Findings Of Fact On July 31, 1987, a sign owned by Hodessa Corporation for whom Gia Associates is the agent was located on the right-of-way of U.S. 19 in Pasco County, .3 mile north of Floramar. When erected by the sign company some months earlier the sign was located in a legal location and not on the right-of-way of U.S. 19. Considerable construction work was being done on the property owned by Hodessa. Upon completion of the parking lot the sign was moved by the construction workers onto the right-of-way of U.S. 19. As soon as this error was discovered by Respondent the sign was relocated to its proper position.
Findings Of Fact On July 20, 1987, a DOT sign inspector observed a sign owned by Respondent alongside U.S. 19, 500 feet south of S.R. 590 which appeared to be on the DOT right-of-way of U.S. 19. Measurements of the distance of the sign from the pavement of U.S. 19 were taken. The right-of-way of U.S. 19 at this location extends 100 feet east and west of the centerline of U.S. 19 and 50 feet from the west side of the pavement. The sign was located 32 feet from the edge of the pavement on the west side of U.S. 19 some 18 feet inside the right-of-way line. The location of the DOT right-of-way is not readily determinable by a businessman desiring to erect a sign in front of his establishment. Generally, the power line poles are placed along the right-of-way line; however, this is not always an accurate method of locating the limit of the right-of-way. Here there were two lines of power line poles, and the sign was located between the pavement and the line of poles furthermost west of U.S. 19.
Findings Of Fact On or about January 11, a DOT sign inspector observed two signs owned by Respondent on what appeared to be the right-of-way of U.S. 19 in the vicinity of C.R. 576 in Pinellas County. The right-of-way of U.S. 19 at this location extends 100 feet east and west of the centerline of U.S. 19 and 50 feet east and west of the edge she paved surface of U.S. 19. U.S. 19 is a Federal Aid Primary Highway and part of the State Highway System Measurements were taken on the distance from the edge of the paved surface of U.S. 19 to the signs. The sign located 500 feet south of C.R. 576 was 35 feet from the edge of the pavement, and the sign 0.1 mile south of C.R. 576 was 38 feet from the edge of the pavement. On or about January 27, 1988, the DOT sign inspector observed a sign 0.75 mile south of C.R. 592 owned by Respondent on what appeared to be the right-of-way of U.S. 19 in Pinellas County. The right-of-way of U.S. 19 in this location is the same as in Finding No. 2 above. Measurements taken of this sign from the edge of the pavement showed the sign to be 38 feet from the edge of the paved surface of U.S. 19, placing the sign some 12 feet inside the right-of-way boundary. Respondent submitted photographs of other signs which appeared to be on the right-of-way of U.S. 19 in the vicinity of Respondent's signs which were not cited for being on the right-of-way. However, during the past year some 2,000 violations have been issued citing signs, principally along U.S. 19, with being located on the right-of-way.
Findings Of Fact Two signs are located 0.8 mile west of State Road, 79 on Interstate 10, and 0.8 mile east of State Road 79 on Interstate 10. Both signs do not have permits attached to them. Both signs bear messages which are visible from the traveled way of Interstate 10. Neither sign is located within an incorporated municipality or town. Both signs advertise in part Simbo's Restaurant. Mr. Jim Williams, Outdoor Advertising Inspector for the Department of Transportation, testified that he had spoken with Mr. Simms on June 28, 1978. Williams stated that he asked Simms if Simms would remove the signs; however, Williams did not identify the signs to which he was referring. According to Williams, when Simms was asked if he would take the signs down, Simms stated he would leave them up and go to court. There was no substantial and competent evidence introduced that Simms was referring to the signs in question in this case. Both signs were measured by Charles Averitt, a surveyor with the Department of Transportation, and the sign 0.8 mile west of State Road 79 on Interstate 10 was determined to be 16 feet from the edge of the right-of-way of Interstate 10. The sign 0.8 mile east of State Road 79 on Interstate 10 was determined to be 16.5 feet from the edge of the right-of-way of Interstate 10. Gene Simms testified that he was the owner and operator of Simbo's Truck Stop and Restaurant. Simms testified the signs in question were the property of Simms' Enterprises, Inc., and had been at all times pertaining to this complaint. Simms stated that he owned 50 percent of the stock in Simms Enterprises, Inc., and the remainder was owned by his brother, Jimmy Simms. The notice of violation in this cause names Gene Simms as the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation take no action regarding the subject DONE and ORDERED this 22nd day of March, 1979, in Tallahassee, Leon County, Florida STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1979. COPIES FURNISHED: Phillip S. Bennet, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Richard C. Hurst, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Gene Simms Simbo's Auto-Truck Stop and Restaurant Route 1, Box 186 Bonifay, Florida 32425
The Issue Whether a sign owned by Respondent and located on the northbound side of 27, at 853 U.S. 27 South, Lake Placid, Florida, is located in the road right-of-way, and must be removed.
