral comments about the Plan Amendments to Citrus County Commissioner John Thrumston in one or more telephone conversations during the period of time between the transmittal and adoption hearings for the Plan Amendments. In Petitioner’s telephone conversations with Commissioner Thrumston, the Commissioner was on his personal cellular telephone or home telephone. No evidence was presented as to whether Commissioner Thrumston conveyed Petitioner’s comments to the Board of County Commissioners or to the County’s planning staff. CMT is a Florida corporation and owns the property that is the subject of Plan Amendment CPA-09-14, which would re- designate the property as the Hollinswood Harbor Port Subarea. CMT submitted oral comments to the Citrus Board of County Commissioners at the transmittal and adoption hearings for the Plan Amendments. The Site The subject property is a 525-acre site situated on the Cross Florida Barge Canal. There is a channel “cut” from the barge canal into the property. CMT owns the submerged lands beneath the channel cut, and owns the submerged lands along the southern boundary of its property to the middle of the barge canal. Currently the site has future land use designations of “Industrial,” “Conservation” (for the CMT-owned water bottom), “Extractive,” and “Transportation, Communications, and Utilities.” A portion of the site is planted in pine trees, which CMT plans to harvest. The small area of the site designated Extractive is used to store mined materials. A power line and natural gas pipeline bisect the site. The waterfront portion of the site was used in the past for a cruise ship operation. A docking facility, parking lot, and office used in conjunction with the cruise ship operation still exist on the site. To the west of the site is other land owned by CMT, which is leased to a mining company and is used for mining limestone. To the east is land owned by the State of Florida, on which it proposes to build public boat ramps. The Plan Amendments Amendment CPA-09-13 amends the FLUE to create a new land use designation, “Port District.” CPA-09-14 amends the FLUE to create the Hollinswood Harbor Port (“HHP”) Subarea Plan, and amends the Future Land Use Map to designate the 525-acre site owned by CMT as the HHP Subarea. The HHP Subarea Plan divides the 525-acre site into four land use districts: “Port- Industrial,” “Port-Water Dependent,” “Port-Commercial,” and “Transportation Communication & Utility.” The HHP Subarea Plan proposes a mix of industrial, commercial, institutional, water dependent, and residential uses, and establishes minimum and maximum standards for those uses. The HHP Subarea Plan includes a requirement to comply with the FDEP 2007 Clean Marina Action Plan Guidebook. Residential uses within the HHP Subarea cannot exceed a density of six units per acre, or a maximum of 600 units. Residential units must be clustered on no more than 20 percent of the site’s total 525 acres. The residential density may be increased by one unit per acre if workforce housing is provided. Petitioner’s Issues Petitioner’s issues were limited to whether the amendments were consistent with the Citrus County Comprehensive Plan, Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5, with respect to manatee protection, workforce housing, the provision of public water and sewer services, and urban sprawl. Manatee Protection The barge canal is a manmade waterway with a depth of 12 to 14 feet. The canal is too deep to allow sunlight to penetrate to the bottom and, therefore, there are no grass beds in the area of the site. Water grasses are the primary food of the manatee. Although manatees are known to travel in the barge canal, the canal is not essential habitat for the manatee. The proposed Plan Amendments would not prevent achievement of the criteria established in the Manatee Protection Element of the comprehensive plan. Petitioner failed to demonstrate that the Plan Amendments would cause an unreasonable risk of harm to manatees or are otherwise inconsistent with any provision of the comprehensive plan. Workforce Housing Petitioner alleges that the County has more than sufficient affordable housing and that the Plan Amendments would add to the surplus of affordable housing by allowing for a residential density bonus if workforce housing is provided. “Workforce housing” is generally defined in Section 420.5095(3)(a), Florida Statutes, as “housing affordable to natural persons or families whose total annual household income does not exceed 140 percent of the area median income.” The Housing Element of the comprehensive plan encourages affordable housing. Citrus County has not established in its comprehensive plan a “cap” on affordable housing units. There is also no cap on affordable housing units established in Chapter 163, Florida Statutes, or in Florida Administrative Code Chapter 9J-5. Petitioner did not adequately explain how an amendment that encourages the provision of affordable housing for some of the persons who work on a site or in the local area could be inconsistent with the comprehensive plan, Chapter 163, or Rule 9J-5. Public Water and Sewer Services At the final hearing, Petitioner claimed that the Plan Amendments for the HHP Subarea require that the district be served by central water and sewer services, but do not specify what entity is required to provide the services. Stated in this form, Petitioner’s issue is without merit because Petitioner did not identify a provision of the comprehensive plan, Chapter 163, or Rule 9J-5 that requires an identification of the entity that will provide water and sewer services in the future. Petitioner stated at the final hearing that “What I’m attempting to do is to narrow [the issues] down to the urban sprawl issue because to me that is the strength and the meat of the argument.” Therefore, Petitioner’s issue regarding the provision of public water and sewer services is treated as an aspect of his allegation that the Plan Amendments would encourage urban sprawl, and is addressed below. Urban Sprawl Petitioner alleges that the Plan Amendments encourage urban sprawl because they would result in the prematurely and poorly planned conversion of rural lands, would “leapfrog” over undeveloped lands, and would add new residential units there are not needed. Florida Administrative Code Rule 9J-5.006(5), entitled “Review of Plans and Plan Amendments for Discouraging the Proliferation of Urban Sprawl,” includes 13 primary indicators that a plan amendment does not discourage the proliferation of urban sprawl. Discussed below are the indicators implicated by the evidence presented by the parties. The first indicator of urban sprawl refers to “low- intensity, low-density, or single-use development or uses in excess of demonstrated need.” The Plan Amendments call for a mix of land uses which are relatively high in intensity and density. Therefore, this indicator is not presented by the proposed Plan Amendments. The second indicator of urban sprawl is promoting significant amounts of urban development in rural areas at substantial distances from existing urban area while leapfrogging over undeveloped lands available and suitable for development. Respondents and Intervenor claim that this would not be leapfrog development because the land was used in the past for industrial and commercial purposes and because the port uses are water- dependent. A County planner testified that there is a deficit of residential units in the planning district in which the HHP site is located. However, the addition of 600 residential units (even more, if workforce housing units are included) a substantial distance from urbanized areas is an indicator of urban sprawl. The fourth indicator is failing to protect and preserve natural resources as a result of the premature or poorly planned conversion of rural lands. Petitioner presented no evidence to show that the Plan Amendments would fail to protect or preserve natural resources. Therefore, this indicator of urban sprawl is not present. Indicators 6 through 8 are related to the orderly and efficient provision of public services and utilities. Generally, urban sprawl is indicated when public facilities must be created or expanded to serve a proposed land use due to its density or intensity, and its distance from existing facilities. Public water and sewer lines are not currently available to the site, and the County has no plans to extend public water and sewer services to the site. The Plan Amendments require all development within the HHP to be served by central water and sewer. If on-site, central wastewater facilities are used, they must provide advanced wastewater treatment and reuse capability. Respondents and Intervenor assert that the Plan Amendments would reduce the development intensity that is allowed under the current land use designations and development approvals for the site. They presented evidence that there would be a reduction of the water and sewer usage that potentially could have been required to serve the land uses on the site. Florida Administrative Code Rule 9-5.006(5)(k) states that the Department “shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators.” However, there was insufficient evidence presented on past, present, and future public water and sewer utility capacity. The evidence was insufficient to determine whether there are pre-existing indicators of urban sprawl, or whether the current situation indicates urban sprawl based on a need to expand the capacity of public utilities to serve the site. Petitioner has the burden of proof. The record evidence is insufficient to support his claim that the Plan Amendments show a failure of Citrus County to discourage the proliferation of urban sprawl.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order finding that amendments CPA-09-13 and CPA-09-14 to the Citrus County Comprehensive Plan are “in compliance.” DONE AND ENTERED this 11th day of May, 2010, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2010.
The Issue This is a bid protest proceeding arising from the School Board's notice that it intends to reject all bids. The Petitioner, one of the bidders on the subject project, asserts that rejection of all bids would be illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact 1. In their Joint Pre-Hearing Stipulation the parties stipulated to the following facts, which they agreed could be taken as established without the need for further proof.? School Board Policies and Approved Design-Build Evaluation Procedures 1. A true and correct copy of School Board Policy 3320 concerning "Purchasing Policies" is submitted as Joint Exhibit 1. School Board Policy 3320 was adopted by SBBC's [the School Board of Broward County] governing board in the exercise of its rule-making authority and was last revised on September 7, 1993. 2. A true and correct copy of School Board Policy 7009 concerning Award of Design-Build Contracts is submitted as Joint Exhibit 2. School Board Policy 7009 was adopted by SBBC's governing board in the exercise of its rule-making authority on January 17, 1995. 3. A copy of SBBC's typical Document 00100 "Instructions - Request for Proposal" is submitted as Joint Exhibit 3. Invitation to Bid No. 21-174T 4. On or about September 15, 2000, SBBC advertised Invitation to Bid No. 21-174T ("IM") entitled "Concession Building (Design-Build) for Coral Springs High School." A copy of the ITB is submitted as Joint Exhibit 4. 5. Invitation to Bid No. 21-174T was not submitted by district staff to SBBC's governing board for approval prior to its issuance to the public. 6. SBBC had an open contract with Williams Engineering. Joint Exhibit 33. Williams was authorized by an SBBC project manager to proceed under its open contract with schematic design, design development, construction documents, construction contract administration and warranty services under the open contract for "Project 1151-99-03" which had the Project Title "Track Drainage, Grading, Concession Building Water, Sewer & Walkways, Driveway Relocation; Campus Site Master plan." Said project was to occur at Coral Springs High School- Joint Exhibit 32. 7. %ITB No. 21-174T contained the design criteria package prepared by Williams Engineering. The design criteria package for the subject project was not submitted to or approved by SBBC's governing board prior to issuance of ITB No. 21-174T. 8. No request for proposals (RFP) was issued by SBBC to solicit competitive proposals from qualified design-build firms for the design criteria package for the subject project. Instead, SBBC issued an ITB containing the design criteria package. The SBBC did not revise the ITB by addendum to become a RFP at any time prior to the opening of bids for this procurement. 9. The SBBC's governing board never approved the criteria, procedures and standards for the evaluation of ITB No. 21- 1741. 10. ITB 21-1741 did not include provisions for award that would require the Superintendent of Schools to recommend to SBBC's governing board not less than three design-build firms as the most qualified for this procurement. 11. ITB 21-1741 did not include provisions for award under which SBBC's governing board would interview the three finalists for the project and to award a contract for the project to one or more of said firms. Addenda 1, 2 and 3 12. Three addenda were issued by SBBC regarding Bid 21-1741. Addendum No. 2 was labeled as "RFP 21-1741." Addendum No. 3 was issued on September 28, 2000 and changed the reference in Addendum No. 2 from "RFP 21-1741" to that of "Bid 21-1741" and changed the bid posting date to October 11, 2000 at 3:00 pm. Joint Exhibits 5, 6 and 7. Post-Submittal Activities. 