The Issue Whether Department of Transportation acted fraudulently, arbitrarily, capriciously, illegally, or dishonestly in issuing its intent to award RFP-DOT- 91/92-9012 bid to Trauner Consulting Services.
Findings Of Fact Public notice that DOT was seeking competitive bids was given, and DOT prepared a document entitled: Request for Proposal, which set forth in detail all of DOT's requirements. The purpose of the RFP was to inform all potential bidders of the minimum requirements for submitting a responsive bid, and the specific criteria by which the bids would be evaluated. Specific areas of importance to Respondent were as follows: All proposals were to be submitted in two parts; the Technical Proposal and the Cost Proposal. The Technical Proposal was to be divided into an Executive Summary, Proposer's Management Plan and Proposer's Technical Plan. The price proposal was to be filed separately. The RFP requested written proposals from qualified firms to develop and provide training on highway and bridge construction scheduling use as it pertains to Department of Transportation Construction Engineers. Proposals for RFP-DOT-91/92-9012 (hereinafter "RFP"), were received and opened by FDOT on or about December 14, 1992. Eleven companies submitted proposals. The technical portions of the proposals were evaluated by a three (3) person committee comprised of Gordon Burleson, Keith Davis and John Shriner, all FDOT employees. Gordon Burleson is the Engineer of Construction Training for FDOT. He administers the training for FDOT engineers and engineer technicians who work in FDOT's Construction Bureau. John Shriner is the State Construction Scheduling Engineer for FDOT. Keith Davis is the District 7, Construction Scheduling Engineer and Construction Training Engineer for FDOT. The Committee members evaluated the proposals individually then met as a group. The Committee established no formal, uniform evaluation criteria to be used by all committee members. The price proposals were not revealed to the Committee members until after the proposals were technically evaluated and scored. The price proposals were reviewed separately by Charles Johnson of the Contractual Services Office, Department of Transportation. The Committee evaluated the proposals based on the general criteria contained in the RFP. The RFP listed the criteria for evaluation to include: Technical Proposal Technical evaluation is the process of reviewing the Proposer's Executive Summary, Management Plan and Technical Plan for understanding of project qualifications, technical approach and capabilities, to assure a quality project. Price Proposal Price analysis is conducted by comparison of price quotations submitted. The RFP established a point system for scoring proposals. Proposer's management and technical plans were allotted up to 40 points each, 80 percent of the total score. The price proposed was worth up to 20 points, or 20 percent of the total score. Petitioner's proposal was given a total score of 90 points out of a possible 100. Trauner's proposal was given a total score of 92.04 points out of a possible 100. Petitioner's was ranked highest for price proposal, and received a total of 20 points for its proposed price of $18,060. Trauner's proposed price was $24,500, the next lowest after Petitioner and received 14.74 points. The technical portion of Trauner's proposal was given a total of 77.3 points, 38 for its Management Plan and 39.3 for its Technical Plan. The technical portion of Petitioner's proposal was given a total of 70 points, 36.7 for its Management Plan and 33.3 for its Technical Plan. Each plan was reviewed separately by the three Committee members, The individual, pre-averaged scores vary with committee member, Keith Davis' score varying the most from the others. The Committee members did not discuss the proposals until after they had individually reviewed and scored them. The Committee members had discussed the criteria prior to receiving and evaluating the proposals. There was insufficient evidence to show that Committee members scores were determined by fraud, or were arbitrary, capricious, illegal, or dishonest.
Recommendation Based on the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that Respondent, Department of Transportation enter a Final Order dismissing the protest filed herein by Petitioner, Systems/Software/Solutions and awarding RFP-DOT-91/92-9012 to Trauner Consulting Services. DONE and ENTERED this 12th day of March, 1992, in Tallahassee, 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 12th day of March, 1992. APPENDIX Respondent's Proposed Findings of Fact: Accepted in substance: paragraphs - 1,2,3,4,5,6,7,8, 9,10,11,12,13,14,15,16,17,18,19,20,21 Petitioner's Proposed Findings of Fact: Accepted in substance: paragraphs - 1,5,11(in part) Rejected as not supported by the greater weight of evidence or irrelevant: paragraphs 2,3,4,6,7,8,9,10,11(in part),12 COPIES FURNISHED: Donald F. Louser, Qualified Representative Systems/Software/Solutions 657 Sabal Lake Dr, #101 Longwood, Florida 32779 Susan P. Stephens, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation Attn: Eleanor F. Turner, MS-58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
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
Recommendation Based upon the admission of the Respondent, Oscar Darias, that the allegations in the Administrative Complaint are true, and the Respondent's plea of guilty to the violations as charged in the Complaint, it is RECOMMENDED that the certified general contractor's license, number CG C004728, held by the Respondent, Oscar Darias, be revoked. THIS RECOMMENDED ORDER entered on this 22nd day of September, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1981. COPIES FURNISHED: Harold M. Braxton, Esquire 45 S.W. 36th Court Miami, Florida 33135 Oscar Darias 9402 S.W. 17th Street Miami, Florida 33174
The Issue The issue for determination is whether the Intervenor was properly qualified to complete the construction project contemplated by Invitation to Bid No. DCF-03211120 (ITB)
Findings Of Fact The Department issued the ITB for a construction project, involving the re-roofing of Buildings 1 and 2 at 12195 Quail Roost Drive, Miami, Florida. The ITB was published in the Florida Administrative Weekly on December 24, 2008. The ITB outlined the terms and conditions for responsive bids. The ITB indicated, among other things, that all sealed bids were required to be submitted at 401 NW 2nd Avenue, S-714, Miami, Florida 33128, by January 15, 2009, at 2:00 p.m. Leo Development submitted its sealed bid at the location and by the date and time, in accordance with the ITB. FBM submitted its sealed bid by the date and time, but at a different location—the offices of Russell Partnership— contrary to the ITB. All other bidders submitted their sealed bids at the location and by the date and time, in accordance with the ITB. The Department’s architect of record on the project, Russell Partnership, and one of its principals, Terry Holt, performed the examination and bid tabulation. Mr. Holt, a registered architect for approximately 36 years, was very familiar with the procurement process and had extensive experience in determining whether a bidder was licensed by DBPR in order to complete the work contemplated for a project. The sealed bids submitted at 401 NW 2nd Avenue, S-714, Miami, Florida 33128, on or before January 15, 2009, at 2:00 p.m. were as follows: All Time Roofing, with a bid of $73,400.00; Taylor Roofing, with a bid of $59,708.00; Leo Development, with a bid of $54,109.00; John W. Hunter Enterprises, with a bid of $75,000.00; and Trintec Construction, with a bid of $75,500.00. 9. FBM’s bid was $71,600.00. Mr. Holt determined that Leo Development was the lowest bidder. FBM’s bid was not considered as being non-responsive. Additionally, Mr. Holt reviewed Leo Development’s website to ascertain as to whether any factors existed to disqualify Leo Development. The website failed to reveal any basis for Mr. Holt to disqualify Leo Development. Having discovered no basis to disqualify Leo Development as the lowest bidder, Mr. Holt submitted the list of bidders, with their bids, to Bill Bridges, the Department’s senior architect and a registered architect for approximately 25 years. Mr. Bridges was the person responsible for oversight of the ITB process. As Leo Development was the lowest bidder, Mr. Bridges reviewed the website of the Florida Department of State, Division of Corporations (Division of Corporations) in order to ensure that Leo Development was registered with the Division of Corporations. His review revealed that Leo Development was a fictitious name properly registered to Leo Premier Homes, LLC. Further, Mr. Bridges performed a license background check on Leo Development in order to ensure that Leo Development was licensed by DBPR. Mr. Bridges reviewed DBPR’s website, which revealed that Frank Anthony Leo was the owner of Leo Development and that the following licenses were issued by DBPR: Qualified Business Organization License #QB50182 to Leo Premier Homes, LLC, Leo Development; Certified Building Contractor License #CBC1254723 to Frank Anthony Leo, Leo Development; and Certified Roofing Contractor License #CCC1328402 to Frank Anthony Leo, Leo Development. Mr. Bridges confirmed and was satisfied that Leo Development was properly licensed to complete the work contemplated by the ITB. Mr. Bridges recommended that Leo Development be awarded the ITB as the lowest responsive bidder. FBM filed a written protest (Initial Protest) of “its exclusion from the bid tabulation.” The Department issued a Final Order Rejecting Bid Protest (Final Order) on February 19, 2009. The Final Order provided in pertinent part: FBM was determined non-responsive because the bid was not presented at the time and place specified in the ITB. . . FBM’s formal written protest alleges that FBM, on the date of the bid submission/bid opening, was misdirected as to the location of the bid opening. . . . FBM’s protest must be rejected because it does not state a claim that could entitle it to relief. . . In the context of a bid protest proceeding . . . the protest must adequately allege that the protestor could obtain the contract award or otherwise benefit should the protest be successful. . . Assuming all of FBM’s factual allegations are true and that those facts entitle FBM to have its bid considered, FBM would still be entitled to no relief. Had FBM’s bid been accepted, FBM would have been the third lowest of six bidders. FBM’s formal protest does not allege that the lowest and second lowest bids were deficient in any manner. FBM was not injured in fact, because it still would not have received the contract award. Accordingly, FBM’s formal written protest is REJECTED. No appeal was taken by FBM of the Department’s Final Order rejecting FBM’s Initial Protest. Among other findings, the Department’s Final Order on FBM’s Initial Protest found that, taking FBM’s allegations as true, FBM would have been the third lowest bidder. FBM would not have been the second lowest bidder. The parties agree that the holder of a certified building contractor’s license and a certified roofing contractor license would be permitted to complete the work contemplated by the ITB. Subsequent to the opening of the sealed bids, Leo Premier Homes, LLC, registered the fictitious name of Leo Roofing & Construction with the Division of Corporations. After the registration with the Division of Corporations and after the Department’s Final Order, licenses were issued by DBPR. As to the licenses issued, the record of the instant case provides2: Qualified Business Organization License #QB50182 to Leo Premier Homes, LLC, Leo Roofing & Construction; Certified Building Contractor License #CBC1254723 to Frank Anthony Leo, Leo Roofing & Construction; and Certified Roofing Contractor License #CCC1328402 to Frank Anthony Leo, Leo Roofing & Construction. The licenses reflect the same license numbers, as before, and only the fictitious name is different on each license to indicate Leo Roofing & Construction.3 The contract for the ITB was entered into between the Department and Leo Development. In these proceedings, the Department incurred costs in the amount of $1,311.05.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing FBM General Contracting Corporation’s Protest and awarding costs in the amount of $1,311.05 to the Department of Children and Family Services. DONE AND ENTERED this 21st day of August 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 21st day of August, 2009.