Findings Of Fact The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes, which regulates outdoor advertising structures along the state highway system. U.S. 27 in Highlands County, Florida, is a part of the state highway system, and title to the right-of-way for said highway is held in the name of the State. Respondent is the owner, and maintains a two sided sign structure (sign) located at 853 U.S. Highway 27 South, Lake Placid, Florida, in Highlands County, which has been erected in the DOT right of way of U.S. Highway 27, inventory section 44, approximately 300 feet South on the North bound side of the highway. The sign is approximately 8 foot by 8 foot made of wood with wooden poles, and contains the advertising copy: "Mrs. CLAIR Psychic...Tarot...Palms...(Se habla espanol)", followed by a telephone number. On March 22, 1991, Respondent was served with a Notice of Violation from the DOT concerning said sign, and was advised that said sign was erected in violation of Florida law, and must be removed within ten working days of the notice. Said sign is presently standing in the DOT right-of-way, as of the date of the formal hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's request for an exemption from the provisions of Section 479.11(8), Florida Statutes, be DENIED and that Respondent be ordered to remove said sign from the DOT right of way, in accordance with the provisions of Section 479.107, Florida Statutes. DONE AND ENTERED this 23rd day of December, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 23rd day of December, 1991. Copies furnished: Jay O. Barber, Esq. Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Laura Uwanawich Mrs. Clair 853 U.S. 27 South Lake Placid, FL 33852 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. #58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue Whether the Respondent is in violation of Sections 479.07(1)(4)(6) and 479.11(1), Florida Statutes. Whether subject signs violate state and federal laws and should be removed.
Findings Of Fact The following described sign is located in an unzoned area and violates the set back requirements being closer than 660 feet from the nearest edge of the road right-of-way: Highway: I-10 Location: 6/10 of a mile west of State Road 81 south side of I-10 Copy: Fina Gas-Diesel-Exit 1/2 Mile then Left Notice of violation regarding subject sign was properly sent by the Department of Transportation and received by the Respondent. No application was made prior the the erection of the subject sign, and the sign has been refused a permit. Mr. Curtis A. Miller, Jr., the President and major stockholder of Curt Miller Oil Company, Inc. in good faith discussed the erection of the subject sign with the councilmen and Mayor of Ponce de Leon, Florida, and proceeded to erect his sign without first obtaining a permit from the Department of Transportation. The Respondent contends that the sign is needed, that he spent a large amount of money on the erection and that he thought the sign would be in a properly zoned area at the time the erection was completed. Respondent admits that the sign at the time of the hearing is in violation of the set back requirements of Chapter 479, Florida Statutes. The Petitioner contends that it refused to permit the sign inasmuch as the set back was less than 660 feet from the nearest edge of the right-of-way of an interstate highway.
The Issue The ultimate issue presented in this part of the bifurcated proceeding is whether the Petition should be dismissed as an untimely protest to the RFP specifications. Subsidiary issues presented are whether any such timeliness defect could be cured by allowing Petitioner to amend its Petition, and whether the points of entry provided to Petitioner with the RFP, as amended, were ineffective to operate as clear points of entry because Respondent did not also post the RFP and addenda amending the RFP on the MyFloridaMarketPlace vendor bid system.