13. Pursuant to the ITB, SBBC opened bids for Bid 21-1741 on October 10, 2000. Joint Exhibit 4 at Page 1. Responses to the ITB were submitted by Petitioner BT Builders, Inc.; C.G.R Construction Company, Incorporated; and R.L. LaRoche, Inc. Joint Exhibits 8, 9 and 10. 14. The bid proposal submitted by C.G.R Construction Company, Inc., at the bid opening consisted of a cost proposal and was not accompanied by any drawings or specifications. Drawings for the project were presented to SBBC by C.G.R Construction Company, Inc., during SBBC's Meeting of November 9, 2000. 15. On or about October 11, 2000, SBBC posted an intended recommendation under the ITB for award of a contract to Petitioner BT Builders, Inc. The posted recommendation also recommended rejection of the bid of C.G.R. Construction Company, Incorporated for a failure to submit a package comprised of documents (including drawings, specification materials, narratives and other materials) responding to the Design Criteria Package. Joint Exhibit 11. 16. At the time of the October. 11, 2000 posting, the proposals submitted under Bid 21-174T had not been submitted to SBBC's governing board for evaluation or to SBBC's Consultant's Review Committee ("CRC'). Any review of the proposals made at this point was conducted by staff within SBBC's Facilities Department. 17. On or about October 13, 2000, C.G.R. Construction Company, Incorporated notified SBBC that the procedures being followed in this procurement were not in compliance with Section 287.055(10), Florida Statutes. This notification was presented to SBBC by C.G.R. in a document that characterized itself as "a formal written protest." Joint Exhibit 12. 18. On or about October 16, 2000, SBBC’'s Purchasing Department notified the proposers that the Recommendation/Tabulation that had been posted on October 11, 2000 had been withdrawn. Proposers were notified that a new date for posting a recommendation would be November 10, 2000 at 3:00 pm. Joint Exhibit 14. A subsequent notice informed the proposers that the new date for posting a recommendation would be November 13, 2000 at 3:00 pm. Joint Exhibit 15. 19. On or about October 19, 2000, SBBC's Facilities and Construction Management Department ("the Department") notified proposers under Bid No. 21-174T that SBBC's Consultant's Review Committee ("CRC') would consider the proposals for short-listing on November 2, 2000 at 3:00 pm. Proposers were further notified that, if a firm was short-listed by the CRC, the firm would make a presentation to SBBC's governing board on November 9, 2000 and that SBBC's governing board would make the final selection of proposers at that meeting. Joint Exhibit 13. 20. On November 2, 2000, SBBC's Consultant's Review Committee ("CRC") met and short-listed the proposals submitted for Bid No. 21-1-74T. A binder of materials regarding the project was delivered to SBBC staff by C.G.R Construction Company, Inc. on November 2, 2000, but was not distributed by SBBC staff to the CRC. The CRC short-listed all three proposers for consideration by SBBC's governing board. 21. The Department notified the proposers that interviews of the short-listed proposers would be conducted by its governing board on November 9, 2000. Each proposer was able to be present for each of the presentations made before SBBC's governing board. Joint Exhibit 16. 22. At a public meeting conducted on November 9, 2000, the governing body of SBBC considered the proposals submitted in response to Bid No. 21-174T and selected C.G.R. Construction Co., Inc., for award of a design-build contract. Joint Exhibits 17, 18 and 19. 23. On November 13, 2000, SBBC posted an intended recommendation under the ITB for award of a contract to C.G.R. Construction Co., Inc. Joint Exhibit 20. 24. On November 13, 2000, Petitioner BT Builders, Inc., filed with SBBC's Purchasing Department a notice of intent to protest regarding the proposed award of a contract to C.G.R. Construction Co., Inc., under Bid No. 21-174T. Joint Exhibit 21. 25. On or about November 20, 2000, Petitioner BT Builders, Inc., filed with SBBC's Purchasing Department its formal written protest of the proposed award of a contract to C.G.R. Construction Co., Inc., under Bid No. 21-174T. Joint Exhibit 22. 26. On December 4, 2000, a Committee designated by SBBC conducted a meeting with the Petitioner BT Builders, Inc. in order to provide an opportunity to resolve the protest by mutual agreement in accordance with Section 120.57(3) (d), Florida Statutes and School Board Policy 3320. During this meeting, it was argued by SBBC's staff that the terms and conditions of Bid No. 21-174T were not in material compliance with the procedures described in Section 287.055(10), Florida Statutes, and Rule 4.1(7) of the State Regulations for Educational Facilities ("SREF") or with School Board Policy 7009 ("Awarding of Design-Build Contracts"). The Committee voted that the recommendation to award a contract to C.G.R. Construction Co., Inc., should be rescinded and that a new recommendation should be posted for the rejection of all bids. Joint Exhibit 23. 27. On or about December 12, 2000, SBBC posted a Revised Recommendation/Tabulation that "the award to C.G.R. Construction be rescinded, and that all bids received be rejected, in accordance with School Board policy and procedures." Joint Exhibit 28. 28. SBBC notified BT Builders, Inc., that the school district considered the formal written pretest filed on or about November 20, 2000 to have been rendered moot by the Revised Recommendation/Tabulation which rescinded the former intended action and stated that a recommendation for rejection of all bids would be made. Joint Exhibit 24. 29. On December 15, 2000, BT Builders, Inc. filed with SBBC's Purchasing Department its notice of intent to protest regarding the proposed rejection of all bids. BT Builders also continued to protest the prior recommendation to award to C.G.R. Construction Co., Inc. Joint Exhibit 29. 30. On January 2, 2001, BT Builders, Inc. filed with SBBC's Purchasing Department its formal written protest regarding the proposed rejection of all bids. The formal written protest also continued to protest the earlier recommendation to award to C.G.R. Construction, Co., Inc. Joint Exhibit 30. Due to the closure of the school system for winter holiday recess, the filing of the formal written protest on January 2, 2001, was timely and occurred on the first business day following winter holiday recess. 31. SBBC scheduled a meeting with BT Builders, Inc., for January 12, 2001 to provide an opportunity to resolve the protest by mutual agreement in accordance with School Board Policy 3320 and Section 120.57(3) (d), Florida Statutes. That meeting was cancelled upon notification from BT Builders' attorneys that the protest was withdrawn. BT Builders subsequently informed SBBC that their attorneys had not been authorized to withdraw the protest or cancel the meeting. A new meeting date was then scheduled by SBBC. 32. On January 17, 2001, SBBC conducted the rescheduled meeting with Petitioner BT Builders, Inc. in order to provide an opportunity to resolve the protest by mutual agreement in accordance with Section 120.57(3) (d), Florida Statutes, and School Board Policy 3320. During this meeting, the parties were unable to resolve the protest by mutual agreement. Joint Exhibit 31. 33. On January 22, 2001, BT Builders, Inc. requested the referral of its formal written protest to the Florida Division of Administrative Hearings. 34. SBBC is proceeding to build the improvements that were the subject of this procurement through the use of its own personnel instead of seeking construction services from an outside vendor.
Conclusions For Petitioner: Thomas J. Ricci, Vice-President BT Builders, Inc. 1773 Blount Road, Suite No. 303 Pompano Beach, Florida 33069 For Respondent: Robert Paul Vignola, Esquire Broward County School Board K.C. Wright Administrative Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board issue a final order in this case dismissing the petition and denying all relief requested by the Petitioner. 18 DONE AND ENTERED this 24 “aay of June, 2001, in Tallahassee, Leon County, Florida. co yy Lllidtt ; Sue MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2 q day of June, 2001.
The Issue Whether the intended award of a contract for title search and examination services by Respondent, the Florida Department of Transportation, is contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact The Department is the agency of the State of Florida charged with coordinating a safe, viable, and balanced transportation system serving all regions of the state. § 334.044(1), Fla. Stat. The Department is authorized to enter contracts and agreements to help fulfill this duty. §§ 20.23(6), 334.044(1), and 335.02, Fla. Stat. The Department initiated this competitive procurement seeking a contract to provide title search and examination services (the "Title Services Contract"). The procurement's objective is to contract with a private vendor to provide title research services and reports to Department District 4. The solicitation at the center of this protest is Request for Proposal for Districtwide Title Search and Examination Services, DOT-RFP-21-4002-JR (the "RFP"). 2 By requesting a deadline for filing a post-hearing submission beyond ten days after the filing of the hearing transcript, the 30-day time period for filing the Recommended Order is waived. See Fla. Admin. Code R. 28-106.216(2). The initial term of the Title Services Contract is 60 months (five years). The Title Services Contract offers a maximum award of $1,150,000.00 for the length of the contract. The contract may be extended for up to five years upon mutual agreement. The Department issued the RFP on August 7, 2020.3 The Department received proposals from three vendors, including Guaranteed, AGS, and Entrust Abstrax, LLC ("Entrust"). Joe Ricardo served as the Department's Procurement Agent for the RFP, as well as drafted and prepared the RFP documents and forms. Mr. Ricardo expressed that the RFP's goal is to award the Title Services Contract to "the responsive and responsible Proposer whose proposal is determined to be the most advantageous to the Department." See RFP, Sections 1 and 7. Upon the Department's receipt of the three proposals, Mr. Ricardo reviewed the responses to ensure that each complied with the solicitation documents and contained all the required information and mandatory materials. The RFP required each vendor to include with their submission both a Technical Proposal and a Price Proposal. After his review, Mr. Ricardo determined that all three proposals were "responsive" to the RFP, and each 3 No vendor challenged the specifications in the RFP within 72 hours after the posting of the solicitation. vendor was qualified to perform the services for which the Department was seeking to contract.4 The Department opened the three Technical Proposals from Guaranteed, AGS, and Entrust on September 3, 2020. The Technical Proposals were to include responses explaining the vendor's "approach, capabilities, and means" to accomplish the tasks described in RFP, Exhibit "A," entitled "Scope of Services." See RFP, Sections 6 and 22.2. The Department awarded separate points for the Technical Proposals and the Price Proposals. To score the Technical Proposals, the Department appointed three individuals to serve on a Technical Review Committee (the "Review Committee"). The Review Committee consisted of District 4 employees Erika Ventura, Amelia Rodriguez-Alers, and Susanna Rowland. Ms. Ventura, who also served as the Project Manager for the Title Services Contract solicitation, selected the Review Committee members (including herself). After Mr. Ricardo opened the vendors' Technical Proposals, Ms. Ventura distributed them to the Review Committee members for their individual evaluation and scoring. The Review Committee members were to independently review the Technical Proposals and assess the vendors' capabilities, experience, and qualifications to provide both the desired services, as well as a quality product. 