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 The central issue in this case is whether Petitioner should be awarded Bid No. 432-730-310-W for configurations 1, 2, and 3, Service Area 1.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The ITB for Bid No. 432-730-310-W consisted of three sections: general conditions, special conditions, and technical specifications. Bidders were evaluated on their technical and non-technical responses to the ITB. Once the Department determined the bidders to be compliant with their non-technical responses, they were ranked according to the evaluation award criteria described in Appendix F of the ITB. Once ranked, the Department forwarded the bid responses to the engineering staff of the Division of Communications for a technical review. This technical review consisted of verifying a lowest compliant bidder and a competitive compliant bidder. To complete the technical review the engineering staff considered the responses submitted on the ITB forms, technical literature provided by the bidder, and technical responses submitted to supplement other information. To the extent that an ambiguity in one response was satisfactorily explained elsewhere in the bid documentation, the bidder was given the benefit of the doubt and found to be responsive to the ITB. Prior to submitting bids, all bidders were given an opportunity to raise questions regarding the ITB at a pre-bid conference conducted by the Department. Petitioner's representative attended the conference and received a copy of the specimen bid. The ITB required specific mandatory responses. Failure to include the mandatory information resulted in the disqualification of the bid. An equipment list for the baseline system was a mandatory requirement of the ITB. Identification of the manufacturer and the part number, if any, were required to be provided. Another mandatory feature required by the ITB was a "handsfree" intercom. The ITB defined this feature as follows: Handsfree answer and talk back on intercom: Enables a station user to answer an intercom call through the station instrument's internal speaker/microphone without lifting the instruments handset. (This feature shall not be controlled by the calling party instrument intercom button.) Speed-dialing was another mandatory feature of the ITB. This feature could be provided at the station (an individual telephone) or by the system. If at the station, there was no requirement that the instrument retain memory in the event of a power outage. The central memory of the system, however, had to retain its memory in the event of a power failure. The ITB prohibited a method of programming which required access to the inside of the Key Service Unit (KSU) to make switch settings or set a switch to enter and/or leave the program mode. All mandatory operational service features of the ITB were listed on page 27, Section 3.4. Optional operational service features and equipment were listed on page 34, Section 3.16.8 of the ITB. An optional operational feature listed was "Station Message Detail and Equipment." The bidding of an SMDR or an option for an SMDR was not required. No bidder was disqualified because it failed to bid an SMDR or an SMDR option. All bidders were required to submit a spare parts price list. Any bidder failing to submit the list was disqualified. Any bidder which submitted the list automatically met the requirement. The lists were not evaluated as art of the bid criteria and no bidder was disqualified based upon the content of the information supplied on the list. Configuration 1 The Department determined Petitioner to be the seventh lowest bidder for configuration 1. Lower bidders, in order of their ranking, were Henkels & McCoy, Southern Bell Advanced, St. Joe Communications, Inter-Tel, Lanier Business, and Tel-Plus Communications. Tel Plus was considered the low compliant bidder and Inter-Tel was the competitive compliant bidder. Following a complete review of the bid responses, the parties agreed that Southern Bell Advanced, St. Joe Communications, and Lanier Business were non-compliant for configuration 1. The Henkels & McCoy bid provided a "handsfree" feature as described above in paragraph 8. The Henkels & McCoy bid did not provide an SMDR or an SMDR option. The Inter-Tel bid did not provide an SMDR or an SMDR option. The Tel Plus bid included a spare parts price list. The Tel Plus bid included an equipment list for the baseline system, however, such list did not completely and accurately describe the baseline system. The discrepancies with the equipment list were fully explained elsewhere in Tel Plus' bid response. Configuration 2 The Department determined Petitioner to be the fourth lowest bidder for configuration 2. Lower bidders, in order of their ranking, were Inter-Tel, Tel Plus Communications, and St. Joe Communications. St. Joe was determined to be non-compliant, leaving Tel Plus as the low compliant bidder and Inter-Tel as the competitive compliant bidder. The Inter-Tel bid provided a statement indicating the equipment bid would be modified to relocate a "DIP" switch to the outside of the KSU. This modification was necessary to comply with the requirement described in paragraph This modification is a minor, simple procedure done by many technicians. No documentation was provided as to how Inter-Tel intended to make the modification. The parties agreed, however, that the modification could be done. The Inter-Tel bid provided the speed-dialing feature described in paragraph 9 at the station. The findings of fact relating to configuration 1 and the Tel Plus bid are applicable to configuration 2. Configuration 3 The Department determined Petitioner to be the seventh lowest bidder for configuration 3. Lower bidders, in order of their ranking, were Business Telephone Systems, Henkels & McCoy, Marcom Telecommunications, Lanier Business, Tel Plus Communications, and Inter-Tel. Inter-Tel was determined to be the low compliant bidder with Henkel & McCoy the competitive compliant bidder. Following a complete review of the bid responses, the parties agreed that Marcom, Tel Plus and Lanier were non- compliant for configuration 3. The Business Telephone bid included a spare parts price list. The Business Telephone bid failed to include on the baseline equipment list the surge protector part number, however, such information was provided elsewhere in the bid response. The Business Telephone bid failed to include a part number for wiring, however, the part number for wiring was not required. The Henkels & McCoy bid included a spare parts price list. The Henkels & McCoy bid failed to list a console card on the baseline equipment list, however, this was to be provided with the console which was properly described elsewhere in the bid response. The findings of fact relating to configuration 2 and the Inter-Tel bid are applicable to configuration 3. Petitioner's bid for configuration 1 was $3641.08. The lowest responsive bid was $2343.00. Petitioner's bid for configuration 2 was $5407.97. The lowest responsive bid was $4723.00. Petitioner's bid for configuration 3 was $12,136.90. The lowest responsive bid was $9271.00. The parties stipulated that Petitioner timely filed its notice of intent to protest and the formal protest of bid award.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department of General Services enter a Final Order dismissing the formal protest of the Petitioner. DONE and ENTERED this 5th day of January, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1988. APPENDIX Rulings on Findings of Fact submitted by Petitioner: Paragraph 1 is accepted. Paragraph 2 is accepted. Paragraph 3 is accepted in part. The information requested on the spare parts price list was for planning purposes only. Response of hourly rate etc. was not required to comply with the ITB. Paragraph 4 is accepted; see Finding of Fact paragraph 13. Paragraph 5 is accepted. 6 With regard to paragraphs 6-8, to the extent such paragraphs track the language of the ITB they are accepted; however, the SMDR or SMDR option was not a mandatory item of the bid. It was indicated as an optional operational feature. To the extent paragraph 9 sets forth optional operational features (as described in Section 3.16.8 of the ITB) it is accepted; however this specific proposed Finding is irrelevant and unnecessary to the conclusion of issues raised in this proceeding. Paragraph 10 is accepted. Paragraph 11 is rejected. The SMDR or SMDR option was an optional operational feature. No bidder was disqualified because it did not have the SMDR or an SMDR option. Paragraph 12 is accepted. Paragraph 13 is accepted. Paragraph 14 is accepted. Paragraph 15 is accepted. Paragraph 16 is accepted. Paragraph 17 is accepted. With regard to paragraphs 18-20, to the extent such paragraphs track the information on p.23 of ITB they are accepted; however, the listing of the printed circuit card may not be required when bid as a component of the console which is properly described in the bid response. Paragraphs 21-23 are accepted, however, speed dialing may be provided at the station which does not require memory retention. Paragraph 24 is accepted. Paragraphs 25-26 are accepted. Paragraphs 27-29 are accepted. Paragraphs 30-33 are rejected. Each paragraph makes a conclusion contrary to the weight of evidence. Paragraph 34 is accepted. Paragraph 35 is rejected as unnecessary. For the reasons explained in the conclusions of law, whether Petitioner was or was not compliant is not material. Assuming, arguendo, Petitioner was compliant, it still lacked sufficient standing to challenge the awards. Paragraph 36-38 are rejected as contrary to the weight of evidence. Paragraphs 39-40 are accepted. Paragraphs 41-44 are rejected as contrary to the weight of the evidence. Rulings on Findings of Fact submitted by the Department. Paragraphs 1-7 are accepted. Paragraph 8 is accepted to the extent it rephrases the definition found in the ITB. Paragraphs 9-11 are accepted. With regard to paragraph 12, the system was required to retain memory. Accordingly, that reference is accepted, however, the station was not required to retained memory. Paragraphs 13-15 are accepted. Paragraphs 16-18 are accepted. Paragraphs 19-21 are accepted. Paragraph 22 is accepted in part as it correctly restates the ranking of the bidders; the rest of the paragraph is rejected as argumentative. Paragraph 23 is accepted in part as it correctly states the ranking of the bidders and disqualifications; however the rest is rejected as argumentative. Paragraph 24 is accepted in part as it correctly states the ranking of the bidders, however, the rest is rejected as argumentative. Paragraph 25 is rejected as unnecessary. Paragraph 26 is accepted. COPIES FURNISHED: Edward W. Dougherty, Jr., Esquire Post Office Box 11127 Tallahassee, Florida 32302-3127 Susan B. Kirkland, Esquire Department of General Services 453 Larson Building Tallahassee, Florida 32399-0955 Joseph W. Lawrence, II, Esquire Post Office Box 589 Tallahassee, Florida 32302-0589 Ronald W. Thomas, Executive Director Department of General Services Room 133, Larson Building Tallahassee, Florida 32399-0955
The Issue The issue is whether the Department of Transportation (Department) properly issued a Notice of Intent to Declare Non-Responsible (Notice) to Straight and Narrow Striping, Inc. (S&NS).
Findings Of Fact The Department is the state agency responsible for coordinating the planning of a safe, viable, and balanced state transportation system. The Department relies on qualified contractors to provide services in order to meet Florida’s transportation needs. Broderick Smith owns S&NS, a company that provides maintenance services for the Department and has been a contractor for the Department since 1999. Mr. Smith entered into Contract E4M99 with the Department for sign replacement on interstate and primary roads. The date of the contract was May 4, 2012, with an award amount maximum of $250,000. Contract E4M99 incorporates the 2010 edition of the Department’s standard specifications for road and bridge construction, as amended, in accordance with a specification package. Pursuant to Contract E4M99, the Department issues work orders. The Department issued Work Order 358 to S&NS on February 24, 2014, with a completion due date of April 10, 2014, to remove and replace post signs. The signs to be removed and replaced were identified as Southbound Flamingo at Red Road split WO-13-21-AM (Flamingo Signs). S&NS was not making progress on the Flamingo Signs work order, and the Department reached out to S&NS on multiple occasions regarding the lack of progress. In March 2014, Mr. Smith discussed Work Order 358 with Courtney Drummond, the Department’s District Director of Operations, and, as a result, the work order was modified with a new start date of March 11, 2014, and a completion due date of April 25, 2014. On April 3, 2014, Chi-Yu Sheu, a contract manager for the Department’s Broward County operations, reaffirmed the terms of the contract by sending Mr. Smith an email. The email reminded Mr. Smith of the modified start and completion dates and that all other terms and conditions of the contract remained in full force and effect. The contract provided 45 days for completion of the work and further clarified that an extension of time to complete the work beyond the 45 days was denied. Mr. Sheu sent additional correspondence to Mr. Smith on April 23, 2014, two days before the completion deadline, inquiring about the status of the work and reminding him the work was due on April 25. As of that date, the existing overhead sign panels had not been removed. James Wolf, the Department’s District Four Secretary at that time, sent Mr. Smith a letter on May 1, 2014, regarding a previous letter received from him on April 21. Mr. Wolf’s letter again reaffirmed the terms of the contract and specificity of the work order. On May 20, 2014, the overhead signs had still not been removed, and Mr. Sheu sent correspondence to Mr. Smith telling him the Work Order 358 had been due to be completed on April 25 and inquiring about his intentions to finish the work. On June 11, 2014, Francis Lewis, the Department’s Broward Operations Engineer, sent a pre-notice of default to Mr. Smith informing him that the Department was considering default due to a lack of progress on Work Order 358. The pre-notice stated that as of the date of the letter, no work had been performed, even though the modified due date had been April 25. S&NS was advised that the Department would proceed with defaulting S&NS under the contract if the work was not completed by June 21, 2014. The Department issued a Notice of Intent to Default to S&NS on July 7, 2014, for failure to commence and complete Work Order 358 within the required time period, as amended, therefore violating Standard Specification 8-9.1. S&NS was given an additional ten days to demonstrate completion of the signs. After proof of completion was still not received by the Department, it issued a Declaration of Default on July 31, 2014, for failure to commence and complete Work Order 358. S&NS was informed it had committed acts or omissions that constitute default under Standard Specification 8-9.1. The specific acts or omissions specified were that Petitioner had failed to begin the work under the contract within the time specified, had failed to ensure prompt completion of the contract, and for any cause whatsoever had failed to carry on the work in an acceptable manner. Pursuant to the Takeover Agreement, the surety company, Travelers Insurance Company of America (Travelers Insurance), assumed financial responsibility for the contract. Travelers Insurance procured another contractor, Florida Safety Corporation, to complete Work Order 358. The work was completed on December 24, 2014. The Department issued a Notice to S&NS on September 30, 2014. When a contractor is found to be non-responsible, it is prohibited from bidding, subcontracting, or supplying material on any Department project for a specified period of time. S&NS filed a petition in response to the Notice. During the pendency of this proceeding, Petitioner has had the ability to bid on Department projects, and Mr. Smith testified at hearing that it had bid on projects in April 2015. S&NS took the position at hearing that the Department failed to provide the proper sign specifications to complete the work order, yet provided no evidence about how the specifications differed from what is required either by industry or the Department’s standards. Despite the Department continuously informing S&NS that it was moving towards a default on the contract and despite the numerous extensions given, Petitioner still failed to commence the sign project prior to the completion date as extended by the series of communications from Department personnel to S&NS. Petitioner made repeated reference to “proof given to the department from numerous sign manufacturers stating they would not be able to manufacturer [sic] the sign due to their back log.” Petitioner, however, failed to offer any of this proof into evidence at the hearing other than through Mr. Smith’s testimony, and, therefore, this line of proof is discredited. Mr. Smith testified that sign manufacturers informed him that the subject signs could not be available for installation in less than 65 days from the date of the order. Had the signs been ordered on February 24, 2014, the commencement date of the contract, they would have been ready for installation by May 1, 2014. This would have been within the numerous grace periods created by the Department’s notices prior to the actual Declaration of Contract Default on July 31, 2014, which was not issued until two weeks after the Notice of Intent to Default (giving S&NS one final ten-day period to perform) was issued on July 7, 2014. Petitioner had ample time to complete the project within the contract period as extended by the various steps taken by the Department prior to determining S&NS to be non- responsible. In order to avoid the possibility of a suspension due to a finding of non-responsibility, Petitioner could have requested a self-imposed or voluntary suspension from the Department. Had this been done, the Department has, in some instances, considered this like “time served” when determining whether a suspension is to be imposed and how long that suspension should last. Petitioner did not affirmatively request or offer to undergo a suspension during the pendency of these proceedings. Mr. Smith’s testimony lends supports that for a non-specified period of time from Petitioner’s challenge on October 22, 2014, to the Notice until sometime in April 2015, when he bid on one or two Department contracts, he believed he was not permitted to bid on contracts due to the Notice being issued. The evidence is not clear on this point, but Mr. Smith testified he became aware in April 2015, he was still permitted to bid on contracts and that he did at that time. He was not awarded any Department contracts at that time or at any time subsequent to that date. Despite the petition to challenge the Notice being filed with the Department on October 22, 2014, the matter was not referred to the Division until March 2, 2015, more than four months later. No explanation was given for this delay.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order upholding its determination of non- responsibility for a period not to exceed one year for Straight & Narrow Striping, Inc. DONE AND ENTERED this 4th day of September, 2015, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 4th day of September, 2015. COPIES FURNISHED: Kimberly Clark Menchion, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Broderick Smith Straight and Narrow Striping, Inc. Suite 225 1830 North University Drive Plantation, Florida 33322 Trish Parsons, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 (eServed) Tom Thomas, General Counsel Department of Transportation Haydon Burns Building Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) James C. Boxold, Secretary Department of Transportation Haydon Burns Building Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed)