Findings Of Fact The invitation to bid on state Project Nos. 86906-9093, 86906-9094, and 86906-9085 (the "ITB") contained, among other things, 43 pages of Technical Specifications Roadside and Slope Mowing ("Technical Specifications"). Paragraph VI.A. of the Technical Specifications contained the following provision: When mowing areas within ten feet of the travel way, the equipment shall be operated in the direction of the traffic. This provision does not apply when the specific worksite (sic) is protected in accordance with the Florida Department of Transportation Roadway and Traffic Design standards [attached]. 3/ Respondent amended the ITB by letter dated May 1, 1990, which contained Addendum Nos. 1 and 2. Addendum No. 1 amended the invitations to bid on State Project Nos. 86906-9093 and 86906-9094 by deleting the "last" word "attached" from Paragraph VI.A. Addendum No. 2 amended the invitations to bid on State Project No. 86906-9085 by deleting the "last" word "attached" from Paragraph VI.A. No other changes were made in the amendments to the invitations to bid on the three state projects at issue in this proceeding ("Amended ITB"). The ITB contained a requirement that all bidders attend a Mandatory Pre-Bid Conference to allow bidders an opportunity to speak to Respondent's maintenance engineers about any concerns over the ITB. Petitioner attended the Mandatory Pre-Bid Conference conducted on April 26, 1990, for the ITB. 4/ The ITB and the Amended ITB contained a requirement that each bidder visually inspect the roadside areas to be mowed. Petitioner knew of the requirement for visual inspection and complied with that requirement. Petitioner had previous experience in mowing roadside areas for Respondent. The Florida Department of Transportation Roadway and Traffic Design standards ("Standards Index") was not attached to either the ITB or the Amended ITB. Paragraph 9 of the General District Contract Specifications provided that the successful bidder "...shall adhere to the requirements of Part VI of the Manual on Uniform Traffic Control Devices ("MUTCD")." Neither the ITB nor the Amended ITB included a copy of either the MUTCD or Part VI of the MUTCD. Petitioner received the ITB on April 12, 1990, and requested a copy of the Standards Index at that time from Teresa Martin, Assistant District Contracts Administrator, District Four, Florida Department of Transportation. Ms. Martin advised Petitioner on April 12, 1990, that no copies of the Standards Index were available locally and further advised Petitioner of the location and means for obtaining a copy of the Standards Index in Tallahassee, Florida. Petitioner made no attempt to obtain a copy of the Standards Index at that time. Petitioner again requested a copy of the Standards Index from Ms. Martin on May 2, 1990, and was advised again at that time of the location and means of obtaining a copy of the Standards Index. The bid package did not fail to contain any "plan" referred to in: Section 4, Scope of Work, paragraphs 4.1 and 4.2; Section 5, Control of the Work, paragraph 5.2; Section 12, Work Assignment and Planning for Routine Contract Maintenance, paragraphs 2 and 4-6, page 5, paragraph 1.2, page 20, Section II D., III A., page 24, Section IX, and page 64, Proposal. Petitioner presented no evidence or authority describing the applicable standard for defining a "plan". The ITB and Amended ITB contain a description of which roadsides are to be mowed, the manner in which the work should be performed, each pay item and the quantity estimated for each item, the estimated number of mowing cycles, and numerous other detailed provisions regarding mowing operations, operator safety, equipment maintenance, and conversion charts. While the ITB and Amended ITB are standard forms of contract issued by the Department of General Services, they are tailored to meet the specific needs of a mowing contract by means of the Technical Specifications. In the absence of evidence or authority to the contrary from Petitioner, the ITB and Amended ITB are found to include all relevant plans. Respondent failed to include either the "form of Contract" or "Bond" referred to in pages 1, 10, and 64 of the ITB and Amended ITB. Page 64 contained a form of bid proposal which required each bidder to sign a statement that the bidder had "...carefully and to [its] satisfaction examined the...form of Contract and Bond.. The ITB and Amended ITB did not fail to state standards for what is "customary to the mowing operation". The ITB and Amended ITB were prepared on a standard form of contract issued by the Department of General Services and used by Respondent to solicit bids for various types of commodities and services. The ITB and Amended ITB were used to solicit mowing services for specified roadside areas In Broward County, Florida. They were composed of general specifications, bidding documents, technical specifications, and mowing guidelines. The term "custom" by definition refers to the prevailing practice that has been established over time within a geographical area rather than the written terms of a contract. 5/ The definition of grass or vegetated roadside areas to be mowed, which is set forth in Section I, Description A, page 19, excludes certain plants and vines which are present in the areas to be mowed. 6/ Such a definition does not take into account the different toughness and clumping characteristics of each type of grass or weed within the mowing area. Differences in toughness and clumping characteristics of grasses and weeds can adversely alter the uniformity of cutting height. The Technical specifications neither define the term "routine mowing", as used in Sections II.D. and III.A., nor prescribe how high grass or weeds should be allowed to grow before Respondent issues a work order or a notice to proceed. Grass, weeds, plants, and vines in a roadside area that are left for several months without a work order being issued can grow to a height of 10 feet, develop very hard stems, or lay down during mowing and later rebound. The Technical Specifications do not contain a definition of minimum mower size. The frequency with which Respondent issues work orders or notices to proceed depends on growth conditions in the particular roadside area including rain and drought. The topography of the roadside areas to be mowed includes holes, boulders, and un-repaired washouts. The topographical characteristics of the roadside areas and the toughness and clumping characteristics of the grasses and weeds in the roadside areas adversely affect the ability of a successful bidder to comply with cutting height and green streak requirements in the Technical Specifications. 7/ The ITB and Amended ITB were neither arbitrary, capricious, nor beyond Respondent's discretion. The terms of the ITB and Amended ITB were not inherently uncertain or unreasonable. No evidence was presented that Respondent abused its discretion in soliciting the bids, that the accepted bid, if any, was not a reasonable price for the work solicited, that the law was not complied with, or that the contract to be awarded was not fair and capable of just and lawful enforcement. The ITB and Amended ITB were sufficiently precise to protect the public against collusive contracts, prevent favoritism toward contractors, and secure fair competition upon equal terms to all bidders. The ITB and Amended ITB afforded a basis for an exact comparison of bids among all bidders and did not reserve to an officer of the public body the power to make exceptions, releases, and modifications that would afford opportunities for favoritism after the contract is let.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's written formal protest be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 3rd day of August, 1990. DANIEL MANRY 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 3rd day of August, 1990.
Findings Of Fact On October 30, 1981, Petitioner applied for a CON to establish an ambulatory surgical center in an existing building it owned at 5975 Southwest Eighth Street, Miami, Florida. Petitioner had operated a free-standing ambulatory surgical center at that location since January, 1979. It sought a CON (a prerequisite to obtaining a license from DHRS) in order to serve Medicare and Medicaid patients. (R-1, R-2) On February 19, 1982, after receiving additional information and holding a public hearing on the application, DHRS issued CON No. 1956, authorizing the requested ambulatory surgical center, at a cost of $278,000. The first page of the CON designated February 18, 1983, as the "Termination Date." (R-9) The second page of the CON provided Petitioner with actual notice of the statute and rule governing expiration and extension of CONs: A Certificate of Need shall terminate 1 year after the date of issuance unless the appli- cant has commenced construction, if the project provides for construction, or in- curred an enforceable capital expenditure commitment for projects not involving con- struction, or unless the certificate of need validity period is extended by the Department for an additional period of up to 6 months, upon showing good cause by the applicant for the extension. The Department shall monitor the progress of the holder of the certificate of need in meeting the timetable for project development specified in the application and may revoke the certificate of need after consideration of recommendations of the health systems agency, if the holder of the (R-9) certificate of need is not meeting such timetable and is not making a good faith effort to meet it. Rule 10-5.13(2)[sic] Florida Adminis- trative Code, states: An applicant desiring a 6 months validity extension to a certificate of need shall submit such request to the Department, in writing; not later than 15 days prior to the certificate termination date providing docu- mentation of good cause upon which such request is based. Good cause by the appli- cant in support of a request [sic) for a validity time period extension is documenta- tion that each of the following has been satisfied: If applicable a site has been firmly secured. Project financing has been firmly se- cured. For projects involving construction, final construction plans for the proposed project have been submitted for review by the Office of Licensure and Certification of the Department unless the applicant can document that the submission of such final construc- tion plans for review was precluded by cir- cumstances beyond his control. For projects not involving construction, the applicant has been - precluded from incur- ring an enforceable capital expenditure commitment by factors beyond his control. After granting the CON, DHRS set up a routine monitoring schedule with specific dates (4, 8, and 12 months from issuance of the CON) by which Petitioner was to submit status reports on the proposed project. (R-10) By letter dated June 4, 1982, DHRS asked Petitioner to complete and return the first monitoring report on the project. Petitioner completed and returned the report on June 28, 1982. (R-10) On September 29, 1982, officials (including a medical facilities architect) from DHRS' Office of Licensure and Certification, Plans and Construction Section, located in Jacksonville, Florida inspected Petitioner's facility. By letter dated February 1, 1983, George E. Hapsis, the medical facilities architect informed Petitioner that "[the building was found to contain many deficiencies that in its present state would prevent licensing by the state." (R-10) He then identified 102 separate deficiencies and asked to be notified when they were corrected. On February 18, 1983 (the expiration or termination date of CON No. 1956); HRS' Office of Community Medical Facilities (which processes CONs), received Petitioner's request for an extension of CON No. 1956. The reasons given were that Petitioner had recently received the results of the site inspection and needed additional time to comply with DHRS' recommendation. It also advised DHRS that "[i]n the very near future, you will receive new plans of all necessary construction and remodeling to fully meet requirements. " (R-10) DHRS agreed to the request. By letter dated February 23, 1983, it grant a six-month extension of CON No. 1956, setting a new termination date of August 18, 1983, and warned Petitioner: Please be advised that the project must be under physical and continuous construction prior to the new termination date to have a valid and continuing Certificate of Need. (R-9) On July 18, 1983 (17 months from issuance of the CON and one-month prior to expiration to the six-month extension), DHRS sent Petitioner a request for specific information. The request reminded Petitioner of the August 18, 1983 termination date; referenced the provisions of Chapter 381 (concerning expiration of CONs if construction not commenced within 12 months, and authorizing an extension of up to six months); and asked for information on whether construction, if any was involved, had commenced. "Commenced construction" was explained as initiation of continuous construction activity beyond site preparation, associated with erecting or renovating a health care facility. If no construction was involved, DHRS asked for documentation as to whether enforceable capital expenditure commitments had been made for the project. By letter dated July 28, 1983, Petitioner replied to DHRS' request; stating that most of the 102 deficiencies were minor and "being worked on" and that, as to the other DHRS recommendations, "a few alterations and an addition are necessary, also we are working on it step by step." (R-10) Petitioner asserted that it was unable to submit the exact cost of the proposed work and that it deserved an extension of its CON. On August 15, 1983, three days before the final termination date of CON No. 1956, DHRS received a letter from Petitioner, asking, once again, for an extension of its CON. It stated that it was "doing some work" on the inspection recommendations, buying equipment, and working with the City of Miami regarding zoning. (R-10) On September 27, 1983, Nathaniel W. Ward, Jr., a medical facilities. consultant with DHRS, replied to Petitioner's letter: Please excuse our delay in answering your letter of August 12, 1983. It was placed in the file as a determination was made that you did not need an extension. If you have commenced [sic] construction at the end of the one-year period, then you will continue to have a valid Certificate of Need as long as you continue to construct to license the facility. (R-10) (Mr. Ward was apparently unaware of or overlooked, the fact that Petitioner had already been granted a six-month extension of its CON; under Section 381.494(8)(f), Florida Statutes, no further extension could have been granted. Further evidence of Mr. Ward's misapprehension was his statement that if construction had commenced at the end of the one-year, the CON would continue to be valid. If construction had indeed, commenced at the end of the one-year period, the original six-month extension would have been unnecessary.) Subsequently, Petitioner submitted preliminary construction drawings to DHRS' Office of Licensure and Certification in Jacksonville, which reviews preliminary drawings, makes recommendations prior to submittal of final drawings, and licenses health care facilities. After review of the preliminary drawings, that office gave Petitioner extensive comments on the drawings and withheld approval. As of May 2, 1984, Petitioner's preliminary drawings had not yet been approved by DHRS and no final construction drawings for the proposed facility had been received by the Office of Licensure and Certification. On May 16, 1984, nine months after the final termination date of CON No. 1956 (including the six-month extension), Wayne McDaniel, CON Monitoring Supervisor for DHRS, and Keith Matherene, a medical facilities consultant, inspected the site of the proposed facility. During their two-hour site visit, Vincent Pino, owner of corporate Petitioner, admitted that he (Petitioner) had, as yet, made no modifications to the existing structure since he had decided to redesign the project and had submitted new plans to the Office of Licensure and Certification. There was no evidence of any physical modifications having been made to the existing structure. Before leaving, Mr. McDaniel told Mr. Pino he would be given several days to provide written information on any extenuating circumstances which might explain the delay in construction. By letter dated June 7, 1984, after having received no response from Petitioner, DHRS declared CON No. 1956 null and void for noncompliance with Section 381.493(3)(g), Florida Statutes. Petitioner's failure to commence construction was due at least in part, to its unsuccessful efforts to obtain additional parking space for the proposed facility. Additional parking space was a zoning requirement which had to be met before a building permit could be issued. Petitioner signed contracts with two nearby landowners in an attempt to gain the necessary parking space, but the landowners failed to perform. After receiving DHRS' June 7, 1984 notice, Petitioner suspended its efforts to obtain additional parking.