4 RFP, Section 21.1, stated that: A responsive proposal is an offer to perform the scope of services called for in this Request for Proposal in accordance with all requirements of this Request for Proposal and receiving seventy (70) points or more on the Technical Proposal. RFP, Section 21.1, further warned that: Proposals found to be non-responsive shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. Under the RFP's evaluation process, the vendors' Technical Proposals were awarded up to 100 points. The Review Committee graded the Technical Proposals on three criteria, with varying point values, as follows: Prior Relevant Experience and Qualification of Firm and Employees (40 total points). This criteria was subdivided into three parts, consisting of: Technical Staff Experience (25 points); Organization and Management Plan (5 points); Experience and Business History of the Proposer (10 points); Proposer's Technical Plan (Point Value – 40 total points); Quality Control Plan (Point Value – 20 total points). The Review Committee members scored the Technical Proposals of AGS and Guaranteed as follows: Ms. Ventura: Prior Relevant Experience: Technical Staff Experience (25 points): AGS: 24 points Guaranteed: 23 points Organization and Management Plan (5 points): AGS: 4 points Guaranteed: 4 points Experience and Business History of the Proposer (10 points): AGS: 9 points Guaranteed: 9 points Proposer's Technical Plan (40 points): AGS: 38 points Guaranteed: 35 points Quality Control Plan (20 points): AGS: 17 points Guaranteed: 15 points Ms. Ventura's Total Technical Proposal Score (maximum of 100 points): AGS: 92 points Guaranteed: 86 points Ms. Rodriguez-Alers: Prior Relevant Experience: Technical Staff Experience (25 points): AGS: 25 points Guaranteed: 25 points Organization and Management Plan (5 points): AGS: 5 points Guaranteed: 5 points Experience and Business History of the Proposer (10 points): AGS: 10 points Guaranteed: 8 points Proposer's Technical Plan (40 points): AGS: 38 points Guaranteed: 35 points Quality Control Plan (20 points): AGS: 20 points Guaranteed: 18 points Ms. Rodriguez-Alers' Total Technical Proposal Score (maximum of 100 points): AGS: 98 points Guaranteed: 91 points Ms. Rowland: Prior Relevant Experience: Technical Staff Experience (25 points): AGS: 25 points Guaranteed: 23 points Organization and Management Plan (5 points): AGS: 5 points Guaranteed: 4 points Experience and Business History of the Proposer (10 points): AGS: 10 points Guaranteed: 10 points Proposer's Technical Plan (40 points): AGS: 40 points Guaranteed: 39 points Quality Control Plan (20 points): AGS: 20 points Guaranteed: 19 points Ms. Rowland's Total Technical Proposal Score (maximum of 100 points): AGS: 100 points Guaranteed: 95 points All three Review Committee members testified at the final hearing. In describing how they approached the review process, the members uniformly stated that they did not receive any formal oral or written instructions or training on how to evaluate or score the vendors' Technical Proposals. Neither did they communicate or consult with each other after Ms. Ventura distributed the proposals. At the final hearing, each member described how they awarded points, as follows: Erika Ventura: Ms. Ventura works in the Survey and Mapping section for District 4. As Project Manager for the solicitation, Ms. Ventura assisted in drafting the RFP and the Scope of Services. She also helped coordinate the RFP timelines and how the solicitation was issued. Ms. Ventura explained that District 4 initiated the procurement to obtain outside support for when it acquires property for Department use. District 4 was looking for vendors who could: 1) identify property through legal descriptions and understanding the same, 2) use available programs and systems to conduct title searches, and 3) map property using legal descriptions. District 4 wanted to contract with a vendor who had the ability to search property records and provide abstract and title reports at the Department's request. In selecting the Review Committee members, Ms. Ventura chose Ms. Rodriguez-Alers and Ms. Rowland based on their experience with the services for which the Department was looking to contract. Ms. Ventura described Ms. Rodriguez-Alers as an "end user" who receives and uses title reports. Ms. Ventura conveyed that Ms. Rowland works in the District 4 document and title section and reviews documents produced using District 4's "eTitle" program. When awarding points to the Technical Proposals, Ms. Ventura testified that she used the same analysis and evaluation process for each proposal. She read each Technical Proposal independently, and determined whether she believed the vendor could provide the services District 4 might request. She then awarded points as appropriate. Ms. Ventura formulated her scores based on the services described in the Scope of Services. For additional guidance, she referred to RFP, Section 30.4, which listed the criteria she was to evaluate. Ms. Ventura stated that she reached her scores based only on the information contained in each proposal. She did not compare proposals. Neither did she rely upon any outside information or prior knowledge of the vendors. Ms. Ventura denied that she preferred one vendor over another or gave any vendor a scoring advantage. At the final hearing, Ms. Ventura relayed that she could not recall the exact reasons why she awarded more points to AGS's Technical Proposal versus Guaranteed's Technical Proposal. However, generally, she commented that AGS provided an excellent organizational chart that clearly set forth the names, experience, and qualifications of the staff members AGS selected to manage the Title Services Contract. Ms. Ventura also appreciated how AGS described how its "well balanced team" would "tackle" the title search and examination tasks, as well as AGS's "Work Flow" flowchart that presented a checklist for how AGS would approach its work. Summing up her score for AGS, Ms. Ventura voiced that AGS showed that it possessed the technical knowledge and "vast" experience to provide the services needed. Ms. Ventura added that AGS's Technical Proposal demonstrated that it could manage and perform all the services assigned sought through the RFP. Amelia Rodriguez-Alers: Ms. Rodriguez-Alers is a certified surveyor and mapper for District 4. She believed that she was selected for the Review Committee based on her familiarity with mapping services. Ms. Rodriguez- Alers explained that she will be an "end user" of the title reports and abstract services sought through the RFP. When scoring the proposals, Ms. Rodriguez-Alers stated that she independently evaluated each vendor's proposal. Further, to assess the vendors' abilities to perform the services requested, Ms. Rodriguez-Alers assigned the scores using only the information contained in the proposal. Ms. Rodriguez-Alers described her scoring process as "comparative." First, she read through the RFP and the Scope of Services to familiarize herself with the terms of the solicitation. Next, she read each proposal individually. Ms. Rodriguez-Alers then assigned the maximum points she believed appropriate based on the information contained within each proposal. Once she had completed that step, Ms. Rodriguez-Alers then compared all the proposals with each other, and adjust her scores accordingly. If she determined that one vendor's Technical Proposal was not as comprehensive as another's, or did not satisfactorily provide the requested information, she discounted points. Addressing why she awarded AGS a higher score after comparing it to Guaranteed's Technical Proposal, Ms. Rodriguez-Alers stated that both AGS and Guaranteed demonstrated that they were capable of performing the services requested. However, generally, she found that the manner in which AGS presented information was better, and more complete, than what Guaranteed provided. For instance, AGS's Technical Proposal clearly identified each "team member" who would support the Title Services Contract, as well as the specific service he or she would perform for the contract. AGS also laid out the percentage of available time each team member would dedicate to District 4 service requests. Guaranteed's Technical Proposal, on the other hand, did not sufficiently explain how much time each staff member would actually dedicate to District 4 projects and responsibilities. AGS's Technical Proposal also recorded much more experience for each team member as opposed to that described in Guaranteed's Technical Proposal. Further, Ms. Rodriguez-Alers commented that Guaranteed's Technical Proposal indicated that several of its employees were attorneys who also worked for Myron E. Siegel, P.A. Guaranteed, however, did not describe how each joint employee would divide their time between the two employers. Consequently, she reduced her score for Guaranteed's Technical Staff Experience. Finally, Ms. Rodriguez-Alers appreciated how AGS's Technical Proposal featured a chart tracking its "Work Flow," as well as included a more complete explanation of its Quality Control Plan and the innovative concepts AGS might employ to accomplish District 4 tasks. Susanna Rowland: Ms. Rowland works as a Title Examiner for District In her job, Ms. Rowland performs a variety of tasks including bookkeeping, researching properties and roadways, and general office support. To prepare to score the Technical Proposals, Ms. Rowland read through the RFP and the Scope of Services to understand the criteria she was to consider. When scoring, Ms. Rowland testified that she read each proposal independently, then reviewed whether she believed the vendor could meet and provide the services requested in the Scope of Services. She did not compare the Technical Proposals directly to each other, but relied solely on the information contained within each submission. Ms. Rowland further expressed that she used the same standards to evaluate every proposal, and scored all proposals using the same method. Ms. Rowland awarded AGS's Technical Proposal a perfect score (100 points). In describing why she assigned AGS this score, Ms. Rowland commented that she did not find AGS's Technical proposal "deficient in any way." She explained that AGS's Technical Proposal amply demonstrated its ability to provide all services sought through the RFP. Testifying why she awarded AGS a higher score than Guaranteed, Ms. Rowland expressed that, generally, AGS showed that it possessed more experience in the services District 4 needed. For instance, AGS's Technical Proposal revealed that AGS's staff had "long-term" experience working on government projects. In addition, AGS had worked on a number of other contracts for government agencies handling right-of-way property issues. Conversely, Guaranteed's Technical Proposal only generally described its staff members' experience, and reported that Guaranteed had worked on fewer government contracts. Similarly, AGS outlined a "comprehensive" management plan, whereas Guaranteed's management plan was basic and contained less detail. Further, Ms. Rowland found that AGS's Technical Proposal provided a very thorough description of its Quality Control Plan. She was particularly impressed that AGS intended to conduct periodic audits of its examinations. Conversely, Petitioner's Technical Proposal proposed a minimal amount of internal audits. Once the Review Committee members independently calculated the points they awarded to each Technical Proposal, they returned their scores to Mr. Ricardo in the Procurement Office. Mr. Ricardo then averaged the scores into one composite score for each vendor. AGS received the most points with an average score of 96.68. Guaranteed came in second with an average score of 90.66. On September 28, 2020, the Review Committee met at a public opening to announce their scores for the Technical Proposals. After scores for the Technical Proposals were read at the public meeting, the Price Proposals were opened. At that point, Mr. Ricardo, in his role as the Procurement Agent, calculated and assigned points for the Price Proposals. Mr. Ricardo used the price evaluation procedure set forth in RFP Section 30.4.b. Each Price Proposal could receive up to 43 points based on a comparison of the vendors' respective prices. Mr. Ricardo explained that the low bidder would be awarded the maximum points for price (43 points). Thereafter, the Department calculated each score based on the following formula: (Low Price/Proposer's Price) x Price Points = Proposer's Awarded Points. Mr. Ricardo recounted that the Department designed the price formula to establish a base line with which to compare all proposals. Based on the formula, AGS's proposed price ($7,143,250.00) was the second highest price submitted of the three bidders and received 39.48 points. Guarantee's price ($8,000,250.00) was the highest price submitted and, correspondingly, received the lowest points awarded (35.25 points). Regarding AGS's Price Proposal, at the final hearing, Mr. Ricardo testified that, while reviewing and verifying AGS's prices, he discovered a discrepancy in the number AGS wrote as its subtotal price to electronically process title information. However, as more fully discussed below, Mr. Ricardo determined that the figure was actually a transcription error by AGS when it transferred a price calculation from a previous page. Consequently, because AGS's oversight did not require Mr. Ricardo to change either AGS's total price or the final points awarded to AGS's Price Proposal, Mr. Ricardo deemed the mistake a "minor irregularity." Consequently, he did not disqualify AGS's proposal and allowed it to be considered for award of the Title Services Contract.5 At that point, Mr. Ricardo combined the total points for the Technical Proposals and the Price Proposals for each vendor. AGS received the highest 5 Mr. Ricardo testified that Guaranteed's Price Proposal did not contain any errors. However, Entrust's Price Proposal did include several calculation errors, which Mr. Ricardo also adjusted to determine its final price score. As with AGS's Price Proposal, Mr. Ricardo did not believe that changes he made to Entrust's prices provided Entrust's proposal a competitive advantage or were unfair. ranking with a total score of 136.16. Guaranteed received the second highest ranking with a score of 125.91. On October 12, 2020, the District 4 Selection Committee met to review the total scores and to make the final award of the Title Services Contract. AGS's proposal was determined to hold the highest combined score. Thereafter, the Selection Committee awarded the RFP to AGS. That same day, Mr. Ricardo posted the Proposal Tabulation which served as notice of the Department's intent to award the Title Services Contract to AGS. He asserted that, in selecting AGS, the Department determined that AGS's proposal was the most advantageous to the Department and the State of Florida. Guaranteed's Protest: Guaranteed contends that the methodology, processes, and procedures the Department followed in accepting and evaluating AGS's proposal were clearly erroneous, contrary to competition, arbitrary, or capricious. Guaranteed asserts that the Department should have rejected AGS's proposal as nonresponsive. Alternatively, Guaranteed contends that the Review Committee members awarded AGS's Technical Proposal points to which it was not entitled, and as a result, AGS improperly received the highest cumulative point total and was undeservedly awarded the