The Issue Whether the Department of Transportation's proposed action, the award of the contract in question to WRS Infrastructure and Environment, Inc., is contrary to its governing statutes, its rules or policies, or the proposal specifications.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: In March 1999, the Department issued a request for proposals, RFP-DOT-99/2000-6026DS ("RFP"), requesting that experienced firms submit proposals "for the purpose of providing district-wide contamination assessment and remediation services" in the Department's District VI, which consists of Miami-Dade and Monroe Counties. The RFP solicited proposals for an indefinite quantity contract, with a term of three years and a maximum value of $5 million. The proposals were to be presented in two separate, sealed packages, one containing the proposer's Technical Proposal and the other containing the proposer's Price Proposal. Pursuant to Section 1.16 of the RFP, the Technical Proposal were to be opened and evaluated before the Price Proposals were opened. Section 1.8.2 of the RFP is entitled "Responsiveness of Proposals" and provides: All Proposals must be in writing. A responsive Proposal is an offer to perform the Scope of Services in accordance with all the requirements of this Request for Proposal and receiving a score of seventy (70) points or more on the Technical Proposal. 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. A Proposal may be found to be irregular or non-responsive by reasons that include, but are not limited to, failure to utilize or complete prescribed forms, conditional Proposals, incomplete Proposals, indefinite or ambiguous Proposals, and improper or undated signatures. (Emphasis in original.) Eight firms submitted proposals in response to the RFP, including WRS, OHM, and Metcalf & Eddy. A three-member Technical Review Committee was assembled, and the Technical Proposals were submitted to the Technical Review Committee for evaluation; all eight Technical Proposals received a score of 70 points or more. The Price Proposals were then opened and evaluated in accordance with the criteria set forth in the RFP. The Department posted a Notice of Intent to Award on August 26, 1999, in which it stated its intention to award the District VI contract to OHM. OHM was the highest-ranked proposer with a total score of 125.879 points; WRS was the second-highest-ranked proposer with a total score of 125.675 points; and, Metcalf & Eddy was the third-highest-ranked proposer with a total score of 118.569 points. It was noted in the Notice of Intent to Award that all eight proposals were accepted as responsive. On August 31, 1999, WRS filed a notice of its intent to protest the intended award of the District VI contract to OHM, and it filed its Formal Protest and Petition for Formal Administrative Hearing on September 10, 1999. Metcalf & Eddy did not file a protest with regard to the August 26, 1999, Notice of Intent to Award. As a result of information obtained by the Department subsequent to the filing of WRS's protest, OHM's proposal was re-evaluated, and, on October 20, 1999, the Department posted a Notice of Intent to Award (Revised), in which it stated its intention to award the District VI contract to WRS. The scores of WRS and Metcalf & Eddy remained unchanged as a result of the re-evaluation of OHM's proposal, but OHM's score decreased to 124.212 points. As a result, WRS became the highest-ranked proposer, OHM became the second-highest-ranked proposer, and Metcalf & Eddy remained the third-highest-ranked proposer. On October 25, 1999, Metcalf & Eddy filed its Notice of Intent to Protest with the Department, and it filed the Formal Protest of Metcalf & Eddy, Inc., on November 4, 1999. A settlement conference was conducted on November 17, 1999, but the Department and Metcalf & Eddy were unable to resolve the issues raised in Metcalf & Eddy's protest. As a result, the Formal Protest of Metcalf & Eddy, Inc., was referred to the Division of Administrative Hearings on January 28, 1999, and initiated this proceeding. On December 9, 1999, the Department's Awards Committee met to re-consider its decision of October 15, 1999, to award the District VI contract to WRS in light of the issues raised in the protests filed by OHM and Metcalf & Eddy. The Awards Committee decided not to disturb the decision reflected in the October 20, 1999, Notice of Intent to Award (Revised). SPURS Number Section 1 of the RFP provides that the "State of Florida Department of Transportation Request for Proposal Contractual Services Acknowledgement (Pur #7033) . . . will be handed out at the mandatory pre-proposal meeting." The form itself is entitled "State of Florida Request for Proposal, Contractual Services Bidder Acknowledgement" ("Bidder Acknowledgement form"). A box that appears near the top of the Bidder Acknowledgement form is labeled "STATE PURCHASING SUBSYSTEM (SPURS) VENDOR NUMBER."3 The Bidder Acknowledgement form also includes a statement of General Conditions, which provides in pertinent part: Execution of Proposal: Proposal must contain a manual signature of authorized representative in the space provided above. Proposal must be typed or printed in ink. Use of erasable ink is not permitted. All corrections made by proposer to his proposal price must be initialed. The company name and SPURS vendor number shall appear on each page of the bid as required. . . . WRS, OHM, and Metcalf & Eddy included an executed copy of the Bidder Acknowledgement form at the beginning of their proposals. The Bidder Acknowledgement form is not a part of either the Technical Proposal or the Price Proposal. Metcalf & Eddy inserted "042428218-003" in the box reserved for the SPURS number; WRS inserted "P13202"; and OHM inserted "#94-1259053." "042428218-003" is a SPURS number assigned by the Department of Management Services, and Metcalf & Eddy is a vendor registered with that department. "P13202" is not a SPURS number. "#94-1259053" is OHM's federal identification number, and is the number that they commonly use as their SPURS number in the proposals they submit to the Department. Both WRS and OHM are registered as interested vendors with the Department of Management Services, pursuant to Section 287.042(4), Florida Statutes.4 Metcalf & Eddy included its name and its SPURS number on each page of the proposal it submitted in response to the District VI RFP. Neither WRS nor OHM included the name of the company and the SPURS number on each page of their proposals. There is no requirement in the District VI RFP that the name of the company and the SPURS number be included on each page of the proposal. Section 1.8.6 of the RFP is entitled "Waivers" and provides: The Department may waive minor informalities or irregularities in Proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other Proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department's interest and will not affect the price of the Proposal by giving a Proposer an advantage or benefit not enjoyed by other Proposers. Paragraph 6 of the General Conditions set forth on the Bidder Acknowledgement form provides in pertinent part: "AWARDS: As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any minor irregularity or technicality in proposals received. " Nancy Lyons is the Contractual Services Unit Administrator for District VI. Ms. Lyons reviews the proposals to determine if they are responsive and to determine if an irregularity or omission is minor and can be waived under the terms of the RFP. It is Ms. Lyons practice to waive as a minor irregularity the omission of a SPURS number or the inclusion of an incorrect SPURS number to be a minor irregularity because, if a vendor is registered with the Department of Management Services, the SPURS number is readily available to the Department. In addition, the SPURS number does not effect either the technical content of the proposal or the price in the proposal. The WRS and OHM proposals were not rejected by the Department's District VI Contractual Services Unit even though WRS and OHM failed to include their SPURS numbers on the Bidder Acknowledgement form and failed to include the company name and SPURS number on each page of their proposals. Disparate treatment. In 1998, Metcalf & Eddy submitted a proposal in response to a Request for Proposals issued by the Department's District IV. In its Price Proposal, Metcalf & Eddy failed to include a price or a zero in three blanks reserved for the daily rate, weekly rate, and monthly rate for an X-Ray Fluorescence (XRF) Spectrum Analyzer; Metcalf & Eddy included as the "Total" for this item "$0.00." Metcalf & Eddy's District IV proposal was rejected as non-responsive as a result of these omissions. Metcalf & Eddy filed a Formal Written Protest and Request for Formal Administrative Hearing and challenged the decision to reject its proposal as non-responsive. After informal efforts to resolve the issue raised in the protest were unsuccessful, Metcalf & Eddy withdrew its protest; the Department entered a Final Order on August 11, 1998, dismissing the protest. Summary The evidence presented by Metcalf & Eddy is not sufficient to establish that the Department's decision to accept the WRS and OHM proposals as responsive is clearly erroneous, contrary to competition, arbitrary, or capricious. The omission of the SPURS number on the Bidder Acknowledgement form is a minor irregularity that did not give WRS or OHM a substantial advantage over Metcalf & Eddy and was of no consequence to the Department because it has ready access to the SPURS numbers included in the database of interested vendors maintained by the Department of Management Services. Furthermore, WRS and OHM were not required to include their company name and SPURS number on each page of the proposal because this requirement was not included in the specifications in the RFP. Finally, Metcalf & Eddy has failed to present evidence to establish that it is the victim of disparate treatment by the Department; the decision of the Department to reject the proposal it submitted to District IV in 1998 is irrelevant to the issues raised in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order dismissing the Formal Protest of Metcalf & Eddy, Inc. DONE AND ENTERED this 30th day of July, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 30th day of July, 2001.
The Issue Whether the Department of Corrections? action to withdraw its Intent to Award and to reject all replies to ITN 12-DC-8396 is illegal, arbitrary, dishonest, or fraudulent, and if so, whether its Intent to Award is contrary to governing statutes, rules, policies, or the solicitation specifications.
Findings Of Fact The DOC is an agency of the State of Florida that is responsible for the supervisory and protective care, custody, and control of Florida?s inmate population. In carrying out this statutory responsibility, the Department provides access to inmate telephone services. On April 15, 2013, the DOC issued the ITN, entitled “Statewide Inmate Telephone Services, ITN 12-DC-8396,” seeking vendors to provide managed-access inmate telephone service to the DOC. Responses to the ITN were due to be opened on May 21, 2013. The DOC issued Addendum #1 to the ITN on April 23, 2013, revising one page of the ITN. The DOC issued Addendum #2 to the ITN on May 14, 2013, revising a number of pages of the ITN, and including answers to a number of vendor questions. EPSI, GTL, and Securus are providers of inmate telephone systems and services. Securus is the incumbent contractor, and has been providing the Department with services substantially similar to those solicited for over five years. No party filed a notice of protest to the terms, conditions, or specifications contained in the ITN or the Addenda within 72 hours of their posting or a formal written protest within 10 days thereafter. Replies to the ITN were received from EPSI, GTL, Securus, and Telmate, LLC. Telmate?s reply was determined to be not responsive to the ITN. Two-Part ITN As amended by Addendum #2, section 2.4 of the ITN, entitled “ITN Process,” provided that the Invitation to Negotiate process to select qualified vendors would consist of two distinct parts. In Part 1, an interested vendor was to submit a response that described certain Mandatory Responsiveness Requirement elements, as well as a Statement of Qualifications, Technical Response, and Financial Documentation. These responses would then be scored using established evaluation criteria and the scores would be combined with cost points assigned from submitted Cost Proposals. In Part 2, the Department was to select one or more qualified vendors for negotiations. After negotiations, the Department would request a Best and Final Offer from each vendor for final consideration prior to final award decision. The ITN provided that the Department could reject any and all responses at any time. High Commissions and Low Rates Section 2.5 of the ITN, entitled “Initial Cost Response,” provided in part: It is the Department?s intention, through the ITN process, to generate the highest percentage of revenue for the State, while ensuring a quality telephone service with reasonable and justifiable telephone call rate charges for inmate?s family and friends similar to those available to the public-at- large. Section 2.6 of the ITN, entitled “Revenue to be Paid to the Department,” provided in part that the Department intended to enter into a contract to provide inmate telephone service at no cost to the Department. It provided that, “[t]he successful Contractor shall pay to the Department a commission calculated as a percentage of gross revenues.”1/ The commission paid by a vendor is the single largest expense in the industry and is an important aspect of any bid. Contract Term Section 2.8 of the ITN was entitled “Contract Term” and provided: It is anticipated that the initial term of any Contract resulting from this ITN shall be for a five (5) year period. At its sole discretion, the Department may renew the Contract in accordance with Form PUR 1000 #26. The renewal shall be contingent, at a minimum, on satisfactory performance of the Contract by the Contractor as determined by the Department, and subject to the availability of funds. If the Department desires to renew the Contracts resulting from this ITN, it will provide written notice to the Contractor no later than thirty days prior to the Contract expiration date. Own Technology System Section 3.4 of the ITN provided in part: The successful Contractor is required to implement its own technology system to facilitate inmate telephone service. Due to the size and complexity of the anticipated system, the successful Contractor will be allowed a period of transition beginning on the date the contract is executed in which to install and implement the utilization of its own technology system. Transition, implementation and installation are limited to eighty (80) days. The Department realizes that some "down time" will occur during this transition, and Respondents shall propose an implementation plan that reduces this "down time" and allows for a smooth progression to the proposed ITS. GTL emphasizes the language stating that the successful contractor must implement “its own” technology system, and asserts that the technology system which EPSI offers to install is not owned by it, but by Inmate Calling Solutions, LLC (ICS), its subcontractor. However, EPSI demonstrated that while the inmate telephone platform, dubbed the “Enforcer System,” is owned by ICS now, that EPSI has a Master User Agreement with ICS and that an agreement has already been reached that before the contract would be entered into, a Statement of Work would be executed to create actual ownership in EPSI for purposes of the Florida contract. GTL alleges that in EPSI?s reply, EPSI relied upon the experience, qualifications, and resources of its affiliated entities in other areas as well. For example, GTL asserts that EPSI?s claim that it would be providing 83 percent of the manpower is false, since EPSI has acknowledged that EPSI is only a contracting subsidiary of CenturyLink, Inc., and that EPSI has no employees of its own. While it is clear that EPSI?s reply to the ITN relies upon the resources of its parent to carry out the terms of the contract with respect to experience, presence in the state, and personnel, EPSI demonstrated that this arrangement was common, and well understood by the Department. EPSI demonstrated that all required capabilities would be available to it through the resources of its parent and subcontractors at the time the contract was entered into, and that its reply was in conformance with the provisions of the ITN in all material respects. EPSI has the integrity and reliability to assure good faith performance of the contract. Call Recording Section 3.6 of the ITN, entitled “Inmate Telephone System Functionality (General),” provided in part: The system shall provide the capability to flag any individual telephone number in the inmate?s „Approved Number List? as „Do Not Record.? The default setting for each telephone number will be to record until flagged by Department personnel to the contrary. Securus alleges that section 3.6 of the ITN implements Department regulations2/ and that EPSI?s reply was non-responsive because it stated that recording of calls to specific telephone numbers would be deactivated regardless of who called that number. Securus alleges that this creates a security risk because other inmates calling the same number should still have their calls recorded. EPSI indicated in its reply to the ITN that it read, agreed, and would comply with section 3.6. While EPSI went on to say that this capability was not connected to an inmate?s PIN, the language of section 3.6 does not mention an inmate?s PIN either. Read literally, this section requires only the ability to “flag” any individual telephone number that appears in an inmate?s number list as “do not record” and requires that, by default, calls to a telephone number will be recorded until it is flagged. EPSI?s reply indicated it could meet this requirement. This provision says nothing about continuing to record calls to that same number from other inmates. Whether or not this creates a security risk or is what the Department actually desired are issues which might well be discussed as part of the negotiations, but this does not affect the responsiveness of EPSI?s reply to section 3.6. Furthermore, Mr. Cooper testified at hearing that EPSI does have the capability to mark a number as “do not record” only with respect to an individual inmate, at the option of the Department. EPSI?s reply conformed to the call-recording provisions of section 3.6 of the ITN in all material respects. Call Forwarding Section 3.6.8 of the ITN, entitled “System Restriction, Fraud Control and Notification Requirements,” provided that the provided inmate telephone services have the following security capability: Ability to immediately terminate a call if it detects that a called party?s telephone number is call forwarded to another telephone number. The system shall make a “notation” in the database on the inmate?s call. The system shall make this information available, in a report format, to designated department personnel. In response to an inquiry noting that, as worded, the ITN did not technically require a vendor to have the capability to detect call-forwarded calls in the first place, the Department responded that this functionality was required. Securus alleges that EPSI is unable to comply with this requirement, citing as evidence EPSI?s admission, made some months before in connection with an RFP being conducted by the Kansas Department of Corrections, that it did not yet have this capability. EPSI indicated in its reply to the ITN that it read, agreed, and would comply with this requirement. As for the Kansas solicitation, EPSI showed that it now possesses this capability, and has in fact installed it before. EPSI?s reply conformed to the call-forwarding provisions of section 3.6.8 of the ITN in all material respects. Keefe Commissary Network Section 5.2.1 of the ITN, entitled “Respondents? Business/Corporate Experience,” at paragraph e. directed each vendor to: [P]rovide and identify all entities of or related to the Respondent (including parent company and subsidiaries of the parent company; divisions or subdivisions of parent company or of Respondent), that have ever been convicted of fraud or of deceit or unlawful business dealings whether related to the services contemplated by this ITN or not, or entered into any type of settlement agreement concerning a business practice, including services contemplated by this ITN, in response to a civil or criminal action, or have been the subject of any complaint, action, investigation or suit involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. The Respondent shall identify the amount of any payments made as part of any settlement agreement, consent order or conviction. Attachment 6 to the ITN, setting forth Evaluation Criteria, similarly provided guidance regarding the assessment of points for Business/Corporate Experience. Paragraph 1.