Recommendation Based on the foregoing, it is RECOMMENDED: That DHRS enter a final order declaring CON No. 1956 null and void for failure to satisfy statutory and rule criteria for its continuing validity. DONE and ORDERED this 22nd day of August, 1985, in Tallahassee Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1985.
The Issue Whether Respondent's intended rejection of all responses to its solicitation of "qualifications" from entities interested in contracting with Respondent to perform construction management at risk services in connection with a project at Fort Lauderdale High School is illegal, arbitrary, and/or dishonest, as alleged by Petitioner.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a district school board responsible for the operation, control and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Fort Lauderdale High School) and for otherwise providing public instruction to school-aged children in the county. As authorized by Florida Administrative Code Rule 6A- 1.012, Respondent has "establish[ed] purchasing rules" (denominated as "policies"). Respondent's Policy 3320 contains Respondent's "Purchasing Policies." Part III of Respondent's Policy 3320 prescribes "Purchasing Policies" for Respondent's Facilities and Construction Management Division, and it provides, in pertinent part, as follows: All additions, modifications, and alterations to School Board properties shall conform with the State Requirement for Educational Facilities (SREF), Florida Building Code (FBC) and the laws of the State of Florida. School Board administrators shall obtain assistance in preparing bid specifications and applicable building permit(s) from the Facilities and Construction Management division for these items. Part VIII of Respondent's Policy 3320 addresses the subject of "protests arising from the competitive solicitation process" and incorporates the protest procedures found in Section 120.57(3), Florida Statutes. Respondent's Policy 7003 is entitled, "Pre- Qualification of Contractors and Selection of Architects, Engineers, Design Builders, Construction Managers, and Total Program Managers Pursuant to the Consultants Competitive Negotiation Act." It provides, in pertinent part, as follows: The School Board shall pre-qualify bidders for construction contracts, and, publicly announce, in a uniform and consistent manner, each occasion when construction and/or professional services are required to be purchased in compliance with governing statutes and regulations. The Superintendent shall establish procedures for the pre-qualification of contractors and selection of architects, engineers, design- builders, construction managers and total program managers consistent with this policy, applicable statutes and State Requirements for Educational Facilities (SREF). Rules The School Board authorizes the Superintendent to: Receive applications for Contractor Pre- Qualification on the attached application form in compliance with FS 1013.46 and SREF 4.1(8), as amended. . . . * * * 4. Designate an evaluation committee of eleven (11) voting members for the purpose of Pre-Qualification of contractors and selection of architects, engineers, design builders, construction managers and total program managers. * * * The committee shall make recommendations to the Superintendent regarding the pre- qualification of contractors. The Superintendent shall make recommendations to the Board: Along with a report from the committee containing findings of fact indicating the proposers' compliance with the procurement requirements and scoring criteria and the Board shall have the final approval of such recommendations. The Contractor Pre-Qualification Application Form "attached" to Policy 7003 contains the following description of the contractor pre-qualification process: The School Board ("Board") through the Superintendent or his/her designee, shall pre-qualify all "contractors" for construction contracts, and any other contracts that require a certificate issued pursuant to Chapter 489, Florida Statutes, including, but not limited to, all bidders, construction managers, design-builders, job- order contractors, term contractors, and all other types of contractors on an annual basis or for a specific project according to the rules set forth in the State Requirements for Educational Facilities (SREF) Section 4.1(8). Contractors shall be pre-qualified on the basis of the criteria set forth in SREF and included in the foregoing application form. In addition to the foregoing criteria the applicant shall provide the Dun and Bradstreet report indicated in the application. The evaluation committee shall be as set forth in Board Policy 7003. The applicant shall complete the form in its entirety and submit all required documents by the deadline set forth in the public announcement. Separate applications shall be submitted for each desired contracting category. The School Board of Broward County shall receive and either approve or reject each application for prequalification within sixty (60) days after receipt of application in its entirety and all required documents. Approval shall be based on the criteria and procedures set forth in SREF. The Board shall issue to all pre-qualified contractors a certificate valid for one (1) year from the date of approval or for the specific project(s). That certificate shall include the following: A statement indicating that the contractor may bid, propose, or otherwise be considered, on the specific project(s) or for this specific time period. A statement establishing the total dollar value of the work the contractor will be permitted to have under contract with the Board at any one time. The maximum value shall not exceed the contractor's bonding capacity or ten (10) times the net quick assets. A statement establishing the maximum dollar value of each individual project the contractor will be permitted to have under contract with the Board at any one time. The maximum value of each project may be up to twice the value of the largest similar project previously completed but shall not exceed the Contractor's bonding capacity or ten (10) times the net quick assets. A statement establishing the type of work the contractor will be permitted to provide. The expiration date of the certificate. It shall be the responsibility of the contractor to renew annually certificates not for a specific project. Financial statements or written verification of bonding capacity on file with the Board shall be updated annually. Failure to submit a new statement or verification of bonding capacity within thirty (30) days written notice by the Board shall automatically revoke a pre-qualification certificate. 1. Pre-qualified contractors may request a revision of their pre-qualification status at any time they believe the dollar volume of work under contract or the size or complexity of the projects should be increased if experience, staff size, staff qualifications, and other pertinent data justify the action. These procedures are in accordance with requirements set forth in Section 4.1 of the State Requirements for Educational Facilities. As the parties stipulated in Admitted Fact 6, "[o]n May 20, 2008, [Respondent] approved the Request for Qualifications No. 2008-030-FC (RFQ) entitled 'Construction Management at Risk Services for Districts 2, 3 and 4 Projects (Cooper City High School - Project No. 1931-99-02; Fort Lauderdale High School – Project No. 0951-27-01; Margate Elementary School – Project No. 1161-26-01; and Northeast High School – Project No. 1241-27-01),' and authorized the public announcement of the RFQ." "[In] [t]he summary explanation and background [section of] the Agenda Request Form [for this agenda item, it was] stated that the 'Facilities and Construction Management staff recommend[ed] the procurement of construction services utilizing Construction Management at Risk delivery method due to the complexity, scope and scale of the projects.'" This "delivery method" is to be distinguished from the "hard bid" or "design/bid/build" method of procurement, where a contractor is hired only after "the construction documents are completed." Under the "Construction Management at Risk delivery method," contrastingly, the construction manager typically assists in the development and "complet[ion]" of the "construction documents," offering advice and recommendations to maximize quality and cost efficiency. As a result, it is "not uncommon" for there to be post-solicitation changes in a project's scope and budget when this "delivery method" is employed. As the parties stipulated in Admitted Fact 7, "[a]t the time of [Respondent's] approval of the RFQ, the portion of the RF[Q] pertaining to [the FHS Project] had an advertised Proposed Construction Budget of $29,150,340 and a project scope which was described [in RFQ] as follows: 'Concurrent replacement in two phases to include: Phase I – Construct a 3- story Administration Classroom Building of 68,940 GSF to include Administration, 3 general classroom[s], 5 resource rooms, 4 Science Labs and related spaces, a 4-classroom ESE Suite, 1 Business Technology Lab, 1 Family and Consumer Science (ProStart) Lab, 1 Health Occupations Lab, 1 Pre-Law Public Service Education Lab, Custodial spaces, Textbook Storage and Student, Staff and Public Restrooms. Demolish Buildings 1, 2, 3, 4, 11, 12, 13 and 14.'" Phase II of the project was, at the time, described in the RFQ as follows: "Construct Parent drop off & pick up area and Staff/Visitor Parking; Construct Regional Athletic Facility; Renovate Building 8 into Science Labs; Demolish existing tennis courts & replace with 6 tennis courts; Demolish Swimming Pool; Construct basketball courts; Resurface Student Parking." These descriptions represented the "initial concept" of the FHS Project (the design of the project having been then only in the "conceptual stage" of development). Respondent wanted to have the benefit of the input and advice of a construction manager (working together with the architect selected for the project) in developing the project's design beyond the "conceptual stage." As the parties stipulated in Admitted Facts 12 through 19, "[b]etween the initial public release of the RFQ and the submission of proposed qualifications, [Respondent] issued seven (7) addenda revising the RFQ's terms and conditions," with "Addendum No. 4 chang[ing] the scope of the [FHS Project] component of the RFQ as follows": Delete the scope in Phase I to demolish Building #4. Delete the scope in Phase II to construct basketball courts and to resurface student parking. Revise the words "replace with 6 tennis courts" to be the words "construct five (5) tennis courts." Clarify phasing: In Phase I, demolish the existing track and athletic field and relocate existing baseball field. Clarify scope: In Phase II, for the staff parking construct a 3-story parking structure including required access road work. Clarify scope: Phase II includes renovation of existing courtyard to provide ADA access to existing gymnasium and auditorium. (Emphasis, by bolding, supplied in original). Addendum No. 6 "[r]evised the [RFQ's] Submittal Due Date to read 'No later than 2:00 p.m. on September 3, 2008.'" As the parties stipulated in Admitted Fact 20,"[a]fter [the] issuance of Addendum No. 7 to the RFQ, the scope of the [FHS Project] component of the RFQ was described as follows [with strike-throughs and underlining indicating, respectively, post-issuance deletions and additions]: Concurrent replacement in two phases to include: Phase I – Construct a 3-story Administration Classroom Building of 68,940 GSF to include Administration, 3 general classroom[s], 5 resource rooms, 4 Science Labs and related spaces, a 4-classroom ESE Suite, 1 Business Technology Lab, 1 Family and Consumer Science (ProStart) Lab, 1 Health Occupations Lab, [1 Pre-Law Public Service Education Lab], Custodial spaces, Textbook Storage and Student, Staff and Public Restrooms. Demolish the existing track and athletic field and relocate existing baseball field. Demolish Buildings 1, 2, 3, 4, 11, 12, 13 and 14. Phase II – Construct Parent drop off & pick up area and a 3-story parking structure including required road access work for Staff Parking and /Visitor Parking[.] Construct Regional Athletic Facility[.] Renovate building 8 into Science Labs[.] Demolish existing tennis courts & replace with 6 tennis courts construct five (5) tennis courts. Demolish Swimming Pool. Renovate existing courtyard to provide ADA access to existing gymnasium and auditorium. Construct basketball courts. Resurface Student Parking." As the parties stipulated in Admitted Facts 10 and 11, on August 26, 2008, the date that Respondent issued its final addendum to the RFQ (Addendum No. 7), it also issued a Revised Public Announcement publicizing the issuance of the RFQ (as revised by the seven addenda). The Revised Public Announcement read, in pertinent part, as follows: In order to supplement the expertise of the Facilities and Construction Management Department, the Superintendent of Schools, pursuant to Florida Statutes, announces that The School Board of Broward County, Florida, is in need of Construction Management Services, related to new construction and renovations of educational facilities. Pursuant to this request for qualifications, The Board will consider contracts with one of more proposers to provide these services. Services under this contract include, but are not limited to the following items and shall be in accordance with SREF [State Requirements for Educational Facilities] 1999 Chapter 4: Bid and award activities including managing bidder listing, addendum, bidding, proposals, schedule of values, contracts, guaranteed maximum price, value engineering, and bonds. Construction activities including managing meetings, contract administration, monitoring procedures, contract records, inspections, non-conformances, owner- supplied equipment, testing, project accounting, and construction services. Warranty activities including managing claims and periodic inspections. Provide other basic services as required. Refer to the Request for Qualifications for more detailed project scopes. * * * RFQ No. 2008-30-FC Project Nos. 0951 27 01/P000687 Fort Lauderdale High School (proposed construction budget $29,150,340): Phase replacement in 2 phases to include: Phase