Title Services Contract. Myron Siegel testified on behalf of Guaranteed. Mr. Siegel is Guaranteed's President and sole owner. He is also a licensed Florida attorney, as well as a licensed Florida real estate broker and title agent. Mr. Seigel oversaw his staff's preparation and submission of Guaranteed's response to the RFP. Mr. Siegel relayed that he started Guaranteed in 2013 in Hollywood, Florida. Guaranteed operates across the State of Florida offering "full services" in abstract, mapping, and title search and examination services. Mr. Siegel represented that Guaranteed currently provides these services to the state through contracts with Department District 4 and District 6. Guaranteed (through Mr. Siegel) presented a number of arguments contesting the Department's award to AGS. Each specific challenge, along with the Department's response, is discussed below. AGS's Price Proposal Included a Material Mathematical Error: Guaranteed asserts that the Department should have disqualified AGS's proposal based on a material mathematical error in AGS's Price Proposal. Specifically, Guaranteed argues that when Mr. Ricardo "reformed" AGS's Price Proposal to remedy a math error, he provided AGS an unfair competitive advantage. Consequently, by correcting AGS's mistake, then proceeding to score its Price Proposal, the Department acted "contrary to competition." Department Response: As referenced above, Mr. Ricardo explained that, in its Price Proposal, AGS itemized its anticipated prices for twelve different title search and examination services. One of these services was "Electronic Processing of Title Information." On this price page, AGS recorded the unit price for eight "types of services" associated with this category.6 At the bottom of the price page, AGS calculated the subtotal for all the services related to Electronic Processing of Title Information as $39,125.00. Following the 12 price pages for the separate title search and examination services, AGS completed the final page entitled "Summary of Bid Totals." The Summary page listed the subtotal prices for each of the 12 categories, then calculated a "Grand Total/Proposer's Price Amount." According to AGS's Summary page, the Grand Total for all its services equaled $7,143,250.00. 6 Blank forms for the 12 price pages each vendor was to use to prepare its Price Proposal were provided as part of RFP Exhibit "C." On the Summary page, however, in the block reflecting the subtotal for Electronic Processing of Title Information services, AGS incorrectly wrote the figure "$11,725.00" instead of "$39,125.00."7 Despite this mistake, in calculated its Grand Total/Proposer's Price Amount, AGS correctly used the number $39,125.00 to reach the total sum of $7,143.250.00, which was the official price AGS proposed to perform the Title Services Contract. Mr. Ricardo, in reviewing and assigning the price score to AGS's Price Proposal, reached the conclusion that the "$11,725.00" subtotal AGS wrote on the Summary page for Electronic Processing of Title Information was a transcription error. To confirm his suspicion, Mr. Ricardo added all 12 subtotals together, including the correct amount for Electronic Processing of Title Information from the price page ($39,125.00), and confirmed that the Grand Total of AGS's Price Proposal equaled $7,143,250.00, just as AGS ascribed at the bottom of its Summary page. Therefore, in preparing AGS's proposal for reviewed by the Selection Committee, Mr. Ricardo amended AGS's Price Proposal to reflect the correct number ($39,125.00). Mr. Ricardo testified that, in correcting this error, he did not modify or recalculate AGS's Price Proposal. Instead, he simply replaced an incorrect number with the number that AGS "obviously" intended to use and did, in fact use in adding up the subtotal to reach the Grand Total. Mr. Ricardo called the mistake in AGS's proposal a "minor irregularity." Mr. Ricardo testified that a "minor irregularity" is any error or omission that does not affect competition or impact the outcome of the solicitation. Mr. Ricardo conveyed that the "math mistake" in AGS's proposal did not change its total price, or relieve AGS (as the winning vendor) from 7 In the Summary, the subtotals for the five services directly above "Electronic Processing of Title Information" are listed as "$11,725.00." It appears that the individual who transferred the subtotals from the 12 separate pricing spreadsheets to the Summary page in AGS's price proposal inadvertently inserted the number from the wrong category and overlooked the correct number ($39,125.00) from the previous page. any responsibilities under the Scope of Services. Neither did it adversely prejudice the other vendors. Therefore, because he was simply inserting the correct number that was previously listed in AGS's submission, his corrective action did not alter AGS's ultimate price to perform the Title Services Contract. Consequently, the modification did not provide AGS's proposal a competitive advantage, nor did it affect the overall outcome of the solicitation. AGS still received the highest total score for the RFP based on the proposal it submitted in response to the solicitation. Mr. Ricardo further testified that he did not consider the mistake in AGS's proposal "material." If he or the Department had determined that the discrepancy was "material," the Procurement Office would have disqualified AGS's proposal, and it would not have been eligible for award. In response to questioning, Mr. Ricardo conceded that the term "minor irregularity" is not defined in the solicitation documents. Neither is he aware of any Department written instructions or policies for handling math errors in proposals. However, for authority to exercise the option to waive AGS's "minor irregularity," Mr. Ricardo pointed to State of Florida purchasing form PUR 1001 entitled "General Instructions to Respondents," which the RFP references in Sections 35.2 and 36. (The RFP also contained a hyperlink which enabled vendors to directly access the PUR 1001 through the internet.) PUR 1001 states at paragraph 16: Minor Irregularities/Right to Reject. The Buyer reserves the right to accept or reject any and all bids, or separable portions thereof, and to waive any minor irregularity, technicality, or omission if the Buyer determines that doing so will serve the State's best interests. The Buyer may reject any response not submitted in the manner specified by the solicitation documents. (emphasis added). PUR 1001 defines "buyer" as "the entity that has released the solicitation," i.e., the Department in this procurement. The initial advertisement for the RFP also stated that, "The Department reserves the right to reject any and all bids or accept minor irregularities in the best interest of the State of Florida." Based on the testimony at the final hearing, the Department witnesses credibly attested that the transcription mistake in AGS's Price Proposal was a "harmless error" that did not confer AGS a competitive advantage, either in competition or price. Neither was the mistake a "material" error that should have rendered AGS's proposal nonresponsive. Accordingly, the Department persuasively argued that it should not have disqualified AGS's proposal due to its transcription error. AGS's Technical Proposal is Deficient in that it Fails to Include or Reference a Real Estate Attorney: Guaranteed contends that certain services described in the RFP and the Scope of Services may only be performed by a licensed real estate attorney. AGS's Technical Proposal, however, does not identify a real estate attorney on its staff. Consequently, Guaranteed argues that the Department should have disqualified AGS's proposal because AGS cannot perform all the services required under the RFP. Supporting its position, Guaranteed pointed to RFP Sections 9.1.2 and 22.2, and Scope of Services, Section 2.1, which required each vendor to: Identify an active Florida licensed attorney practicing in real property or an active Florida licensed title (real property) agent. Guaranteed advanced that the document preparation services described in Scope of Services, Section 4.1.8, which specifically included "conveyances, releases, satisfactions or any other document(s)," can only be legally prepared by a licensed real estate attorney, not a title agent. Consequently, because AGS's Technical Proposal did not identify a licensed real estate attorney on its staff, AGS could not fulfill the Scope of Services. Department Response: In responding to this point, Mr. Ricardo, as well as every Review Committee member, commented that neither the RFP nor the Scope of Services required any vendor to identify a real estate attorney on its staff to perform any specific task as part of the Title Services Contract. Mr. Ricardo (and each Review Committee member) was quick to point out that the language found in RFP Sections 9.1.2 and 22.2 states that each vendor must employ a real property attorney "or" a licensed title agent. AGS's Technical Proposal lists three licensed title agents on its staff, which made it compliant with the RFP requirements. Consequently, Mr. Ricardo testified that no legal or procedural basis exists for the Department to find AGS's Technical Proposal ineligible for award due to its failure to include a real estate attorney. During her testimony, Ms. Ventura further explained that, as part of the Title Services Contract, District 4 might request the vendor's assistance to prepare title documents in the event District 4 is shorthanded. However, if District 4 should need document support, Ms. Ventura anticipated that the vendor would be provided templates of the pertinent forms, which it could complete. For her part, Ms. Rowland added that, while AGS may not have a real estate attorney on its staff, AGS's proposal indicated that it did have access to outside legal support, if necessary. Accordingly, based on the evidence testimony adduced at the final hearing, the Department persuasively countered Guaranteed's argument that AGS's Technical Proposal should have been deemed nonresponsive or its score reduced based on AGS's failure to identify a licensed real property attorney on its staff. AGS's decision to identify three Florida licensed title agents clearly meets the terms of the RFP. AGS's Technical Proposal is Deficient in that it Fails to Describe its eTitle capability: Guaranteed contends that AGS's Technical Proposal was deficient in that it did not address AGS's technological capability to use District 4's electronic title report database software known as "eTitle." Scope of Services Section 4.1.7 obliged each vendor to have the ability to utilize the "eTitle" software, stating: The Department has designed the electronic title report database software known as eTitle. … The Department requires that the Vendor have the appropriate staff and technological capability to process information and reports through said eTitle. Section 4.1.9.5 adds that services a vendor may provide included, "Scanning and indexing hard copy title reports into eTitle." Guaranteed complains that AGS's Technical Proposal is completely bereft of any information regarding its technological capability to use eTitle. Therefore, AGS's score should reflect this omission. Guaranteed alleges that the Review Committee members, however, did not deduct any points from AGS's proposal due to its failure to show its eTitle capability. Guaranteed further claims that two of the Review Committee members (Ms. Rodriguez-Alers and Ms. Rowland) went outside the four corners of the AGS's Technical Proposal and assumed critical capabilities that AGS did not state it had. Consequently, the Review Committee acted arbitrarily and/or gave AGS a competitive advantage on this factor. Department Response: Commenting on the RFP conditions regarding eTitle, Ms. Ventura explained that eTitle is a computer program that District 4 specifically developed to help process property title information. For the Title Services Contract, the vendor would be required to input a title report into the eTitle data base, which District 4 personnel could then access. Ms. Rowland added that eTitle is a program that captures information contained in a title report, such as encumbrances. Therefore, to comply with the Title Services Contract, each vender must be familiar with and have the ability to use eTitle. At the final hearing, Ms. Ventura could not recall how she scored AGS's eTitle capability. Ms. Rodriguez-Alers, on the other hand, explained that AGS's Technical Proposal referenced eTitle in its "Work Flow" chart, which provided "a summary of the specific procedures outlined … and will be used in our quality control section to illustrate the comprehensive checkpoint process we have identified." Ms. Rodriguez-Alers specifically pointed to the sixth step of the Work Flow that stated that, "Completed research is input into eTitles database." In addition, AGS's "Quality Control" flowchart relayed that "FDOT Research Form allows for quick input into eTitle database." Ms. Rodriguez-Alers also observed that the biographical information AGS included for staff member Kimberly Haddix stated that Ms. Haddix had worked on a prior contract with District 4 as the "the lead abstractor for this contract since its inception in 2010." Therefore, Ms. Rodriguez-Alers surmised that Ms. Haddix was personally familiar with eTitle based on the fact that District 4 uses eTitle in all of its title report contracts. Ms. Rodriguez-Alers conceded that AGS's Technical Proposal did not describe, in detail, the actual technological resources it would rely upon to process eTitle reports. However, she remarked that Section 4.1.7 did not require vendors to describe the specific office equipment they had available. The Scope