(f) provided: “If any entities of, or related to, the Respondent were convicted of fraud or of deceit or unlawful business dealings, what were the circumstances that led to the conviction and how was it resolved by the Respondent?” Addendum #2. to the ITN, which included questions and answers, also contained the following: Question 57: In Attachment 6, Article 1.f. regarding respondents “convicted of fraud, deceit, or unlawful business dealing . . .” does this include associated subcontractors proposed in this ITN? Answer 57: Yes, any subcontractors you intend to utilize on this project, would be considered an entity of and related to your firm. As a proposed subcontractor, ICS is an entity of, or related to, EPSI. There is no evidence to indicate that ICS has ever been convicted of fraud or of deceit or unlawful business dealings. There is no evidence to indicate that ICS has entered into any type of settlement agreement concerning a business practice in response to a civil or criminal action. There is no evidence to indicate that ICS has been the subject of any complaint, action, investigation, or suit involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. The only evidence at hearing as to convictions involved “two individuals from the Florida DOC” and “two individuals from a company called AIS, I think that?s American Institutional Services.” No evidence was presented that AIS was “an entity of or related to” EPSI. Conversely, there was no evidence that Keefe Commissary Network (KCN) or anyone employed by it was ever convicted of any crime. There was similarly no evidence that KCN entered into any type of settlement agreement concerning a business practice in response to civil or criminal action. It was shown that KCN “cooperated with the federal government in an investigation” that resulted in criminal convictions, and it is concluded that KCN was therefore itself a subject of an investigation involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. However, KCN is not an entity of, or related to, EPSI. KCN is not a parent company of EPSI, it is not a division, subdivision, or subsidiary of EPSI, and it is not a division, subdivision, or subsidiary of EPSI?s parent company, CenturyLink, Inc. EPSI?s reply conformed to the disclosure requirements of section 5.2.1, Attachment 6, and Addendum #2 of the ITN in all material respects. Phases of the ITN Section 6 describes nine phases of the ITN: Phase 1 – Public Opening and Review of Mandatory Responsiveness Requirements Phase 2 – Review of References and Other Bid Requirements Phase 3 – Evaluations of Statement of Qualifications, Technical Responses, and Managed Access Solutions3/ Phase 4 – CPA Review of Financial Documentation Phase 5 – Review of Initial Cost Sheets Phase 6 – Determination of Final Scores Phase 7 – Negotiations Phase 8 – Best and Final Offers from Respondents Phase 9 – Notice of Intended Decision Evaluation Criteria in the ITN As amended by Addendum #2, the ITN established scoring criteria to evaluate replies in three main categories: Statement of Qualifications (500 points); Technical Response (400 points); and Initial Cost Sheets (100 points). It also provided specific guidance for consideration of the commissions and rates shown on the Initial Cost Sheet that made up the pricing category. Section 6.1.5 of the ITN, entitled “Phase 5 – Review of Initial Cost Sheet,” provided in part: The Initial Cost Proposal with the highest commission (percentage of gross revenue) to be paid to the Department will be awarded 50 points. The price submitted in Table 1 for the Original Contract Term, and the subsequent renewal price pages for Table 1 will be averaged to determine the highest commission submitted. All other commission percentages will receive points according to the following formula: (X/N) x 50 = Z Where: X = Respondents proposed Commission Percentage to be Paid. N = highest Commission Percentage to be Paid of all responses submitted. Z = points awarded. * * * The Initial Cost Proposal with the lowest telephone rate charge will be awarded 50 points. The price submitted in Table 1 for the Original Contract Term, and the subsequent renewal price pages for Table 1 will be averaged to determine the highest commission submitted. All other cost responses will receive points according to the following formula: (N/X) x 50 = Z Where: N = lowest verified telephone rate charge of all responses submitted. X = Respondent?s proposed lowest telephone rate charge. Z = points awarded. The ITN as amended by Addendum #2 provided instructions that initial costs should be submitted with the most favorable terms the Respondent could offer and that final percentages and rates would be determined through the negotiation process. It included the following chart:4/ COST PROPOSAL INITIAL Contract Term 5 years ONE Year Renewal TWO Year Renewal THREE Year Renewal FOUR Year Renewal FIVE Year Renewal Initial Department Commission % Rate Proposed Initial Blended Telephone Rate for All Calls* (inclusive of surcharges) The ITN, including its Addenda, did not specify selection criteria upon which the determination of best value to the state would be based. Allegation that EPSI Reply was Misleading On the Certification/Attestation Page, each vendor was required to certify that the information contained in its reply was true and sufficiently complete so as not to be misleading. While portions of its reply might have provided more detail, EPSI did not mislead the Department regarding its legal structure, affiliations, and subcontractors, or misrepresent what entity would be providing technology or services if EPSI was awarded the contract. EPSI?s reply explained that EPSI was a wholly owned corporate subsidiary of CenturyLink, Inc., and described many aspects of the contract that would be performed using resources of its parent, as well as aspects that would be performed through ICS as its subcontractor. Department Evaluation of Initial Replies The information on the Cost Proposal table was reviewed and scored by Ms. Hussey, who had been appointed as the procurement manager for the ITN. Attempting to follow the instructions provided in section 6.1.5, she added together the six numbers found in the boxes indicating commission percentages on the Cost Proposal sheets. One of these boxes contained the commission percentage for the original five-year contract term and each of the other five boxes contained the commission percentage for one of the five renewal years. She then divided this sum by six, the number of boxes in the computation chart (“divide by six”). In other words, she calculated the arithmetic mean of the six numbers provided in each proposal. The Department had not intended for the commission percentages to be averaged in this manner. Instead, they had intended that a weighted mean would be calculated. That is, they intended that five times the commission percentage shown for the initial contract term would be added to the commission percentages for the five renewal years, with that sum then being divided by ten, the total number of years (“divide by ten”). The Department did not clearly express this intent in section 6.1.5. Mr. Viefhaus testified that based upon the language, Securus believed that in Phase 5 the Department would compute the average commission rate the way that Ms. Hussey actually did it, taking the arithmetic mean of the six commission percentages provided by each vendor, and that therefore Securus prepared its submission with that calculation in mind.5/ Mr. Montanaro testified that based upon the language, GTL believed that in Phase 5 the Department would “divide by ten,” that is, compute the weighted mean covering the ten-year period of the contract, and that GTL filled out its Cost Proposal table based upon that understanding. The DOC posted a notice of its intent to negotiate with GTL, Securus, and EPSI on June 3, 2013. Telmate, LLC, was not chosen for negotiations.6/ Following the Notice of Intent to Negotiate was this statement in bold print: Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. On June 14, 2013, the DOC issued a Request for Best and Final Offers (RBAFO), directing that Best and Final Offers (BAFO) be provided to the DOC by June 18, 2013. Location-Based Services The RBAFO included location-based services of called cell phones as an additional negotiated service, requesting a narrative description of the service that could be provided. The capability to provide location-based services had not been part of the original ITN, but discussions took place as part of the negotiations. Securus contends that EPSI was not a responsible vendor because it misrepresented its ability to provide such location-based services through 3Cinteractive, Inc. (3Ci). EPSI demonstrated that it had indicated to the Department during negotiations that it did not have the capability at that time, but that the capability could easily be added. EPSI showed that due to an earlier call it received from 3Ci, it believed that 3Ci would be able to provide location- based services to it. EPSI was also talking at this time to another company, CTI, which could also provide it that capability. In its BAFO, EPSI indicated it could provide these services, explained that they would require payments to a third- party provider, and showed a corresponding financial change to their offer. No competent evidence showed whether or not 3Ci was actually able to provide that service on behalf of EPSI, either at the time the BAFO was submitted, or earlier. EPSI showed that it believed 3Ci was available to provide that service, however, and there is no basis to conclude that EPSI in any way misrepresented its ability to provide location-based services during negotiations or in its BAFO. Language of the RBAFO The RBAFO provided in part: This RBAFO contains Pricing, Additional Negotiated Services, and Value Added Services as discussed during negotiation and outlined below. The other specifications of the original ITN, unless modified in the RBAFO, remain in effect. Respondents are cautioned to clearly read the entire RBAFO for all revisions and changes to the original ITN and any addenda to specifications, which are incorporated herein and made a part of this RBAFO document. Unless otherwise modified in this Request for Best and Final Offer, the initial requirements as set forth in the Department?s Invitation to Negotiate document and any addenda issued thereto have not been revised and remain as previously indicated. Additionally, to the extent that portions of the ITN have not been revised or changed, the previous reply/initial reply provided to the Department will remain in effect. These two introductory paragraphs of the RBAFO were confusing. It was not clear on the face of the RBAFO whether “other specifications” excluded only the pricing information to be supplied or also the specifications indicating how that pricing information would be calculated or evaluated. It was not clear whether “other specifications” were the same thing as “initial requirements” which had not been revised. It was not clear whether scoring procedures constituted “specifications.” While it was clear that, to the extent not revised or changed by the RBAFO, initial replies that had been submitted -- including Statements of Qualifications, Technical Response, Financial Documentation, and Cost Proposals -- would “remain in effect,” it was not clear how, if at all, these would be considered in determining the best value to the State. In the RBAFO under the heading “PRICING,” vendors were instructed to provide their BAFO for rates on a provided Cost Proposal table which was virtually identical to the table that had been provided earlier in the ITN for the evaluation stage, including a single square within which to indicate a commission rate for the initial five-year contract term, and five squares within which to indicate commission rates for each of five renewal years. The RBAFO stated that the Department was seeking pricing that would provide the “best value to the state.” It included a list of 11 additional services that had been addressed in negotiations and stated that, “in order to provide the best value to the state,” the Department reserved the right to accept or reject any or all of these additional services. It provided that after BAFOs were received, the Negotiation Team would prepare a summary of the negotiations and make a recommendation as to which vendor would provide the “best value to the state.” The RBAFO did not specify selection criteria upon which the determination of best value to the State would be based. In considering commission percentages as part of their determination as to which vendor would receive the contract, the Negotiation Team decided not to consider commissions that had been listed by vendors for the renewal years, concluding that the original five-year contract term was all that was assured, since renewals might or might not occur. On June 25, 2013, the DOC posted its Notice of Agency Decision stating its intent to award a contract to EPSI. Protests and the Decision to Reject All Replies Subsequent to timely filing notices of intent to protest the intended award, Securus and GTL filed Formal Written Protests with the DOC on July 5 and 8, 2013, respectively. The Department considered and compared the protests. It determined that language in the ITN directing that in Phase 5 the highest commission would be determined by averaging the price for the original contract term with the prices for the renewal years was ambiguous and flawed. It determined that use of a table with six squares as the initial cost sheet was a mistake. The Department determined that the language and structure of the RBAFO could be read one way to say that the Department would use the same methodology to evaluate the pricing in the negotiation stage as had been used to evaluate the Initial Cost sheets in Phase 5, or could be read another way to mean that BAFO pricing would not be evaluated that way. It determined that the inclusion in the RBAFO of a table virtually identical to the one used as the initial cost sheet was a mistake. The Department determined that the language and the structure of the RBAFO could be read one way to require further consideration of such factors as the Statement of Qualifications and Technical Response in determining best value to the State, or could be read another way to require no further consideration of these factors. The Department prepared some spreadsheets demonstrating the varying results that would be obtained using “divide by six” and “divide by ten” and also considered a spreadsheet that had been prepared by Securus. The Department considered that its own Contract Manager had interpreted the Phase 5 instructions to mean “divide by six,” while the Department had actually intended the instructions to mean “divide by ten.” The Department had intended that the Negotiation Team give some weight to the renewal-year pricing, and had included the pricing table in the RBAFO for that reason, not simply to comply with statutory requirements regarding renewal pricing. The Department determined that the way the RBAFO was written and the inclusion of the chart required at least some consideration of ten-year pricing, and that vendors had therefore been misled when the Negotiation Team gave no consideration to the commission percentages for the renewal years. Specifically, based upon the Securus protest, the Department determined that the RBAFO language had been interpreted by Securus to require that the Phase 5 calculation of average commission percentage be carried over to evaluation of the pricing in the BAFOs, which Securus had concluded meant “divide by six.” The Department further determined that based upon the GTL protest, the RBAFO language had been interpreted by GTL to require the Department to consider the renewal years in pricing, as well as such things as the Statement of Qualifications and Technical Response in the BAFO stage. The Department determined that had “divide by six” been used in evaluating the BAFOs, Securus would have a computed percentage of 70 percent, higher than any other vendor. The Department concluded that the wording and structure of the ITN and RBAFO did not create a level playing field to evaluate replies because they were confusing and ambiguous and were not understood by everyone in the same way. Vendors naturally had structured their replies to maximize their chances of being awarded the contract based upon their understanding of how the replies would be evaluated. The Department concluded that vendor pricing might have been different but for the misleading language and structure of the ITN and RBAFO. The Department did not compute what the final award would have been had it applied the scoring procedures for the initial cost sheets set forth in section 6.1.5 to the cost elements of the BAFOs. The Department did not compute what the final award would have been had it applied the scoring procedures for the Statement of Qualifications and Technical Response set forth in section 6.1.3 to the BAFOs. Ms. Bailey testified that while she had originally approved the ITN, she was unaware of any problems, and that it was only later, after the protests to the Notice of Intended Award had been filed and she had reviewed the specifications again, that she had come to the conclusion that the ITN and RBAFO were flawed. Following the protests of the intended award by GTL and Securus, on July 23, 2013, the DOC posted to the Vendor Bid System a Notice of Revised Agency Decision stating the DOC?s intent to reject all replies and reissue the ITN. On August 5, 2013, EPSI, GTL, and Securus filed formal written protests challenging DOC?s intended decision to reject all replies. Securus subsequently withdrew its protest to DOC?s rejection of all replies. As the vendor initially notified that it would receive the contract, EPSI?s substantial interests were affected by the Department's subsequent decision to reject all replies. GTL alleged the contract had wrongly been awarded to EPSI and that it should have received the award, and its substantial interests were affected by the Department's subsequent decision to reject all replies. The Department did not act arbitrarily in its decision to reject all replies. The Department did not act illegally, dishonestly, or fraudulently in its decision to reject all replies. EPSI would likely be harmed in any re-solicitation of bids relative to its position in the first ITN, because potential competitors would have detailed information about EPSI?s earlier reply that was unavailable to them during the first ITN. An ITN requires a great deal of work by the Department and creates a big demand on Department resources. The decision to reject all replies was not undertaken lightly. The State of Florida would likely benefit in any new competitive solicitation7/ because all vendors would be aware of the replies that had been submitted earlier in response to the ITN, and bidders would likely try to improve upon those proposals to improve their chances of being awarded the contract.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Corrections issue a final order finding that the rejection of all replies submitted in response to ITN 12-DC-8396 was not illegal, arbitrary, dishonest, or fraudulent, and dismissing all four protests. DONE AND ENTERED this 1st day of November, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 1st day of November, 2013.
The Issue The issue for determination in this proceeding is whether Respondent should award a contract for a new telecommunications system to Intervenor.