Findings Of Fact By this action, Petitioner seeks to reverse Respondent’s intended decision to award a contract to Intervenor for a design- build project to widen Kanner Highway from four lanes to six lanes over a 4.3 mile stretch in Martin County (the Kanner Highway Project). Instead of awarding a contract to Intervenor, Petitioner contends that Respondent should reject all proposals and conduct a new procurement. Petitioner’s complaint is directed to Respondent’s issuance of one or more addenda as RFP amendments after the three shortlisted vendors submitted technical proposals, but before they submitted price proposals. Adjusted Score Design-Build Process for Kanner Highway Project DOT is the state agency authorized to contract for the construction and maintenance of roads designated as part of the State Highway System, the State Park Road System, and other roads placed under DOT’s supervision by law. § 337.11(1), Fla. Stat. When DOT determines, as it did for the Kanner Highway Project, “that it is in the best interests of the public [to] combine the design and construction phases” of certain projects into a single contract, DOT is authorized to use the design-build contract procurement procedures generally outlined in section 337.11(7) for competitive selection of a design-build firm. Section 337.11(7)(b) authorizes DOT to “adopt by rule procedures” that detail the processes and procedures by which design-build projects are publicly announced, qualified design- build firms are selected to submit bid proposals, and the firm to receive the contract award is selected. DOT’s rules carrying out the authority conveyed in section 337.11(7)(b) are codified in Florida Administrative Code Chapter 14-91.2/ The solicitation for the Kanner Highway Project began with the posting of a Notice to Contractors/Consultants on DOT’s website, which set forth a general description of the project, identified required submittals, and provided a draft RFP, as specified in rule 14-91.005 (“Public Announcement Procedures”). The notice with draft RFP was first posted on September 22, 2014, on the “planned advertisement” webpage, to give a heads-up to the vendor community that a public announcement was forthcoming for this project. The official announcement was posted on October 6, 2014, on DOT’s design-build “current advertisement” webpage. As required by rule 14-91.005, the posted notice advised that for the Kanner Highway Project, DOT would use the adjusted score design-build (ASDB) process. The notice also described the ASDB process, which is a two-phase process. In the first phase, interested design-build firms were required to file an expanded letter of interest (ELOI) by October 27, 2014, demonstrating their qualifications to perform the work contemplated by the project, as generally described in the notice and preliminarily detailed in the draft RFP. The notice specified the required ELOI contents and supporting documents, the minimum qualification requirements by work class, and the criteria for evaluating and scoring the ELOIs. The notice provided that ELOIs and supporting documents “shall be submitted electronically” in .pdf format attached to a single electronic mail (email) transmission. In turn, each ELOI was to designate and give contact information, including email address, for the design-build firm’s contact person. As authorized by section 337.11(7)(b)9., and rule 14- 91.007(8), the posted notice also provided the criteria by which DOT would pay stipend compensation to certain design-build firms who are not ultimately awarded the contract. Both public announcements (posted on September 22, 2014, and on October 6, 2014), contained the following: Pursuant to Sections 120.57(3) and 337.11, Florida Statutes, and Rule Chapter 28-110, Florida Administrative Code, any person adversely affected by the agency decision or intended decision shall file with the agency both a notice of protest in writing and bond within 72 hours after the posting of the notice of decision or intended decision, or posting of the solicitation with respect to a protest of the terms, conditions, and specifications contained in a solicitation and will file a formal written protest within ten days after the filing of the notice of protest. The required notice of protest and bond, and formal written protest must each be timely filed with the Florida Department of Transportation, Clerk of Agency Proceedings, 605 Suwannee St, Mail Station 58, Tallahassee, FL 32399-0458. Failure to file a notice of protest or formal written protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120 Florida Statutes. There were no notices of protest filed within 72 hours of the posted solicitation, nor formal written protests within 10 days after a notice of protest, to contest the terms, conditions, or specifications in the Kanner Highway Project solicitation. Four design-build firms submitted ELOIs for the Kanner Highway Project, were determined to be responsive, and were scored. The ELOI scores were posted on DOT’s website on the procurement office’s page for design-build selection results. At the top of this webpage, an all-bold point of entry is provided in the same language contained in the public announcement notice. There