of Services only instructed each vendor to represent whether it had "the appropriate staff and technological capability" to produce eTitle reports, which she believed that AGS did. Consequently, Ms. Rodriguez-Alers did not deduct points from AGS's Technical Proposal for not detailing the specific technological resources AGS would use to process eTitle reports. Ms. Rowland, in awarding her (perfect) score, also acknowledged that AGS's Technical Proposal contained limited information discussing eTitle. However, she stated that she personally knew that AGS had eTitle experience based on her knowledge of a prior contract AGS worked on for District 4 from 2010 through 2017. Therefore, she assumed that AGS had the present technological capability and resources to use eTitle for the Title Services Contract. Ms. Rowland subsequently clarified her testimony attesting that, like Ms. Rodriguez-Alers, she remembered that "there was a mention of [eTitle] in [AGS's] proposal somewhere." The Department witnesses cogently testified that AGS presented sufficient information within its Technical Proposal regarding its eTitle staffing and technological capabilities to demonstrate that it could meet the performance requirements of the Scope of Services, as well as to be evaluated on the same. The Review Committee members satisfactorily established that the scores they awarded to AGS were based on information contained within the "four corners" of its Technical Proposal. Ms. Rodriguez-Alers and Ms. Rowland effectively articulated that the RFP did not require a vendor to provide more information on eTitle other than to show that it was familiar with and had the ability to use the program. Further, regarding their testimony that they were familiar with AGS's work on a prior contract, Ms. Rodriguez-Alers and Ms. Rowland identified provisions within AGS's Technical Proposal upon which they based their evaluation, and credibly relayed that they did not pull from extraneous information when formulating their scores. Significantly, they both pointed to the fact that AGS's Technical Proposal referenced eTitle in its "Work Flow" charts, as well as mentioned AGS's previous work with District 4, which sufficiently enabled them to evaluate AGS's eTitle aptitude when scoring its proposal. Accordingly, the Department persuasively negated Guaranteed's argument that the AGS's Technical Proposal lacked the requisite information regarding its eTitle capability in order to be effectively evaluated by the Review Committee. AGS's Proposal should be Disqualified Because AGS Did Not Return the "Questions and Answers No. 1" Form to the Department Prior to the Award of the RFP: On August 20, 2020, the Department issued a page entitled "Questions and Answers No. 1" (the "Q&A") to be added as part of the RFP. The Q&A notified vendors of a Department response to a question regarding the Scope of Services. The Q&A specifically announced that a prospective bidder inquired whether the Department would provide any waivers or flexibility in reporting Code Enforcement Liens filed against other property by industrial lenders. The Department answered: In accordance with item Exhibit A, page A-3, Section 4.1, the Department may allow flexibility to follow title industry standards regarding Code Enforcement Liens and those type of lenders, however, the Vendor will be required to conform to the accepted standards of care in the title industry in compliance with the Florida Statutes, Florida Bar, Real Property, Probate and Trust Law Section, Uniform Title Standards, Florida Department of Transportation Right of Way Procedures Manual Land Title Section 7.15 …, the District Four Title Search and Examination Guidelines (dated November 2013 – see Exhibit D attached) and any applicable local, state, and federal guidelines. The Q&A then stated: Proposers must acknowledge receipt of this document by completing and returning to the Procurement Office with their proposal, by no later than the time and date of the proposal opening. Failure to do so may subject the bidder/proposer to disqualification. AGS did not return the Q&A to the Department. Consequently, Guaranteed argues that AGS's proposal should be disqualified. (Guaranteed timely returned a signed Q&A.) Department Response: At the final hearing, Mr. Ricardo explained that the Department issued the Q&A to ensure that vendors fully understood the Scope of Services. Mr. Ricardo testified that he was aware that AGS did not return the Q&A with its proposal. However, he did not disqualify AGS based on two reasons. First, Mr. Ricardo was quick to point out that, according to the language in the Q&A, failure to return the document only "may" subject the vendor to disqualification. No conditions or terms in the solicitation documents required the Department to reject an otherwise responsive proposal based on the vendor's failure to submit a signed Q&A. Second, Mr. Ricardo considered AGS's failure to return the Q&A form a "minor irregularity," which did not require him to disqualify its proposal. Mr. Ricardo explained that the Q&A's purpose was simply to have vendors acknowledge receipt of the Department's answer to a question about the Scope of Services. Whether they returned the Q&A or not, the vendors were not supplementing their Technical or Price Proposals or changing the services to be provided under the RFP. Neither did AGS's failure to return the Q&A relieve it of any requirements of the RFP or materially affect either the Review Committee's final scores or the Selection Committee's determination that AGS's proposal presented the most advantageous terms for the Department. Accordingly, because, in his judgment, AGS's failure to submit a signed Q&A did not modify any information that was to be evaluated or scored, the Department was not required to declare AGS's proposal nonresponsive or subject to disqualification. Mr. Ricardo's explanation of the Department's decision to treat AGS's failure to sign and return the Q&A as a "minor irregularity" was supported by the testimony of Jessica Rubio, the District 4 Procurement Officer. Ms. Rubio described the Q&A as a "clarifying question" that had no impact on either AGS's total score or the final ranking of the vendors' proposals. Based on this testimony, Mr. Ricardo's decision not to disqualify AGS's proposal for neglecting to submit the Q&A is credible and is credited. No evidence shows that the Department's decision to waive AGS's failure to return the Q&A conferred upon it any advantage over other vendors, either in competition or price. Neither did it render AGS's proposal nonresponsive to the terms of the RFP. AGS's Proposal Should be Disqualified Because AGS Did Not Return Addendum No. 1 to the Department Prior to the Award of the RFP: On September 24, 2020, the Department issued Addendum No. 1 (the "Addendum") to the three vendors who submitted proposals. The Addendum notified the vendors of a change to the RFP, stating: Request for Proposal, page 4 (containing the Timeline) is hereby replaced with the attached, revised page 4 with a revised timeline. The changes are highlighted in yellow. The Addendum further directed that: Proposers must acknowledge receipt of this Addendum by completing and returning to the Procurement Office with their Proposal via email at D4.Purch@dot.state.fl.us, by no later than the time and date of the proposal opening. Failure to do so may subject the Proposer to disqualification. AGS did not return the Addendum to the Department. Consequently, Guaranteed argues that AGS's proposal should be disqualified. (Guaranteed did timely return a signed Addendum.) Department Response: At the final hearing, Mr. Ricardo explained that the original Timeline included in the RFP recorded the "critical dates and actions" for the solicitation process. Mr. Ricardo relayed that, prior to issuing the RFP on August 7, 2020, the Procurement Office felt comfortable calendaring certain key dates, such as when proposals were due (September 3, 2020), when the Department would hold the public opening (September 28, 2020), and when the Department would post the intended award (October 12, 2020). For the two entries describing how vendors could attend the Public Selection Meetings on September 28, 2020, and October 12, 2020, however, the Procurement Office wrote on the Timeline "Location or GoToMeeting: TBD." Mr. Ricardo recounted that, at the time the RFP was publicized, he was still considering whether vendors would be allowed to attend in person, or should call in. Consequently, to clarify the "TBD" entries, the Department issued the Addendum informing vendors of the updated "Location or GoToMeeting" information. Attached to the Addendum was a "revised page 4," which modified (and highlighted in yellow) the two TBD entries to read, respectively, "GoToMeeting Call-in: 1 (408) 650-3123 Access Code: 163-488- 789," and "GoToMeeting Call-in: 1 (571) 317-3122 Access Code: 230-006-965." Mr. Ricardo explained that the sole purpose of the Addendum was to inform the vendors how to remotely access two public meetings on the procurement schedule. Mr. Ricardo testified that he was aware that AGS did not produce a signed Addendum to be included in its proposal. However, as with the Q&A form, he did not disqualify AGS based on two reasons. First, the Addendum contained the same qualifying language as the Q&A stating that the failure to return a signed Addendum only "may" subject the vendor to disqualification. No conditions or terms in the solicitation documents required the Department to automatically reject an otherwise responsive proposal if the vendor failed to submit the Addendum. Second, like the Q&A, Mr. Ricardo considered AGS's lapse to be a "minor irregularity." Mr. Ricardo explained that the Addendum's purpose was simply to have vendors acknowledge how they could access two procurement events. By returning the Addendum (or not), the vendors were not supplementing their Technical or Price Proposals. Neither did AGS's failure to return the Addendum impact the Review Committee's final scores or the Selection Committee's determination that AGS's proposal represented the most advantageous to the state. Mr. Ricardo characterized the Addendum as a "minor … informational posting." Accordingly, because (in his judgment) the Department had the ability to waive AGS's failure to submit a signed Addendum as a "minor irregularity," Mr. Ricardo believed that he was not required to disqualify AGS's proposal. Ms. Rubio also supported Mr. Ricardo's decision to treat AGS's failure to return the Addendum as a "minor irregularity." Ms. Rubio expressed that the Addendum's purpose was to notify vendors of two changes to the solicitation Timeline. The Addendum, however, did not affect the services the vendors would provide through the Title Services Contract or a proposal's final score. Based on this testimony, Mr. Ricardo's decision not to disqualify AGS's proposal for failure to submit the Addendum is credible and is credited. No evidence shows that the Department's decision to waive AGS's neglect to return the Addendum conferred upon it any advantage over other vendors, either in competition or price. Neither did it render AGS's proposal nonresponsive to the terms of the RFP. AGS's Technical Proposal is Deficient in that it Failed to Include a Licensed Mapper: Guaranteed asserts that certain services identified in the RFP may only be accomplished by a licensed "mapper." Specifically, Scope of Services Section 3.2, states that "[t]he Vendor must have the ability to follow out and map/plot complex legal descriptions and determine whether an instrument of record impacts the property under search." Guaranteed contends that only someone licensed as a surveyor and mapper by the State of Florida may legally perform these tasks. AGS's Technical Proposal, however, does not identify a licensed surveyor and mapper on its staff. Consequently, AGS's staff does not include persons qualified to provide all the services required under the RFP, and its Technical Proposal should have been evaluated accordingly. Guaranteed further pointed to the fact that, in its Technical Proposal, AGS held out one of its employees, Kimberly Haddix, as a "mapping specialist." However, AGS's Technical Proposal did not contain any information showing that Ms. Haddix holds a license as a professional surveyor and mapper or is otherwise capable of providing mapping services. In awarding AGS points for its mapping services, Guaranteed argues that the Review Committee members made assumptions outside the four corners of AGS's proposal. Department Response: Ms. Rodriguez-Alers, calling on her familiarity with mapping services, described "mapping" as "sketching the property." Ms. Rodriguez-Alers explained that title reports contain the written description of property boundaries. A "mapper" puts property descriptions into a detailed, color-coded sketch or map. Ms. Rodriguez-Alers added that if the Department encounters a property dispute, mapping helps the Department verify its ownership rights to the property. Accordingly, District 4 desired the winning vendor to be able to prepare sketches of the property at issue. Mr. Ricardo testified that the RFP only required vendors to have someone on their staff who is proficient in mapping. The RFP did not require vendors to employ someone who actually holds a surveyor and mapper license. Ms. Rodriguez-Alers agreed that the RFP does not require the vendor's "mapper" to hold a state license. Instead, District 4 simply needs someone who is able to create a drawing of the property using the appropriate software. Further, in evaluating how AGS would provide mapping services requested through the Title Services Contract, every Review Committee member pointed to information within