Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In February 1989, petitioner, Michael J. Millillo, Jr., was a candidate on the certified building contractor examination. The test is prepared and administered by respondent, Department of Professional Regulation, Construction Industry Licensing Board (Department or Board). Petitioner later received written advice from the Department that he had made a grade of 63 on Part II of the examination. According to agency rules, a score of at least 69.1 is required for passing. Petitioner then filed an appeal of his examination results contending that question 8 was ambiguous and that question 20 contained more than one correct answer. That prompted this proceeding. As a result of a stipulation by counsel at hearing, petitioner was given credit for his answer to question 20 and his grade was raised to 67. Accordingly, the appeal is now limited to question 8. The examination was prepared by the National Assessment Institute and requires an examinee to use "entry level" knowledge in formulating his responses. Question 8 was a mathematics question having a value of four points on a candidate's overall score. It is undisputed that if Millillo had received four additional points he would have passed the examination. Question 8 was a multiple choice question containing four possible answers. Although the question cannot be repeated verbatim here because of confidentiality constraints, it required a candidate to make nine separate mathematical calculations in order to arrive at the correct solution. Petitioner's challenge is limited to the first calculation, and more specifically, to the wording in the question. He contends that the wording was so ambiguous that a candidate could easily arrive at a different answer than suggested by the Board. In general terms, the subpart in dispute provided a candidate with an annual payroll cost for a general superintendent who was the supervisor on a project taking one hundred fifty days to complete. The candidate was required to calculate the superintendent's cost assuming he spent 15% of his time on the project. The solution was derived by multiplying a .15 factor X 150/360 X the annual payroll cost. Petitioner testified on his own behalf and suggested that the question assumed the superintendent devoted 15% of his total time for the entire year to the project, and that the appropriate cost would be obtained by multiplying that percentage factor times the individual's annual payroll cost. The resulting number was approximately twice as great as the Board's correct solution. Respondent's consultant, George Bruton, is a licensed contractor and assisted in the preparation of the examination questions. He considered the question to be clear and unambiguous and required a student to recognize that the superintendent spent 15% of his total time on the project for five months, which was the life of the project. This interpretation is logical and reasonable, consistent with the wording in the question, and is found to be correct. The witness added that because 78% of all candidates on the examination obtained the correct answer, it reinforces his contention that the question was not ambiguous.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's request to receive a passing grade on the February 1989 certified building contractor's examination. DONE and ORDERED this 6th day of November, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 6th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4312 Respondent: 1. Substantially adopted in finding of fact 1. 2-4. Substantially adopted in finding of fact 2. 5. Substantially adopted in finding of fact 5. 6-7. Substantially adopted in finding of fact 6. COPIES FURNISHED: Frederick F. Rudzik, Esquire One Fourth Street, North Suite 800 St. Petersburg, Florida 33701 E. Harper Field, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
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
The Issue Whether Respondent, a certified general contractor, violated the construction industry licensing law, by: (1) willfully or deliberately disregarding and violating the applicable building codes or laws of the State or any municipalities, cities or counties thereof; (2) diverting construction funds resulting in his unwillingness or inability to perform pursuant to a construction contract; and (3) abandoning a construction project; and if the Respondent is guilty of such violations, the appropriate disciplinary penalty which should be imposed by the Construction Industry Licensing Board.
Recommendation That Respondent's certified general contractor's license No. CGC005174 be suspended until such time as Respondent furnishes the Board satisfactory evidence of having made restitution to Simon H. and Alexandra U. Ramos in the amount of $2,515 for monies expended by them to pay for lumber, electric and plumbing charges arising out of their construction contract.
The Issue Whether the Respondent, School Board of Broward County, Florida (Respondent or Board), may reject all bids as proposed for Bid No. 2002-02-FC, Group A1, or whether such action is illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact The Respondent is the entity charged with the responsibility of governing the public schools within the Broward County School District. As such, the acquisition of school properties and attendant improvements fall within the Board's legal authority. These cases involve the procurement of relocatable buildings suitable for classroom purposes. Pursuant to its authority, on or about December 27, 2002, the Respondent issued a bid that is the subject matter of the instant challenge. The bid, identified in this record as Bid 2002-02-FC, sought proposals for the procurement of district-wide relocatable buildings. In a prior time these buildings were known as "portable classrooms" or "portables." In the post-Hurricane Andrew world, these structures are now pre-engineered and constructed of concrete or steel (or a hybrid of both) and must be, by design, capable of being relocated to various sites. The Petitioners, Royal and Padula jointly, and the Intervenor, James B. Pirtle Construction Company, Inc. (Pirtle or Intervenor), design, construct, and install such structures. In these cases the bid sought several distinct proposals. First, the project sought vendors who would provide and deliver concrete relocatable buildings (Group A1). Group A2 (not at issue in this proceeding) sought steel relocatable buildings. Group B (also not at issue in the instant case) sought site adaptation prices for landscaping, lighted covered walkways, steps, ramps, and other engineering incidental to the installation of the buildings. The advertisement for the bid carried the same generic information as to all groups. The bid documents also contained many terms that were applicable to all groups. Pertinent to the issues of these cases are the following excerpts from the bid document (Joint Exhibit 2). The order of the excerpts should not suggest any significance. The excerpts are listed in this manner solely for convenience sake: BASIS OF AWARD In order to meet the needs of the school system . . . each Award will be . . . up to three responsive and responsible bidders meeting specifications, terms and conditions. Individual projects will be issued . . . based upon lowest cost among one or more bidders per project as determined by the project manager. Therefore, it is necessary to bid on every item in the group, and all items in the group must meet specifications in order to have the bid considered for award. Unit prices must be stated in the space provided on Document 00410 Bid Form. SBBC [the Respondent] reserves the right to procure goods from the second and third lowest bidders if: a) the lowest bidder cannot comply with delivery requirements or specifications; b) the lowest bidder is not in compliance with delivery requirements or specifications on current or previous orders; c) in cases of emergency; d) work may be issued to multiple contractors if in the opinion of The School Board of Broward County, Florida or its staff the work cannot be completed by a single contractor in the specified time such as a Summer, Winter or Spring Break or if it is in the best interest of SBBC to do so regardless of reason. ARTICLE 4 BIDDING PROCEDURES 4.01 FORM AND STYLE OF BIDS A. Bids shall be submitted on forms identical to Document 00410, Bid Form, and other standard forms included with the Bidding Documents. The following documents are required to be submitted with the Bid: * * * SIGNED SEALED ARCHITECTURAL AND ENGINEERING DESIGN DRAWINGS OF THE STRUCTURES TO BE PROVIDED (FOR RELOCATABLE BUILDINGS BID ONLY) 5.03 REJECTION OF BIDS AND IRREGULAR PROPOSALS * * * The Owner shall have the right to reject any or all Bids, reject a Bid not accompanied by a required bid security, good faith deposit, or by other data required by the Bid Documents, or reject a Bid which is in any way incomplete, irregular or otherwise not Responsive. The Owner may waive any formality in the bid requirements and award or not award the contract in the best interests of The School Board of Broward County, Florida. (Emphasis in original not shown) In addition to the foregoing, the bid documents contained detailed and specific design criteria that set forth information such as the slope of roofs, the roof spans, the mechanical systems, ventilation, plumbing, windows, and stoops. These design criteria covered hundreds of topics and encompassed virtually every facet of the structures. To review each bid proposal as to whether each design specification was met would require countless man-hours. The issue of how to review the bid proposals was not adequately anticipated by the Respondent. From the outset the bid document evolved from unusual circumstances. Whether the bid document was intended to be a request for proposals (RFP) or an invitation to bid (ITB) was a primary confusion among the Board's staff. If the proposals were to be deemed responsive or not and then ranked solely on price (thus making the bid process more like an ITB) how could staff effectively determine the threshold question of responsiveness? If the proposals were to be ranked based upon a point or qualitative approach (more like an RFP) where were the criteria by which to score the proposals? In fact, there were no objective criteria disclosed in the bid document by which a proposal could be evaluated. More curious is that no bidder brought this lack of evaluation criteria to the Board's attention during the mandatory bidder's conference. Moreover, no one challenged the bid specifications. Presumably, the bidders believed it was an "all or nothing" award. That is, if they were the lowest responsive bidder, they would receive the award. The question of who would be responsive and how that decision would be resolved did not come to light until after the bids had been opened. At the mandatory bidders' conference conducted on January 14, 2003, the bidders posed questions in the form of requests for information. In response, the Respondent issued six addenda intended to cover the questions posed. None of the responses addressed how the bid proposals would be evaluated. If anything, Addendum No. 3 added to confusion related to what documents must be submitted with the bid proposal. More specifically, Addendum No. 3 provided, in pertinent part: [Addendum 3, question and response to inquiry] 9. Can schematics be submitted with the bid instead of the signed and sealed architectural and engineering design drawings of the structures that are requested in Document Article 4.01.A.6? Response: Signed and Sealed Architectural/Structural Drawings are required to be submitted with the Bid. The Requirement for Mechanical and Electrical signed and sealed drawing is waived, however all engineering associated with the Relocatable Buildings will require engineer of record signed and sealed drawings and calculations prior to issuance of building permit DRC review. Nevertheless, when the bid proposals were opened on March 4, 2003, the Petitioners and the Intervenor were found to be the three lowest bidders. If responsive, the Intervenor would be considered the lowest bidder with the Petitioners being considered alternate vendors for the procurement. Unsatisfied with the preliminary determination that the Intervenor was the lowest bidder, the Petitioners timely challenged the bid award. The Petitioners maintained that the Intervenor had not timely provided sealed design drawings as required by the bid document. Petitioners argued that the Intervenor had attempted to impermissibly amend their proposal by late-filing a set of structural drawings for the bid. Thus the initial bid protest sought to determine what design drawings were required by the bid and whether the Intervenor had timely supplied such drawings. The Petitioners contended that the Intervenor's submittal should be rejected as non-responsive to the bid. Whether they had complied with the full dictates of the bid requirements was potentially at issue as well. While the initial bid protest was referred to the Division of Administrative Hearings and scheduled for formal hearing, the parties continued to attempt to resolve the issues. It was apparent that the bidders had not submitted identical proposals. How the proposed products had been compared and evaluated was difficult to determine. From the Respondent's committee members came the disclosure that the decision of determining whether the bidders had complied with the bid ultimately came from three fashioned questions. If the structure proposed was pre- engineered, relocatable to various sites, and suitable for educational purposes, the entry was deemed responsive. Based upon this assessment the Petitioners and the Intervenor were deemed responsive and their bids ranked based upon price. This approach did nothing to discern if the designs were comparable in quality, if they met the bid design criteria, or if the drawings were even sufficient to comply with the dictates of the bid. The first posting of the bid award for Group A1 was entered March 18, 2003. On March 21, 2003, the Petitioners timely filed their notices of intent to protest the award of Group A1 to the Intervenor. Thereafter they timely filed the petitions to protest the award and the initial protest was forwarded to the Division