were no notices of protest filed within 72 hours after the ELOI scoring results were posted, nor any formal written protests within 10 days after a notice of protest. Consistent with rule 14-91.007(2)(a) and the process described in the public announcements, design-build firms whose ELOIs were responsive and scored were required to provide DOT with written affirmation by December 10, 2014, of the firms’ intent to proceed to phase two. Three of the four firms--the three with the best ELOI scores--provided written affirmation: Petitioner, Intervenor, and Prince Contracting, LLC. In accordance with rule 14-91.007(2)(a), those three firms were shortlisted and, thereby, eligible to proceed to phase two, receive the final RFP and addenda, and submit technical and price proposals. For design-build projects using the two-phase ASDB process, the RFP developed by DOT serves the purpose of “furnish[ing] sufficient information for Design-Build Firms to prepare technical and price proposals,” and the RFP is provided only to shortlisted firms, because only the shortlisted firms are eligible to submit technical and price proposals. Fla. Admin. Code R. 14-91.007(2)(a) and (3). Thus, while a “draft” RFP for the Kanner Highway Project was attached to the public announcement posted on DOT’s website, the “final” RFP was not posted on DOT’s website. Instead, DOT followed the procedure in rule 14-91.007(3), by providing the final RFP directly to the three shortlisted firms.3/ As is apparently common practice with design-build procurements, the so-called “final” Kanner Highway Project RFP was not actually final; it was amended by several addenda.4/ RFP addenda are posted on DOT’s website. The Contracts Administration page for design-build projects identifies the addenda by number, and the addenda themselves are linked and can be accessed by clicking on each number. The addenda are also transmitted by email to an email list of contact persons for the shortlisted firms. In addition, each time an addendum is issued that amends the “final” RFP, the entire RFP, as amended, is reissued and transmitted with the same email message. A redlined version of the reissued RFP is also transmitted with the same email message, to highlight the addendum changes and put them in context with the whole RFP. Emails transmitting the Kanner Highway Project addenda, the reissued RFPs as amended by the addenda, and the redlined versions of the reissued RFPs, as amended by the addenda, were sent to the three shortlisted firms with a “high importance” flag and a request to confirm the receipt of the email. Petitioner’s designated representative--its president, Bob Schafer--confirmed in his deposition testimony that this was the procedure followed for the Kanner Highway Project. Mr. Schafer confirmed that Petitioner received the emails transmitting each of the six addenda, and Petitioner confirmed receipt within minutes of the transmittals. The Kanner Highway Project RFP, in its “final” form and in each reissued form as amended by addenda, is a 62-page document, not counting attachments. The first two pages of the RFP is a Table of Contents. Page one of the RFP lists a section called “Protest Rights,” which appears at page nine. Beginning on page nine of each version of the RFP, as reissued and amended by the addenda, a separate section identified as “Protest Rights” provides as follows: Any person who is adversely affected by the specifications contained in this Request for Proposal must file a notice of intent to protest in writing within seventy-two hours of the posting of this Request for Proposals. Pursuant to Sections 120.57(3) and 337.11, Florida Statutes, and Rule Chapter 28-110, Florida Administrative Code, any person adversely affected by the agency decision or intended decision shall file with the agency both a notice of protest in writing and bond within 72 hours after the posting of the notice of decision or intended decision, or posting of the solicitation with respect to a protest of the terms, conditions, and specifications contained in a solicitation and will file a formal written protest within ten days after the filing of the notice of protest. . . . [Agency Clerk address provided for filing] Failure to file a notice of protest or formal written protest with the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120 Florida Statutes. No notices of protest were filed within 72 hours of the electronic transmittal of each reissued RFP, as amended by addenda, nor were formal written protests filed within 10 days after a notice of protest, to protest the terms, conditions, and specifications in any of the reissued RFPs, as amended by addenda. After Addenda 1 and 2 were issued, the three shortlisted firms submitted technical proposals by the deadline on March 16, 2015. Addendum 3, the reissued RFP, and the redlined reissued RFP were transmitted by a single email sent to the shortlisted firms on April 27, 2015, at 5:03 p.m. Petitioner confirmed receipt of the email transmittal 20 minutes later, at 5:23 p.m. Petitioner knew of its objections to Addendum 3 as soon as it was read, which was within hours of its electronic transmittal on April 27, 2015. Petitioner took steps to notify DOT of its objections