Ms. Haddix's resume that conveyed that AGS considered her to be its "mapping specialist." AGS's Technical Proposal further represented that Ms. Haddix is familiar with certain tools used to identify properties such as IcoMap and Deed Plotter. During her testimony, Ms. Ventura also commented that the RFP did not require the vendor to have a professional mapper or surveyor on its staff. When she evaluated AGS's Technical Proposal, Ms. Ventura believed that Ms. Haddix appeared fully capable of providing the mapping services necessary under the RFP's Scope of Services. Ms. Rowland agreed with Ms. Ventura's statement that AGS's Technical Proposal indicated that Ms. Haddix had mapping experience. Based on this testimony, the Department's witnesses persuasively refuted Guaranteed's argument that AGS's proposal should be disqualified due to the fact that AGS does not employ a "licensed" mapper on its staff. Guaranteed did not prove that AGS is unable to meet the terms of the Scope of Services with the staff members it identified in its Technical Proposal. The Review Committee members credibly testified that, based on representations within AGS's Technical Proposal, AGS (through Ms. Haddix) is capable of providing any necessary mapping services to support the Title Services Contract. AGS's Technical Proposal Failed to Identify Subcontractors: Guaranteed asserts that the Review Committee members should have deducted points from AGS's Technical Proposal based on AGS's failure to identify subcontractors. See RFP Section 22.2. Guaranteed argues that the personnel listed in AGS's Technical Proposal were not qualified to perform all the tasks set forth in the Scope of Services. Consequently, AGS would be compelled to hire outside help to support the Title Services Contract. Therefore, when scoring AGS's Technical Proposal, the Review Committee members should have taken into account the fact that AGS omitted subcontractors. Department Response: The Review Committee members uniformly rejected this challenge by pointing out that AGS's Technical Proposal clearly states that "AGS does not anticipate using subcontractors or sub-consultants to provide any services set forth herein." Instead, based on AGS's representations, all work required under the contract could and would be performed by the AGS employees identified in its Technical Proposal. The Department's witnesses convincingly confutes Guaranteed's argument on this point. The Review Committee members credibly testified that the information in AGS's Technical Proposal indicated that AGS could perform all the desired services without requiring support from subcontractors, and Guaranteed did not sufficiently show otherwise. Accordingly, the Department persuasively rejected Guaranteed's argument that the Department should devalue AGS's Technical Proposal based on AGS's failure to identify subcontractors. AGS's Technical Proposal Contains Misleading Statements on its "Disadvantaged Business Enterprise" ("DBE") Participating Statement: At the final hearing, Guaranteed called attention to the fact that AGS submitted an Anticipated DBE Participation Statement (the "DBE Statement") with its Technical Proposal, which represented that it intended "to subcontract *100 % of the contract dollars to DBE(s)." As with the previous challenge, Guaranteed raised the point that the RFP required every vendor to identify services which the vendor anticipated to be subcontracted, as well as include resumes of all subcontractors. See RFP Section 22.2. Guaranteed argued that AGS's DBE Statement is either false or misleading because AGS also stated that it will not use any subcontractors for the Title Services Contract. Consequently, the Department should have either scored AGS's Technical Proposal accordingly or disqualified AGS's proposal as nonresponsive. Guaranteed's allegation on this point, however, is easily reconcilable and discounted. The DBE Statement, after instructing the vendor to record the percentage of work that would be subcontracted, asks the vendor to list its proposed subcontractors. AGS, after reporting its intent on its DBE Statement to subcontract "*100%," then lists itself stating, "*AGS is a certified DBE, so 100% of the work completed will be handled by a DBE." The logical conclusion is that AGS intended to report that 100% of the Title Services Contract will be performed by itself, as the "DBE." And, it does not anticipate using any other subcontractors who are DBEs. Accordingly, the Department's treatment of AGS's reference to subcontractors in its DBE Statement (i.e., not finding AGS's proposal nonresponsive) was not clearly erroneous, arbitrary, or capricious. Guaranteed's assertion that AGS's DBE Statement contains false or misleading information or inappropriately refers to unidentified subcontractors is unsupported by the record. I. AGS Used an Improper Font Size in Its Technical Proposal: Guaranteed asserted that AGS used an improper font on some of its Technical Proposal entries. To support this challenge, Guaranteed referred to the explicit requirement in RFP Section 22.4 that "[t]ype size shall not be less than 11-point font." RFP Section 22.4 further restricted Technical Proposals to a maximum of 25 pages, excluding resumes, certificates, licenses, organization charts, and indexes. Guaranteed maintained that some of the passages in AGS's Technical Proposal appeared to be written in 10-point font. Guaranteed speculated that AGS used the smaller font in order to fit its Technical Proposal within the 25-page limit. Consequently, Guaranteed argues that the Department failed to provide a level playing field when it, either knowingly or negligently, allowed AGS's proposal to be scored despite the presence of less than 11-point font type in its Technical Proposal. Such action gave AGS an unfair competitive advantage. Department Response: During his testimony, Mr. Ricardo did not believe that the font size was a "material" deficiency that should disqualify AGS's proposal. Upon visual inspection of AGS's Technical Proposal, Mr. Ricardo observed that AGS apparently copied the questions/requests for information directly from the RFP document, then pasted the relevant verbiage onto its submission. AGS then inserted its response beneath each question. In preparing its submission, AGS appears to have used an appropriately sized font for its responses. Only the RFP sections that were copied/pasted were ascribed in font smaller than 11 point. Mr. Ricardo asserted that, as presented, AGS's Technical Proposal totaled 23 pages (excluding resumes, certificates, licenses, organization charts, and indexes). Consequently, he believed that even if AGS used 11-point font for all of its Technical Proposal passages, AGS's proposal would still have fit within the RFP's 25-page limit. Therefore, Mr. Ricardo did not believe that AGS's use of a smaller-than-authorized font type compelled the Department to disqualify its proposal. The Department persuasively refutes Guaranteed's complaint on this issue. Mr. Ricardo credibly testified that AGS did not receive a competitive advantage by inserting some language into its Technical Proposal that was written in smaller than 11-point font. To summarize the findings in this matter, Guaranteed did not establish, by a preponderance of the evidence, that the Department's decision to award the Title Services Contract to AGS was clearly erroneous, contrary to competition, arbitrary, or capricious. The evidence does not demonstrate that AGS received a competitive advantage in this solicitation. Neither is there evidence that the Department conducted this procurement in a manner that was contrary to its governing statutes, rules or policies, or the provisions of the RFP. Guaranteed's Cone of Silence Violation: Notwithstanding the above findings, at the final hearing, the Department broached the issue of Guaranteed's violation of the "cone-of- silence" provision in section 287.057(23), which prohibits responding vendors in a bid solicitation from contacting government employees or officers within 72 hours following notice of the award. The implication is that, as a result of Guaranteed's actions, the Department may now dismiss Guaranteed's bid protest because Guaranteed lacks standing to initiate this action due to the fact that it cannot participate in a re-bid proceeding for the Title Services Contract. The undersigned has not included a recommendation on Guaranteed's "cone-of-silence" violation in this Recommended Order based on the conclusion that Guaranteed's protest fails on the merits. However, the undersigned observes that the facts found in this matter would support such action by the Department. See AHF MCO of Fla., Inc. v. Ag. for Health Care Admin., 308 So. 3d 1136 (Fla. 1st DCA 2020). Section 287.057(23) states: Each solicitation for the procurement of commodities or contractual services shall include the following provision: "Respondents to this solicitation or persons acting on their behalf may not contact, between the release of the solicitation and the end of the 72-hour period following the agency posting the notice of intended award, excluding Saturdays, Sundays, and state holidays, any employee or officer of the executive or legislative branch concerning any aspect of this solicitation, except in writing to the procurement officer or as provided in the solicitation documents. Violation of this provision may be grounds for rejecting a response." The Department included the required quoted language in Special Conditions, Section 3, of the RFP. The Department "released" this solicitation on August 7, 2020. The Department posted the notice of intended award on October 12, 2020. Accordingly, the 72-hour period following the posting of the intended award ended on October 15, 2020. However, on October 12, 2020, at 2:57 p.m., after the Department announced its intent to award the Title Services Contract to AGS, but well within the 72-hour period following the posting, Mr. Siegel sent an email to Ms. Ventura with the subject line "DOR-RFP-21-4002-JR." The email stated: Erika, Now that the award on the DOT-RFP-21-4002-JR has been officially posted, I need to ask you some questions. I have consistently asked how we are doing and what we need to do to improve. I have also asked that you alert me to any performance issues. I have heard nothing. So, you can imagine I was quite surprised to see how you rated us for this RFP, and how we ended up scoring below America [sic] Government which I understood to be a source of substandard work product. I am concerned that if we are rated so low, it makes no sense for us to continue to bid on RFP's from FDOT4 because I am not sure what we can do to improve. Can you please explain the rating you gave us and what it was that you found to be less than perfect. Mr. Siegel sent an identical email, also dated October 12, 2020, at 2:57 p.m., to Ms. Rowland (addressed to "Susie"). Both emails were transmitted from Mr. Siegel's work email address (Myron.Siegel@gftitle.com) and were written over his signature block as President of Guaranteed. Consequently, the evidence clearly establishes that Guaranteed committed a cone-of-silence violation, to wit: Guaranteed (or a person acting on its behalf) contacted (via email) two employees of the Department; Guaranteed's emails were sent prior to the end of the 72-hour period following the Department's posting of the notice of its intent to award the Title Services Contract to AGS; Guaranteed's emails concerned "any aspect of this solicitation" in that Mr. Seigel specifically commented about, 1) the ratings Ms. Ventura and Ms. Rowland gave to Guaranteed's Technical Proposal; 2) how AGS's Technical Proposal received a higher score; 3) how AGS received a higher score despite "substandard work product;" 4) that Guaranteed is considering not bidding on future District 4 contracts based on its rating in this RFP; and 5) what part of Guaranteed's proposal the evaluators found "to be less than perfect;" and Mr. Ricardo is the Procurement Officer for the RFP. The RFP does not set forth any additional representatives (such as Ms. Ventura or Ms. Rowland) to contact regarding "any aspect" of the solicitation. At the final hearing, Mr. Siegel argued that his emails did not concern "any aspect of this solicitation" for the Title Services Contract. Instead, he was only asking Ms. Ventura and Ms. Rowland, the two individuals with the Department with whom he regularly communicated, to comment on Guaranteed's performance in its current work for District 4. Mr. Siegel asserted that he used language regarding Guaranteed's rating in this RFP simply as a frame of reference for his question. Mr. Siegel's attestation that his two emails did not raise issues regarding the RFP or this solicitation for the Title Services Contract is not credited. Accordingly, the undersigned finds that the facts establish a "cone-of- silence violation," under section 287.057(23), which would support a Department determination that Guaranteed is a non-responsive bidder. Thereafter, the Department, in its discretion, may issue a Final Order dismissing Guaranteed's formal bid protest for lack of standing because Guaranteed has no chance of obtaining the Title Services Contract in a re-bid proceeding. See AHF MCO, 308 So. 3d at 1139.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order dismissing the protest of Guaranteed. It is further recommended that the Department of Transportation award Request for Proposal DOT-RFP-21- 4002-JR as set forth in the Proposal Tabulation issued on October 12, 2020. DONE AND ENTERED this 5th day of May, 2021, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2021. COPIES FURNISHED: Douglas Dell Dolan, Esquire Florida Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 John Ashley Peacock, Esquire Florida Department of Transportation 606 Suwannee Street, MS 58 Tallahassee, Florida 32399 Sean Gellis, General Counsel Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 Myron E. Siegel, Esquire Guaranteed Florida Title & Abstract, Inc. 1055 South Federal Highway Hollywood, Florida 33020 Amber Greene, Clerk of Agency Proceedings Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 Kevin J. Thibault, P.E., Secretary Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 57 Tallahassee, Florida 32399-0450