of Administrative Hearings. The protests did not encompass Group A2 or Group B. No bidder protested the proposed awards for Group A2 or Group B. In fact, the Respondent went forward on those procurements and awarded contracts for those groups on April 1, 2003. The Respondent did not award the contract award for the Group at issue in this proceeding. It must be noted that the instant procurement is not the Board's first experience with the procurement of concrete relocatable classrooms. In fact, the Board has purchased similar structures through a procurement contract that the Palm Beach County School Board holds with its vendors. One of the Respondent's concerns when the instant bids were reviewed was why the cost per unit for the bids in this case was higher than the Palm Beach County amount. As it turned out, the installation economy of multiple units at one site directly impacts the cost of the relocatable structures. Royal confirmed this information after the bids had been opened. When the Respondent's staff met with its counsel in preparation for the initial bid dispute (before the Board elected to reject all bids) the cost of the bid, the lack of full evaluation of the bidders' proposals, and the issues of the first protest were openly discussed. By that time any irregularities with the bid documents could not be repaired as to the contracts already awarded, but as to the instant matter the Respondent could revisit the circumstances and determine its best course. As a result of that reassessment, the Respondent elected to reject all bids regarding this group and attempt to re-bid the procurement with more certain terms. To that end on May 9, 2003, the Respondent issued a revised bid decision that provided in pertinent part: The Facilities and Construction Management Division intends to recommend that The School Board of Broward County, Florida, at the School Board meeting on June 3, 2003, reject all bids received for Group A1 and authorize revising the bidding documents and re-bidding. The rejection of all bids received for Group A1 is made due to serious flaws and ambiguities contained in Document 00200 4.01.A-6 as modified by Addendum No. 3. The Division intends to revise the bidding documents to delete the requirements that bidders submit plans with the bids; include ranges of unit quantities within the bid form; include one or more additional types of construction of the classroom buildings including a composite concrete/steel structure; and incorporate within the new Invitation to Bid all revised terms and conditions that were released through addenda in this procurement. The Petitioners timely filed protests regarding this new decision by the Board and the instant action ensued. By issuing the revised decision to reject all bids the Respondent intended to resolve all issues and to cure the perceived problem with the lack of consistent evaluation of the bidders' proposals. More specifically, the Respondent would be able to assure that the project design could comport with the specifications sought; specify whether architectural or engineering drawings were required and when (it was hoped that the confusion over "architect" vs. "engineer" could be eliminated); and obtain a substantial discount based upon economies from multi-unit purchases for a single site. None of the objectives sought were pre-textual or contrived. Additionally, by avoiding any process that would require a detailed reviewed of the bidders' proposals, countless man- hours could be saved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Broward County enter a Final Order affirming the decision to reject all bids in this matter. DONE AND ENTERED this 20th day of November 2003 in Tallahassee, Leon County, Florida. S ___________________________________ D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November 2003. COPIES FURNISHED: Dr. Franklin L. Till, Jr. Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Usher Larry Brown, Esquire Brown, Salzman, Weiss & Garganese, P.A. 225 East Robinson Street, Suite 660 Orlando, Florida 32801 Steven L. Schwarzberg, Esquire Schwarzberg & Associates Esperante, Suite 210 222 Lakeview Avenue West Palm Beach, Florida 33401 Thomas R. Shahady, Esquire Adorno & Yoss, P.A. 350 East Las Olas Boulevard, Suite 1700 Fort Lauderdale, Florida 33301 Robert Paul Vignola, Esquire Broward County School Board C. Wright Administrative Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301
Findings Of Fact Respondent Rubin Wilson holds General Contractor's License No. RG 0019093. He is employed full time at the Pensacola Naval Base, and works evenings and weekends as a building contractor. Amos and Julia Smith entered an oral contract with Respondent in September, 1977, for construction of a house on their property at the northwest corner of Bobe and 16th Avenue in Pensacola. The Smith paid Wilson $4,000 as a down payment on a total agreed price $20,000. The parties disagree as to how the remaining $16,000 was to be paid. The Smiths understood that on completion of the house they would make a further $1,000 payment and obtain $15,000 in financing from Mutual Federal Savings and Loan. Wilson contends the Smiths were to pay the remaining $1,000 personal payment during the pendency of construction and secure financing whereby Wilson could receive "draws" as he progressed on the project. Respondent obtained a building permit in November, 1977. He requested a foundation inspection in May, 1978, and a slab inspection in November, 1978. He did some framing work in January, 1979, and had some materials delivered to the site in March, 1979. Thereafter, Wilson did no further work on the project which was about ten percent complete. In April, 1979, the Smiths sought to obtain a written contract from Respondent but were unsuccessful. They brought suit against Wilson in May, 1979, to terminate the oral contract and recover their down payment. Wilson counterclaimed for $6,600 and the suit was dismissed with prejudice by agreement of the parties. The house was eventually completed by a second contractor at a substantially higher cost to the Smiths.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found not guilty of violating Subsection 468.112(2)(h) Florida Statutes (1978 Supp.). It is further RECOMMENDED that the Administrative Complaint be dismissed. DONE AND ENTERED this 16th day of June, 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER 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 16th day of June, 1981. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 R. M. McDavid, Esquire 103 North DeVilliers Street Pensacola, Florida 32501
The Issue The ultimate issue presented in this part of the bifurcated proceeding is whether the Petition should be dismissed as an untimely protest to the RFP specifications. Subsidiary issues presented are whether any such timeliness defect could be cured by allowing Petitioner to amend its Petition, and whether the points of entry provided to Petitioner with the RFP, as amended, were ineffective to operate as clear points of entry because Respondent did not also post the RFP and addenda amending the RFP on the MyFloridaMarketPlace vendor bid system.