Findings Of Fact The Parties Petitioner is a wholly owned subsidiary of NEC, Inc., a Delaware corporation authorized to do business and doing business in Florida. Respondent is a political subdivision and agency of the state. Intervenor is a Delaware corporation authorized to do business and doing business in Florida. The System Respondent's telecommunications system lacks the capacity to meet current and future needs. Respondent seeks a new telecommunications system to serve a minimum of seven high schools, 10 middle schools, 29 elementary schools, and 12 support offices (the "system"). 1/ The Expert Respondent contracted with Omnicom, Inc. ("Omnicom") to assist Respondent in obtaining a new system that is in Respondent's best interest. Omnicom is an expert in telecommunications. The contract requires Omnicom to perform several functions. Omnicom must prepare an RFP, administer the solicitation and receipt of proposals, evaluate the proposals on a point system, issue a report of its evaluation, and recommend a selection that is in Respondent's best interest. Subjectivity There are two primary means of public procurement. One is an invitation to bid ("ITB"). The other is an RFP. The consulting contract refers to a "Request for Bid." The contract indicates that the document will establish an award to the "low fixed price bid meeting specifications." An ITB is significantly different from an RFP. An RFP is inherently more subjective than an ITB. An ITB requires bids to comply closely with the specifications prescribed in the ITB. An ITB prescribes specifications and a solution sought by the issuer. A bidder estimates the cost that the issuer will pay for the solution prescribed in the ITB. An RFP is more subjective. An RFP generally asks proposers to propose a solution to the issuer's stated needs and to estimate the cost of the proposed solution. Proposals generally describe the proposer's sense of the best solution and its cost. The criteria and procedures prescribed in an RFP are intended to minimize, but not eliminate, the subjectivity inherent in the RFP process. The procurement document Omnicom prepared is an RFP. The consulting contract does not require Omnicom to design and implement a new system for Respondent and then obtain bids for the cost of such a system. The RFP solicits solutions to Respondent's telecommunication needs. It prescribes criteria important to Respondent, and Respondent then evaluates proposals on the basis of those criteria. Those criteria include service. Intent Respondent paid Omnicom to recommend a proposal that is in Respondent's best interest. However, neither Omnicom nor Respondent intended the recommendation to usurp Respondent's authority to exercise discretion in taking final agency action. The RFP makes it clear that the proposal selected will be the system that Respondent determines to be in its best interest. The RFP states: The proposal selected will be the . . . system that meets the present and future needs of [Respondent] and is in the best interest of [Respondent]. * * * The objective of [Respondent] in soliciting and evaluating proposals . . . is to obtain a system that best meets the present and future needs of [Respondent] at a cost that is consistent with the features and services provided. * * * It should be understood that the information provided in this RFP is not to be construed as defining specific system equipment, features, or solutions, but rather is intended to present [Respondent's] needs and objectives in terms of system services and control. * * * The submission and acceptance of proposals does not obligate [Respondent] in any way. . . . [Respondent] reserves the right to reject any and all proposals received by reason of this request or to negotiate separately with any source whatsoever, in any manner necessary to serve its best interest. [Respondent] makes no representation, implied or expressed, that it will accept and approve any proposal submitted. * * * Proposals submitted may be reviewed and evaluated by any person at the discretion of [Respondent]. * * * In submitting a proposal, the proposer understands . . . [Respondent] will determine at [its] discre- tion, which proposal, if any, is accepted. RFP at 1-2, 2-1, 2-4, 2-6, 2-7, and 2-11. The RFP The evaluation criteria and procedures established in the RFP are consistent with Respondent's intent in contracting with Omnicom. The RFP establishes a fixed rule or standard by which Respondent selects the proposal that is in Respondent's best interest. Respondent paid Omnicom with public funds to formulate that fixed rule or standard. Final Decision The RFP requires the proposal with the greatest total awarded points to be selected for a contract award. The RFP does not require the proposal with the greatest total awarded points to be recommended for selection. The RFP states: Proposals will be ranked in accordance with the technical and administrative awarded points. . . . The proposal with the greatest total awarded points will be selected for a contract award. (emphasis supplied) RFP, Appendix E, E-2. Alleged ambiguities within the RFP are resolved by the clear and unambiguous meaning of the underscored words in the quoted language. The proposal with the greatest total awarded points is to be selected by Respondent for a contract award. The clear and unambiguous words in the RFP are reasonable. Respondent hired a recognized expert in telecommunications to oversee the acquisition and implementation of a new system. The evaluation criteria and procedures fixed in the RFP reflect Respondent's intent to rely on the expertise it purchased with public funds unless Respondent: rejects all proposals; rejects Omnicom's evaluation and recommendation and asks Omnicom to re-evaluate the proposals; or conducts an independent evaluation of the proposals and substitutes Respondent's own independent judgment. The underscored language in the RFP is specific. It is consistent with general language in the RFP. For example, selection of the proposal with the most points awarded by Omnicom is consistent with the following general provision: Proposals submitted may be reviewed and evaluated by any person at the discretion of [Respondent]. * * * In submitting a proposal, the proposer understands . . . [Respondent] will determine at [its] discre- tion, which proposal, if any, is accepted. RFP at 2-7, and 2-11. Other general language in the RFP authorizes Respondent to reject all proposals and either develop a new RFP, seek a system through the ITB process, or seek a system through a process that is exempt from public procurement requirements if the system or Respondent qualify for such an exemption. The RFP states: The submission and acceptance of proposals does not obligate [Respondent] in any way . . . [Respondent] reserves the right to reject any and all proposals received by reason of this request or to negotiate separately with any source whatsoever, in any manner necessary to serve its best interest. [Respondent] makes no representation, implied or expressed, that it will accept and approve any proposal submitted. RFP at 2-6. Such language is "boiler plate" in public procurement documents. Nothing in the RFP is intended to, or has the effect of, exempting Respondent from the law applicable to public procurement. The RFP states: [Respondent] reserves the right to . . . negotiate separately with any source whatsoever, in any manner necessary to serve its best interest. RFP at 2-6. Respondent can not solicit proposals and then negotiate separately with a select proposer or a third party in violation of the body of law applicable to public procurement. The language quoted in the preceding paragraph does not authorize Respondent to take final agency action in a manner that is not governed by fixed rule or standard. The fixed rule or standard that governs Respondent's determination of its best interest is prescribed in the RFP and sanctioned by Respondent. The RFP states: Proposals will be ranked in accordance with the technical and administrative awarded points. . . . The proposal with the greatest total awarded points will be selected for a contract award. (emphasis supplied) RFP, Appendix E, E-2. The quoted language is specific, clear, and unambiguous. To the extent it is inconsistent with general provisions in the RFP, the plain meaning of the specific language controls any general provisions that may be contrary to either the specific language or the law applicable to public procurement. Scope Of Review The RFP limits the scope of review to information contained in the proposals submitted by the proposers. The RFP states: . . . Only the information contained in the proposal and references verifications will be used in the evaluation. RFP at E-2. Respondent fixes the scope of review by limiting it to the information contained in the proposals. Review And Approval Respondent reviewed the rule or standard fixed in the RFP. Respondent approved the RFP on July 11, 1995. On July 12, 1995, Omnicom issued the RFP. Omnicom's Evaluation And Recommendation The RFP solicits base proposals and alternate proposals that achieve Respondent's objectives for a new system. No alternate proposal is authorized without a base proposal that complies with the basic configuration prescribed in the RFP. Seven proposals were submitted to Omnicom. Omnicom determined that one proposal did not satisfy mandatory requirements. Omnicom evaluated the six proposals that satisfied mandatory requirements. They are: Petitioner's base proposal; Petitioner's alternate proposal; Intervenor's proposal; a base proposal from Bell South Business Systems, Inc. ("Bell South"); a base proposal from Orlando Business Telephone Systems ("OBTS"); and a base proposal from WilTel Communications, Inc. ("WilTel"). Omnicom awarded the following technical, cost, and total points. PROPOSAL TECHNICAL COST TOTAL NEC (Alternate) 699 200 899.0 Siemens ROLM 715.5 179 894.5 Bell South 719.5 161.1 880.6 NEC (Base) 700 172.8 872.8 WilTel(Base) 617 157.2 774.2 OBTS 595.5 158.4 753.9 Omnicom ranked Petitioner's alternate proposal highest in total points and points awarded for cost. Omnicom ranked Intervenor's proposal highest in technical merit. Omnicom conditioned its recommendation of Petitioner's alternate proposal on resolution of several concerns Omnicom expressed in its evaluation report. Those concerns are included in the discussion in paragraphs 108-124, infra. Omnicom recommended Petitioner's alternate proposal for selection if Respondent could resolve the concerns Omnicom had with Petitioner's alternate proposal and if Respondent deemed it to be in Respondent's best interest. Omnicom recommended Intervenor's proposal if Respondent either could not resolve Omnicom's concerns or if Respondent did not deem Petitioner's alternate proposal to be in Respondent's best interest. Arbitrary Selection Respondent selected Intervenor's proposal over Petitioner's alternate proposal. Respondent's selection of Intervenor's proposal was within the scope of the recommendation made by Omnicom. However, the manner in which Respondent exercised its agency discretion is arbitrary. The manner in which Respondent determined that Intervenor's proposal is in Respondent's best interest is not governed by any fixed rule or standard. Respondent did not conduct an independent evaluation and substitute Respondent's own judgment. Respondent did not apply the rule or standard fixed in the RFP to the information included in the proposals and substitute its judgment for that of Omnicom. Respondent did not substitute a fixed rule or standard different from the rule or standard fixed in the RFP. Respondent substituted a rule or standard that is not fixed but is invisible and known only to Respondent. Respondent expanded the evaluation procedure and scope of review fixed in the RFP. Respondent improperly applied criteria fixed in the RFP and applied improper criteria not established in the RFP. 6.1 Scope Of Review The RFP assignes a maximum of 800 points to criteria prescribed in six technical categories. It assigns a maximum of 200 points to cost. The maximum total score for technical and cost criteria is 1,000 points. The points Respondent fixed for the criteria in the RFP indicate the relative importance of the criteria. The RFP states: Proposals will be ranked in accordance with the technical and administrative awarded points and a short list of proposals established for further evaluation. The short listed proposals will then be evaluated on a cost basis and points awarded accordingly. Awarded cost points will then be summed with the awarded technical and administrative points. The proposal with the greatest total awarded points will be selected for a contract award. RFP, Appendix E, at E-2. 38. Omnicom evaluated the six proposals that met mandatory requirements and submitted an evaluation report in accordance with the evaluation criteria and procedures fixed in the RFP. The report recommends that the contract be awarded to Petitioner. In accordance with the evaluation procedure established in the RFP, Omnicom's evaluation report was submitted to a review committee on September 8, 1995. The committee consisted of knowledgeable representatives from the community and select employees of Respondent. The committee reviewed the evaluation report for accuracy and objectivity. The committee took no exception to any portion of the evaluation report and recommendation. In accordance with the evaluation procedure established in the RFP, the Superintendent of the Seminole County School District (the "Superintendent") recommended that Respondent award the contract to Petitioner for its alternate proposal. Respondent did not take issue with the recommendations of Omnicom, the committee, or the Superintendent. Respondent issued a notice of intent to award the contract to Petitioner on September 8, 1995. Respondent scheduled a work session for September 12, 1995, to consider the evaluation report from Omnicom and to vote on Omnicom's recommendation. 6.1(a) Intervenor's Expanded Proposal On September 11, 1995, Intervenor sent a letter to each of Respondent's members. Separately, each member obtained a report on user ratings of telecommunications equipment. The letter urged Respondent to consider Intervenor's local presence, including the local presence of Siemens Stromberg Carlson, Intervenor's corporate sibling. The letter asserted that Petitioner has no significant local presence. It claims that Intervenor is a "Tier 1" telecommunications vendor and that Petitioner is not. None of these matters were included in Intervenor's proposal even though service was one of the criteria for evaluation. Intervenor's solicitation provided Respondent with information not included in Intervenor's proposal. The additional information exceeded the scope of review and evaluation procedure fixed in the RFP. 6.2(b) Altered Procedure At the work session conducted on September 12, 1995, Respondent accepted comments from the public and from proposers. Intervenor emphasized its status as a Tier 1 vendor. One of Respondent's members expressed concern that Petitioner had only one local representative and that he worked out of his home. Petitioner has four technicians and stated in its alternate proposal that two additional technicians would be added. No member read any of the proposals. A second member stated that cost is an insignificant matter. The second member opined that cost should not be an issue considered in making the final decision. The second member is a senior management employee for Bell South. Bell South was ranked third in total points by Omnicom. The second member seconded a motion to postpone the contract award. In considering postponement of their vote, the members relied on information contained in Intervenor's expanded proposal. The members voted to postpone the award of the contract until September 20, 1995. At that meeting, each proposer was to make a twenty minute presentation to Respondent. 6.2(c) Improper Consideration Of Fixed Criteria And Consideration Of Improper Criteria The background statement in the agenda to the meeting scheduled for September 20, 1995, stated that Omnicom's point scores could not be used as the determining factor in awarding the contract because all but one of the proposals "did not meet all mandatory requirements." This was the first instance in which either Respondent or Omnicom indicated that any proposal except the alternate proposal submitted by WilTel failed to satisfy mandatory requirements in the RFP. 2/ None of Respondent's individual members read any portion of the proposals submitted to Omnicom. The members did not make independent determinations of whether the proposals submitted by Petitioner or Intervenor in fact satisfied mandatory requirements established in the RFP. On September 18, 1995, Petitioner notified Respondent that Petitioner protested the meeting scheduled for September 20, 1995. Petitioner stated that it would participate in the meeting under protest; without waiving any right it had to protest Respondent's deviation from the evaluation criteria, procedure, and scope of review fixed in the RFP. In the Notice of Public Meeting issued for the September 20 meeting, Respondent stated it may add up to 200 points to the total points awarded by Omnicom. The additional points were to be based upon the information the proposers submitted at the meeting. This was the first time Respondent disclosed the availability of points other than the 1,000 points fixed in the RFP. The Notice of Public Meeting stated no criteria upon which the additional points would be awarded. Respondent did not formulate any criteria upon which to award the additional points. 6.2(d) Final Decision: Expanded Scope, Altered Procedure, Improper Consideration Of Fixed Criteria And Consideration Of Improper Criteria At the meeting conducted on September 20, 1995, the proposers gave presentations to Respondent and Omnicom. The proposers answered questions posed orally by Respondent's individual members. Omnicom responded to comments made by the proposers. Each proposer was then allowed two minutes for "surrebuttal." The majority of comments related to reasons why specific points were deducted during Omnicom's evaluation. The proposers did not have access to a specific point award matrix to which the members may have referred during the meeting. The subject matter of the inquiry included criteria established in the RFP, including service capability. The inquiry did not focus on conditions Omnicom attached to its recommendation of Petitioner's alternate proposal. See, paragraphs 108-124, infra. Intervenor repeated its representation that it is a Tier 1 vendor. Intervenor asserted that it is the number one PBX supplier in the world and the number two vendor in annual expenditures for research and development. Intervenor submitted documents substantiating its claims. None of this information was included in Intervenor's proposal. After the presentations, the Superintendent suggested the members write down three of the five proposers. The Superintended stated that the additional points would not be written down because they were for the use of the individual members. The first round of voting produced a new short list that deleted Petitioner and consisted of Intervenor and Bell South. The members then discussed the two proposals on the new short list. During the discussion, one member stated that she felt the RFP assigned too many points for cost. The members voted to award the contract to Intervenor. The member who is an employee of Bell South recused himself from the final vote. The voting members did not disclose the criteria they relied on for their vote, the weight assigned to the criteria relied on, the additional points assigned, or the fixed rule or standard which governed Respondent's determination of which proposal was in Respondent's best interest. On September 21, 1995, Petitioner received Respondent's formal notice to award the contract to Intervenor. The notice states only that Respondent's decision is based on the evaluations by Omnicom and the presentations on September 20, 1995. 3/ The manner in which Respondent determined that Intervenor's proposal is in Respondent's best interest was not governed by any fixed rule or standard. Respondent selected Intervenor's proposal in a manner contrary to the rule or standard fixed in the RFP and on the basis of criteria and procedures that are not fixed in the RFP. Major Variation Respondent's deviation from the rule or standard fixed in the RFP is a major variation. The deviation affects the price of the contract selected. It gives Intervenor a benefit not enjoyed by other proposers. It adversely impacts the interests of Respondent. 4/ Contract Price Respondent's deviation from the rule or standard fixed in the RFP affected the contract price in two ways. First, it affected the stated cost of the contract. Second, it added costs that are inherent, but not stated, in Intervenor's proposal. 7.1(a) Stated Cost The complete system is to be installed in all 58 facilities over five years. The useful life of the system is between 7 and 10 years. Omnicom valued the system included in each proposal over its 10 year life expectancy. Omnicom placed the cost for each facility on a spread sheet correlating to the anticipated time of installation. The cost of each facility was discounted to its net present value at the time of evaluation. The evaluation report rates costs through 10 years because that is the reasonable life expectancy of the system. The cost of Intervenor's system was less in years 1-5. For the total life expectancy of the system, however, the cost of Petitioner's alternate proposal was less. During the 10 year useful life of the new system, the cost of Petitioner's alternate proposal would save Respondent $1,547,726 over the cost of Intervenor's proposal. The net present value of that savings is $1,212,528. Omnicom awarded the following technical, cost, and total points for the seventh year of operation. PROPOSAL TECHNICAL COST TOTAL NEC (Alternate) 699 200 899.0 Siemens ROLM 715.5 179 894.5 Bell South 719.5 161.1 880.6 NEC (Base) 700 172.8 872.8 WilTel(Base) 617 157.2 774.2 OBTS 595.5 158.4 753.9 The total point differential between Petitioner and Intervenor widened for years 8-10. The points awarded for the cost of Intervenor's proposal dropped to 178.4, 177.8, and 177.3, respectively, in years 8-10. The corresponding total scores for Intervenor's proposal dropped to 893.9, 893.3, and 892.8. 7.1(b) Unstated Cost The RFP requires five out of eight categories of work station devices to be two-way speaker phones. Two-way speaker phones eliminate the need for ancillary intercom equipment. Two of the five categories required to be two-way speaker phones are noncompliant in Intervenor's proposal. Compliant telephones are more expensive than the telephones used by Intervenor to calculate the cost Omnicom evaluated. Compliant telephones would cost approximately $736,901 more than the cost evaluated by Omnicom; based on information available in Intervenor's proposal. 5/ Respondent will either incur additional costs to acquire compliant telephones or incur the cost of ancillary intercom equipment. Benefit Not Enjoyed By Others Intervenor enjoyed a benefit not enjoyed by others. Intervenor obtained a competitive advantage and a palpable economic benefit. 7.2(a) Expanded Scope Respondent's reliance on a rule or standard not fixed in the RFP resulted in a benefit to Intervenor. Other proposers did not enjoy a similar benefit. 6/ The proposers relied upon the point distribution, evaluation procedure, and criteria fixed in the RFP. Any of the proposers could have solicited Respondent to consider information not included in the proposals, to follow procedures not established in the RFP, to assign an undisclosed weight to criteria fixed in the RFP, and to consider undisclosed criteria. However, only Intervenor successfully solicited Respondent to do so and then enjoyed the benefit of being selected for the contract. Respondent made concessions that favored Intervenor. No other proposer enjoyed the benefit of Respondent's concessions in a manner that changed the outcome of the contract award. 7.2(b) Alternate Proposal The base proposal required in the RFP included a configuration using analog tie lines. Intervenor prepared only one proposal. It included only digital tie lines. Intervenor's proposal is an alternate proposal. It does not include the analog tie lines required in the basic configuration prescribed in the RFP. Omnicom deducted points for Intervenor's failure to include analog tie lines. However, Omnicom evaluated Intervenor's alternate proposal in the absence of a base proposal. 7/ All other proposers complied with the provision in the RFP that prohibited alternate proposals in the absence of a base proposal. The prohibition, in effect, required Petitioner to submit two proposals. Petitioner prepared a base proposal and an alternate proposal. Petitioner prepared two quotes for each of the 58 facilities contemplated in the new system. Intervenor prepared only one quote for each of the facilities contemplated in the new system. Intervenor did not invest the time, energy, and expense invested by Petitioner in its two proposals. 7.2(c) Cost By using noncompliant telephones in its proposal, Intervenor lowered the cost evaluated by Omnicom. If other proposers had proposed noncompliant telephones, they would have been able to affect their evaluation scores in a positive manner. Intervenor received a palpable economic benefit from its omission. A cost difference of $50,000 to $100,000 translates to approximately two points in the evaluation process. An increased cost of $736,901 would have lowered Intervenor's cost score between 7.36 and 14.7 points. 