I - Demolish selected buildings, tennis courts, swimming pool, track and athletic field. Construct a 3-story Administration Classroom Buildings[2] of 68,949 GSF; parent drop off/pick-up area and visitor parking; 5 tennis courts. Relocate existing baseball field. Phase II - Demolish selected building. Construct a 3-story parking structure including required access road work; Regional Athletic Facility. Renovate existing courtyard for ADA access to Gym and Auditorium. Renovate Building 8 into Science Labs. * * * Award: Project will be awarded by Facility. Proposed Construction Budget: Includes all costs inclusive of the Construction Manager's fees, Cost of Work, and any other costs related to construction. Minimum Selection Criteria: Will include the following as a minimum, (refer to document RFQ, Article X Submittal Requirements for expanded list of selection criteria): The company's history, structure, personnel, licenses, and experience. Related projects similar in scope or amount completed by the company, including name of client or its representative. Financial information such as balance sheet and statement of operations and bonding capacity. Project management, scheduling and cost control systems the company uses for similar projects. Proposed minority business involvement in the project. . . . Cost control, value engineering techniques and constructability reviews. Description of litigation, major disputes, contract defaults and liens in the last five (5) years. Interview. Confirmation of references. Consideration of the volume of work previously awarded to each firm, with the object of effecting an equitable distribution of contracts among qualified firms, provided such distribution does not violate the principle of selection of the most qualified firms. * * * The completed RFQ response must be delivered . . . . NO LATER THAN 2:00 PM SEPTEMBER 3, 2008 * * * Qualifications Selection Evaluation Committee (QSEC): After submission, proposers will be evaluated by the Qualification Selection Evaluation Committee (QSEC) based upon the above minimum criteria. The QSEC will select no less than three (3) proposers, ranked in order of tabulated score. The QSEC will recommend the finalist(s) for award of contracts to Construction Managers to the Superintendent. The Superintendent shall either recommend award of contract(s) to the finalist(s) selected by the QSEC or recommend rejection of all proposals to the Board. After the Board approves the recommendations of the QSEC the Board will authorize the Superintendent, or designee, to negotiate a contract for services for fees to provide direct management of the Construction Management at Risk Contract. Recommendations by the Qualification Selection Evaluation Committee do not guarantee a contract will be awarded by the Board. Award of a contract does not guarantee that work will be issued. Fees will be negotiated in accordance with Board Policy 7003 and Section 287.055, F.S. Article I of the RFQ (as revised) listed "General Requirements" that "proposers [had to] meet" "[i]n order to be considered." As the parties stipulated in Admitted Fact 21, Article I.D. of the RFQ (as revised) provided, in pertinent part, as follows: All proposers must be prequalified according to 1013.46 F.S., SREF 4.1(8), and Board Policy 7003 at the time of submittal due date to this RFQ. Article I.H. of the RFQ (as revised) provided as follows: The School Board of Broward County, Florida reserves the right to reject any or all responses, to waive technicalities, or to accept the proposal that, in its sole judgment, best serves the interest of The School Board of Broward County, Florida. Article II of the RFQ (as revised) described the "Selection Process." As the parties stipulated in Admitted Fact 22, Article of the RFQ (as revised) "was entitled 'Proposal Review by Staff' and stated as follows": Facilities and Construction Management Division staff will conduct a review of the proposer's submittal to determine whether the proposer meets the terms of this RFQ, requirements of the Florida Statutes, State Requirements for Educational Facilities regulations, Florida Building Code, and any other code, statute, or standard applicable at the time of response. Facilities and Construction Management Staff will provide information to the QSEC Members showing payments made by the district to the proposing firms over the past three (3) years. Non-compliant proposals will be recommended to the committee for rejection. As the parties stipulated in Admitted Fact 23, Article of the RFQ (as revised) "was entitled 'Shortlist Selection' and stated as follows": The QSEC Members will assign points to each proposer, for each facility, based upon the Selection Criteria below and attached Selection Criteria Score Sheet in the shortlist evaluation process. Each QSEC Member shall assign points for each proposer according to the selection criteria and rank them according to their scores. The proposer receiving the most points by a QSEC Member will be considered the first choice of that QSEC Member. The firm that receives the most first choice votes from the committee will be the top-ranked proposer. The second-ranked proposer will be the proposer that receives the most points, other than the proposer who was already selected as the top-ranked, and so on. In the event of a tie a voice vote will be taken until the tie is broken. If the voice vote is not unanimous, then a roll-call vote will be taken. The selection process will establish a "shortlist" for each facility/project of not less than three (3) proposers and no more than five (5) proposers submitting proposals. Shortlist selection will be done by each facility. Article II.E. of the RFQ (as revised) called for "[p]resentations" to be made to the QSEC by the shortlisted proposers. As the parties stipulated in Admitted Fact 24, Article II.G. of the RFQ (as revised) "was entitled 'Final Selection' and stated as follows": The QSEC will interview and rank the shortlisted firms. The QSEC will assign points to each proposer, for each facility, utilizing the Selection Criteria and point schedule included with the Selection Criteria Score Sheet to finalize the selection. Note, M/WBE staff will provide scores for M/WBE categories. However, such scores are recommendations by M/WBE staff and may be adjusted by individual QSEC Members. Each QSEC Member shall assign points for each proposer according to the selection criteria and rank them according to their scores for each project/facility. The proposer receiving the most points by a QSEC Member will be considered the first choice of that QSEC Member. The proposer that receives the most first choice votes from the committee will be the top-ranked proposer. The second-ranked proposer, will be the proposer that receives the most points, other than the proposer who was selected as the top-ranked proposer, and so on. In the event of a tie a voice vote will be taken until the tie is broken. If the voice vote is not unanimous, then a roll- call vote will be taken. The QSEC will recommend the finalist(s) for award of contract to Construction Manager to the Superintendent. The Superintendent shall either recommend award of contract(s) to the finalist(s) selected by the QSEC or recommend rejection of all proposals to the Board. After the Board approves the recommendations of the QSEC the Board will authorize the Superintendent, or designee, to negotiate a contract with the top-ranked firm according to Section 287.055, F.S. The Board shall have final approval of such recommendations. Final selection will be done by each facility. Article II.H. of the RFQ (as revised) contained the "Minimum Selection Criteria." This provision read as follows: Minimum Selection Criteria: Will include the following as a minimum, (refer to this document Article XI Submittal Requirements for expanded list of selection criteria): The company's history, structure, personnel, licenses, and experience. Related projects similar in scope or amount completed by the company, including name of client or its representative. Financial information such as balance sheet and statement of operations and bonding capacity. Project management, scheduling and cost control systems the company uses for similar projects. Proposed minority business involvement in the project (refer to this document Article I, J for requirements). Cost control, value engineering techniques and constructability reviews. Description of litigation, major disputes, contract defaults and liens in the last five (5) years. Interview. Confirmation of references. Consideration of the volume of work previously awarded to each firm, with the object of effecting an equitable distribution of contracts among qualified firms, provided such distribution does not violate the principle of section of the most qualified firms. As the parties stipulated in Admitted Fact 25, Article III of the RFQ (as revised) "[was] entitled 'Competitive Negotiations' and state[d] as follows": After the QSEC ranks the firms, recommends the finalist(s) to the Superintendent, and the Superintendent recommends the finalist(s) to the Board[,] [t]he Superintendent, or designee will negotiate a contract for services for fees to provide direct management cost of the CM and Guaranteed Maximum Price (GMP). The CM contract shall maintain an "open book" project accounting process, with any savings returned to the Board. Should the negotiations not result in a contract with the finalist at a price determined by both parties to be customary, fair, competitive, and reasonable, negotiations with that firm shall be formally terminated. The Superintendent, or designee, shall undertake negotiation with the second most qualified firm and thereafter, if necessary, with the third firm. Should the Board be unable to negotiate a satisfactory contract with any of the selected firms, additional firms will be selected in accordance with the above- described procedure. Negotiation should continue in accordance with Section 287.055, F.S., or until the Board determines not to proceed and to re-advertise and repeat the process. Article IV of the RFQ (as revised) addressed the "Scope of Services." It simply provided as follows: "Refer to attached Agreement Between Owner and Construction Manager for requirements." Article 3 of the "attached Agreement Between Owner and Construction Manager" (Sample Contract) enumerated the "Construction Manager's Services." Those services to be performed by the hired construction manager during the "Pre-Design Phase" were described in Article 3.2 of the Sample Contract as follows: The Construction Manager shall review project requirements, educational specifications, on and off-site development, survey requirements, preliminary budget, and make value engineering and constructability recommendations for revisions to the Owner and Project Consultant in the form of a written report prior to the final payment for this phase. The Construction Manager shall, subject to Owner's approval and compliance with existing Owner completion schedule, establish a preliminary master project schedule identifying all phases, Critical Path elements, responsibilities of the Owner, Project Consultant, outside agencies, third parties and any other impacts which would affect project schedule and progress and update them monthly throughout the duration of the contract. When the project includes renovation or expansion of an existing Facility, the Construction Manager will assist the Construction Team in preparing an analysis package outlining the condition of the existing Facility, existing structure, existing finishes, and existing equipment, code deficiencies, energy use, and life expectancy of other building systems by providing constructability, value engineering, and cost estimates recommendations. The package should contain the Construction Manager's recommendations, cost estimates and preliminary schedules. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. The Construction Manager shall prepare detailed cost estimates and recommendations to Owner and Project Consultant at S.D. (Schematic Design), D.D. (Design Development), C.D. (50% and 100% Construction Documents) phases of the project. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for each phase. The Construction Manager shall provide project delivery options for the design, bid, and bid packaging of the project for efficient scheduling, cost control and financial resource management. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. The Construction Manager shall utilize information and reporting systems to provide the Owner with monthly reports containing accurate and current cost controls, work status, including but not limited to Work narrative, Work completed/anticipated, short term and long term schedules, estimated expenditures, and project accounting systems of the project at all times. Such information shall be provided to the Owner and Project Consultant in the form of a written report, prior to final payment for this phase. The Construction Manager shall prepare a report with the Project Team's participation which shall describe, as a minimum, the Work plan, job responsibilities, and written procedures for reports, meetings, inspections, changes to the project, building systems, and delivery analysis and other relevant matters. Such information shall be provided to the Owner and Project Consultant prior to final payment for this phase. The Construction Manager shall provide market analysis and motivation for subcontractor interest and recommendations for minority business participation. This shall include analysis of the Construction Manager's historical data for subcontracting, communication with contractor and trade organizations requesting participation, review of the Owner's M/WBE data, advertising, outreach programs, mailings to all prospective bidders identified by these actions, and reporting of all of the for[e]going to the Owner. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. The Construction Manager's personnel to be assigned during this phase and their duties and responsibilities to this project and the duration of their assignments are shown on Exhibit D to the General Conditions. All required reports and documentation shall be submitted and approved by the Owner as pre-requisite to progress payments to the Construction Manager by the Owner during this phase. Those services to be performed by the hired construction manager during the "Design Phase" were described in Article 3.3 of the Sample Contract as follows: The Construction Manager will be required to attend all project related meetings and include a summary of the meeting of its monthly report to the Owner as specified in Document 01310. The Construction Manager will periodically review to the best of their abilities all Contract documents for constructability and compliance with applicable laws, rules, codes, design standards, and ordinances. Such information shall be provided to the Owner and Project Consultant in the form of a written report in the format as noted herein prior to final payment for this phase (Refer to exhibits G and H). The Construction Manager will be required to work with and coordinate [its] activities with any additional consultants, or testing labs and others that Owner provides for the project and report all findings as specified in Document 01310. The Construction Manager shall review all Contract documents for the new and existing buildings and/or building sites and provide value engineering recommendations to minimize the Owner's capital outlay and maximize the Owner's operational resources. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. All such recommendations shall be acknowledged and incorporated into the construction documents by the Project Consultant unless otherwise authorized by the Owner in writing. The Construction Manager will review construction documents and the new and existing buildings conditions and/or building site to reduce to the best of [its] abilities conflicts, errors and omissions and shall coordinate with the Project Consultant in order to eliminate change orders due to errors, omissions and unforeseen conditions. The Construction Manager shall periodically update the master project schedule and make recommendations for recovery of lost time. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. The Construction Manager will coordinate with the Project Consultant and provide to the Project Construction Team permitting applications and requirements for the projects. The Construction Manager will periodically update cost estimates and make recommendations to keep the project within the FLCC. AT COMPLETION OF THE CONSTRUCTION MANAGER'S REVIEW OF THE PLANS AND SPECIFICATIONS, EXCEPT ONLY AS TO SPECIFIC MATTERS AS MAY BE IDENTIFIED BY APPROPRIATE WRITTEN COMMENTS PURSUANT TO THIS SECTION, CONSTRUCTION MANAGER SHALL WARRANT, WITHOUT ASSUMING THE PROJECT CONSULTANT'S RESPONSIBILITES, THAT THE PLANS AND SPECIFICATIONS ARE CONSISTENT, PRACTICAL, FEASIBLE AND CONSTRUCTIBLE. CONSTRUCTION MANAGER SHALL WARRANT THAT THE WORK DESCRIBED IN THE PLANS AND SPECIFICATIONS FOR THE VARIOUS BIDDING PACKAGES IS CONSTRUCTIBLE WITHIN THE SCHEDULED CONSTRUCTION TIME. DISCLAIMER OF WARRANTY: THE OWNER DISCLAIMS ANY WARRANTY THAT THE PLANS AND SPECIFICATIONS FOR THE PROJECT ARE ACCURATE, PRACTICAL, CONSISTENT OR CONSTRUCTIBLE OR WITHOUT DEFECT. .10. The Owner may select certain projects for expediting using fast-track construction. When this option is exercised, in writing, by SBBC, it shall be implemented in accordance with the following: A. Design/Construction documents as noted herein shall be submitted by the Consultant for review and approval by SBBC (including Building Code review and Building permit issuance for 100% completion documents), the Construction Manager and others, as applicable, having jurisdiction: Foundation/Structural/LCCA/Site and Off- Site Package-100% Documents A separate 50% completion progress set (for information only) of Building Finish Package drawings shall also be submitted which shall show all of the major characteristics of the project utilities and service, detailed site and floor plans, elevations, section, schedules, etc. Construction may begin after approvals and building permit is obtained for above package. Building Finish Package-100% Documents As mutually agreed by the parties in writing. .11 Guaranteed Maximum Price (GMP): Upon completion of the design phase [construction documents 100% complete] and prior to the bidding and award phase, the Construction Manager shall present to the Owner the GMP for the Owner[']s review and approval in accordance with Article 6 of this Agreement.[3] Those services to be performed by the hired construction manager during the "Bidding and Award Phase" were described in Article 3.4 of the Sample Contract as follows: At this stage the Construction Manager assumes the leadership responsibility for the project team. Upon obtaining all necessary approvals of the Construction Documents including a Building Permit as required by FBC and Owner approval of the latest Statement of Probable Construction Cost, the Construction Manager shall obtain bids and commence awarding construction contracts. The Owner will have the drawings and specifications printed for bidding purposes, either through its open Agreements with printing firms or as a reimbursable service through the Project Consultant, or as set forth in Article 26.03.08 in the General Conditions of this CM Agreement. The Construction Manager shall review the Owner[']s records of pre-qualified contractors, including Minority/Women Business Enterprises (M/WBE) and prepare a list of those recommended for work pursuant to this contract. The Owner reserves the right to reject any or all subcontractors recommended for approval. The Construction Manager shall maintain a list of all potential bidders, including M/WBEs and those who are approved as pre-qualified. The Construction Manager shall prepare and issue the bid packages to cover the scope of the Work for this contract. The Construction Manager, in coordination with the Owner, shall schedule pre-bid conferences as required and issue a written summary of the conference(s). Solicitation of Bids: .1 The Construction Manager shall enter into Contracts with the firm who submits the lowest, responsive and responsible bid. The Construction Manager shall advertise according to SBBC policies as amended from time to time for bids on Documents 00101 at least three (3) times, seven (7) days apart, and with the third (3rd) advertisement prior to a pre-bid conference if applicable and at least seven (7) days prior to the bid opening. Written proposals based on drawings and/or specifications shall be submitted to the Construction Manager. The written proposals shall be opened at the usual location for bid opening. A tabulation of the results shall be furnished by Construction Manager to the Owner. .6 The Construction Manager and Owner shall open at the Construction Manager location and evaluate at least three bids, if possible, for each portion of the Work solicited. The Construction Manager shall also make recommendations to the Owner for award to the lowest, responsive, and responsible bidder. A recommendation for award to other than the lowest bidder shall be justified in writing. Those services to be performed by the hired construction manager during the "Construction Phase" were described in Article 3.5 of the Sample Contract as follows: The Construction Manager shall fully comply with the provision[s] of the Owner's Project Manual, including but not limited to Division 0 and 1, and the attached General Conditions of this contract. In the event of a conflict between this Agreement and such documents the agreement shall control. The Construction Manager shall provide the minimum staffing level as set forth in Exhibit C-F for this project. The Construction Manager shall maintain and prepare monthly updates for all project schedules, including Critical Path elements, provide written progress reports, describe problems and corrective action plan(s) and conduct briefings as required by the Owner. Such information shall be provided to the Owner and Project Consultant in the form of a written report with progress payments requests. The Construction Manager may self perform certain construction work when it benefits the Owner, results in cost and time savings, and is pre-approved by the Owner in writing. The Construction Manager shall coordinate project close-out, operation, and transition to occupancy. The Construction Manager shall coordinate with the Project Consultant to provide complete project records including project manual and electronic Computer Assisted Drafting (CAD) drawings corrected to show all construction changes, additions, and deletions. (Construction Manager shall note all changes on the as-builts for the Project Consultant to reflect on the drawings and CAD disc.) The Construction Manager shall coordinate with the Owner's staff to prepare the Certificate of Final Inspection. The Construction Manager shall obtain and review all warranties, operation and maintenance manuals and other such documents, for completeness, have them corrected if necessary and submit them to the owner. The Construction Manager shall complete all punch list items generated by the Building Code Inspector (BCI), the Owner, the Project Consultant and any others having jurisdiction over the project during its inspections. Those services to be performed by the hired construction manager during the "Warranty Phase" were described in Article 3.6 of the Sample Contract as follows: The Construction Manager shall provide a minimum one (1) year warranty and shall coordinate and supervise the completion of warranty Work during the warranty period. Construction Manager shall participate with the Owner in conducting of warranty inspections held on the sixth (6th) and eleventh (11th) months after occupancy. Construction Manager shall deliver as-built drawings, warranties and guaranties to the Owner. Where any Work is performed by the Construction Manager's own forces or by subcontractors under contract with the Construction Manager, the Construction Manager shall warrant that all materials and equipment included in such work will be new except where indicated otherwise in Contract Documents, and that such Work will be free from improper workmanship and defective materials and in conformance with the Drawings and specifications. With respect to the same Work, the Construction Manager further agrees to correct all work found by the Owner to be defective in material and workmanship and not in conformance with the Drawings and Specifications for a period of one year from the Date of Owner Occupancy of the Project or a designated portion thereof or for such longer periods of time as may be set forth with respect to specific warranties contained in the trade sections of the Specifications or by Florida Law. The Construction Manager shall collect and deliver to the Owner any specific written warranties given by others as required by the Contract Documents. The Construction Manager shall provide a Warranty Summary Report at the end of the 6- month warranty period and 11-month warranty period. This report shall provide at a minimum: Description of each warranty item during the period. Date item reported to Construction Manager. Date item corrected. If more than one trip required, document each. Description of action taken to cure warranty item. Obtain signature of school principal or designee acknowledging warranty items have been completed. Other pertinent information, if applicable. Article V of the RFQ (as revised) provided the following information with respect to "Fees and Pricing": Successful proposers shall negotiate a fee for providing construction management services during the design phase and subsequently shall negotiate a GMP for construction services during the bidding and construction phase. Architectural/Engineering firms will develop Contract documents under separate contract with the Board. As the parties stipulated in Admitted Fact 26, Article VII of the RFQ (as revised) "[was] entitled 'Board's Right to Reject' and state[d] in part as follows": The Board reserves the right to reject any and all proposals and readvertise the project(s) at any time prior to Board approval of the recommended proposer(s) and the negotiated agreement(s). All costs incurred in the preparation of the Proposal and participation in this RFQ process shall be borne by the proposers. Proposals submitted in response to this RFQ shall become property of the Board and considered public documents under applicable Florida law. The District reserves the right to accept or reject any and all submittals, or to waive any technicalities or formalities when and if it is in the best interests of the District. Rejection: A submittal shall be rejected for failure to comply with one or more of the following requirements: The proposer is not licensed or registered in the State of Florida to provide the proposed services. The submittal shall be rejected if not received by The School Board of Broward County, Florida by the specified deadline. Not Applicable. Article XI of the RFQ (as revised) discussed "Submittal Requirements" and contained the following provisions concerning "Related Projects Similar in Scope (to this RFQ)" and "References": Related Projects Similar in Scope (to this RFQ): List educational projects of related scope and size. Provide name and location of project, project owner, project owner name, address phone and contact person, project cost, current project status, firm[']s key personnel assigned to the project. . . . L. References: Provide a list of all projects, clearly stating name of project, using Construction Management at Risk, completed or in progress within the last five (5) years from due date of this RFQ. If Proposer[']s firm also has offices outside the tri-county area (meaning Broward, Miami-Dade, or Palm Beach), then at a minimum provide references for all Construction Management at Risk projects in the tri-county area. List projects that are 75 percent or greater of the construction budget statement in the Public Announcement for each listed project. Provide the address, telephone numbers and contact person(s) listed as references for each project. . . . As the parties stipulated in Admitted Fact 27, "[o]n or about September 3, 2008, [Respondent] received proposed qualifications to provide construction management at risk services for [the FHS Project] from 13 vendors including Petitioner." Among the other "vendors" submitting "proposed