Findings Of Fact By this action, Petitioner seeks to reverse Respondent’s intended decision to award a contract to Intervenor for a design- build project to widen Kanner Highway from four lanes to six lanes over a 4.3 mile stretch in Martin County (the Kanner Highway Project). Instead of awarding a contract to Intervenor, Petitioner contends that Respondent should reject all proposals and conduct a new procurement. Petitioner’s complaint is directed to Respondent’s issuance of one or more addenda as RFP amendments after the three shortlisted vendors submitted technical proposals, but before they submitted price proposals. Adjusted Score Design-Build Process for Kanner Highway Project DOT is the state agency authorized to contract for the construction and maintenance of roads designated as part of the State Highway System, the State Park Road System, and other roads placed under DOT’s supervision by law. § 337.11(1), Fla. Stat. When DOT determines, as it did for the Kanner Highway Project, “that it is in the best interests of the public [to] combine the design and construction phases” of certain projects into a single contract, DOT is authorized to use the design-build contract procurement procedures generally outlined in section 337.11(7) for competitive selection of a design-build firm. Section 337.11(7)(b) authorizes DOT to “adopt by rule procedures” that detail the processes and procedures by which design-build projects are publicly announced, qualified design- build firms are selected to submit bid proposals, and the firm to receive the contract award is selected. DOT’s rules carrying out the authority conveyed in section 337.11(7)(b) are codified in Florida Administrative Code Chapter 14-91.2/ The solicitation for the Kanner Highway Project began with the posting of a Notice to Contractors/Consultants on DOT’s website, which set forth a general description of the project, identified required submittals, and provided a draft RFP, as specified in rule 14-91.005 (“Public Announcement Procedures”). The notice with draft RFP was first posted on September 22, 2014, on the “planned advertisement” webpage, to give a heads-up to the vendor community that a public announcement was forthcoming for this project. The official announcement was posted on October 6, 2014, on DOT’s design-build “current advertisement” webpage. As required by rule 14-91.005, the posted notice advised that for the Kanner Highway Project, DOT would use the adjusted score design-build (ASDB) process. The notice also described the ASDB process, which is a two-phase process. In the first phase, interested design-build firms were required to file an expanded letter of interest (ELOI) by October 27, 2014, demonstrating their qualifications to perform the work contemplated by the project, as generally described in the notice and preliminarily detailed in the draft RFP. The notice specified the required ELOI contents and supporting documents, the minimum qualification requirements by work class, and the criteria for evaluating and scoring the ELOIs. The notice provided that ELOIs and supporting documents “shall be submitted electronically” in .pdf format attached to a single electronic mail (email) transmission. In turn, each ELOI was to designate and give contact information, including email address, for the design-build firm’s contact person. As authorized by section 337.11(7)(b)9., and rule 14- 91.007(8), the posted notice also provided the criteria by which DOT would pay stipend compensation to certain design-build firms who are not ultimately awarded the contract. Both public announcements (posted on September 22, 2014, and on October 6, 2014), contained the following: Pursuant to Sections 120.57(3) and 337.11, Florida Statutes, and Rule Chapter 28-110, Florida Administrative Code, any person adversely affected by the agency decision or intended decision shall file with the agency both a notice of protest in writing and bond within 72 hours after the posting of the notice of decision or intended decision, or posting of the solicitation with respect to a protest of the terms, conditions, and specifications contained in a solicitation and will file a formal written protest within ten days after the filing of the notice of protest. The required notice of protest and bond, and formal written protest must each be timely filed with the Florida Department of Transportation, Clerk of Agency Proceedings, 605 Suwannee St, Mail Station 58, Tallahassee, FL 32399-0458. Failure to file a notice of protest or formal written protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120 Florida Statutes. There were no notices of protest filed within 72 hours of the posted solicitation, nor formal written protests within 10 days after a notice of protest, to contest the terms, conditions, or specifications in the Kanner Highway Project solicitation. Four design-build firms submitted ELOIs for the Kanner Highway Project, were determined to be responsive, and were scored. The ELOI scores were posted on DOT’s website on the procurement office’s page for design-build selection results. At the top of this webpage, an all-bold point of entry is provided in the same language contained in the public announcement notice. There were no notices of protest filed within 72 hours after the ELOI scoring results were posted, nor any formal written protests within 10 days after a notice of protest. Consistent with rule 14-91.007(2)(a) and the process described in the public announcements, design-build firms whose ELOIs were responsive and scored were required to provide DOT with written affirmation by December 10, 2014, of the firms’ intent to proceed to phase two. Three of the four firms--the three with the best ELOI scores--provided written affirmation: Petitioner, Intervenor, and Prince Contracting, LLC. In accordance with rule 14-91.007(2)(a), those three firms were shortlisted and, thereby, eligible to proceed to phase two, receive the final RFP and addenda, and submit technical and price proposals. For design-build projects using the two-phase ASDB process, the RFP developed by DOT serves the purpose of “furnish[ing] sufficient information for Design-Build Firms to prepare technical and price proposals,” and the RFP is provided only to shortlisted firms, because only the shortlisted firms are eligible to submit technical and price proposals. Fla. Admin. Code R. 14-91.007(2)(a) and (3). Thus, while a “draft” RFP for the Kanner Highway Project was attached to the public announcement posted on DOT’s website, the “final” RFP was not posted on DOT’s website. Instead, DOT followed the procedure in rule 14-91.007(3), by providing the final RFP directly to the three shortlisted firms.3/ As is apparently common practice with design-build procurements, the so-called “final” Kanner Highway Project RFP was not actually final; it was amended by several addenda.4/ RFP addenda are posted on DOT’s website. The Contracts Administration page for design-build projects identifies the addenda by number, and the addenda themselves are linked and can be accessed by clicking on each number. The addenda are also transmitted by email to an email list of contact persons for the shortlisted firms. In