The Issue Whether Respondent Florida Department of Health and Rehabilitative Services (HRS), acted illegally, dishonestly, fraudulently, arbitrarily or/and capriciously in determining to award the contract for RFP 95-142CM-FAP to Unisys Corporation (Unisys).
Findings Of Fact On November 14, 1994, HRS's Office of Information Systems distributed the RFP, entitled "FLORIDA System --Applications Programming Services." The RFP was designed to procure the programming services required by HRS to complete the software programming of, among other things, the state's federally mandated Child Support Enforcement System, and to maintain and enhance the system upon its completion. Upon selection of the winning proposal, HRS intended to enter into the contract for thirty-six months, renewable upon agreement of the parties for an additional 12 months. The cost proposal rates for the initial three-year term would be binding for any subsequent work on the project. HRS also reserved the right to acquire additional consulting services from the contractor for related activities for up to one year after the termination of the Contract. HRS began developing this RFP in the late spring or early summer of 1994 in anticipation of the expiration of the current contract with Deloitte for provision of applications programming services. Before release to prospective proposers, the RFP was approved by HRS' Office of Contract Services and the Information Technology Resources Procurement Advisory Commission (ITRPAC), a body consisting of various state officials including the head of the Division of Purchasing, which ensures that the RFP complies with state rules. In addition, various federal agencies approved the RFP before its release to prospective proposers. The RFP provided that 60 percent of the proposal scoring would be based on the technical proposals contained in the responses to the RFP, and that the remaining 40 percent of the score would be assigned to the costs as submitted in the proposals. After scoring and weighting of the scores, the weighted scores were to be combined to determine the winning proposal. The breakdown of scoring between technical and cost components is based upon HRS' standard practice and its experience with the format required by other state and federal agencies with whom HRS works. The division of the scores was also intended to ensure that an unqualified vendor did not secure the bid solely on the basis of low cost. The selection of the evaluation criteria and weighting of evaluation points for this RFP were subject to the discretion of the Department at the time the RFP was prepared. On December 12, 1994, HRS held a bidders' conference at which representatives of Deloitte and Unisys were in attendance. EVALUATION OF RESPONSES On January 6, 1995, Deloitte and Unisys submitted the only two proposals in response to the RFP. Both proposals were deemed responsive to the requirements of the RFP. HRS appointed a five member Evaluation Committee to review and evaluate the proposals. HRS provided training to the Evaluation Committee members specifically directed to the proper method for reviewing and scoring proposals submitted in response to the RFP. Each member of the Evaluation Committee was qualified by training, education and experience to review and evaluate the technical merits of each proposal. The RFP defined the criteria by which the proposals would be reviewed, scored and ranked by the Evaluation Committee, and the contract awarded. Included in the RFP were blank cost proposal forms which the proposers were to complete. Those forms did not include any blank spaces to be filled in referencing costs associated with any "renewal" periods or otherwise provide for including information about proposed costs for any renewal periods. The Evaluation Committee members each independently reviewed the technical proposals submitted in response to the RFP over a period of approximately two weeks. Committee members submitted the raw scores from their technical evaluations to Karin Morris, the HRS System Program Administrator. The cost proposals were opened and scored on January 20, 1995 by Ms. Morris. The RFP provided, in Section 6.0, that a comprehensive, fair, and impartial evaluation would be conducted of all proposals received. The RFP also provided for the grouping of evaluation criteria into six categories with points assigned as follows: - Mandatory Requirements 0 points - Management Summary 0 points - Corporate Capabilities 200 points - Project Staff 200 points - Technical Approach 100 points - Project Workplan 100 points - Cost 400 points Section 6.0 of the RFP also contained the following language: Selection of the successful proposer will be based on the proposal that is determined to be in the best interest of the department, taking into consideration cost and other criteria set forth in the RFP. Further, the RFP provided, in Section 6.1, that: An Evaluation Committee will be established to assist the department in selection of the winning contractor(s). All proposals not meeting the mandatory requirements will be rejected. The committee will evaluate the technical approach, corporate capabilities and project staff of all responsive proposals. The committee will rank proposers by the resulting scores and make a recommended award. The committee will summarize their findings and prepare an evaluation report to the Deputy Secretary for Administration. The report will then be presented to the Secretary of HRS. The Secretary will review the final report, pertinent supporting materials and make the determination of the final award, taking into consideration cost and other evaluation criteria set forth in the RFP. The Secretary reserves the right to take any additional administrative steps deemed necessary in determining the final award. (Emphasis added). Most importantly, Section 6.3(D) of the RFP dealing with the evaluation of the cost proposals stated: The points awarded for the three cost evaluation categories will be totaled and added to the points awarded for technical evaluation cate- gories 3 through 6 to determine the winning proposer. (Emphasis added). After reviewing and comparing the weighted scores of both proposals, the Evaluation Committee issued a "Final Report," with recommendations, on January 30, 1995. The weighted technical scores reflected in the Evaluation Committee's Final Report are as follows: DELOITTE UNISYS Corporate Capabilities 200 186.36 Project Staff 200 159.07 Technical Approach 100 76.62 Project Workplan 100 76.73 TOTAL 600 499 The weighted cost scores were: DELOITTE UNISYS Fixed Price Tasks 10.0 2.27 Monthly Price 357.90 380.0 Hourly Price 7.77 10.0 TOTAL 375.67 392.2 Totaling all categories as required by paragraph 6.3(D) of the RFP, the Department's Evaluation Committee arrived at the following final ranking: DELOITTE UNISYS Technical Proposal 600 499 Business Proposal 376 392 TOTAL 976 891 Based upon the Evaluation Committee's scores, Deloitte's demonstrated technical capability is 20 percent higher than that of Unisys. Under the terms of the RFP, there was no discretion involved in scoring the cost portion of the proposals, including the weight to be accorded costs in the final overall scoring to determine the winning bidder. Based upon HRS' inclusion of the specific criteria in the RFP, the cost portion scoring was merely a mechanical calculation. Both of the proposers' cost proposals fall within the agency's budgetary limits for the current year for accomplishing the work requested by the RFP. Four of the five members of the HRS Evaluation Committee recommended award of the contract to Deloitte, in the following language: Deloitte & Touche scored higher in all areas including recommendations. Deloitte and Touche is the incumbent contractor and therefore there are no risks associated with the transition. Deloitte understood the requirements of the RFP and addressed them more completely in their proposal. Therefore, it is our recommendation that the contract should be awarded to Deloitte & Touche. (Emphasis added). One member of the Evaluation Committee recommended the decision be left to the Secretary of HRS. None of the members of the HRS Evaluation Committee recommended award of the contract to Unisys. HRS SECRETARY'S DECISION TO AWARD TO UNISYS On January 27, 1995, prior to preparation of the recommendations contained in, or the issuance of, the Evaluation Committee's Final Report, HRS Secretary James Towey convened a meeting with Deputy Secretary Lowell Clary, John Holland, Bill Belleville and the department's legal counsel to discuss the contract award process, a draft of the Evaluation Committee's Final Report and other matters the Secretary felt relevant to HRS' ultimate decision on the RFP. At the meeting, Towey was informed by Bill Belleville that Deloitte's proposal was the "best." Towey was also informed by John Holland and Bill Belleville that both companies could perform under the contract. However, neither Holland's nor Belleville's assessments were based on responses to the RFP, but rather upon their own experience with the two vendors outside of this RFP process. Belleville conceded that he believed that a proposer was qualified to perform the contract by merely meeting the "mandatory" requirements of the RFP, a category that was accorded zero points in the scoring criteria. Informed that both companies could perform under the contract, Towey "zeroed in" on costs as the major consideration for the award of the contract. At the meeting, he considered a present-value calculation of the payments that the State would make over the course of a contract, if the contract had been for a 48 month term. The calculation had been prepared by Dean Modling, an HRS senior management analyst supervisor, although the RFP had been approved by the Department of Management Services without provision for such an analysis. The RFP not inform proposers that a present-value analysis would be performed and provision for the present-value of a contract was not included in the scoring criteria for the proposals. Present value calculation became an issue when it was raised and discussed at the January 27, 1995 meeting, and subsequently used in the Secretary's decision to award the contract to Unisys. Towey also considered, in deciding to award the contract to Unisys, a calculation of "raw costs," provided after the January 27, 1995 meeting. These "raw costs" were presented on two charts. Both added up the amounts submitted by each proposer for fixed price tasks and monthly costs, over 36 months. Although the RFP did not request, and neither proposer submitted costs for a 48 month contract, the two charts included a calculation for a hypothetical 48 month contract using the same monthly payments submitted for the 36 month contract. In addition, one of the two charts included a 5.8 percent factor for overtime, which was also not addressed by the RFP or by the proposals submitted in response to the RFP. There was no evaluation criteria contained in the RFP which dealt with the issue of "raw costs" over the term of the contract. Prior to the decision to award to Unisys, HRS never performed and Towey never considered a present value analysis for the 36 month contract period provided for in the RFP. Finally, as a result of concern expressed at the January 27, 1995 meeting regarding whether Unisys could handle the immediate tasks required by the contract, including requirements of the Child Support Enforcement and federal certification programs, Towey considered whether there would be any risk of transition if Unisys were unable to hire some of Deloitte's employees and subcontractors should he decide to award the contract to Unisys. Towey specifically requested Deputy Secretary Clary to research this issue. In order to obtain information, Clary had HRS personnel directly contact Deloitte's subcontractors. Clary responded to Towey three days later on January 30, 1995, the day before the decision by Towey to award the contract to Unisys, that Deloitte's subcontractors would not be prohibited from working for Unisys. Consideration of overtime and risk of transition were not criteria contained in the RFP, nor were these elements evaluated and scored by the HRS Evaluation Committee. By way of a January 31, 1995 memorandum to Clary announcing the award of the contract to Unisys, Towey stated: I have now had an opportunity to review the report of the evaluators of this RFP, the recommendations contained therein, the raw data submitted with the proposals, and the RFP. I understand the nature of the project and its importance to the agency. Based upon my review of the information presented to me and my understanding of similar projects in the past, my decision is to award the contract to Unisys as the proposal most advantageous to the state of Florida, taking into consideration the price and other criteria set forth in the RFP. Although I have considered the risk of transition to a new contractor, I find that I am unable to ignore the dollar savings which will result in awarding the contract to Unisys. Since you and your staff have assured me that both companies are technically competent to perform the work, I believe the monetary savings