8/ Omnicom did deduct points from Intervenor's technical score for the failure to include compliant telephones in its proposal. However, Omnicom did not deduct points for Intervenor's failure to include unit prices for compliant telephones. 9/ Unit prices are necessary for Omnicom to accurately calculate the increased cost of compliant telephones. Omnicom could not calculate the increased cost of compliant telephones based on the information available in Intervenor's proposal. Omnicom evaluated the cost of Intervenor's proposal based on the cost stated in the proposal. Adverse Impact On Respondent Respondent's deviation from the evaluation criteria and procedures fixed in the RFP has an adverse impact on the financial interests of Respondent. The award of the contract to Intervenor will cost Respondent approximately $1,212,528 in present value. Respondent may need to purchase compliant telephones at an additional cost of up to $736,901. Alternatively, Respondent may need to purchase ancillary intercom equipment at an unknown cost. Respondent's deviation from the evaluation criteria and procedures established in the RFP has an adverse impact on the Respondent's technical needs. The award of the contract to Intervenor may result in the use of noncompliant telephones, ancillary intercom equipment, or, in the event of an unforseen budget shortfall at the time, none of the technical capabilities needed by Respondent. Public Policy There is a "strong public policy against disqualifying the low bidder for technical deficiencies. . . ." 10/ Although an RFP inherently demands more subjectivity than an ITB, Respondent disqualified the low proposer for reasons that are not governed by any fixed rule or standard. Respondent could have rejected all six proposals and sought to obtain its system through a new RFP, the ITB process, or a process exempt from public procurement requirements; if the system or Respondent qualifies for such an exemption. 11/ However, Respondent did not reject all proposals and start over or seek to obtain its system through an exempt process. Respondent paid public funds for Omnicom's expert advice. Respondent paid Omnicom to evaluate Respondent's technical needs, formulate criteria, develop an evaluation procedure, prepare an RFP, evaluate proposals, and recommend the proposal that was in Respondent's best interest. Respondent approved the RFP prepared by Omnicom, including the rule or standard fixed in the RFP. Respondent then deviated from the fixed rule or standard. Respondent added points to change the relative importance of the technical and cost criteria fixed in the RFP. Respondent awarded up to 200 points in addition to the 1,000 points fixed in the RFP. The members neither disclosed the criteria they used to award additional points nor disclosed the number of points awarded. The members did not reveal, explain, or define either the weight assigned to each fixed criteria or any other fixed rule or standard used to evaluate the oral presentations made by the proposers. Respondent did not conduct an independent evaluation of the proposals and substitute its own judgment for that of Omnicom. None of Respondent's members read any of the proposals. Omnicom evaluated the proposals fairly, objectively, and reasonably. Omnicom's evaluation and recommendation was an honest exercise of agency discretion by the agency's own expert. 12/ Respondent neither rejected Omnicom's evaluation of the proposals nor rejected the proposals. Respondent did not request that Omnicom re-evaluate the proposals and did not request that Omnicom start over with a new RFP, an ITB, or pursue a system through an exempt process. Respondent neither explained its exercise of agency discretion on the record in this proceeding nor disclosed a fixed rule or standard Respondent used to govern its action. Respondent made an arbitrary decision. Illegal Respondent made an emergency award of a portion of the contract to Intervenor during the pendency of this proceeding. The award is limited to a purchase order for one switch out of 52 switches that will comprise the complete system. The single switch is necessary for Respondent to occupy its new administrative offices. Occupancy of the new administrative offices has always been a critical element in procurement of the entire system. Respondent is currently engaged in accomplishing this critical element. Respondent's award of part of the contract is not required by an immediate and serious threat to the public health, safety, or welfare. Respondent awarded part of the contract to Intervenor for public convenience. Installation of the system at the new administrative offices is necessary to occupy the new building. Occupancy is necessary so that various administrative offices of the School District can be consolidated. The School District has incurred costs since October, 1995, for utilities and maintenance associated with the unoccupied building. The reasons evidenced by Respondent constitute neither an immediate nor serious threat to the public health, safety, and welfare. It is not necessary to award any portion of the contract prior to final agency action in this proceeding. Minor Irregularities Omnicom conditioned its recommendation of Petitioner's alternate proposal on resolution of four concerns. Petitioner's alternate proposal failed to include detailed price information for one of the elementary schools in the new system ("Elementary School D"). Petitioner failed to separate its installation price from the price for hardware and software. Petitioner conditioned the mandatory commitment to discounted pricing beyond July, 1997, on a requirement that Respondent accept Petitioner's full contract. Finally, Petitioner failed to base its cost on required response times. Elementary School D Petitioner failed to include information for Elementary School D on the individual system detail price sheet. Petitioner's failure does not affect the contract price, does not result in a palpable economic benefit to Petitioner, and does not adversely affect Respondent's interest. Omnicom sent out approximately six addenda to the RFP before completing its evaluation. One of the addenda failed to include Elementary School D. Omnicom discovered the error and evaluated the cost of all proposals with Elementary School D excluded. The omission of Elementary School D was an honest exercise of agency discretion by Omnicom and did not result in disqualification of the low proposal for technical reasons. Combined Pricing The detailed price sheets for each school and support office includes a space for the price of hardware and software. A separate space is provided for the price of installation. Petitioner did not provide separate prices but provided one price for hardware, software, and installation. The purpose of the separate pricing requirement is twofold. Separate pricing allows Omnicom to determine if individual prices are out of line with industry standards. It also provides information needed for additional purchases of separate items. Petitioner's deviation from separate pricing requirement did not violate the strong public policy against disqualifying the low bidder for technical reasons. Omnicom awarded Petitioner the highest number of points and recommended Petitioner for the contract. Petitioner's deviation did not result in a competitive advantage for Petitioner. The purpose of the separate pricing requirements was informational. Petitioner's deviation did not adversely impact the interests of Respondent. It did not impact the lowest price posed or the technical capability of the proposal. Discounted Pricing The RFP instructs proposers to base their pricing on the assumption that the proposer would install the entire system. Petitioner's conditional commitment to discount pricing through July, 1997, merely restates the assumption mandated in the RFP. The RFP instructs all proposers to assume they will be awarded the contract for the entire system in preparing their proposals. Even if Petitioner's conditional commitment were a deviation from the RFP, it would not be a major variation. It does not violate the strong public policy against disqualifying the low bidder for technical reasons. It does not result in a competitive advantage for Petitioner. It does not adversely impact the interests of Respondent. Response Time The RFP requires an emergency service response time of two hours. It mandates damages for violation of the response time of $250 per hour up to $2,500 a month. Petitioner's alternate proposal does not conform with this requirement. It proposes a four hour response time. Petitioner took exception to the liquidated damages provision and proposed a maximum damage of $500. Petitioner's deviation is a minor irregularity. Omnicom adequately addressed the deviation in the evaluation report so that the deviation will not affect contract price, afford Petitioner a palpable economic benefit, or adversely impact Respondent's interest. Honest Exercise Of Agency Discretion Omnicom's response to the deviation's in Petitioner's proposal is an honest exercise of agency discretion by Omnicom. Omnicom applied the same methodology in a consistent manner for all of the proposals. Omnicom's decision is a reasonable exercise of its expertise in telecommunications based on independent knowledge and experience. Respondent did not reject Omnicom's evaluation of the proposals or reject the proposals. Respondent did not request that Omnicom re-evaluate the proposals. Respondent stated in its notice of intent to award the contract to Intervenor that its decision is based on the presentations at the September 20 meeting and on Omnicom's evaluation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioner's protest of the selection of Intervenor. RECOMMENDED this 29th day of December, 1995, in Tallahassee, Florida. DANIEL S. MANRY, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1995.
The Issue At issue in this proceeding is whether the decision of the respondent, Department of Administration (Department), to reject, as untimely, the proposals submitted by petitioner, Medco Containment Services, Inc. (Medco), and intervenor, Preferred Employee Pharmaceutical, Inc. (Preferred), comported with the essential requirements of law, and whether the Department should exercise its discretion to reject all proposals and extend a new request for proposals.
Findings Of Fact Background On June 14, 1991, the Department of Administration, Division of State Employees' Insurance (Department), issued Request for Proposal No. 91-15 for a mail order prescription drug program (hereafter the "RFP"). The deadline for submitting sealed proposals in response to the RFP, as amended, was established as 2:00 p.m., August 2, 1991, and the time for opening proposals was established as 2:01 p.m., August 2, 1991. Pertinent to the deadline for submitting proposals established by the RFP, the RFP provided, at General Condition 3 (DGS Form PUR 7033): PROPOSAL OPENING: Shall be public on the date, location and the time specified on the acknowledgment form. It is the proposers responsibility to assure that his proposal is delivered at the proper time and place of the proposal opening. Proposals which for any reason are not so delivered will not be considered. . . . The RFP further provided at Section III, subsection L: Proposals must be mailed or hand delivered to arrive at the time, date and address as shown in the Schedule of Events. ALL PROPOSALS WILL BE PUBLICLY OPENED ON THE TIME, DATE AND ADDRESS SHOWN IN THE SCHEDULE OF EVENTS. ANY PROPOSALS RECEIVED AFTER THIS SPECIFIED TIME AND DATE WILL BE RETURNED UNOPENED. At the time of the deadline, the Department had received a number of proposals, including that of intervenor, Revco D.S., Inc. (Revco). Thereafter, at 2:02 p.m. on the bid opening date, the Department received proposals from petitioner, Medco Containment Services, Inc. (Medco), and intervenor, Preferred Employee Pharmaceuticals, Inc. (Preferred). These late submittals were rejected by the Department as untimely. Medco and Preferred contest the propriety of the Department's rejection of their proposals as untimely, and contend that the late submission of their proposals was a minor irregularity that should be waived by the Department or, alternatively, that the Department should exercise its discretion to reject all proposals and extend a new request for proposal. Pertinent to the position advocated by Medco and Preferred, the RFP provided, at General Condition 6: AWARDS: As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any irregularity or technicality in proposals received. . . . However, no persuasive proof was offered that it was in the best interest of the state to waive the late filing of such proposals or reject all proposals. 2/ The Department, contrary to the contentions of Medco and Preferred, has evidenced no intention during the course of these proceedings to waive, as a minor irregularity, the late submission of their proposals in light of the mandatory language of the RFP regarding the rejection of such late submittals, and has evidenced no intent or advanced any reason to exercise its discretion to reject all bids. The circumstances surrounding the late submittal of the Medco and Preferred proposals In response to the RFP, Medco prepared a proposal at its Montvale, New Jersey, offices. 3/ The proposal was enclosed in a box which was entrusted, along with a second box containing Medco's response to the Department's RFP No. 91-14 for a prescription drug card program, to a courier service in Montvale on the afternoon of August 1, 1991, for delivery to the Department prior to 2:00 p.m., August 2, 1991. While both boxes apparently arrived in Tallahassee, Florida, the morning of August 2, 1991, the local courier service only picked up one box, that containing Medco's proposal in response to RFP No. 91-14. Not until 1:00 p.m. that day was such oversight discovered by a second courier service, which then took possession of Medco's response to the subject RFP (RFP No. 91-15) and delivered it to the Department at 2:02 p.m. that day. Preferred, located in Davie, Florida, also prepared a response to the subject RFP. On the morning of August 2, 1991, Preferred entrusted its proposal to US Air's PDQ courier service for delivery to the Department prior to 2:00 p.m. that date. The courier service did not, however, deliver Preferred's proposal to the Department until 2:02 p.m. Following the receipt of the Medco and Preferred proposals, they were taken to the bid opening room, where the bid opening for the RFP had already commenced. At that time, only envelopes which contained "no bids" (a notice that the respondent did not wish to submit a proposal) had actually been opened. Notwithstanding, based on the untimeliness of their submittal, the Department rejected the Medco and Preferred proposals. 4/ During the course of the public opening of the proposals that had been timely submitted, the cost proposals of such potential vendors were announced and posted. However, the award process has been stopped pending resolution of this protest and all proposals that were timely submitted are currently in the custody of the Department's evaluation team. 5/ By letters of August 7, 1991, addressed to Medco and Preferred, the Department advised such parties that, under separate cover, it was returning their proposals since they had not been received until after the opening of proposals had commenced. Medco refused to accept delivery of its proposal from the United States Post Office and it was returned to the Department, where it currently remains. Regarding the integrity of such proposal, the proof demonstrates that at no time since it was originally entrusted to the courier service by Medco on August 1, 1991, until the present has such proposal been opened or in any other manner been tampered with. Regarding the Preferred proposal, the proof demonstrates that upon the return of such proposal it was opened, and remains in Preferred's possession.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered which dismisses the protests of Medco and Preferred. RECOMMENDED in Tallahassee, Leon County, Florida, this 23rd day of October, 1991. WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1991.
The Issue Whether Amendment 15-1ACSC to the Monroe County Comprehensive Plan, adopted by Ordinances 003-2016 and 004-2016 on February 10, 2016, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2015).1/
Findings Of Fact The Parties The County is a political subdivision of the State of Florida with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167, Florida Statutes. Petitioners reside in, and own property within, the County. Petitioners submitted oral or written comments concerning the Plan Amendment to the County during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. Rockland owns the property subject to the Plan Amendment and is the applicant for the Plan Amendment.4/ The Navy owns the Station in the County and submitted oral or written comments concerning the Plan Amendment to the County during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. The Subject Property The Plan Amendment affects five different parcels of property in the Lower Keys. The parcels are owned by Rockland and are all either current or former mining sites with developed ancillary uses. Most of the property is vacant scarified land and the remainder supports warehousing and distribution facilities and related uses. Four of the parcels are located on Rockland Key (the Rockland parcels): two along U.S. Highway 1 and two on the north side of the Key along the Gulf of Mexico. Together, the four parcels total 29.59 acres. The existing FLUM designation of the parcels is Industrial, the primary purpose of which is to “provide for the development of industrial, manufacturing, and warehouse and distribution uses.” FLUE Policy 101.4.7. (2015).5/ The non-residential development potential of the property is between 322,235 and 773,364 square feet. The Industrial category also allows residential development at a density of one dwelling unit per acre (1du/acre) and a maximum of 2du/buildable acre.6/ Under the existing FLUM category, the Rockland parcels could be developed for a maximum of 47.3 residential units.7/ The parcel on Big Coppitt Key (the Big Coppitt parcel) is a narrow L-shaped 14.8-acre property bordering a former mining pit. The parcel runs north along the western boundary of Petitioners’ residential subdivision, then west along the Gulf of Mexico. Petitioners’ homes are located directly adjacent to the Big Coppitt parcel. The majority of the parcel (12.33 acres) is designated Industrial and the remainder (2.5 acres) as Mixed Use/Commercial Fishing (MCF). The non-residential development potential of the Big Coppitt parcel is between 161,498 and 365,816 square feet. Under the existing FLUM categories, the Big Coppitt parcel could be developed for a maximum of 43.7 dwelling units. Together, the subject property could be developed for a maximum of 91 dwelling units or 1.1 million square feet of non- residential uses, or some proportional mix thereof. The Plan Amendment The Plan Amendment changes the FLUM designation of the Rockland parcels from Industrial to Commercial. The Commercial FLUM category does not allow residential development, thus limiting future development of the property to between 193,341 and 644,470 square feet of non-residential uses. The Plan Amendment changes the FLUM designation on the Big Coppitt parcel to Mixed Use/Commercial (M/C), which allows residential development at a maximum density of 2-8du/acre. Under the M/C designation, the Big Coppitt parcel could be developed for a maximum of 213.6 dwelling units. Under the M/C designation, the Big Coppitt parcel has a non-residential development potential of between 64,599 and 290,697 square feet. However, the Plan Amendment also creates FLUE Policy 107.1.6, a sub-area policy applicable to the Big Coppitt parcel. The policy restricts development to deed- restricted affordable housing units (minimum mix of 10 percent median-income and at least 20 percent combination of low- and very low-income categories) and employee housing. The policy prohibits all non-residential development of the property, including dredging, and prohibits development of market-rate and transient-dwelling units. As adopted, the Plan Amendment authorizes development of up to 213 affordable housing units, no market rate units, no transient units, approximately 644,000 square feet of non- residential uses, and no dredging of the existing mining pit on the Big Coppitt parcel. Compared to the existing FLUM designations of the subject property, that is a potential increase of 114 units and a decrease of approximately 456,000 square feet of non-residential development. Naval Air Station Key West Rockland Key is located directly across U.S. Highway 1 from the Station. The Big Coppitt parcel is in close proximity to the Station. The Station’s Boca Chica airfield has been in operation since 1943. The primary mission at Boca Chica is to train pilots for air-to-air combat and to meet aircraft carrier qualifications. Fighter pilots from all over the country are trained for air-to-air combat primarily at the Station. The Station is uniquely situated to accomplish its training mission because there is little commercial air traffic and a large unencumbered airspace in close proximity to the airfield. Pilots who take off from Boca Chica quickly arrive in vast airspaces west and south of the Station for air-to-air combat training. This allows for very efficient use of fuel for training. Pilots train for aircraft carrier qualifications through field carrier landing practice at Boca Chica. Field carrier landing practice requires flying the same touch-and-go pattern at the field that the pilot would fly at an aircraft carrier. Each pilot in a squadron must fly the pattern accurately to a certain “readiness level” before the squadron can be certified to deploy. The readiness level is based on the number of sorties completed. One sortie includes at least one takeoff and one landing. Boca Chica typically operates Monday through Saturday from 8:00 a.m. to 10:00 p.m. However, the airfield operates outside of those hours, and on Sundays, when training missions dictate. The airfield averages 36,000 sorties per year. The Station is extremely valuable to the Department of Defense due to the size of the airspace, weather, lack of commercial traffic interference, and capacity for training missions. As the commanding officer of the Station, one of Captain Steven P. McAlearney’s primary duties is to protect the military value of the Station by protecting the airspace and existing operation capacity. As such, Captain McAlearney is concerned with encroachment by development incompatible with Station operations. Navy AICUZ The Navy has established a Military Installation Area of Impact (MIAI) surrounding the Station. In its most recent Environmental Impact Statement (EIS), the Navy has designated Air Installation Compatible Use Zones, or AICUZ, within the MIAI. The AICUZ are mapped as noise contours extending outward from the Station. Each contour indicates a range of day- night average noise levels (DNL) which are expected to impact properties within the specific contour. The AICUZ map is accompanied by a Land Use Compatibility Table (the table) containing recommendations for compatibility of various land uses within the specific noise contours. According to the table, residential land uses are “generally incompatible” in both the 65-69 and 70-74 DNL zones, also referred to as “noise zones.” The Navy discourages residential use in DNL 65-69 zones, and strongly discourages residential use in DNL 70-74 zones. The table deems residential use in the 75-79 DNL zone as “not compatible” and recommends local government prohibit residential use in those zones, also referred to as “incompatibility zones.” FLUE Policy 108.2.5 On May 22, 2012, the County adopted FLUE Policy 108.2.5, which took effect on July 25, 2012. The Policy, which is lengthy and is not set forth in full herein, generally prohibits applications to change FLUM designations within the MIAI after the Policy’s effective date. However, the Policy sets forth a procedure by which FLUM amendment applications “received after the effective date of this [p]olicy,” which increase density or intensity within the MIAI, may be approved. The procedure requires the County to transmit the application to the Navy for a determination of whether the property subject to the application is within a noise zone or an incompatibility zone, and whether the proposed density or intensity is incompatible with Station operations. If the Navy determines an application is within an incompatibility zone, the Policy requires the County to determine whether appropriate data and analysis supports that determination, and, if so, maintain the existing designation. Additionally, the Policy states that “Monroe County shall encourage the Navy to acquire these lands . . . for the protection of the public health, safety, and welfare of the citizens of the Florida Keys.” If the Navy determines an application is within a noise zone, the Policy requires the applicant to submit a supplemental noise study, based on “professionally acceptable methodology,” to establish whether the property is within a 65 DNL or higher zone. The Navy has nine months from receipt of the supplemental noise study to provide comments to the County concerning whether the noise study is based on professionally accepted methodology. After receipt of the Navy’s comments, the County may allow the application to proceed through the public hearing process, but must also adopt a resolution determining whether the property subject to the application is subject