addition, each time an addendum is issued that amends the “final” RFP, the entire RFP, as amended, is reissued and transmitted with the same email message. A redlined version of the reissued RFP is also transmitted with the same email message, to highlight the addendum changes and put them in context with the whole RFP. Emails transmitting the Kanner Highway Project addenda, the reissued RFPs as amended by the addenda, and the redlined versions of the reissued RFPs, as amended by the addenda, were sent to the three shortlisted firms with a “high importance” flag and a request to confirm the receipt of the email. Petitioner’s designated representative--its president, Bob Schafer--confirmed in his deposition testimony that this was the procedure followed for the Kanner Highway Project. Mr. Schafer confirmed that Petitioner received the emails transmitting each of the six addenda, and Petitioner confirmed receipt within minutes of the transmittals. The Kanner Highway Project RFP, in its “final” form and in each reissued form as amended by addenda, is a 62-page document, not counting attachments. The first two pages of the RFP is a Table of Contents. Page one of the RFP lists a section called “Protest Rights,” which appears at page nine. Beginning on page nine of each version of the RFP, as reissued and amended by the addenda, a separate section identified as “Protest Rights” provides as follows: Any person who is adversely affected by the specifications contained in this Request for Proposal must file a notice of intent to protest in writing within seventy-two hours of the posting of this Request for Proposals. Pursuant to Sections 120.57(3) and 337.11, Florida Statutes, and Rule Chapter 28-110, Florida Administrative Code, any person adversely affected by the agency decision or intended decision shall file with the agency both a notice of protest in writing and bond within 72 hours after the posting of the notice of decision or intended decision, or posting of the solicitation with respect to a protest of the terms, conditions, and specifications contained in a solicitation and will file a formal written protest within ten days after the filing of the notice of protest. . . . [Agency Clerk address provided for filing] Failure to file a notice of protest or formal written protest with the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120 Florida Statutes. No notices of protest were filed within 72 hours of the electronic transmittal of each reissued RFP, as amended by addenda, nor were formal written protests filed within 10 days after a notice of protest, to protest the terms, conditions, and specifications in any of the reissued RFPs, as amended by addenda. After Addenda 1 and 2 were issued, the three shortlisted firms submitted technical proposals by the deadline on March 16, 2015. Addendum 3, the reissued RFP, and the redlined reissued RFP were transmitted by a single email sent to the shortlisted firms on April 27, 2015, at 5:03 p.m. Petitioner confirmed receipt of the email transmittal 20 minutes later, at 5:23 p.m. Petitioner knew of its objections to Addendum 3 as soon as it was read, which was within hours of its electronic transmittal on April 27, 2015. Petitioner took steps to notify DOT of its objections regarding Addendum 3, but those steps did not include filing a notice of protest to the amended RFP specifications within 72 hours after its transmittal or receipt. Instead, Mr. Schafer, Jason Daley (Ranger’s designated contact person for the project), David Wantman of the Wantman Group (engineering firm that is a member of Petitioner’s design- build team), and Randy Cropp with Cone & Graham (bridge contractor team member) had a telephone conference with John Olsen (described by Mr. Schafer as DOT’s design-build coordinator), and “two or three people from the Department, I’m not sure other than John.” (Schafer deposition at 17). Mr. Schafer said he believed the conference call was the day after Addendum 3 was received, which was April 28, 2015. On April 29, 2015, at 10:23:55 a.m., Mr. Schafer sent an email to Gerry O’Reilly, P.E., the DOT District Four Secretary, with copies to Jim Boxold (DOT Secretary, the agency head), and Bob Burleson with the Florida Transportation Builders’ Association. The email text was as follows: Guys, I’m extremely disappointed. What is going on in D-4 with releasing Team’s cost saving ideas. For the second time in two projects, either an ATC [Alternative Technical Concept] or concept in our Technical Proposal, one of our cost saving ideas has been released to the other bidders by the Department. For this $20+M project, a drainage concept that would’ve saved about $1.2M has been released by Addendum to all the bidders, after the Technical Proposals were submitted and 2 weeks prior to the submission of the numbers. Why has that happened??? I have partners on this project in Cone & Graham and Wantman Group that, along with Ranger, have spent a lot of money and man- hours trying to “design a better mouse trap” to give us a competitive advantage. If we’re not successful on this one, we may not have a choice but to protest. This has got to Stop. Two subsequent emails, from representatives of the Wantman Group and Cone & Graham, echoed Mr. Schafer’s complaints. All three emails were sent on April 29, 2015, with the last transmittal being made at 6:20 p.m., approximately 49 hours after Petitioner received the email transmittal with Addendum 3. Addendum 4, the reissued RFP, and the redlined reissued RFP were transmitted by a single email sent to the three shortlisted firms, including Petitioner, on May 4, 2015, at 4:11 p.m. Petitioner confirmed receipt of the email transmittal three minutes later, at 4:14 p.m. Addendum 5, the reissued RFP, and the redlined reissued RFP were transmitted by a single email message transmitted to the three shortlisted firms, including Petitioner, on May 5, 2015, at 12:10 p.m. Petitioner confirmed receipt of the email transmittal two minutes later, at 12:12 p.m. The three shortlisted firms, including Petitioner, submitted sealed lump-sum price proposals and proposed contract time (number of calendar days to complete the project) for the Kanner Highway Project by the May 6, 2015, deadline. Petitioner’s price proposal acknowledged that as of May 6, 2015, Petitioner had received Addenda 1 through 5 during the bidding period, and specified the dates of receipt of each addendum.5/ Thereafter, Respondent calculated the “adjusted scores,” using the following components: the technical score (combination of the ELOI score and the technical proposal score), the proposed contract time, the time value costs provided in the RFP ($7,093 per day), and the bid price proposal. The formula, set forth in the RFP, is the bid price proposal plus the product of the proposed contract time in number of days times the time value cost per day, divided by the technical score (ELOI, or phase one, score, plus technical proposal, or phase two, score). As provided in the RFP, the design-build firm to be selected is the one whose adjusted score is the lowest. The adjusted score calculation components and results, announced at a public meeting and posted on the DOT website, were