regarding Addendum 3, but those steps did not include filing a notice of protest to the amended RFP specifications within 72 hours after its transmittal or receipt. Instead, Mr. Schafer, Jason Daley (Ranger’s designated contact person for the project), David Wantman of the Wantman Group (engineering firm that is a member of Petitioner’s design- build team), and Randy Cropp with Cone & Graham (bridge contractor team member) had a telephone conference with John Olsen (described by Mr. Schafer as DOT’s design-build coordinator), and “two or three people from the Department, I’m not sure other than John.” (Schafer deposition at 17). Mr. Schafer said he believed the conference call was the day after Addendum 3 was received, which was April 28, 2015. On April 29, 2015, at 10:23:55 a.m., Mr. Schafer sent an email to Gerry O’Reilly, P.E., the DOT District Four Secretary, with copies to Jim Boxold (DOT Secretary, the agency head), and Bob Burleson with the Florida Transportation Builders’ Association. The email text was as follows: Guys, I’m extremely disappointed. What is going on in D-4 with releasing Team’s cost saving ideas. For the second time in two projects, either an ATC [Alternative Technical Concept] or concept in our Technical Proposal, one of our cost saving ideas has been released to the other bidders by the Department. For this $20+M project, a drainage concept that would’ve saved about $1.2M has been released by Addendum to all the bidders, after the Technical Proposals were submitted and 2 weeks prior to the submission of the numbers. Why has that happened??? I have partners on this project in Cone & Graham and Wantman Group that, along with Ranger, have spent a lot of money and man- hours trying to “design a better mouse trap” to give us a competitive advantage. If we’re not successful on this one, we may not have a choice but to protest. This has got to Stop. Two subsequent emails, from representatives of the Wantman Group and Cone & Graham, echoed Mr. Schafer’s complaints. All three emails were sent on April 29, 2015, with the last transmittal being made at 6:20 p.m., approximately 49 hours after Petitioner received the email transmittal with Addendum 3. Addendum 4, the reissued RFP, and the redlined reissued RFP were transmitted by a single email sent to the three shortlisted firms, including Petitioner, on May 4, 2015, at 4:11 p.m. Petitioner confirmed receipt of the email transmittal three minutes later, at 4:14 p.m. Addendum 5, the reissued RFP, and the redlined reissued RFP were transmitted by a single email message transmitted to the three shortlisted firms, including Petitioner, on May 5, 2015, at 12:10 p.m. Petitioner confirmed receipt of the email transmittal two minutes later, at 12:12 p.m. The three shortlisted firms, including Petitioner, submitted sealed lump-sum price proposals and proposed contract time (number of calendar days to complete the project) for the Kanner Highway Project by the May 6, 2015, deadline. Petitioner’s price proposal acknowledged that as of May 6, 2015, Petitioner had received Addenda 1 through 5 during the bidding period, and specified the dates of receipt of each addendum.5/ Thereafter, Respondent calculated the “adjusted scores,” using the following components: the technical score (combination of the ELOI score and the technical proposal score), the proposed contract time, the time value costs provided in the RFP ($7,093 per day), and the bid price proposal. The formula, set forth in the RFP, is the bid price proposal plus the product of the proposed contract time in number of days times the time value cost per day, divided by the technical score (ELOI, or phase one, score, plus technical proposal, or phase two, score). As provided in the RFP, the design-build firm to be selected is the one whose adjusted score is the lowest. The adjusted score calculation components and results, announced at a public meeting and posted on the DOT website, were as follows: If We Are Not Successful, We Might Have To Protest: The Petition As forewarned, within 72 hours after DOT announced and posted the results on its website, showing that Intervenor had the lowest adjusted score and was the intended awardee, and that Petitioner’s proposal was in third place, Petitioner filed its notice of protest and protest bond. Within 10 days thereafter (as extended to the following Monday, day 12, by virtue of the uniform rules of procedure), Petitioner filed its Petition. The Petition sets forth the objections to Addendum 3 voiced in the April 29, 2015, emails, alleging in pertinent part: Technical proposals had already been submitted by the time Addendum 3 was released. Thus, the Department changed the proposal requirements after submission of vendors’ proposals. (Petition, ¶ 11). In Addendum 3, which was issued one day after the Q&A – after Ranger submitted its drainage concept as part of its technical proposal – the Department adopted Ranger’s drainage concept, significantly revising the plan for SMF 4, utilizing a smart box drainage control structure, and Basin 4’s piping system, including relocating SMF 4 structures and retaining existing pipes. That is, the Department gave the other vendors Ranger’s design for use by the other vendors after the