qualifications" were Elkins Constructors, Inc., the Morganti Group, Inc., and W. G. Mills, Inc. As the parties stipulated in Admitted Fact 28, "[i]n accordance with the terms and conditions of the RFQ [as revised] and [Respondent's] governing statutes, rules and policies, Respondent's Qualifications Selection and Evaluation Committee ('QSEC') recommended the rejection of certain proposers for their failure to comply with [Respondent's] pre-qualification requirements or limits." There were three such "proposers": Elkins Constructors, Inc.; the Morganti Group, Inc.; and W. G. Mills, Inc. At the time of the "submittal due date to this RFQ [as revised]," neither Elkins Constructors, nor the Morganti Group, was "prequalified according to 1013.46 F.S., SREF 4.1(8), and Board Policy 7003" for any project. W. G. Mills, on the other hand, was "prequalified" for certain projects, but only within the following limits: a "[p]er [p]roject [l]imit [of] $25,000,000 [and an] [a]ggregate [l]imit [of] $250,000,000." The "advertised Proposed Construction Budget" of the FHS Project was $29,150,340, which was more than W. G. Mills' "[p]er [p]roject [l]imit [of] $25,000,000." As of the date "proposed qualifications" were due, there were 11 prequalified firms, including W. G. Mills, who had a "[p]er [p]roject [l]imit" of between $17,000,000 and $26,000,000. These firms were not eligible to be awarded the contract for the FHS Project because the project's "advertised Proposed Construction Budget" was in excess of their "[p]er [p]roject [l]imit." W. G. Mills was the only one of these 11 prequalified firms to respond to the RFQ (as revised). As the parties stipulated in Admitted Fact 29, "[i]n accordance with the terms and conditions of the RFQ [as revised] and [Respondent's] governing statutes, rules and policies, [the] QSEC next evaluated and short-listed the remaining proposers. It thereafter received presentations from the short-listed proposers and, after scoring those short-listed proposers, recommended Petitioner . . . to [Respondent] as the proposer with whom to negotiate a contract for services for fees to provide direct management cost of the construction manager and the project's guaranteed maximum price ('GMP')." As the parties stipulated in Admitted Fact 30, "[o]n October 7, 2008, [Respondent] approved [the] QSEC's selection of Petitioner . . . as the vendor with whom negotiations would be had for [the] Fort Lauderdale High School component of the RFQ [as revised] and 'authorized negotiations for Construction Management at Risk Services.' The scope of Construction Management at Risk services was [as noted above] included within the RFQ [as revised]. The summary explanation and background portion of the agenda item to authorize negotiations stated that the 'Superintendent's designees will negotiate the selected Constriction Management at Risk Services fees for the projects and recommend award of contracts at a future School Board Meeting.'" As the parties stated in the "Statement of the Controversy" section of their Joint Pre-Hearing Stipulation, "[n]egotiations between [Respondent] and [Petitioner] occurred between October 2008 [following Respondent's approval of the QSEC's selection of Petitioner] and December 2009." In December 2009, Cubellis, the architectural firm working on the FHS Project for Respondent, was "experiencing some financial difficulties" and there was uncertainty as to whether it would "be able to continue [on] the project." As a result, negotiations between Respondent and Petitioner were halted. Eventually, Cubellis "assigned [its] contract [with Respondent] to somebody else" (specifically, Manuel Synalovski Associates, LLC), but negotiations between Respondent and Petitioner never resumed. Petitioner's last written contract proposal was dated December 10, 2009. It was based on a proposed construction budget of $18,297,367 and provided for the following "Negotiated Contract Terms": Construction Manager Fees: Pre-Design Not Applicable Design Not Applicable Bidding & Award $37,685 Construction Phase Fee $1,172,370 Warranty $35,000 Overhead $289,200 Profit $185,385 General Conditions $659,846 Total $2,379,489 Above Fees based on scope of work issued "Project Scope" document dated 11/5/2009 per 11/9/2009 letter from M. Decker. CM Performance and Payment Bonds and GL Insurance are included based on budgeted contract amount of $18,297,367. Builders Risk, Contingency, and Subcontractor insurance costs are not included in the fees and will be shown in the schedule of values as separate line items as a cost of work. Should the cost of work increase Bonds and GL insurance fees are to be adjusted at insurance providers' invoiced amount. Overhead, profit and bond allowances for Change Orders: 10% Substantial Completion: 570 Final Completion in General Conditions 25.01.02: 600 Construction Phase Fee and General Conditions in 25.01.02: $3,050 per Consecutive Calendar Day Liquidation Damages for Substantial Completion: $1,000 per Consecutive Calendar Day Liquidation Damages for Final Completion: $600 per Consecutive Calendar Day This contract proposal was made following a December 8, 2009, negotiation session at which Denis Herrmann, Respondent's Director of Design and Construction Contracts, had stated that he had negotiated a construction management at risk contract for another project the previous day where the "Construction Manager Fees" were 13.8 percent of that particular project's proposed construction budget. Mr. Herrmann had relayed this information to Petitioner's representatives at the meeting to give them "a flavor for the range [Respondent was] talking about, not to give them a [specific] number [or percentage] that would be acceptable." The "Construction Manager Fees" proposed by Petitioner in its December 10, 2009, offer were slightly less than 13.8 percent of the $18,297,367 proposed construction budget (but they did not cover any "Pre-Design"-related or "Design"-related work). While Respondent has never, in writing, specifically rejected Petitioner's December 10, 2009, offer, neither has ever formally accepted it. As the parties stipulated in Admitted Facts 45 and 48, respectively, Respondent's "Superintendent of Schools has not placed an item on [the School Board] agenda recommending that [Respondent] enter into a contract with [Petitioner] concerning the RFQ [as revised]," and "[Respondent] has not approved a contract with [Petitioner] concerning [the] RFQ [as revised]." It has been two years since "[Respondent] approved [the] QSEC's selection of Petitioner . . . as the vendor with whom negotiations would be had." Significant changes impacting the FHS Project have occurred over that period of time. Respondent now finds itself in the midst of an "unprecedented budget crisis," making it especially imperative that it "take every [possible] step to maximize the purchasing power of the public's dollars." A precipitous decline in revenue available for capital projects (due, in large measure, to a decline in property values, coupled with a reduction in the capital outlay millage rate) has required Respondent to eliminate or scale back various planned projects. The FHS Project is among the projects that have been scaled back. As the parties stipulated in Admitted Fact 31, "[p]rior to, during and subsequent to its negotiations with [Petitioner], [Respondent] determined on several occasions that the project scope of the [FHS Project] needed to be further adjusted, ultimately resulting [in] the following project scope [with strike-throughs and underlining indicating, respectively, deletions and additions]": Concurrent Replacement in two phases to include: Demolish existing swimming pool (buildings 15 and 16). Demolish existing tennis courts and replace with 6 tennis courts. Demolish Buildings 1, 2, 3, 4, 11, 12, 13, and 14. Construct basketball courts. Construct Regional Athletic Facility. Construct (2) 3-story buildings (1 – Administration & 1 - Classroom) of approximately 68,940 GSF combined to include Administration, 3 general classrooms, 5 resource rooms, 4 science labs and related spaces, 4-classroom ESE suites, 1 Business Technology lab, 1 Family and Consumer Science (ProStart) lab, 1 Health Occupations Lab, 1 Pre-Law Public Service Education Lab, Custodial spaces, Textbook Storage, and Student, Staff and Public Restrooms. Remodel Renovate existing Science Building (building 8). Construct Parent Drop Off and Pick Up area and Staff/Visitor Parking. Resurface Student Parking. Construct New Student parking area on the West side of the site to increase parking capacity by 92 spaces. Modify existing temporary bus loop to meet SREF code and ADA standards; modifications will include barricades and covered sidewalk. Redesign courtyard to meet current ADA standards.' As the parties further stipulated in Admitted Fact 31, "[t]he project scope was revised five (5) times between October 7, 2008 and December 2, 2009[,] [and Petitioner] was notified of the changes in scope and acknowledged the same." "[R]evis[ions]" have also been made to the project's budget. Respondent's "5-Year Plan" allocates funding for all costs (including, but not limited to, construction costs4) associated with each of Respondent's funded capital projects. As the parties stipulated in Admitted Fact 32, "[Respondent] adopts and revises its 5-Year Capital Improvement Plan ('5-Year Plan') each year." As the parties further stipulated in Admitted Fact 33: [Respondent's] 5-Year Plan adopted for Fort Lauderdale High School for Fiscal Years 2009-10 to 2013-14 eliminated the $39,491,259 previously budgeted as "Capacity Additions" . . . . Instead, the 2009-10 to 2013-14 Five Year Plan provided $21,050,000 for Capacity Additions . . . . Respondent's current "5-Year Plan" (for the Fiscal Years 2010- 2011 to 2014-2015), which was adopted on September 7, 2010, allocates $22,366,085 to the FHS Project (as scaled back). The dour economic conditions responsible (in part) for the drop in tax revenues available to fund Respondent's capital projects have also led to increased competition in the construction industry and a resultant decline in construction prices. This increased competition is particularly pronounced "in the procurement area of hard bidding." During "the peak of the construction boom," before the downturn in the economy, it was not atypical for Respondent, when it "hard bid" a construction project, to get just one or even no bids in response to the solicitation. Now, Respondent "expect[s] to see between half a dozen [and] a dozen or more bidders." Moreover, recently, winning bids on "hard bid" projects have been, on average, well below these projects' advertised proposed construction budgets. Respondent has not experienced the same overall cost-savings results when it has used the "Construction Management at Risk delivery method." Given the market conditions that exist today, Respondent estimates that the construction costs for the FHS Project (as scaled back) would be no more than $16,950,000 and possibly as little as approximately $13,000,000 (if a "hard bid" were used). These amounts are considerably less than the "Proposed Construction Budget of $29,150,340" that had originally been "advertised." There are prequalified firms (including W. G. Mills) which were not eligible to be awarded the contract under the RFQ (as revised) because their "[p]er [p]roject [l]imit" was less than $29,150,340, but which would now be able to bid on a scaled-back FHS Project were it to be readvertised (with a proposed construction budget of $16,950,000). Another (and perhaps the most significant) difference between the circumstances existing at present and those that existed two years ago (vis-à-vis the FHS Project) is that the design of the project (as scaled back) has advanced to the point that, with a few revisions,5 the construction documents for the project will be 100 percent complete.6 As a result, Respondent no longer has a need for most, if not virtually all, of the "pre-design" and "design" services, described in Articles 3.2 and 3.3 of the Sample Contract, that, back in 2008, it had wanted a construction manager to perform. In April 2010, Respondent's Office of the Chief Auditor issued a report (April 2010 Audit Report) critical of Respondent's use of the "Construction Management at Risk delivery method" in connection with 14 projects "which were included in the Construction Management at Risk Kitchen/Cafeteria RFQ No. 2006-12-FC." The report read, in pertinent part, as follows: The projects included in RFQ No 2006-12-FC were sufficiently completed by the Architect/Engineer firm(s) prior to being advertised as CM at Risk construction projects. The inability [of] any CM firm to provide "professional services" and scheduling of both design and construction phases represents a deviation from the intent of Florida Statutes, SREF and the School Board's CM at Risk contract.[7] In nearly every executed CM at Risk agreement in the Kitchen/Cafeteria program, the Pre- Design and Design phase responsibilities of the CM were stricken from the contract. That is a further representation that the input required by a prospective CM to qualify for the committee selection process was not, nor was it intended to be provided. F.S. 1013.45(1)(c) also states that the use of the CM at Risk delivery method " . . . shall not unfairly penalize an entity that has relevant experience in the delivery of construction programs of similar size and complexity by methods of delivery other than program management." All of the projects in the Kitchen/Cafeteria program were originally intended to be "hard-bid" but were changed to the CM at Risk delivery method. One project was removed from the group prior to the due date of submittals for RFQ No. 2006-12-FC. That hard bid project, Margate ES, cost approximately $5.6 million, including nearly $466,226 in change orders, which was approximately $3.3 million less, on average, than the fourteen (14) projects that remained in RFQ No. 2006-12- FC. Due to the change in delivery method, general contracting firms could have been "unfairly penalized" by the decision to use the CM at Risk delivery method, as many local general contractors have the relevant experience in the delivery of construction programs of similar size and complexity by methods other than the CM at Risk delivery method.