as follows: If We Are Not Successful, We Might Have To Protest: The Petition As forewarned, within 72 hours after DOT announced and posted the results on its website, showing that Intervenor had the lowest adjusted score and was the intended awardee, and that Petitioner’s proposal was in third place, Petitioner filed its notice of protest and protest bond. Within 10 days thereafter (as extended to the following Monday, day 12, by virtue of the uniform rules of procedure), Petitioner filed its Petition. The Petition sets forth the objections to Addendum 3 voiced in the April 29, 2015, emails, alleging in pertinent part: Technical proposals had already been submitted by the time Addendum 3 was released. Thus, the Department changed the proposal requirements after submission of vendors’ proposals. (Petition, ¶ 11). In Addendum 3, which was issued one day after the Q&A – after Ranger submitted its drainage concept as part of its technical proposal – the Department adopted Ranger’s drainage concept, significantly revising the plan for SMF 4, utilizing a smart box drainage control structure, and Basin 4’s piping system, including relocating SMF 4 structures and retaining existing pipes. That is, the Department gave the other vendors Ranger’s design for use by the other vendors after the technical proposals had been submitted and opened. (Petition, ¶ 15). Although none of the other vendors had included this design in their original technical proposals, they each improperly benefitted from Ranger’s efforts to develop a unique, substantially improved, more cost efficient plan: in violation of Florida law, the Department disclosed Ranger’s proposal concept to these firms, and, by mandating through Addendum 3 that all vendors use Ranger’s design concept, effectively allowed the other vendors to revise their own proposals after the technical proposal submission deadline and base their pricing on Ranger’s concept. (Petition, ¶ 16). The end result of the Department’s improper reveal of Ranger’s design concept was the posting of an intended award of the contract to another vendor instead of Ranger . . . making no attempt whatsoever to compensate Ranger for handing others the benefits that Ranger had earned. (Petition, ¶ 17). The complaint that Addendum 3 changed the RFP after submission of the technical proposals is a complaint directed to the RFP specifications as reissued on April 27, 2015. As to Petitioner’s complaint about not being compensated, it is not clear whether the Petition’s references are to stipend compensation or to some other asserted basis for compensation. The references to Petitioner not being compensated are not tied to the relief sought, which is a rejection of all bids (and not payment of compensation). To the extent Petitioner is attempting to assert a right to stipend compensation, such a request would be premature and would not be grounds for rejection of all bids. The RFP provides that non-selected shortlisted firms are eligible for stipend compensation if they have executed the Design-Build Stipend Agreement, and if they submit an invoice “after the selection/award process is complete.” (RFP at 62). By virtue of this proceeding, the selection/award process is not complete. Any other claim of a right to compensation would not be cognizable in a bid protest proceeding, as apparently Petitioner recognizes by not actually seeking compensation as relief. The Proposed Amended Petition In reaction to Respondent’s motion to dismiss the Petition as an untimely specifications challenge, on October 13, 2015, Petitioner offered the proposed Amended Petition. The proposed Amended Petition seeks to add to the claim that Addendum 3 modified the RFP’s specifications after the technical proposals were submitted, by extending that same claim to Addenda 4 and 5; that is, that Addenda 3, 4, and 5 modified the RFP’s specifications after the technical proposals were submitted. (Amended Petition, ¶ 11). With regard to the suggestion that Petitioner’s protest was an untimely challenge to the RFP’s specifications, the proposed Amended Petition adds the following: The Department did not electronically post any of the procurement documents – the RFP, the addenda, or the notice of intended award decision – as required by section 120.57(3)(a), Florida Statutes, and Florida Administrative Code Rule 60A-1.021. Amended Petition, ¶ 12. The Amended Petition also seeks to evoke the impression of a scoring challenge by alleging that “on information and belief” the technical proposals were not scored on the basis of the RFP amendments that were issued after the technical proposals were submitted. (Amended Petition, ¶ 18). In explaining the grounds for Petitioner’s protest, Petitioner’s president described this challenge to the “scoring” as follows: Petitioner is “protesting that the – how could the technical scores reflect all of the addendums that were submitted after the technical proposal[s].” (Schafer deposition at 10). In other words, this is not a scoring challenge, but a process challenge: Petitioner’s objection is to the issuance of one addendum (per the Petition) or three addenda (per the Amended Petition) that amended the RFP after technical proposals were submitted, but before price proposals were submitted. The proposed Amended Petition does not cure the Petition’s timeliness problem. Petitioner’s notice of protest with protest bond was not filed within 72 hours of the electronic transmittal or receipt of Addendum 3, Addendum 4, or Addendum 5. Petitioner received the reissued RFPs, incorporating these addenda, on April 27, May 4, and May 5, respectively. The notice of protest was not filed until May 20, a full 15 days after Addendum 5 was received. Proposed Second Amended Petition Putting aside the argumentative portions of the proposed Second Amended Petition,6/ the proposed new allegations include pleading in the alternative that either the technical proposals were evaluated and scored without consideration of the RFP addenda that were issued after the technical proposals were submitted; or, in the alternative, that the RFP addenda were considered in evaluating the technical proposals, but the awarded scores must be improper because the technical proposals did not address the RFP addenda. (Second Amended Petition, ¶¶ 20-22). By pleading in the alternative this way, the proposed Second Amended Petition confirms that the Petition and both proposed amended petitions only challenge the RFP specifications as amended by Addendum 3, or by Addenda 3, 4, and 5. Petitioner complains that the process was rendered flawed by virtue of the issuance of RFP addenda after the technical proposals were submitted, and that--one way or another--this must have undermined the evaluation and scoring of the technical proposals. The proposed Second Amended Petition seeks to add an allegation directed to Intervenor’s technical proposal, alleging that it “did not address the changes to SMF 4 that were required by Addendum 3.” (Second Amended Petition, ¶ 22). A corollary disputed issue of fact alleged is “[w]hether Community’s proposal complied with the requirements of the addenda[.]” (Second Amended Petition, ¶ 31.e.). While these allegations