technical proposals had been submitted and opened. (Petition, ¶ 15). Although none of the other vendors had included this design in their original technical proposals, they each improperly benefitted from Ranger’s efforts to develop a unique, substantially improved, more cost efficient plan: in violation of Florida law, the Department disclosed Ranger’s proposal concept to these firms, and, by mandating through Addendum 3 that all vendors use Ranger’s design concept, effectively allowed the other vendors to revise their own proposals after the technical proposal submission deadline and base their pricing on Ranger’s concept. (Petition, ¶ 16). The end result of the Department’s improper reveal of Ranger’s design concept was the posting of an intended award of the contract to another vendor instead of Ranger . . . making no attempt whatsoever to compensate Ranger for handing others the benefits that Ranger had earned. (Petition, ¶ 17). The complaint that Addendum 3 changed the RFP after submission of the technical proposals is a complaint directed to the RFP specifications as reissued on April 27, 2015. As to Petitioner’s complaint about not being compensated, it is not clear whether the Petition’s references are to stipend compensation or to some other asserted basis for compensation. The references to Petitioner not being compensated are not tied to the relief sought, which is a rejection of all bids (and not payment of compensation). To the extent Petitioner is attempting to assert a right to stipend compensation, such a request would be premature and would not be grounds for rejection of all bids. The RFP provides that non-selected shortlisted firms are eligible for stipend compensation if they have executed the Design-Build Stipend Agreement, and if they submit an invoice “after the selection/award process is complete.” (RFP at 62). By virtue of this proceeding, the selection/award process is not complete. Any other claim of a right to compensation would not be cognizable in a bid protest proceeding, as apparently Petitioner recognizes by not actually seeking compensation as relief. The Proposed Amended Petition In reaction to Respondent’s motion to dismiss the Petition as an untimely specifications challenge, on October 13, 2015, Petitioner offered the proposed Amended Petition. The proposed Amended Petition seeks to add to the claim that Addendum 3 modified the RFP’s specifications after the technical proposals were submitted, by extending that same claim to Addenda 4 and 5; that is, that Addenda 3, 4, and 5 modified the RFP’s specifications after the technical proposals were submitted. (Amended Petition, ¶ 11). With regard to the suggestion that Petitioner’s protest was an untimely challenge to the RFP’s specifications, the proposed Amended Petition adds the following: The Department did not electronically post any of the procurement documents – the RFP, the addenda, or the notice of intended award decision – as required by section 120.57(3)(a), Florida Statutes, and Florida Administrative Code Rule 60A-1.021. Amended Petition, ¶ 12. The Amended Petition also seeks to evoke the impression of a scoring challenge by alleging that “on information and belief” the technical proposals were not scored on the basis of the RFP amendments that were issued after the technical proposals were submitted. (Amended Petition, ¶ 18). In explaining the grounds for Petitioner’s protest, Petitioner’s president described this challenge to the “scoring” as follows: Petitioner is “protesting that the – how could the technical scores reflect all of the addendums that were submitted after the technical proposal[s].” (Schafer deposition at 10). In other words, this is not a scoring challenge, but a process challenge: Petitioner’s objection is to the issuance of one addendum (per the Petition) or three addenda (per the Amended Petition) that amended the RFP after technical proposals were submitted, but before price proposals were submitted. The proposed Amended Petition does not cure the Petition’s timeliness problem. Petitioner’s notice of protest with protest bond was not filed within 72 hours of the electronic transmittal or receipt of Addendum 3, Addendum 4, or Addendum 5. Petitioner received the reissued RFPs, incorporating these addenda, on April 27, May 4, and May 5, respectively. The notice of protest was not filed until May 20, a full 15 days after Addendum 5 was received. Proposed Second Amended Petition Putting aside the argumentative portions of the proposed Second Amended Petition,6/ the proposed new allegations include pleading in the alternative that either the technical proposals were evaluated and scored without consideration of the RFP addenda that were issued after the technical proposals were submitted; or, in the alternative, that the RFP addenda were considered in evaluating the technical proposals, but the awarded scores must be improper because the technical proposals did not address the RFP addenda. (Second Amended Petition, ¶¶ 20-22). By pleading in the alternative this way, the proposed Second Amended Petition confirms that the Petition and both proposed amended petitions only challenge the RFP specifications as amended by Addendum 3, or by Addenda 3, 4, and 