to the density and intensity restrictions within the MIAI. Affordable Housing The parties stipulated that the County has a demonstrated community need for affordable housing. A 2014 study projected a deficit of 6,500 affordable units in the City of Key West alone. In 2013, 51 percent of all County households were “cost-burdened,” meaning they paid more than 30 percent of their income for housing. That figure compares to 43 percent of cost-burdened households statewide. In the County, more than half of renters are cost- burdened and about 45 percent of home owners are cost-burdened. The lack of affordable housing in the County is exacerbated by four factors: high land values; geographic and environmental limitations on development; artificially- controlled growth of housing supply8/; and a tourist-based economy which drives lower paying service-sector jobs. The lack of affordable housing impacts not only the tourism industry, but also public-sector agencies, including the school system, emergency management, and even the County’s Planning and Environmental Resources Department. Lack of affordable housing makes it harder to recruit and retain school teachers, police, and firefighters, among other public-sector employees. High turnover rates in these areas present budget and personnel challenges for the County. The County has 460 existing affordable housing units for the very-low, low-, and median-income households, and 354 units for moderate-income households (a combination of rental and owner-occupied units). The greatest percentage of existing affordable housing units is deed-restricted for the moderate-income range. The yearly income limit for a three-person household (a couple with a child) in the very-low income category is $52,400; the low-income category is $83,800; and the median- income limit is $104,800. The moderate-income level maximum is $125,760 for rental, and $167,680 for owner-occupied. The County has approximately 700 affordable housing units to be allocated through the year 2023. The Plan Amendment Application On May 18, 2012, Rockland applied for a FLUM amendment which included the Rockland parcels, but did not include the Big Coppitt parcel. The application affected 141 acres (approximately 77 upland acres). As proposed, the application would have allowed development of a maximum of 385 dwelling units, 1,155 transient rooms (or spaces), and 500,940 square feet of non-residential uses, or some proportional mix thereof. The application was reviewed by the County’s development review committee (DRC) on November 27, 2012, which recommended denial due to the density and intensity impacts. Largely in response to the DRC’s concerns, and after lengthy discussions with County staff, Rockland submitted revisions to its application on April 1, 2014. The revisions greatly reduced the overall size, as well as the density and intensity impacts of, the proposed amendment. The revised application included the Big Coppitt parcel for the first time. Rockland revised the application again on June 17, 2014, to reflect the same proposed acreages and designations as the approved Plan Amendment. The application, as amended on June 17, 2014, was approved by both the DRC and the County Planning Commission. On December 10, 2014, the Board of County Commissioners voted to transmit the application to the state land planning agency, the Department of Economic Opportunity (DEO), pursuant to section 163.3184(4).9/ On March 20, 2015, DEO issued its Objections, Recommendations, and Comments (ORC) report objecting to the Plan Amendment, particularly the increased residential development potential on the Big Coppitt parcel. The ORC report included the following relevant objections: The Plan Amendment is inconsistent with policy 108.2.6, which adopts the MIAI Land Use Table, designating residential uses as “generally incompatible” in the 65-69 DNL zone. The Big Coppitt parcel lies within the 65-69 DNL zone where residential use is discouraged. The Land Use Table notes that “[a]lthough local conditions regarding the need for affordable housing may require residential uses in these [z]ones . . . . The absence of viable alternative development options should be determined and an evaluation should be conducted locally prior to local approvals indicating that a demonstrated community need for the residential use would not be met if development were prohibited in these [z]ones.” While the applicant supports the application by arguing that it will support a multi- family affordable housing development, nothing in the amendment provides assurance that any future residential development on this property will be for affordable housing. While there is a shortage of affordable housing in the County, especially in the lower keys, there is no shortage of vacant lots with density for housing. The County failed to establish that, “in the absence of viable alternative development . . . a demonstrated community need for the residential use would not be met if development were prohibited” on the parcel. The [Big Coppitt] parcel is entirely within the Coastal High Hazard Area (CHHA) and therefore, inconsistent with Monroe County comprehensive plan policy 101.14.1, which states, “Monroe County shall discourage developments proposed within the [CHHA].” The [Big Coppitt] parcel is very narrow and development of the area adjacent to the mine pools could have negative water quality impacts on the tidally influenced mining pool and is inconsistent with the Principles for Guiding Development in the Florida Keys. After consideration of the ORC report, Rockland submitted a text amendment application creating FLUE Policy 107.1.6 to restrict development on the Big Coppitt parcel to affordable housing. In addition, the sub-area policy requires noise attenuation of all habitable buildings in the 65-69 DNL to an indoor noise level reduction of at least 25 decibels (25dB). Similarly, the Policy requires noise attenuation of habitable buildings within the 70-74 DNL zone to achieve an indoor noise level reduction of at least 30dB. The amendment to the FLUM remained the same. The County adopted both the FLUM amendment, and the text amendment creating Policy 107.1.6, on February 16, 2016, and forwarded the Plan Amendment to DEO for review, pursuant to 163.3184(4)(e)2. On April 25, 2016, DEO issued a notice of intent to find the Plan Amendment “in compliance.” The instant Plan Amendment challenge followed. Petitioners’ Challenge Petitioners allege two bases on which the Plan Amendment should be found not “in compliance.” First, Petitioners allege the Plan Amendment is internally inconsistent with Plan Policies 108.2.5 and 101.14.1, in violation of section 163.3177(2), which states that “[c]oordination of the several elements of the [Plan] shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent.” Second, Petitioners allege the Plan Amendment is inconsistent with the Principles, in violation of section 163.3184(1)(b). That statute requires all plan amendments in the Keys Area of Critical State Concern (ACSC) be consistent with the applicable principles. Policy 108.2.5 Petitioners allege that Policy 108.2.5 applies to the Plan Amendment because the application was filed after Policy 108.2.5 took effect on July 25, 2012. If proven, Policy 108.2.5 would require the applicant to follow the procedure for approval of residential density in the noise zones, including submission of a supplemental noise study and a legislative finding as to whether the Plan Amendment is subject to the density and intensity restrictions in the MIAI. Rockland’s original application for the Plan Amendment was made on May 18, 2012, prior to the effective date of Policy 108.2.5. Petitioners argue that the revised application on April 1, 2014, should be considered a new application subject to Policy 108.2.5 because it was made two years after adoption of the Policy and contained significant substantive changes to the original application. In essence, Petitioners argue that the 2014 revised application (and subsequent changes thereto) constitute a new and different application than the May 2012 application. Petitioners introduced no evidence that any administrative provision of the Plan, or any other County ordinance or regulation, provides for expiration of an application for plan amendment after a specified time period. The April 2014 changes were filed with the County in strike-through/underline (legislative format) as “revisions to its FLUM amendment application.” The June 17, 2014, changes were likewise filed in legislative format as “additional revisions to its FLUM amendment application.” One of the main reasons for delay between the May 2012 application and the April 2014 revisions was County staff’s recommendation that the Rockland parcels be rezoned to the Commercial-2 (C-2) zoning category, a category which was being created and would be consistent with the Commercial FLUM category. Staff recommended the category because it would prohibit residential uses but allow Rockland to proceed with plans for commercial and retail development of the formerly industrial property. The C-2 zoning category was not finalized and adopted by the County until early 2014. The application, as revised in June 2014, was not reviewed again by the DRC, but was set for hearing by the Planning Commission on August 27, 2014, and considered by the County Commission on December 10, 2014, which approved the application for transmittal. Rockland was not required to pay a second application fee for the revised application in 2014; however, the County charged Rockland an additional fee to cover a second hearing before both the Planning Commission and the County Commission. The County’s director of planning and environmental resources, Mayte Santamaria, testified that it is not unusual for delays to occur between initial applications for, and final adoption of, plan amendments. Some applicants request an application be put on hold while they address issues with surrounding property owners. Other times, significant changes are made in the interim, especially in response to concerns raised by the state land planning agency, which take time to draft and refine. In neither case does the County consider the passage of time to require a new application. Likewise, the revisions do not require a new application, even revisions which remove property from, or add property to, a FLUM amendment application. Clearly, Petitioners believe it was unfair to allow the application, which was “on hold” for almost two years and revised in 2014 to exclude some of the original property, and include additional property adjacent to their subdivision, to proceed without applying newly-adopted plan policies. Despite their belief, Petitioners did not prove that the application, as revised in April and June 2014, was a new application subject to Policy 108.2.5. Policy 101.14.1 Next, Petitioners allege the Plan Amendment is internally inconsistent with Policy 101.14.1, which provides that the “County shall discourage developments within the Coastal High Hazard Area (CHHA).” The subject property is located entirely within the CHHA. In fact, Ms. Santamaria testified that “almost the entire Keys is in the [CHHA],” with exception of some areas just along U.S. Highway 1 in the Upper Keys. The Plan Amendment reduces total potential non- residential intensity on the subject property, while increasing potential residential density. The Plan Amendment also eliminates future transient (hotel and motel) density, as well as future dredging and other industrial uses. “Development” is defined broadly in section 380.04 as “the carrying out of any building activity or mining operation, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels.” § 380.04(1), Fla. Stat. The definition specifically includes “a change in the intensity of use of land, such as an increase in the number of dwelling units . . . on land or a material increase in the number of businesses, manufacturing establishments, offices, or dwelling units . . . on land.” § 380.04(2)(b), Fla. Stat. Notably, the definition also includes “mining or excavation on a parcel” and “deposit . . . of fill on a parcel of land.” § 380.04(2)(c) and (d), Fla. Stat. Two expert witnesses testified regarding whether the Plan Amendment violates the County’s policy to discourage development within the CHHA. In Ms. Santamaria’s opinion, the Plan Amendment, on balance, is consistent with the policy to discourage development because it prohibits residential development of the Rockland parcels, and prohibits all but affordable housing units on the Big Coppitt parcel. In addition, the amendment prohibits future uses which are within the statutory definition of “development,” such as industrial, marinas, market-rate housing, and residential subdivisions. Max Forgey, expert witness for Petitioners, opined that the increase in density from 91 to 213 units is “as far from discouraging as I could imagine.” Overall, the Plan Amendment reduces non-residential intensity while increasing residential density. Given the totality of the evidence, it is reasonable to find that the Plan Amendment complies with Policy 101.14.1 by discouraging many types of development allowed on the property under the existing FLUM designations. Principles for Guiding Development Petitioners’ final argument is that the Plan Amendment is inconsistent with the Principles in the Keys ACSC. The property subject to the Plan Amendment is located in the Keys ACSC, thus, subject to the Principles in section 380.0552(7), which reads as follows: (7) PRINCIPLES FOR GUIDING DEVELOPMENT.— State, regional, and local agencies and units of government in the Florida Keys Area shall coordinate their plans and conduct their programs and regulatory activities consistent with the principles for guiding development as specified in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, which is adopted and incorporated herein by reference. For the purposes of reviewing the consistency of the adopted plan, or any amendments to that plan, with the principles for guiding development, and any amendments to the principles, the principles shall be construed as a whole and specific provisions may not be construed or applied in isolation from the other provisions. However, the principles for guiding development are repealed 18 months from July 1, 1986. After repeal, any plan amendments must be consistent with the following principles: Strengthening local government capabilities for managing land use and development so that local government is able to achieve these objectives without continuing the area of critical state concern designation. Protecting shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. Protecting upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. Ensuring the maximum well-being of the Florida Keys and its citizens through sound economic development. Limiting the adverse impacts of development on the quality of water throughout the Florida Keys. Enhancing natural scenic resources, promoting the aesthetic benefits of the natural environment, and ensuring that development is compatible with the unique historic character of the Florida Keys. Protecting the historical heritage of the Florida Keys. Protecting the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection, treatment, and disposal facilities; Solid waste treatment, collection, and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. Protecting and improving water quality by providing for the construction, operation, maintenance, and replacement of stormwater management facilities; central sewage collection; treatment and disposal facilities; the installation and proper operation and maintenance of onsite sewage treatment and disposal systems; and other water quality and water supply projects, including direct and indirect potable reuse. Ensuring the improvement of nearshore water quality by requiring the construction and operation of wastewater management facilities that meet the requirements of ss. 381.0065(4)(l) and 403.086(10), as applicable, and by directing growth to areas served by central wastewater treatment facilities through permit allocation systems. Limiting the adverse impacts of public investments on the environmental resources of the Florida Keys. Making available adequate affordable housing for all sectors of the population of the Florida Keys. Providing adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a postdisaster reconstruction plan. Protecting the public health, safety, and welfare of the citizens of the Florida Keys and maintaining the Florida Keys as a unique Florida resource. (emphasis added). Petitioners’ challenge, as set forth in the Amended Petition, focuses on subsections (7)(a), (b), (e), and (h)4. Petitioners introduced no evidence to support a finding that the Plan Amendment is inconsistent with either subsection (7)(a), (b), or (e) regarding the local government’s capability to manage land use and development, protect shoreline and marine resources, and protect water quality, respectively. 1. section 380.0552(7)(h)4. Petitioners argue that the Plan Amendment will adversely impact the “value, efficiency, cost-effectiveness, and amortized life” of the Station, in violation of subsection (7)(h)4. A portion of the Rockland parcels lie within the 75-79 DNL zone, in which the Navy deems residential development incompatible and recommends that the local government prohibit it. The Plan Amendment changes the FLUM designation of the Rockland parcels from Industrial, which allows residential development at 47.3du/acre, to Commercial, which does not allow any residential development. Thus, the Plan Amendment prohibits future residential development in the 75-79 DNL zone as recommended by the Navy. A portion of the Rockland parcels and the southern end of the Big Coppitt parcel lie within the 70-74 DNL zone. The remainder of the Big Coppitt parcel lies within the 65-69 DNL zone. The Navy deems residential development in the 70-74 and 65-69 DNL zones as “generally incompatible,” but not prohibited. The AICUZ table strongly discourages residential use in the 70-74 DNL zone, and discourages residential use in the 65-69 DNL zone. With respect to the 65-69 and 70-74 DNL zones, the AICUZ contains the following recommendations: The absence of viable alternative development options should be determined and an evaluation should be conducted locally prior to local approvals indicating that a demonstrated community need would not be met if development were prohibited in these zones. * * * Where the community determines that these uses must be allowed, measures to achieve an outdoor to indoor [noise level ratio or] NLR of at least 25 decibels (dB) in DNL 65 to 69 and NLR of 30 dB in DNL 70 to 74 should be incorporated into building codes and be in individual approvals . . . . Normal permanent construction can be expected to provide a NLR of 20 dB, thus the reduction requirements are often stated as 5, 10, or 15 dB over standard construction . . . . The Plan Amendment, through the sub-area policy, prohibits residential dwellings on that portion of the Big Coppitt parcel within the 70-74 DNL zone. As such, the Plan Amendment prohibits residential use where the Navy strongly discourages said use. The majority of the Big Coppitt parcel lies within the 65-69 DNL zone. The Plan Amendment increases allowable residential density from 91 units to 213 units. Through the sub-area policy, the Plan Amendment requires sound attenuation of at least 25 dB for residences in the 65-69 DNL zone. Further, the Plan Amendment requires sound attenuation of at least 30 dB for any habitable buildings within the 70-74 DNL zone.10/ One purpose of recommending sound attenuation for dwelling units within noise zones of 65 DNL and higher, is to limit the number of community noise complaints to the Station. Community complaints regarding noise from Station exercises are directed to the Station’s Air Operations Department. The Station receives an average of 10 complaints per month, but that number fluctuates with the number of squadrons in town for training at the Station. Sometime in the past, the Station altered a training flight arrival pattern known as the Dolphin One Arrival. The arrival pattern is now called the King One, and it avoids directly flying over Stock Island. The evidence did not clearly establish whether the pattern was changed due to community noise complaints or due to the fact that Stock Island was in residential use. Captain McAlearney testified that because of the population on Stock Island, we set up a little to the south of what would be optimum for practicing, or most safe, frankly, for practicing a carrier landing or bringing a formation of airplanes into the field. On cross-examination, Captain McAlearney admitted that the change occurred well before his time as station commander and that he had no direct knowledge of the reason the change was made. Petitioners argue that the County must do more than just establish a community need in order to approve new housing in the 65-69 DNL zone consistent with the Navy recommendations. They argue that, pursuant to the AICUZ table, the County must establish that no viable alternative development options exist and that the demonstrated community need would not be met if development were prohibited in that zone. The County conceded that other parcels are available for construction of affordable housing within the Keys, however, there are very limited locations of Tier III,11/ scarified properties, outside of the 65-69 DNL zone in the Lower Keys with potential for affordable housing development. The parcels are scattered and none would support a large-scale affordable housing development such as is proposed pursuant to the Plan Amendment. While the County’s demonstrated need for affordable housing may be met, eventually, by incremental development of smaller scattered parcels and occupancy in renovated mobile home parks, the Plan Amendment addresses a significant amount of the affordable housing deficit in the immediate future. Based on the totality of the evidence, Petitioners did not demonstrate that the Plan Amendment is inconsistent with section 380.0552(7)(h)4. In reviewing and recommending adoption of the Plan Amendment, County staff carefully considered the recommendations of the Navy AICUZ table and revised the amendment to prohibit residential use in the 75-79 DNL zone, where the Navy deems those uses incompatible and recommends prohibition of said uses; and to prohibit residential use in the 70-74 DNL zone, where the Navy deems those uses generally incompatible and strongly discourages them. The Plan Amendment was crafted to limit residential use to those areas within the 65-69 DNL zone, where Navy discourages, but does not recommend prohibition of, residential uses. Further, County staff determined a local community need for affordable housing, determined that the need could not be addressed through viable alternatives, and required sound attenuation as recommended by the Navy. While the Navy introduced some evidence regarding potential impacts to the Station from increased residential density on Big Coppitt Key, the evidence was speculative. Captain McAlearney’s testimony did not establish that additional noise complaints (assuming the new development would generate new noise complaints) would negatively impact the “value, efficiency, cost-effectiveness, and amortized life” of the Station. 2. section 380.0552(7)(g) Although not included in their Amended Petition, Petitioners argued at hearing that the Plan Amendment was inconsistent with section 380.0552(7)(g), the Principle to “protect[] the historical heritage of the Florida Keys.” Petitioners’ expert based his opinion of inconsistency with this principle on the long-standing presence of the Station in the Keys and its important role in naval air training. No evidence was introduced to establish that the Station itself has a historic resource designation or contains any historic structures or archeological resources. The site is not designated as an historic resource by either the County or the State. Petitioners did not prove the Plan Amendment is inconsistent with this Principle. Other Principles A. section 380.0552(7)(l) Section 380.0552(7)(l) sets forth the Principle to “[make] available adequate affordable housing for all sectors of the population in the Florida Keys.” The Plan Amendment limits development of the Big Coppitt parcel to deed-restricted affordable housing and requires, at a minimum, a mix of at least 10 percent median- income category and at least 20 percent mix of very-low and low- income categories. The Plan Amendment would allow development of 213 of the 700 affordable housing units the County has to allocate through 2023. The Plan Amendment addresses affordable workforce housing needs in the County for income levels in both the service industry and the public sector. The Plan Amendment furthers section 380.0552(7)(l) by making available affordable housing for residents in a range of income levels from very low- and low-income to moderate-income. B. Remaining Principles The majority of the remaining Principles either do not apply to the Plan Amendment, or have only limited application. Very little evidence was introduced regarding these Principles. No evidence supports a finding that the Plan Amendment is inconsistent with the remaining Principles. The evidence did not establish that the Plan Amendment is inconsistent with the Principles as a whole.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Monroe County Comprehensive Plan Amendment adopted by Ordinances 003- 2016 and 004-2016 on February 10, 2016, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 9th day of August, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 9th day of August, 2016.