Recommendation We recommend that Facilities & Construction Management discontinue developing construction procurement packages (i.e. RFQ and RFP) for award of CM at Risk agreements when construction management services requested are associated with reused, prototypical or otherwise sufficiently developed construction documents. Kitchen/Cafeteria program data indicates that the benefits associated with the CM at Risk delivery method were not realized using prototypical designs, as the program resulted in over $24 million in avoidable fees while circumventing applicable laws and regulations. On May 10, 2010, Mr. Herrmann sent a letter to Respondent's General Counsel requesting, in light of the April 2010 Audit Report, a "legal opinion related to the award of a Construction Manager at Risk Agreement (CM) to [Petitioner] and whether such an award would comply with Chapter 1013.45(1)(c), S. and State Requirements for Educational Facilities 1999 (SREF)," given that the FHS Project (as scaled back) was then "in the design phase and Phase III 100% Construction Documents [were] being prepared." The concluding paragraph of the letter read as follows: In this project, The Weitz Company has been selected by the board and we intend to recommend award of a contract within several months. An award of a CM agreement in this case would not violate the specific audit recommendation and we believe such an award does not violate statute or SREF. Please advise whether you concur. Mr. Herrmann has since changed his opinion. He now believes (reasonably so, in the undersigned's view) that "award of a CM agreement" in the instant case would be inconsistent with the "audit recommendation" inasmuch as the FHS Project (as scaled back) now has "sufficiently developed construction documents." On May 18, 2010, Mr. Herrmann sent another letter to Respondent's General Counsel. This letter read as follows: This is to provide you with additional information relating to a request for a legal opinion regarding the award of a Construction Manager at Risk Agreement (CM) to The Weitz Company. Please also refer to the attached memos dated 10/14/09, 11/16/09 and 5/10/10. In summary, we have requested opinions based on the following: Whether such an award would comply with applicable statutes, SREF, and board policy given the extent of the changes to the scope and budget. Whether such an award would comply with Chapter 1013.45(1)(c), F.S. and State Requirements for Educational Facilities 1999 (SREF). We have recently revised the construction cost estimate as a result of current market conditions, and the project consultant, Manuel Synalovski [Associates], LLC agrees with the revised estimate. The change in the cost estimate is as follows: In the RFQ: $29,150,340 October 2009 (Change in scope): $21,770,000 November 2009 (Market conditions): $18,297,367 May 2010 (Market conditions) $16,950,000 Please advise whether we should proceed with the award or reject all bids. Respondent's General Counsel responded to neither of these May 2010, letters from Mr. Herrmann. As the parties stipulated in Admitted Fact 34, "[o]n June 15, 2010, [Respondent] approved Item J-15 during its June 15, 2010, Regular Meeting." The "Requested Action" and "Summary Explanation and Background" section of the Agenda Request Form for this agenda item (J-15) provided as follows: REQUESTED ACTION Approve the change in the delivery method from Construction Management at Risk to Design/Bid/Build and the First Amendment to the Professional Services Agreement with Manuel Synalovski Associates, LLC (MSA) for Fort Lauderdale High School, Phased Replacement Project No. 095-27-01, dated February 12, 2008. SUMMARY EXPLANATION AND BACKGROUND Scope of Work: Basic Services Amended 6/15/10: This item changes the delivery method from Construction Management at Risk to Design/Bid/Build. Demolish existing Swimming pool (Buildings 15 and 16); demolish existing tennis courts; demolish Buildings 1, 2, and 3; construct two 3-story buildings (1 administration and 1 classroom) of approximately 68,940 gross square feet combined to include administration, 3 general classrooms, 5 resource rooms, 4 science labs and related spaces, 4 ESE classroom suite, 1 business technology lab, 1 family and consumer science (ProStart) lab, 1 health occupations lab, 1 pre-law public service education lab, custodial spaces, textbook storage, and student, staff, and public restrooms. Remodel existing science building (Building 8). Construct new parent drop off and pick up areas and staff/visitor parking. Construct new student parking area on the west side of site to increase parking capacity by 92 spaces. Modify existing temporary bus loop to meet SREF, Florida Building Code and ADA Standards. ADA modifications will include barricades and covered sidewalk. Remodel existing courtyard for ADA access to gym and auditorium. MSA and the Superintendent's Negotiations Committee negotiated a total reduction in [architectural] fees from the February 12, 2008 Board approved amount of $2,021,000 to $1,683,650. This decrease in the Basic Services Fees totals $337,350 and is decreased as follows: Phase IV (Bidding and Award) by $54,357, Phase V (Construction Administration) by $269,250, and Phase VI (Warranty) by $13,743. This fee reduction is as a result of a reduction of the original scope as per Attachment 2 to the First Amendment. This First Amendment also reduces the Fixed Limit of Construction Cost (FLCC) from $29,150,340 to $16,950,000 as a result of the reduction in scope and construction costs resulting from current market conditions. The Risk Management Department and the Office of the Chief Auditor have reviewed this First Amendment. The School Board Attorney has approved this First Amendment as to form and legal content. As the parties stipulated in Admitted Fact 35, on June 30, 2010, "[Respondent] posted its Revised Recommendation[] and Tabulation for [the FHS Project, which] set forth the following recommendation": Per Article VII.A of the RFQ, based upon the recommendation of the Qualification Selection Evaluation Committee, the Facilities and Construction Management Division intends to recommend that The School Board of Broward County, Florida, at the School Board meeting on July 20, 2010, reject all responses received for Fort Lauderdale High School Project No. P.000687. The original, intended scope of work as set forth in the original RFQ is substantially and materially different than the revised scope of work and budget in the proposed contracts and such work should be re- advertised and re-bid. This decision to "reject all responses" and "re- advertise[] and re-bid" was based on an honest and good faith exercise of discretion, intended, ultimately, to allow Respondent to receive (in the words of Mr. Herrmann) "more bang for [its] buck." As the parties stipulated in Admitted Facts 39 through 41, Petitioner timely protested Respondent's intended "reject[ion] [of] all responses." As the parties stipulated in Admitted Facts 42 through 44, after the parties had unsuccessfully attempted "to resolve the protest by mutual agreement," Respondent, at Petitioner's request, referred the matter to DOAH on August 23, 2010.
The Issue The issue in the case is whether the Department of Transportation's rejection of all bids in this case meets the requirements of law.
Findings Of Fact In August 1996, the Department sought bids for several road projects to be constructed in Bradenton, Florida. The projects were identified as State Project Numbers 13160-3512, 13160-6501, 13160-6502, and 13160-6512. The construction project includes utility relocation work to be performed on behalf of the Manatee County, the City of Bradenton, and GTE, the owners of various utilities within the project area. In preparing for road construction projects, the Department enters into joint partnership agreements with utility owners. The agreements identify the responsibilities of the parties related to performance of utility relocation/construction work related to the road project. Essentially, the owner and Department determine an estimated cost for the utility construction which the owner places into escrow and the Department assumes the responsibility for obtaining bids for the utility work. In the event that the bid exceeds the escrowed estimated cost, the utility owner may withdraw from the agreement. Upon such withdrawal, the joint partnership agreement provides that the owner may perform the work itself or the Department can pay the amount in excess of that which the owner has escrowed. If the Department agrees to pay the "excess" cost, the utility work remains included in the bid project. If the Department does not pay the "excess," the work is performed by the utility owner in accordance with the Department's construction schedule, and is deleted from the final contract negotiated with the winning bidder. Six companies filed bids in relation to the projects at issue in this proceeding, including Gator Asphalt Co., APAC- Florida, MacKenzie E.T. Company, Westra Construction Corporation, Smith and Co., Inc., and the Petitioner. The Petitioner's bid of $6,586,034.13 was the low bid submitted. The Petitioner has been properly prequalified by the Department to perform the work that is the subject of the bid at issue in this proceeding. The date upon which the bids were opened is unclear, but by October 4, 1996, the bids had been opened and tabulated. By letter dated October 4, 1996, the Department notified the City of Bradenton of the bid tabulation. Although the estimated cost of work to be performed on behalf of the city was about $400,000, the letter indicates that the total amount of the deposited escrow should be $534,160.50. The letter provided a deadline of October 10 to provide certification to the Department that the funds had been escrowed. Although the Department's letter of October 4 does not address whether the Department was willing to pay the "excess," the request for additional city funds indicates that the Department was not offering to pay the additional costs associated with the work. By letter dated October 9, 1996, the City of Bradenton withdrew its participation from the project. The city portion of the work was State Project Number 13160-6501. The Department's technical review committee met on October 9, 1996. The committee reviews bid proposals and makes a recommendation to the awards committee. There is no reliable evidence of what occurred during the technical review committee meeting. No one who attended the technical review committee meeting testified at the hearing. At the hearing, a witness who did not attend the meeting reviewed minutes of the committee meeting and testified as to what the minutes appeared to indicate. The minutes were not offered into evidence. The awards committee met on October 15, 1996. There is no reliable evidence of what occurred during the awards committee meeting. No one who attended the awards committee testified at the hearing. Despite the lack of information as to what occurred during the committee meetings of October 9 and 15, the evidence establishes that the Department made no attempt to recalculate the bid amounts after the City of Bradenton withdrawal. On November 4, 1996, the Department posted notice of its intention to reject all the bids for State Project Numbers 13160-3512, 13160-6502, and 13160-6512. Four bids exceeding the maximum acceptable bid established by the Department were rejected. Two bids, including the Petitioner's, were rejected as nonresponsive for failing to meet requirements related to utilization of "Disadvantaged Business Enterprises" (DBE) in the project. The Petitioner filed a timely protest of the Department's proposed rejection of all bids. The Department requires that each bid proposal either meet specific goals for DBE utilization or include an adequate "good faith effort" package identifying the efforts made by the bidder to meet the goal. The DBE goal for these projects was 12 percent of the total bid amount. Failure to either meet the DBE goal or submit an adequate "good faith effort" package renders a bid submittal nonresponsive. The evidence establishes that the Petitioner's bid was nonresponsive for failing to meet the DBE requirements. The parties have stipulated that the Petitioner's proposal did not include an adequate "good faith effort" package. The Petitioner's bid identifies DBE participation as 11.3 percent of its total bid. The Petitioner's total bid amount included the utility work for the City of Bradenton. The Petitioner asserts that a specification set forth in the bid package requires that the Department recalculate the bid proposals by deleting the City of Bradenton work from the project. Article 3-1 of the Supplemental Specifications issued as part of the bid package at issue in this proceeding, states as follow: The Department reserves the right to delete the bid portion of the utility relocation work from the Contract. Deletion of any utility relocation work from the Contract will require the Contract bid tabulations to be recalculated based on the remaining project quantities. According to calculations made by the Petitioner, reducing the amount of his total bid by the cost of utility work related to the City of Bradenton, results in his DBE participation rising to 11.9777 percent of the revised total. The DBE reporting form supplied to bidders by the Department states that the "[g]oal may be rounded to the nearest tenth percent," indicating that his 11.977 percent could be rounded up to 12 percent. The Petitioner asserts that the withdrawal of the City of Bradenton from the project and the rounding of the goal results in his bid meeting the DBE requirement of 12 percent. The language of Article 3-1 of the Supplemental Specifications is applicable, not to bid proposals, but to the contract negotiated between the successful bidder and the Department. In practice, the Department has implemented this provision according to the specification language. Items specifically related to withdrawn utility relocation work are deleted from the contract negotiated with the successful bidder. The evidence fails to establish the Petitioner is entitled to recalculation of his bid proposal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation issue a Final Order dismissing the protest filed by the Petitioner in this case. RECOMMENDED this 18th day of February, 1997, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1997. COPIES FURNISHED: Pamela Leslie, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Brant Hargrove, Esquire 1026 East Park Avenue Tallahassee, Florida 32301 Mary S. Miller, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
The Issue The issue in this case is whether Respondent's intended decision to award a contract, challenged by Petitioner, is contrary to Respondent's governing statutes, rules, policies, or the proposal specifications.