single out Intervenor, in substance they are no different than the other process challenges. While perhaps they are directed to the intended awardee in an effort to appear as if Petitioner is raising grounds to challenge the award decision, that effort would give rise to another problem. Petitioner, as the third- ranked firm, would lack standing to protest a contract award on grounds that the highest ranked firm should not have been highest ranked or should have been found non-responsive (not alleged by Petitioner in any petition). How Clear Were the Points of Entry? Neither the proposed Amended Petition nor the proposed Second Amended Petition would cure the Petition’s timeliness problem. However, they raise as a defense to Respondent’s timeliness challenge (which itself is in the nature of a defense, that of waiver of a clear point of entry) that the points of entry relied on were ineffective to operate as clear points of entry. It is not necessary to amend the Petition to consider this argument, as it is responsive to the issues raised by the Motion to Relinquish. Petitioner, and members of its design-build team, are hardly newcomers to DOT design-build procurements.7/ Petitioner’s president acknowledged that the Kanner Highway Project is not Petitioner’s first involvement in a DOT design-build procurement. Petitioner has successfully responded to a number of design-build proposals, including several in District Four, the results of which were that Petitioner was awarded the contracts. Petitioner is familiar with the DOT website and uses that website as a tool to stay abreast of design-build project advertisements and procurement information. Petitioner’s president could not identify any other tool, on the internet or otherwise, used by Petitioner for those purposes. In particular, although Petitioner is aware of the MyFloridaMarketPlace vendor bid system on myflorida.com, Petitioner could not say whether, for any of the design-build projects in which Ranger succeeded as the contract awardee, DOT posted RFPs, addenda, or notices of intended award on that myflorida.com system. DOT’s representative confirmed that DOT does not use the MyFloridaMarketPlace vendor bid system on myflorida.com for design-build procurements that are conducted pursuant to section 337.11(7) and DOT’s implementing rules, or for other road/bridge construction procurements under section 337.11. DOT uses the MyFloridaMarketPlace vendor bid system for procurements of commodities and contractual services. Petitioner’s president acknowledged that he was aware of the protest rights provision set forth in each version of the RFP for the Kanner Highway Project, as reissued to incorporate each of the addendum amendments. Petitioner also acknowledged that none of the email communications with DOT officials regarding the objections of Petitioner and its team members to Addendum 3 were filed as a notice of protest or formal written protest of the terms, conditions, or specifications of the RFP as amended by Addendum 3.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner’s Formal Written Protest be DISMISSED. DONE AND ENTERED this 20th day of November, 2015, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2015.
The Issue The issues presented for determination at the hearing are as follows: 1/ Whether respondent Department of Transportation (D.O.T.) abused its discretion or acted in bad faith, arbitrarily, capriciously, or under a misconception of law in rejecting all bids received on the subject project on December 21, 1977. Whether the decision of the respondent D.O.T. to reject all bids was made in violation of Florida's Government in the Sunshine Law, F.S. s286.011.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: By a "notice to contractors" dated November 24, 1977, the respondent D.O.T. advertised that it would receive bids on December 21, 1977, from qualified contractors for various construction and maintenance programs. The project which is the subject of this proceeding was contained in this notice, identified as "Gadsden County: Federal Aid Project No. I-10-3(31)157 Contract II (Job No. 50001-3423) SR 8 (I-10)." This project involved the paving of a certain stretch of Interstate Highway 10 in Gadsden County, which stretch was the last remaining unopen portion of I-10. In addition to a short summary of the contents of the project the notice on this project contained the following language which was underlined and capitalized in the notice: NOTE: A PRE-BID CONFERENCE ON THIS PROJECT WILL BE HELD ON WEDNESDAY, DECEMBER 14, 1977, AT 10:00 A.M. IN ROOM 301 OF THE HAYDON BURNS BUILDING, 605 SUWANNEE STREET, TALLAHASSEE, FLORIDA. ALL POTENTIAL BIDDERS WILL BE RE- QUIRED TO ATTEND. NOTE: ON-THE-JOB TRAINING WILL BE REQUIRED FOR THIS PROJECT. Mr. Henry Eugene Cowger, deputy state construction engineer for the D.O.T., made the initial decision to require attendance at a prebid conference for this project, although he himself did not draft the language used in the notice. Cowger felt that a prebid conference would be valuable to bidders and the Department due to the uniqueness of this particular project with regard to the requirements concerning maintenance of traffic and work progress. More specifically, the contract called for a close working relationship and cooperation with the first stage contractor on this stretch of road. The first stage contractor is respondent/intervenor White. Also, it was anticipated that the project would be opened in sections with unusual traffic requirements so that the entire project could be utilized in a limited fashion. Mr. Cowger instructed William F. Ray, the Department's area construction engineer, to arrange for and conduct the prebid conference. No specific instructions were given to Mr. Ray as to which provisions of the contract were to be discussed at the conference. Cowger felt that Ray was knowledgeable with the project and therefore that he needed no instructions. The prebid conference was held as scheduled on December 14, 1977. Representatives of six different construction companies attended, including a representative from respondent White Construction Company. Through neglect or oversight, petitioner Couch did not attend the conference. A memorandum to the file from Mr. Ray indicates that the following occurred at the conference: A statement was made at the beginning of the meeting by W. F. Ray that nothing said by any person at the meeting would change or modify any part of the contract documents. Certain portions of the special Provisions per- taining to maintenance of traffic and limitations of work areas were read and discussed. It was agreed by those present that the intent of these Specials Provisions was clear and under- standable. Mr. McRae of H.D.W. stated that the unknown delay times built into this project would result in much higher than normal bids and his company would probably not enter a bid. After a short discussion of the terms of the contract, the meeting was adjourned. The conference lasted from thirty to forty-five minutes. At the hearing, Mr. Ray related the questions he could remember which were asked by the contractors. It was admitted that virtually all of the provisions