The Issue Whether the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department") should sustain Petitioner's challenge to the Department's decision to deem Petitioner's bid non-responsive and to award the contract advertised in ITB Number 11-95-001 to Intervenor, as the "lowest responsive bidder?"
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Invitation to Bid Through Invitation to Bid Number 11-95-001, entitled "Armed Security Guard Service, Food Stamp Offices," (hereinafter referred to as the "ITB"), the Department solicited the submission of bids from prospective providers interested in providing the Department with armed security guard services at the Department's Dade County (District 11) food stamp offices. The ITB was prepared by the Department's District 11 Purchasing Director, Selma Speakman. Speakman was also involved in the advertising and distribution of the ITB, which began on or about February 10, 1995. The ITB was a 12-page document. The first page of the ITB contained a "Bidder Acknowledgment" form to be completed by the bidder and signed by the bidder's authorized representative. The form advised prospective providers that bids would be opened at 1:00 p.m. on March 14, 1995, and that "bid tabulations with recommended awards" would be posted on or about March 21, 1995. General Conditions The remaining portion of the first page and the second page of the ITB set forth the "general conditions" that would govern all bids submitted in response to the ITB. General Condition 3 addressed the subject of "bid opening." It provided as follows: BID OPENING: Shall be public, on the date location and the time specified on the bid form. It is the bidder's responsibility to assure that his bid is delivered at the proper time and place of the bid opening. Bids which for any reason are not so delivered, will not be considered. Offers by telegram or telephone are not acceptable. A bid may not be altered after opening of bids. Note: Bid tabulations will be furnished upon written request with an enclosed, self addressed, stamped envelope and payment of a predetermined fee. Bid files may be examined during normal working hours by appointment. Bid tabulations will not be provided by telephone. General Condition 5 addressed the subject of "interpretations/disputes." It provided as follows: INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any person who is adversely affected by the agency's decision or intended decision concerning a procurement solicitation or contract award and who wants to protest shall file a protest in compliance with Rule 13A-1.006(3), Florida Administrative Code. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. General Condition 7 addressed the subject of "awards." It provided as follows: AWARDS: As the best interest of the State may require, the right is reserved to make award(s) by individual service, group of services, all or none, or a combination thereof; to reject any and all bids or waive any minor irregularity or technicality in bids received. Bidders are cautioned to make no assumptions unless their bid has been evaluated as being responsive. General Condition 10 addressed the subject of "legal requirements." It provided as follows: LEGAL REQUIREMENTS: Applicable provision of all Federal, State, county and local laws, and all ordinances, rules and regulations shall govern development, submittal and evaluation of all bids received in response hereto and shall govern any and all claims and disputes which may arise between person(s) submitting a bid response hereto and the State of Florida, by and through its officers, employees and authorized representatives, or other person, natural or otherwise; and lack of knowledge by any bidder shall not constitute a cognizable defense against the legal effect thereof. Purpose and Scope of Work On page three of the ITB, the purpose of the ITB and the "scope of work" to be performed pursuant to the advertised contract were described as follows: The purpose of this bid is to obtain competitive prices for a contract for armed security guard service for the State of Florida, Department of Health and Rehabilitative Services, District 11. Armed security guard service will be provided for various Food Stamp Offices located in Dade County, according to the attached Bid Data Sheet. The effective date for this bid is July 1, 1995 through June 30, 1996. SCOPE OF WORK: The contractor will provide armed, uniformed security guards as per schedule on Bid Data Sheet. The number of guards, locations and times required may vary from time to time and the contractor must be flexible. Should a situation arise which requires an increase or decrease in the number of guards needed, not to exceed ten guards, the contractor shall have a reasonable time to adjust said number of guards provided. Additional coverage required will be furnished at the bid rate, not overtime rates. Bid Data Sheet The aforementioned "Bid Data Sheet" was found on page 11 of the ITB. It identified 16 locations where armed security guard services would have to be provided under the contract awarded pursuant to the ITB. It further indicated that a total of 22 security guards (working a total of 58,280 hours per year) would be needed to provide such services. Specifications "Specifications" were set forth on pages three through seven of the ITB. Specification I described the "minimum requirements for security personnel," including the requirement that a guard "wear[] the uniform of the company." Specification II listed the following as "guard duties:" Maintain crowd control. Organize and supervise lines. Control disruptive individuals. Prevent unauthorized individuals from entering restricted areas. Keep issuance area under constant surveillance while food stamps are issued. Contact the police department if he/she is no longer in control of a situation or in the event of a robbery. Ensure that individuals present a food stamp identification card prior to being admitted to cashier area. Directs traffic as necessary; vehicles as well as pedestrians. Specification III described "guard qualifications," including the requirement that a guard "have at least three to five (3-5) years experience as an Armed Security Officer." Specifications IV and V addressed "minimum training requirements" and "background requirements," respectively. The final specification dealt with "communications" and provided as follows: Hand-held Radios: Two-way hand-held radios, with Emergency Protection button, licensed for use by the Federal Communications Commission, are to be provided by the Contractor to all on-duty contract security officers. Contractor Central Dispatch: The Contractor will provide a centralized dispatching service through use of a stationary base station manned by experienced personnel. Contractor's personnel must be available at the Central Dispatch Station, and have the ability and authority to take immediate action, as required. System Quality: Radio communications among system users is expected to be strong and clear at all times ("five by five"), both transmitting and receiving. The Contractor shall be totally responsible for providing and maintaining required system quality. Special Conditions Pages seven though ten of the ITB contained 15 "special conditions." Special Condition I addressed the subject of "contractor's insurance." It provided, in part, as follows: The contractor shall secure and maintain, at his sole expense and for the duration of the contract term, the following insurance coverage written on companies and on policy forms acceptable to the department. Worker's Compensation . . . . Comprehensive general liability insurance covering all operations and services under the contract . . . . Comprehensive automobile liability insurance, including ow[n]ed, non-ow[n]ed and hired vehicle coverage of not less than $100,000 combined single limit issued on a per occurrence basis, if operations and service under the contract involve the use or operation of automotive vehicles on the department's premises. No insurance will be acceptable unless written by a company licensed by the State of Florida Insurance Department to do business in Florida where the work is to be performed at the time the policy is issued. Special Condition II addressed the subject of "licenses." It provided as follows: All contractors, including prime, general and subcontractors, where applicable, must have all licenses and/or permits in accordance with city and county ordinances, rules and regulations and all licenses . . . must be obtained at the contractor's expense. Special Condition III addressed the subject of "federal and state laws and regulations." It provided as follows: To comply with Title VI and VII, Civil Rights Act of 1964, respective federal regulations and Executive Order 11246 as amended. To comply with all the provisions of Section 504 of the Rehabilitation Act of 1973, Non- Discrimination as to Handicapped Individuals. It is expressly understood that upon receipt of substantial evidence of any such discrimination, the department shall have the right to terminate the contract for breach. Special Condition IV addressed the subject of contract renewal. It provided as follows: Option to Renew This contract shall end on June 30, 1996 with a two (2) year Option to Renew. Renewal to be based on mutual consent of both parties. Renewal must be exercised within sixty (60) days and not later than thirty (30) days prior to termination of contract. Renewal of this contract will be based upon satisfactory performance evaluations by the department. Subject to the availability of funds, the maximum percentage increase that may be paid is based on the current award amount plus 3 percent for first renewal and 3 percent for second renewal. Special Condition V provided that "[a]ny person submitting a bid in response to this invitation must execute the enclosed form PUR. 7068, SWORN STATEMENT UNDER SECTION 287.133(a), FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES, including proper check(s), in the space(s) provided, and enclose it with the bid." Special Condition VI addressed the subject of "protest." It provided as follows: Any actual or prospective bidder who desires to file a formal protest of this ITB, as outlined in Item 5 of the General Conditions sections on the PUR 7031 form, must accompany that protest with a bond payable to the department in the amount of $5,000 or 1 percent of the department's estimate of the total volume of the proposed contract, whichever is less. A bidder may submit, in lieu of a bond, a cashier's check or money order in the amount of the bond. Special Condition VII provided that the "[b]id will be awarded to the lowest responsive bidder." Special Condition VIII provided that "[p]ayment shall be made in accordance with Section 215.422, F.S., which states the contractor's rights and the state agency's responsibilities concerning interest penalties and time limits for payment of invoices." Special Condition IX provided that "[t]he State of Florida encourages minority business enterprise participation in any bid solicitation." Special Condition X addressed the subject of contract termination and described three ways ("termination at will," "termination because of lack of funds," and "termination of breach") in which the contract to be awarded pursuant to the ITB could be terminated. Special Condition XI provided that "[t]he contractor shall secure and maintain a Blanket Fidelity Bond on all of the company's employees providing services under the provisions of this contract in an amount not to exceed an aggregate policy limit of $10,000.00 per occurrence." Special Condition XII was entitled, "References." It provided as follows: The ability of bidders to meet the requirements of this bid is of prime concern to the department. In this regard, it is required that each bidder furnish the department with justification supportive of his ability to meet this obligation. This information should briefly identify the company's personnel and equipment resources and include a minimum or three (3) representative customers as references. This documentation must accompany bid, along with financial reports and management experience. Special Condition XIII provided that "[t]here will be a wage determination of $9.50 per hour." Special Condition XIV addressed the subject of "invoices and payment." It provided as follows: The contractor will submit invoices on a monthly basis following delivery of services. Invoice(s) should be based on the quoted price per hour and reflect the address for which services were performed, month for which payment of services rendered is requested and Contract Number. Backup time sheets, approved by the Department, will be required. Special Condition XV provided that "[t]he Contractor shall provide documented evidence that they are capable of providing a contingency force of similarly qualified personnel equal to one-third of the force needed in case of emergency situations that would affect the health and welfare of clients and the daily operations of HRS offices." Bid and Signature Sheet The twelfth and final page of the ITB consisted of a "Bid and Signature Sheet" to be completed by the bidder and signed by the bidder's authorized representative. On the sheet, the bidder had to indicate, among other things, its "[p]rice per [g]uard per [h]our." Petitioner's and Intervenor's Bid Submissions Petitioner and Intervenor were among those prospective providers that timely submitted bids in response to the ITB. Both Petitioner and Intervenor included in their bid submissions completed and signed "Bidder Acknowledgment" forms, PUR 7068 forms and "Bid and Signature Sheets." Petitioner's "Bidder Acknowledgment" form, PUR 7068 form and "Bid and Signature Sheet" were all signed by Petitioner's President, Dele Oladunni. Oladunni has been licensed as a security guard for approximately the past five years. He manages all of Petitioner's projects with the help of an assistant. 4/ At the time of the submission of Petitioner's bid, Oladunni's assistant, like Oladunni, had approximately five years experience in the armed security business. On its "Bid and Signature Sheet," Petitioner indicated that its "[p]rice per [g]uard per [h]our" was $12.11. On its "Bid and Signature Sheet," Intervenor indicated that its "[p]rice per [g]uard per [h]our" was $12.23. Other Materials Submitted by Petitioner Petitioner's bid submission also included the following documentation: a list of customer references; a document entitled, "Delad Security Inc. Income Statement and Retained Earnings November 30th 1993;" certificates of insurance; a copy of its security agency license issued by the Department of State, Division of Licensing, on December 19, 1994; 5/ and a "Business Management/Technical Plan," which, including attachments, consisted of approximately 50 pages. Petitioner provided 14 customer references on the list it submitted to the Department. Among these customer references was the Federal Aviation Administration, to whom, according to the representation made on the list, Petitioner had "provide[d] armed security service." 6/ Another customer reference listed by Petitioner was the Department itself. (At the time of the submission of its bid, Petitioner was providing the Department, at its CYF North Service Center in Miami, with armed security guard services pursuant to a contract into which it had entered with the Department. Speakman had received no complaints concerning Petitioner's performance of its obligations under this contract.) In Section 1.1 of the "Business Management/Technical Plan" (hereinafter referred to as the "Plan") that Petitioner submitted to the Department as part of its bid, Petitioner stated the following: BUSINESS MANAGEMENT APPROACH Delad Security, Inc., a minority owned African American Business, proposes to provide security support services to the Department of Health and Rehabilitative Services as required by adopting and implementing the professional business philosophy established in our current relationship for the provision of services: 7/ Task Analysis Planning Implementation Reporting Quality Control Delad Security, Inc., has the resources, the flexibility and the experience to fulfill the security needs of the Department of Health and Rehabilitative Services[. T]his includes personnel management involvement, outstanding supervision, a well trained, qualified security force which places emphasis on both the public relations and security aspects of its functions. 8/ Petitioner asserted in Section 1.1.1 of the Plan that "Delad Security, Inc., has enjoyed an excellent business reputation" and that it "conduct[s] business in accordance with all local laws and regulations." Section 1.1.2 of the Plan advised that "Delad Security, Inc.['s], proven management concept is to permit the local site management teams, particularly the project Manager/Client Service Supervisor (CSS) and their support staff, to exercise full administrative and technical control of the project." In Section 1.1.3 of the Plan, Petitioner represented that, if awarded the contract pursuant to the ITB, such a management team, comprised of a Client Service Supervisor, with a "[m]inimum of three (3) year's previous experience in the management and operation of security or police services," and a Local Site Supervisor, with a "[m]inimum of one year of experience in the management and operation of security or police services," would be assigned to assist in the management of the project. Petitioner claimed in Section 1.2 of the Plan that, "[i]n accordance with Delad Security['s] long standing experience and management policies," it would "provide the full necessary Corporate assistance and support to ensure the success of the project," including (as enumerated in Section 1.2.2 of the Plan): "[p]rocurement and provisioning of equipment, materials and supplies;" "[g]uidance and instructions in management of security personnel matters based on our proven experience in such projects;" and "[a]vailability of backup emergency management, security cleared, personnel." In Section 1.3.3.2 of the Plan, Petitioner stated, among other things, the following: If awarded the contract, the Delad District office will have immediately available all the uniforms and accessories require[d]. Procurement of uniforms will be handled both locally and at the Corporate level. Issuance of uniforms will be coordinated with the local District Project Team. Each employee issued uniforms would have to sign the Uniforms and Accessories Record. All guards will be issued the uniform items as required by the HRS. Petitioner made the following representations regarding "personnel administration" in Section 1.4 of the Plan: Delad Security, Inc. recognizes that a high percentage of this contract's cost is related to direct labor or personnel. The efficient administration and management of personnel, therefore, depends on reliable information and controls. Delad will administer this contract based on a personnel administration program that takes into account a full understanding of the local labor laws and the policies to recruit and retain a highly qualified professional guard force. Our experience over the past years as a contractor to Federal, State and Municipal entities, has enabled Delad to be fully prepared to meet all challenges in this area. In Section 1.4.1 of the Plan, Petitioner indicated that one of its "personnel administration objectives" would be to "[r]ecruit and maintain an abundance of qualified and experienced personnel to support the operational security requirements of the HRS." To this end, according to Section 1.4.4 of the Plan, "[a]ll employees assigned to work under this contract shall receive competitive wages, so as to attract qualified personnel interested in long term job security." Petitioner stated the following regarding "incumbent personnel" in Section 1.4.9 of the Plan: If awarded the contract, Delad will accept incumbent personnel who meet our stringent screening standards. In order to qualify for employment, the incumbent personnel must meet the employment standards and receive favorable recommendations from HRS contract personnel. Section 1.4.10 of the Plan detailed Petitioner's personnel recruitment process, including its policy that personnel hired to perform contract work "meet all requirements of the Scope of Service section of the BID." In Section 1.4.11 of the Plan, Petitioner stated the following: The officers selected for this project will be highly trained and experienced. Delad will augment their ability with refresher, site specific and sustainment training." Petitioner asserted the following in Section 1.5.2 of the Plan: At the Corporate level, Mr. Dele Oladunni has been assigned as the Quality Control Coordinator for previous joint projects. Mr. Oladunni has the requisite knowledge and experience to ensure compliance with all requirements of the BID. In Section 1.6 of the Plan, Petitioner made the following assertion: Delad Security, Inc. ha[s] the experience in effecting large scale transition operations of this nature. Our proposed transition and implementation plan is included. Petitioner's proposed transition and implementation plan (which, as Petitioner represented in Section 1.8 of its "Business Management/Technical Plan," was a part of its bid submission) consisted of a series of 11 "tasks." Task 4 of these 11 "tasks" involved "labor pool analysis" and was described as follows in the proposed transition and implementation plan: Delad Personnel units will immediately begin reviewing our backlog of current applicants and make an initial determination of the number of available and