Findings Of Fact Admitted Facts Per Joint Pre-Hearing Stipulation The Department advertised for proposals and bids for the Project under procurement contract number E5R63. Commercial was a bidder on the Department's contract E5R63 for the Project. Commercial reviewed the Department's advertisement for proposals and bids for the Project. The Project consists of replacing the existing Daytona Avenue Bridge (Bridge No.: 795502). The Project was advertised as a low bid design-build Project. Commercial did not file a challenge to the specifications for the Project. The advertisement for the Project included pre- qualification requirements for design professionals and pre- qualification work class requirements for the contractor. The advertisement for the Project included requirements for design professional services 8.1 and 8.2, Florida Administrative Code Rule Chapter 14-75.5/ The bids and technical proposals for the Project were due at the Department's District 5 offices by no later than 2:30 p.m., on June 18, 2012. Commercial submitted a technical proposal for the Project in response to the advertisement for procurement E5R63. Commercial submitted a bid price for procurement E5R63. The technical proposal submitted by Commercial for procurement E5R63 did not contain a firm or individual pre-qualified by the Department to perform work types 8.1 and 8.2. District 5 representatives contacted Commercial and sought to clarify who had been identified in Commercial's technical proposal to meet the pre-qualification requirements for work types 8.1 and 8.2. Andrus Gaudet was identified in response to the inquiry regarding who would satisfy work type 8.1 and 8.2 pre- qualification requirements. As of June 18, 2012, Andrus Gaudet had not been pre- qualified by the Department in work types 8.1 and 8.2 under rule chapter 14-75. The Department determined that Commercial was non- responsive based on its failure to include a firm or an individual possessing the pre-qualification requirements in work types 8.1 and 8.2 as advertised in the procurement solicitation. The advertisement states on page one that "all qualification requirements must be met prior to the Response Deadline." The Department sent a letter to Commercial that informs all responding firms that in order to be considered for the award, the team must be pre-qualified in the areas in the advertisement. Commercial could not be considered for award of this contract since it did not comply with the pre-qualification requirements. Additional Findings of Fact The Department's advertisement summarized the key terms for the Project, which included the following: NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM BUDGET AMOUNT OR BUDGET AMOUNT*: $798,000 * Actual commitment and final execution of this contract is contingent upon an approved legislative budget and availability of funds ESTIMATED CONTRACT TIME: 300 Contract Days SELECTION PROCEDURE: Low Bid Design-Build RESPONSE REQUESTED: Fax Order Form STIPEND AMOUNT: No Stipend PREQUALIFICATION REQUIREMENTS: CONTRACTOR-WORK CLASS REQUIREMENTS Minor Bridges DESIGN-PROFESSIONAL SERVICES WORK TYPE REQUIREMENTS Major: 4.1.2-Minor Bridge Design Minor: 3.1--Minor Highway Design 4.1.1--Miscellaneous Structure 7.1--Signing, Pavement Marking and Channelization 8.1--Control Surveying 8.2--Design, Right of Way, and Construction Surveying 9.1--Soil Exploration 9.2--Geotechnical Classification Lab Testing 9.3--Highway Materials Testing 9.4.1--Standard Foundation Studies TECHNICAL QUESTIONS SHOULD BE ADDRESSED TO: http://www2.dot.state.fl.us/construction/bid questionmain.asp. The selection procedure for a low bid design-build project is that the Department's technical review committee starts with the lowest price bidder and reviews that bidder's technical proposal to determine if it meets the technical requirements or if it is non-responsive. If the lowest bidder's technical proposal is deemed non-responsive, the technical review committee proceeds to review the technical proposal of the next lowest bidder. The technical proposals of other bidders are not reviewed at all for responsiveness unless and until the committee deems the lowest bidder's proposal non-responsive. The technical review committee prepares its recommendations as to the responsiveness of the proposals reviewed and identifies which bidder, if any, should be deemed the lowest responsive bidder. The technical review committee recommendations are then submitted to the selection committee, which makes the final decision that is posted as the Department's intended decision. Commercial submitted the lowest bid for the Project in the amount of $780,000. Therefore, the technical review committee began with a review of Commercial's technical proposal. After that review, the technical review committee made the following recommendation: The Technical submitted by [Commercial] was reviewed and is recommended as non- responsive. [Commercial] did not identify how the advertised prequalification requirement on 8.1--Control Surveying and 8.2--Design, Right of Way, and Construction Surveying would be met within their Technical. The technical review committee proceeded to the next lowest bidder, Gregori, with a bid price of $817,500. Gregori's technical proposal was reviewed and found to meet the technical requirements for the Project. The technical review committee recommended that Gregori be deemed the lowest responsive bidder. The decision to award the contract to Gregori was made by the selection committee, which agreed with the technical review committee's recommendations. Before making that decision, the selection committee considered whether Gregori's bid price was reasonable. The selection committee made the judgment that Gregori's bid price, which exceeded the engineer's estimate used to establish the budget amount by a relatively small percentage, was reasonable. Funds for contracts must be provided for in the Work Program. When an RFP is issued, the Department sets aside funds in the Work Program in the estimated budget amount. Therefore, in order for the selection committee to award a contract for a bid price that exceeds the estimated budget amount, the selection committee must get approval to fund the excess amount in the Work Program. In this case, the selection committee obtained approval to add $20,500--the amount by which Gregori's bid price exceeded the advertised budget amount--to the Work Program. Commercial did not contend or attempt to prove that Gregori's bid price was unreasonable. Instead, Commercial's challenge to the intended contract award was that the Department was required to reject the bid as non-responsive, because the bid price exceeded what Commercial referred to as the "advertised not to exceed budget amount." Thus, Commercial's challenge hinges on its characterization of the advertisement as specifying a "not to exceed budget amount." However, the actual language in the advertisement was: "NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM AMOUNT OR BUDGET AMOUNT*: $798,000." Commercial was unable to point to any statute, rule, or RFP specification that narrowed the quoted language or that required the Department to deem a proposal non-responsive solely because the bid price is higher than the advertised budget amount. Without more, the dollar amount identified in the advertisement cannot be considered a "not to exceed budget amount." Instead, the amount was either a "not to exceed budget amount," or a "maximum amount," or simply a "budget amount." Commercial unsuccessfully attempted to prove that the Department's prior practice was to declare non-responsive any bids over the advertised budget amounts. To support its position, Commercial relied on the Department's prior practice in connection with an earlier solicitation for the same bridge replacement project, designated contract no. E5R48 (project E5R48), which resulted in a Department decision to reject all bids and re-advertise. The evidence established that the advertisement for project E5R48 set forth a "NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM BUDGET AMOUNT OR BUDGET AMOUNT" of $650,000. The advertisement specified the same "PREQUALIFICATION REQUIREMENTS" in the same work type categories as did the advertisement for the Project at issue here. Potential bidders were given the opportunity to review the RFP and submit questions to the Department. The questions and answers were posted. One question/answer provided as follows: [Question:] The advertisement makes mention of a Maximum Budget for the project. The RFP is silent as to a Maximum Allowable Bid for the project. Is the budget estimate provided in the Advertisement a maximum bid price and will our bid be non-responsive if it is over that amount? [Answer:] No. Technical proposals and bids were submitted by two bidders in response to the solicitation for project E5R48. Following the same selection procedure as for the Project at issue in this case, the technical review committee first reviewed the technical proposal of the bidder with the lower bid, which was in the amount of $798,000. The technical review committee recommended as follows regarding the lower bidder: The Technical submitted by United Infrastructure Group was reviewed and is recommended as non-responsive. United Infrastructure Group did not identify how the advertised prequalification requirement on 9.3--Highway Materials Testing would be met within their Technical. The technical review committee for project E5R48 did not also recommend that the United Infrastructure Group's proposal be declared non-responsive for the additional reason that its bid of $798,000 exceeded the advertised budget amount of $650,000. The technical review committee for project E5R48 then considered the other bidder's proposal, with a bid price of $1,100,000. However, it did not proceed to review that bidder's technical proposal for compliance with technical requirements, for the following reason: The Technical submitted by Superior Construction Company has not been reviewed. The bid submitted by Superior Construction Company is 69% over the Department's advertised Budget Amount. The Technical Review Committee recommends rejecting all bids and readvertising this project. The selection committee for project E5R48 agreed with the technical review committee's recommendations and made the decision to reject all bids and re-advertise. The Department's representative at the final hearing, who served on the selection committees for both bid solicitation rounds for the Daytona Avenue bridge replacement project, confirmed that the selection committee's decision to reject all bids for project E5R48 was not based on a determination that the two bids were "non- responsive" because the bid prices were higher than the advertised budget amount. Instead, the lower bidder for project E5R48 was deemed non-responsive for the same reason that Commercial was deemed non-responsive in this case (non- compliance with all pre-qualification requirements as of the response due date); and the only other bidder proposed a price that was found to be unreasonably high. The Department has the discretion to award contracts when the amounts bid are higher than the advertised budget amounts, absent an RFP specification to the contrary. In deciding whether to exercise that discretion, one factor the Department considers is the magnitude by which the bid price exceeds the advertised budget amount. For project E5R48, after the low bidder was found non-responsive, the only other bid was so much higher than the advertised budget that the Department reasonably exercised its discretion to reject all bids and re-advertise. When bids come in much higher than estimated for a project, the Department will go back to review the engineer's estimate from which the budgeted amount was derived to determine if something needs to be changed in a re-advertisement, such as clarification of the project terms, increase in the budget amount, or both. In this case, the Department clarified the Project terms and increased its budget amount in the re-advertisement of the Project (but not nearly to the level of the very high bid that the Department refused to consider). The Department's exercise of discretion in the prior solicitation round to not consider a bid exceeding the budgeted amount by 69 percent does not dictate that the Department reject Gregori's bid as non-responsive. Instead, the Department's prior practice was shown to be entirely consistent with the Department's exercise of discretion in this case to consider Gregori's bid that was only three percent higher than the advertised budget amount. Petitioner failed to prove any Department's prior practice of rejecting bids as non-responsive when they exceed the advertised budget amount. The evidence showed otherwise. The evidence regarding project E5R48 also demonstrated that the Department's prior practice has been to reject proposals as non-responsive for failure to meet the advertised pre-qualification requirements as of the response submission deadline. That prior practice is consistent with the Department's decision to deem Commercial's proposal non- responsive because the proposal failed to satisfy all of the advertised pre-qualification requirements as of the response submission deadline of June 18, 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Transportation, dismissing the formal protest of Petitioner, Commercial Industrial Corporation. DONE AND ENTERED this 20th day of November, 2012, 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, 2012.