outweigh any risk that might exist in the transition of contractors. Therefore, I have determined that it is in the state's best interest to award the contract to Unisys. Please take whatever steps are necessary to implement this decision. (Emphasis added). By his actions, Towey exercised more than the prerogative conferred by the RFP to "take any additional administrative steps deemed necessary in determining the final award" and actually evaluated criteria other than that contained in the RFP in reaching his decision to award the contract to Unisys. Further, in awarding the contract to Unisys, Towey effectively altered the relative weight of the criteria as specified in the RFP. Towey relied upon the advice of Clary. Illustrative of Clary's perspective is his testimony at the final hearing that he believed the 60/40 weighting contained in the RFP to be inapplicable to decision making by the Secretary of HRS. Neither Bill Belleville nor John Holland reviewed, in detail, the proposals submitted in response to the RFP. Neither performed their own independent analysis of the responses. Further, Clary never reviewed the RFP nor the proposals submitted in response to the RFP. In the course of his decision making process with regard to award of the contract to Unisys, Towey relied on the advice of Clary, Belleville and Holland, referred to by Towey as his "top managers", despite their undisputed lack of familiarity with the Deloitte and Unisys proposals. While his memorandum dated January 31, 1995, states he reviewed the RFP, Towey admitted in his testimony at the final hearing that he had not personally reviewed the document. Further, he never reviewed or performed his own analysis of the two proposals submitted in response to the RFP. The members of the Evaluation Committee members were the only persons to fully and carefully evaluate the two proposals and score them under the criteria contained in the RFP. Since that time, no one else from HRS has attempted to reevaluate or re-score the proposals. Neither Towey nor anyone else involved in the January 27, 1995 meeting disagrees with the analysis and scoring of the proposals by the Evaluation Committee. PRESENT-VALUE ANALYSIS Section 1.2 of the RFP, states, in part: This RFP will result in a thirty-six month contract. Further, Section 4.12(C) of the RFP states, in part: Upon selection of the winning proposal, the department shall enter into a contract for thirty-six (36) months. Although the possibility of renewal of the contract for a maximum of a single, one year term is contained in the RFP, there is no provision in the RFP which requires that HRS renew the contract after 36 months or that the contractor accept a renewal after 36 months for any specific term. By the terms of the RFP, any renewal of the contract for a period beyond the 36 month term is subject to negotiation between the contractor and the department. While proposals submitted by Unisys and Deloitte commit to maintaining the same costs in the event of renewal, negotiation as to the length, price and staffing for any renewal period less than a year, is not excluded by the terms of the RFP. Neither HRS nor the contractor is bound, under the terms of the RFP, to any extension of the contract. HRS' own manual, HRSP 75-3, entitled "Developing a Request for Proposal," states, in the section on contract renewals: If Contract Renewals have been provided for in this RFP, include the following recommended language in the Special Provisions subsection of the RFP: This contract may be renewed on a yearly basis not to exceed two (2) years beyond the initial contract or for a period no longer than the term of the original contract whichever period is longer. Such renewals shall be contingent upon satisfactory performance evaluations as determined by the department and shall be subject to the availability of funds. As specified in the provider's response to the RFP/ITB, the total cost for the contract under the' first year renewal will not exceed $ and the second year renewal will not exceed $ . Each renewal shall be confirmed in writing and shall be subject to the same terms and conditions set forth in the initial contract. (Emphasis added). Another in-house document at HRS is HRS manual, HRSM 75-2 (May 1, 1994 update), entitled "Contract Management System for Contractual Services". Chapter 5 of that document, entitled "Contractual Procurement Requirements," states, in pertinent part: The dollar amount and the manner in which the costs for the . . . renewals will be calculated must be specified in the response to the RFP and in the resulting contract document. By contrast, the RFP contains none of the language specified in either HRS manual regarding renewal. Section 4.12(c) of the RFP merely states: This contract term shall be renewable for a max- imum of a one year term upon the mutual agreement in writing of the contractor and the department. (Emphasis added). Terms of the RFP did not invite proposers to submit a specific cost or any other information for a renewal period or explain how costs for a renewal period would be calculated. Neither did the RFP contain any language that renewals would be conditioned on satisfactory performance by the contractor. Proposers, on blank cost forms, were requested in the RFP to provide HRS with their proposed prices for fixed price items, monthly costs and hourly costs. The forms, contrary to the requirements of HRS manuals applicable in situations where information for a renewal term is requested, did not provide a place for proposers to indicate costs for any renewal term or to demonstrate how those costs were calculated. Both contractors understood that any renewal would be subject to negotiation. The "Standard Contract" contained in the RFP provides only for a term of 36 months and a cost for that specific contract term. Consistent with the terms of the RFP that the contract was for a 36 month term, HRS submitted, on more than one occasion, materials to ITRPAC. In those materials, HRS represented that the proposed budget amounts of $25 million and $28 million for the project were for a three year term contract. The Notice of Award which HRS issued stated that a three year contract was to be awarded. Although the RFP addressed staffing at a maximum of 107 persons, HRS was aware that 100 percent staffing might not always occur. Section 2.l(B)(5) of the RFP permits 90 percent of the maximum staffing level at a given time without the vendor incurring a penalty. At one point in the RFP preparation, a draft of the RFP required 95 percent staffing. Even that level was considered by HRS to be too restrictive and anti-competitive and was amended to 90 percent out of fear that a 95 percent staffing level would discourage submission of competitive proposals. The 90 percent figure was also used in the RFP to account, in part, for projected attrition of contractor employees that HRS had historically experienced on this project. From the standpoint of budgetary allowances by HRS for the project, it is realistic to believe that the job will be staffed at somewhere between 90 percent and 95 percent rather than at the maximum staffing level of 107 employees. Although Section 4.15(D)(5) of the RFP states that the State is not responsible for paying contractor's employees for leave or vacation time, the testimony of Petitioner's financial expert, Dr. Elton Scott, establishes that a reasonable assumption is to assume that each employee is entitled to, and would take, at least two weeks vacation. Such an assumption should also be included when performing a present value analysis, particularly when assuming 100 percent staffing. Depending on budget allocations for this project, it is possible that HRS would only require that the contractor provide as few as 46 employees. The present value calculation performed by HRS indicated that, over 48 months, at 100 percent staffing (107 employees), the monetary cost of awarding the contract to Unisys would be approximately $500,000 less than the cost of awarding the contract to Deloitte, a savings of approximately 1.5 percent over the term of the contract. As demonstrated by HRS' subsequent present value calculation performed at final hearing in this cause, for the 36 month actual contract period, at maximum staffing, HRS would realize a savings of no more than $39,802 by awarding the contract to Unisys, a savings of less than 2/10ths of 1 percent. None of HRS' present value calculations accounted for leave/vacation time or for any staffing levels under 100 percent for any other reasons. Based upon the terms of the RFP, the language of HRS' procurement manuals, and the expert testimony of Dr. Scott, any valid present-value analysis should have included a 36 month term contract. Any such analysis should also have taken into account varying levels of staffing, leave/vacation time, and overtime if staffed at the minimum required. A properly performed present-value analysis indicates that Deloitte's proposal is less expensive than the Unisys proposal in the following amounts over a 36 month contract term, at the staffing levels indicated: Employees Leave/Vacation Time Overtime Deloitte Savings 107 2 weeks none $12,791 96 none none $109,062 96 none 5.8 percent $ 18,327 46 none none $844,473 (Pet. Exh. 15) The only scenario in which the Unisys proposal is less costly than the Deloitte proposal, using the proper present value analysis, would be at 107 employees, with no accounting for leave time. This unlikely future scenario would result in a savings of no more than $47,378, or less than 2/10ths of l percent of the contract amount over 36 months. Because it requires an up-front payment of more than $1,600,000 (as compared to $78,000 for Deloitte), the Unisys proposal places the State of Florida at substantially more financial risk than the Deloitte proposal in the event of nonperformance by Unisys. On February 1, 1995, HRS posted its notice of intent to award the Contract to Unisys. Deloitte filed its timely notice of intent to protest on February 3, 1995, and filed its timely formal protest and request for hearing on February 13, 1995.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which declines the award to Unisys and takes into account the foregoing findings of fact and conclusions of law when deciding the future course of contracting for the services sought by the RFP. DONE and ENTERED this 12th day of May, 1995. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made with regard to purposed findings of fact submitted by the parties. Intervenor's Proposed Findings: Adopted. Adopted as to 1st sentence. Remainder not relevant with exception of last sentence which is adopted. Rejected, subordinate to HO findings. Accepted. Rejected, subordinate to HO findings. 6.-7. Rejected, cumulative. 8. Accepted. 9.-10. Rejected, subordinate to HO findings. Accepted. Rejected, subordinate to HO findings. Accepted. Rejected, cumulative. 15.-17. Rejected, subordinate. 18.-20. Rejected, relevance. 21.-22. Accepted. 23. Rejected, subordinate to HO findings. 24.-25. Accepted. 26.-29. Rejected, subordinate to HO findings. 30. Accepted. 31.-36. Rejected, subordinate. Rejected, weight of the evidence. Rejected, opinion, weight of the evidence. 39.-41. Rejected, subordinate. Respondent's Proposed Findings: 1.-3. Adopted, not verbatim. 1.-6. Adopted by reference. 7. Rejected, relevance. 8.-9. Rejected, cumulative, unnecessary. 10.-12. Accepted. 13. Rejected, cumulative. 14.-16. Accepted. Rejected, weight of the evidence. Rejected, relevance. Rejected, weight of the evidence. 20.-21. Rejected, argument. 22.-23. Rejected, subordinate to HO findings. 24. Rejected, argument. 25.-27. Rejected, subordinate, weight of the evidence. 28.-29. Rejected, relevance. 30.-31. Rejected, subordinate. Rejected, weight of the evidence. Rejected, subordinate, weight of the evidence. Rejected, relevance. 35.-36. Rejected, cumulative. Rejected, weight of the evidence. Accepted. Rejected, argument, weight of the evidence. Rejected, relevance, argument. 41.-42. Rejected, argument. Rejected, subordinate. Rejected, 20 percent difference, improper characterization. Rejected, relevance, argument. Rejected, argument, subordinate. Rejected, redundant, subordinate. Rejected, legal conclusion. Rejected, relevance, argument, lack of credible evidence. Rejected, weight of the evidence. Rejected, subordinate. Rejected, weight of the evidence. Rejected, relevance. Rejected, argumentative, legal conclusion. Rejected, legal conclusion, argument. Rejected, legal conclusion. Petitioner's Proposed Findings Of Fact: 1.-43. Accepted, though not verbatim in some instances. 44. Subordinate to HO findings. 45.-48. Accepted. Subordinate. Accepted. Subordinate. 52.-70. Accepted. COPIES FURNISHED: William E. Williams, Esq. Red D. Ware, Esq. Huey, Guilday & Tucker, P.A. 106 E. College Ave., Ste. 900 Tallahassee, FL 32301 William A. Frieder, Esq. Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 W. Robert Vezina, III Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Dr. Tallahassee, FL 32302 Steven A. Blaske Unisys Corporation 4151 Ashford Dunwoody Rd. Atlanta, GA 30319 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Kim Tucker, Esq. Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue Appellant raises three issues on appeal: (1) whether there is competent substantial evidence to support certain findings in the Resolution; (2) whether the Commission departed from the essential requirements of the law by incorrectly applying and interpreting the definition of "public buildings"; and (3) whether the Commission denied Hoover "a fair and impartial hearing" by basing its decision "on a plebiscite from a hostile crowd." For the reasons expressed below, the Commission's Resolution is affirmed.