5. Petitioner complains that the process was rendered flawed by virtue of the issuance of RFP addenda after the technical proposals were submitted, and that--one way or another--this must have undermined the evaluation and scoring of the technical proposals. The proposed Second Amended Petition seeks to add an allegation directed to Intervenor’s technical proposal, alleging that it “did not address the changes to SMF 4 that were required by Addendum 3.” (Second Amended Petition, ¶ 22). A corollary disputed issue of fact alleged is “[w]hether Community’s proposal complied with the requirements of the addenda[.]” (Second Amended Petition, ¶ 31.e.). While these allegations single out Intervenor, in substance they are no different than the other process challenges. While perhaps they are directed to the intended awardee in an effort to appear as if Petitioner is raising grounds to challenge the award decision, that effort would give rise to another problem. Petitioner, as the third- ranked firm, would lack standing to protest a contract award on grounds that the highest ranked firm should not have been highest ranked or should have been found non-responsive (not alleged by Petitioner in any petition). How Clear Were the Points of Entry? Neither the proposed Amended Petition nor the proposed Second Amended Petition would cure the Petition’s timeliness problem. However, they raise as a defense to Respondent’s timeliness challenge (which itself is in the nature of a defense, that of waiver of a clear point of entry) that the points of entry relied on were ineffective to operate as clear points of entry. It is not necessary to amend the Petition to consider this argument, as it is responsive to the issues raised by the Motion to Relinquish. Petitioner, and members of its design-build team, are hardly newcomers to DOT design-build procurements.7/ Petitioner’s president acknowledged that the Kanner Highway Project is not Petitioner’s first involvement in a DOT design-build procurement. Petitioner has successfully responded to a number of design-build proposals, including several in District Four, the results of which were that Petitioner was awarded the contracts. Petitioner is familiar with the DOT website and uses that website as a tool to stay abreast of design-build project advertisements and procurement information. Petitioner’s president could not identify any other tool, on the internet or otherwise, used by Petitioner for those purposes. In particular, although Petitioner is aware of the MyFloridaMarketPlace vendor bid system on myflorida.com, Petitioner could not say whether, for any of the design-build projects in which Ranger succeeded as the contract awardee, DOT posted RFPs, addenda, or notices of intended award on that myflorida.com system. DOT’s representative confirmed that DOT does not use the MyFloridaMarketPlace vendor bid system on myflorida.com for design-build procurements that are conducted pursuant to section 337.11(7) and DOT’s implementing rules, or for other road/bridge construction procurements under section 337.11. DOT uses the MyFloridaMarketPlace vendor bid system for procurements of commodities and contractual services. Petitioner’s president acknowledged that he was aware of the protest rights provision set forth in each version of the RFP for the Kanner Highway Project, as reissued to incorporate each of the addendum amendments. Petitioner also acknowledged that none of the email communications with DOT officials regarding the objections of Petitioner and its team members to Addendum 3 were filed as a notice of protest or formal written protest of the terms, conditions, or specifications of the RFP as amended by Addendum 3.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner’s Formal Written Protest be DISMISSED. DONE AND ENTERED this 20th day of November, 2015, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 20th day of November, 2015.
Recommendation Based on the foregoing Findings of Pact and Conclusions of Law the Hearing Officer would recommend that the agency head enter a final order permitting the voluntary removal of the entire structure within 30 days of the date of the agency head's final order, and directing employees of the Department of Transportation to remove the structure after the 30-day period without compensation to the owner. DONE and ORDERED this 31st day of October, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1980. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 James P. Appleman, Esquire 206 Market Street Post Office Box 385 Marianna, Florida 32446
Findings Of Fact On or about July 31, 1987, a DOT sign inspector observed a sign opposite Respondent's place of business advertising Respondent's business, which appeared to be on the DOT right-of-way of U.S. 19 in Hernando County. Measurements to place the sign in relation to U.S. 19 were taken. The right-of-way of U.S. 19 at this location, as determined by a DOT right-of-way marker 1000 feet south of Respondent's sign and the DOT right-of- way map, shows the right- of-way to extend 55 feet west of the edge of the pavement of U.S. 19. The sign at issue was located 46 feet from the edge of the pavement placing the sign 9 feet inside the DOT right-of-way line.