and expectations, unique or otherwise, were fully spelled out in the contract documents. Most of the inquiries at the conference related to the absorption of certain maintenance and traffic costs and responsibilities between the contractor and the D.O.T. In each instance, it was disclosed that the D.O.T. would be responsible for these unless the contract specifically provided otherwise. Questions regarding the sequence of operations and the phasing of the work with the first stage contractor were not specifically answered by D.O.T. representatives. Of the three contractors who submitted bids on the subject project on December 21, 1977, only respondent/intervenor White had attended the December 14th rebid conference. Joseph F. Villadsen, petitioner's engineering division vice president, had visited the site of the project and had studied the contract provisions, which appeared clear to him. In numerical order, the bids submitted on December 21, 1977, were as follows: $1,410,730.72 - - petitioner Couch $1,514,272.63 - - respondent/intervenor White $1,579,168.72 - - Contee Sand and Gravel Company, Inc. The respondent has an Awards Committee composed of five executives from the D.O.T. This Committee generally meets once a month to review bids and make a recommendation to respondent's Secretary on the award of contracts for some thirty-five to fifty projects per month. Although Secretary Webb has the authority to make an independent decision and/or to reject the recommendations of the Awards Committee with regard to the acceptance of bids, he could not recall ever having done so. On the afternoon of December 21, 1977, the same day as the bids were received, Mr. Jay Brown, respondent's director of road operations and chairman of the Awards Committee, learned from two representatives of White that the apparent low bidder, petitioner Couch, had not attended the prebid conference. He thereupon called together those members of the Awards Committee who were in the building at that time to discuss what should be done. Brown also counseled with P.E. Carpenter, the division administrator for the Federal Highway Administration, to determine the extent of the federal participation in funding if a bid other than the low bid were accepted. Awards Committee members Brown, Sill Ekey, Peter J. White and Willis Armstrong met on December 21 and 22, 1977. In reaching a determination as to their recommendation to the Secretary, the committee members considered three alternatives -- awarding the contract to Couch as the apparent low bidder, awarding the contract to White as the next lowest bidder and as the only bidder who attended the prebid conference or rejecting all bids received and readvertising for new bids. Each alternative was considered a viable one by the committee members. Although the members felt that the requirement of attendance at a prebid conference was a reasonable requirement due to the uniqueness of the project, no inquiry was made as to what actually transpired at the conference. Nor was any inquiry made as to a reason for petitioner's nonattendance. It was the unanimous decision of those Committee members present that it would best serve the interests of the State to reject all bids and proceed to readvertise. This decision to recommend rejection and readvertisement was based upon several reasons. The prime consideration was that this project involved the last remaining unopen link in Interstate Highway 10 and time was of the essence. It was felt that if the contract were awarded to Couch or to White, there would be litigation causing delay to the completion of Interstate 10. The Committee members were also concerned with the significant amount of difference between the bids of Couch and White. Rejecting all bids appeared to the Committee members to be the "cleaner" way to go. Mr. Brown testified that the D.O.T. does not generally accept the bid where only one bid is received. Here the apparent low bidder and the highest bidder were considered irregular for failure to attend the prebid conference. Thus, the Department was left with only one bid. Through Mr. Brown, Secretary Thomas Webb, Jr., was telephonically notified of the recommendation of the Awards Committee. Mr. Webb concurred with the Committee's recommendation because he was concerned with a possible delay to the project due to litigation were the bid to be awarded to either Couch or to White. Thereafter, the bidders were notified by telegram that all bids on the project had been rejected due to the failure of the low bidder to attend the prebid conference, and that the project would be readvertised. On December 29, 1977, Couch filed a "complaint" with the D.O.T. requesting a hearing pursuant to F.S. s120.57 on the issue of whether the D.O.T. lawfully rejected Couch's bid on the subject project. By Order dated January 9, 1978, Secretary Webb denied Couch's request for a hearing. This denial was appealed by Couch to the District Court of Appeal, First District, and White Construction Company was made a party to that proceeding. After numerous motions were filed and oral argument was had, the District Court, by Order dated February 24, 1978, relinquished jurisdiction for a period of sixty days and remanded the case to the D.O.T. for the purpose of providing Couch a s120.57(1) hearing. The District Court stayed the D.O.T. from awarding the contract for the subject project. Prior to the Orders of the District Court, the D.O.T. readvertised the project, calling for a prebid conference on January 11, 1978, and the receipt of bids on January 12, 1978. This time, attendance at the conference was announced to be "expected," rather than "required." At the hearing, the D.O.T. divulged that attendance at prebid conferences would no longer be required or mandatory in order to avoid the problem inherent in the instant proceeding. Both Couch and White attended the January 11th prebid conference and submitted bids on January 12th. Couch's bid was identical to its December 21, 1977, bid. White submitted a bid approximately $40,000.00 below the bid of Couch. The D.O.T. receives bids on approximately 420 to 550 construction projects a year. During the past ten years, only seven other prebid conferences with required attendance have been held. In those instances, the language contained in the notice was different from the language used in the subject notice. On three occasions the language used was: "ALL PROSPECTIVE BIDDERS MUST ATTEND THIS PRE-BID CONFERENCE AS BIDDING DOCUMENTS WILL NOT BE ISSUED TO CONTRACTORS WHO HAVE NOT BEEN PROPERLY REPRESENTED AT THIS MEETING." On three occasions the language was: "ATTENDANCE WILL BE MANDATORY FOR THOSE INTENDING TO BID ON THIS PROJECT.? On one occasion the language was: "ATTENDANCE WILL BE MANDATORY FOR THOSE INTENDING TO SUBMIT A BID ON THIS PROJECT." The situation where the apparent low bidder has not attended a required prebid conference has never before arisen.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the D.O.T.`s decision to reject all bids and readvertise the subject project be affirmed and upheld. Respectfully submitted and entered this 24th of April, 1978, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