suitable candidates for assignment to the Department of Health and Rehabilitative Services. Since a larger pool of licensed officers is required, Delad will begin the recruiting and training process. We have identified candidates for key positions and they will be available for personal interviews by the HRS Security Coordinator prior to final selection. Task 5 involved "personnel selection and screening of current security staff" and was described as follows in the proposed transition and implementation plan: Delad recognize[s] the possibility that some of the current security officers may meet the upgraded personnel requirements and HRS general criteria for hire. Due to their familiarity with security work, these officers could be valuable employees for assignment at the Depart- ment of Health and Rehabilitative Services Sites or elsewhere with Delad. The personnel units will undertake the screening and interviewing of these officers. If they meet HRS standards, they will be given priority consideration for employment. Task 6 involved "screening of new personnel" and was described as follows in the proposed transition and implementation plan: As soon as current applicants have been con- tacted and we begin to receive response[s] to recr[u]itment efforts, the screening process will begin in earnest. All applicants, whether current Security Officers at the Department of Health and Rehabilitative Services or new applicants, will be subject to the Delad screening and recruitment procedures. To assure a smooth selection process, Delad proposes to conduct interviews and local reference checks focusing on human relations skills to achieve a preliminary qualification status. If acceptable, the selectee would th[e]n undergo the required background investigation and standard interview process. Task 7 involved "on-site training of all personnel" and was described as follows in the proposed transition and implementation plan: After the screening process and after all personnel selected for the Department of Health and Rehabilitative Services Security Force complete the required training and orientation, site training will begin at HRS sites. The on-site training covers all the topics in the specifications as well as those identified during the transition period as necessary for the effective functioning of officers assigned to the HRS sites. The training is scheduled to augment and not interfere with the present day-to-day operations. The training is scheduled on a per shift basis and allows for the initial cross training process to begin. Upon completion of the on-site training all security officers will be issued certificates. Task 8 involved "logistical activity" and was described as follows in the proposed transition and implementation plan: Delad is fully aware of any equipment and material requirement specified and inherent in the contract. The coordination of the logistics is the responsi- bility of the Client Service Supervisor under the overall direction of the Project Coordinator. The proposed schedule is as follows: Equipment, radios, weapons, armed security officers uniform accessories will be ordered upon award of the contract. Uniforms fitted for all personnel within the first two weeks. Uniforms at District Office and issued- third week. Each logistical requirement will be addressed in advance by the appropriate Transition Team member to minimize duplication of efforts and unnecessary costs. Task 9 involved "operational dynamics during changeover" and was described as follows in the proposed transition and implementation plan: We believe that a smooth transfer of responsi- bilities can be effected at the termination of the existing proprietary force through the full involvement of the transition Team. Additional and retained personnel will be issued their uniforms and any equipment required prior to Transition week. Project supervisory personnel will be made available during the pre-transition period to assure a smooth transition. This consistency of supervision will continue throughout the contract period assuring all security officers are cognizant and knowledgeable of their duties and responsibilities. Task 10 involved "transfer of responsibility and liability" and was described as follows in the proposed transition and implementation plan: Additional and sufficient manpower from Delad Security will be on-site at the facility to supervise and assist the critical transfer of services. These additional transition personnel will be fully knowledgeable of the sensitivity of their positions and objective- a smooth transfer of security operations. In the section of Petitioner's "Business Management/Technical Plan" dealing with "corporate management involvement/support," Petitioner stated the following: Delad has earned and achieved a reputation of professionalism and excellenc[e] in the performance of its projects. A major contributor to such a reputation is the high level of personal interest, support and commitment that Delad top Corporate Management afford to its field operations - - particularly the protective support services for facilities of critical importance to the State of Florida and its economy. Delad Security Inc.['s] Corporate Management is bound by this same commitment and certifies that it will devote whatever resources are needed to make this Project a total success. Petitioner asserted in Section 1.8 of the Plan that it "takes no exceptions to, nor intends to deviate from, the Scope of Service requirements in the solicitation." In an attachment to the Plan, Petitioner made the following additional statements relating to its experience in the "security management field:" Delad Security Inc. pride[s itself] on being [a] leader[] within the security management field regarding proactive planning and prepar- ation for un-announced contingencies. It is only through such enlightened management and supervision that problem areas can be identified in sufficient time to insure prevention of unsatisfactory performance. Delad Security has advanced several uniquely designed programs focused upon identifying potential liabilities before they become major shortcomings and generating a specific response to bring about early resolution. . . . Delad Security Inc. [h]as implemented a company- wide program of soliciting from our clients a quarterly evaluation of the quality of services received. The Business Unit sends the question- naires/evaluation to the client and data generated from these questionnaires helps to insure that high standards of service delivery are sustained. Through the Plan and its attachments, as well as the list of references Petitioner submitted as part of its bid, Petitioner provided the Department (albeit in a manner that could have been more clear and concise and less general) with information concerning the personnel and equipment resources, as well as the management experience, that Petitioner would have available to draw upon to meet the requirements of the contract advertised in the ITB. Other Materials Submitted by Intervenor Intervenor included in its bid submission, in addition to the completed and signed "Bidder Acknowledgment" form, PUR 7068 form and "Bid and Signature Sheet," the following documentation: a list containing five customer references; a list of "equipment references;" a statement of assets and liabilities, as of September 30, 1994, of Florida National Industries (which Intervenor identified in its bid submission as Intervenor's "parent company") and of Florida National Industries' subsidiaries; the "declarations" of an "executive protection policy" issued Intervenor by the Federal Insurance Company; 9/ short, written statements containing biographical information about Intervenor's President, Ted Kretzschmar, its Vice President of Operations, William Murphy, and its Secretary and Personnel Manager, Lianne Kretzschmar; and a one-page written statement (on Intervenor's letterhead), which read as follows: With regards to Section XI of the Invitation to Bid entitled "FIDELITY BOND," 50 State provides the attached copy of our current Fidelity Bond; With regards to Section XII of the Invitation to Bid entitled "REFERENCES," 50 State Security Service, Inc. submits the following supportive justification for those items: PERSONNEL 50 State Security currently employes approximately 350 Security Officers and is one of the largest security providers in South Florida. Of these 350 officers, over 150 are licensed as armed security officers by the State of Florida with a "G" license. 10/ EQUIPMENT 50 State Security has a twenty-four hour per day, seven days per week dispatching station at our North Miami headquarters. This Central Control station is manned by fully trained personnel at all times. 50 State currently operates with over 100 handheld and 15 mobile radios under a UHF voting system that allows radio coverage through- out Dade County. CUSTOMER REFERENCES See attached list of Contract Experience. FINANCIAL REPORTS See attached Statement for Florida National Industries (parent company). MANAGEMENT EXPERIENCE See attached biographies for Ted Kretzschmar, William Murphy, and Lianne Kretzschmar. With regards to Section XV of the invitation to Bid entitled "CONTINGENCY," 50 State Security Service, Inc. submits the following: 50 State is readily able to supply qualified officers in amounts far in excess of the contract requirements to cover any contingency. HRS Manual No. 75-2 The Department has a manual, HRS Manual No. 75-2, that "establishes policy and furnishes the procedures to ensure that the department, through its contracting process, protects the funds it disburses, derives the maximum return of services from those funds and is in compliance with applicable state and federal law, rules, and regulations governing contracts for services," such as the one advertised in the ITB. Section 5-12 of the manual provides that the following procedures must be followed in the "evaluation of responses" to invitations to bid and requests for proposals: A selection team of at least three employees who have experience and knowledge in the program areas and service requirements for which contractual services are sought, will be appointed by the appropriate authority to aid in the selection of providers for contracts exceeding the threshold amount for Category Four. 11/ It is recommended that a selection team of at least three employees be used for all contracts, regardless of dollar amount. It is required that each prospective member of the selection team complete the Conflict of Interest Questionnaire (Appendix J) to ensure that no team member has any conflict of interest which would interfere in selection of a provider. If a proposed team member answers "yes" to any question, his/her participation on the selection team must be reviewed by the contract manager in conjunction with legal counsel. If the selection team is organized to assist in the development of the RFP/ITB and its evaluation criteria, the Conflict of Interest Questionnaire must be completed prior to such involvement. Each member must approach the development of evaluation criteria in a manner which promotes fair and open competition. The selection team must evaluate ITB bids based on the lowest price and must evaluate RFP proposals using the weighted evaluation sheet contained in the published RFP. The selection team, upon completion of their review, may be required to submit their recommendation (a ranked list of the top three or five bidders) to the contract signer for review. The contract signer will then decide which person or firm is to be awarded the contract based upon the recommendation made by the selection team and taking into consi- deration which bidder's offer is most advantageous to the state. If the highest ranked bidder, as reported by the selection team, is not selected, the reason for the selection of another bidder must be set forth in writing and included in the contract manager's bid file. Section 5-15 of the manual provides that, "[i]n the case of an ITB, the contract shall be awarded to the responsive and responsible bidder with the lowest price." The Initial Evaluation of Petitioner's, Intervenor's and the Other Bids The bids that the Department received in response to the ITB were reviewed and evaluated by a two-member evaluation team. The members of the team were Speakman and another Department employee, Jorge Gonzalez. Speakman and Gonzalez reasonably determined that both Petitioner's and Intervenor's bid submissions were responsive to the ITB, including the provisions of Special Condition XII which required each bidder to "furnish the department with justification supportive of [its] ability to meet th[e contractual] obligation[s]" prescribed in the ITB by "briefly identify[ing] the company's personnel and equipment resources" and providing information concerning its "management experience." Speakman, however, was concerned that Petitioner's bid price was so low that Petitioner would not be able to make a profit and that therefore any arrangement with Petitioner would "not . . . work out." She telephoned Oladunni to express her concerns and to ask him if Petitioner intended to "stand by" its bid price. In response to Speakman's telephone call, Oladunni, on April 24, 1995, sent Speakman (by facsimile transmission) the following letter: Thank you for the opportunity to present our cost breakdown for the HRS Security Service to Food Stamp Offices. The Breakdown is as follows: Contract HRS: 58,280 LABOR HOURLY COST Security Officers wage: $ 9.50 Payroll Tax and Insurance P.T.I. (.151 percent) 1.43 Direct Labor: 10.93 10.93/HRS EQUIPMENT Radios: 22 at 400= $8,800.00 Tax at 6 1/2 percent= 572.00 TOTAL $9,372.00 3 years depreciation 3,124.00 yearly which equates to .06/hour Weapons: 30 @ 2400= $7,200.00 tax @ 6 1/2 percent= 468.00 TOTAL $7,668.00 5 years depreciation 1,533.60 yearly which equates to .03/hour Uniforms and Accessories: 30 people @ 250= $7500.00 tax 6 1/2= 487.50 TOTAL $7,987.50 uniform per hrs .14 BENEFIT: .19 CURRENT OFFICE OVERHEAD .50 PROFIT at 2 percent .26 TOTAL BILL RATES: 12.11 Speakman and Gonzalez determined that Petitioner was the "lowest responsive bidder," within the meaning of Special Condition VII of the ITB," and that Petitioner therefore should be awarded the contract pursuant to the ITB. Thereafter, the Department gave notice of its decision to award the contract to Petitioner. Intervenor's Protest After learning of the Department's decision, Intervenor (by letter dated May 1, 1995, from its counsel, Joseph Frechette, Jr.) advised Speakman that it was protesting the Department's determination to award the contract to Petitioner. On May 10, 1995, Intervenor filed a formal protest (in the form of a letter dated May 9, 1995, from Frechette). The letter read as follows: By and through [its] undersigned attorney, 50 State Security Service, Inc., (hereinafter "50 State"), files this formal protest of the awarding of ITB Number 11-95-001 to Delad Security, Inc. (hereinafter "Delad Security"). 50 State Security is located [at] 820 N.E. 126th Street, North Miami FL 33161. 50 State Security was entitled to the award of the aforementioned contract. 50 States' interest will be severely affected by a loss of revenue and exposure if the award of this contract to Delad Security is not overturned as required by law. 50 State was notified on April 27, 1995, by telephone, that Delad Security was awarded the aforementioned contract. On May 1, 1995, 50 State filed their written notice of protest, and files this formal protest in accordance with Florida Statute 120.53. Florida Statute 287.032 and 287.001 both indicate the legislature's intent on public procurement and the purpose of the Division of Purchasing. Both of these Statutes discuss the requirement that there be "uniform contractual service procurement policies, rules and procedures." The legislature set up these bid guidelines precisely and purposely. The failure of Delad to follow these guidelines established by the State was in violation of Florida Statutes, and thus their bid must be declared nonresponsive. Special Condition Section XII of the bid specifications, entitled references, specifically discusses the fact that "the ability of bidders to meet the requirements of this bid is of prime concern to the department." This section also "required that each bidder furnish the department with justification supportive of his ability to meet this obligation." Delad Security was in breach of Section XII. First, [it] failed to "identify the company's personnel and equipment resources." Second Delad failed to furnish management experience documentation as required by this section of the Invitation to Bid. Delad did not fulfill this section requirement; and the general conditions (Section 10) of the bid requirements dictate [it] should not be awarded this contract. Florida Statute 287.012 specifically addresses Delad's failure to meet statutory requirements. Section 17 of the Statute states that the respon- sive bid must conform "in all material respects to the invitation to bid or request for proposals." Section 18 of the Statute states that "Responsive bidder or responsive offeror means a person who has submitted a bid or proposal which conforms in all material respects to the invitation to bid or request for proposals." Delad has not met these requirements. They failed to provide the documentation and information on both manage- ment experience and personnel and equipment resources requirements of section XII of the bid. [Its] failure to provide this information violates the aforementioned Statute by not conforming to the bid specifications. There is no dispute of material fact other than 50 States' position that, as a result of Delad's failure to fulfill all of the bid requirements, Delad should not have been awarded the above listed contract. Delad Security failed to fulfill the requirements set forth under Special Conditions Section XII of the Invitation to Bid. Delad Security did not submit documentation of [its] company's management experience. They also failed to identify the company's personnel and equipment resources. The Florida Legislature placed specific requirements on the bid process. Delad Security's failure to fulfill these requirements is in violation of the Florida Statutes, therefore Delad should not have been awarded this contract. Delad did not conform with the General and Specific Conditions of the Invitation to Bid. This protest has demonstrated that Delad violated Florida Statutes 287.012, 287.032 and 287.001. 50 State therefore demands that the Delad Security bid be deemed nonresponsive, and requests that the lowest responsive bidder, 50 State Security, be awarded ITB 11-95-001. Intervenor's formal protest was referred to the Department's District 11 Deputy District Administrator, Lloyd Henry Hill. Along with Intervenor's formal protest, Hill was furnished copies of the ITB and Petitioner's and Intervenor's bid submissions. Hill did not fill out a Conflict of Interest Questionnaire (Appendix J to HRS Manual No. 75-2). If he had, however, it would not have reflected that he had any conflict of interest that might have interfered with his fairly and impartially resolving Intervenor's formal protest. After reviewing the materials with which he had been furnished, 12/ Hill determined that Intervenor's bid submission was responsive to the ITB, but that Petitioner's bid submission was clearly non-responsive because, in his opinion, it did not identify Petitioner's existing personnel and equipment resources, nor did it describe Petitioner's management experience, 13/ as required by Special Condition XII of the ITB (as interpreted by Hill 14/ ). Therefore, in Hill's opinion, as between Petitioner and Intervenor, Intervenor was the lowest responsive bidder. Accordingly, on June 13, 1995, Hill sent the following letter to Oladunni: This is to notify you that after further review of your company's bid for the referenced contract, the Department of Health and Rehabilitative Services has determined your bid to be non-responsive. HRS will award the bid to 50 State Security, the lowest responsive bidder. Failure to file a protest within the time prescribed in section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Fla. Stat. Any person who is affected adversely by this decision or intended decision and chooses to protest the decision shall file a notice of protest in writing with the Director of Purchasing within 72 hours after the posting of the bid tabulation or within 72 hours after receipt of the notice of the agency decision or intended decision, and shall fil[e] a formal written protest within ten days after the date of the filing of the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under Chapter 120, Fla. Stat. The formal written protest shall state with particularity the facts and law upon which the protest is based. Thank you for your interest. In resolving Intervenor's formal protest in Intervenor's favor, Hill acted without the Petitioner's input or agreement and without there having been a Section 120.57(1) or (2) proceeding conducted on the matter. After receiving Hill's June 13, 1995, letter, Petitioner filed the protest that is the subject of the instant Section 120.57 proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order sustaining Petitioner's protest of the decision to award the contract advertised in ITB Number 11-95-001 to Intervenor. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of March, 1996. STUART M. LERNER, 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, 1996.
The Issue Whether Respondent Department of Transportation’s intended decision to conduct negotiations with Xerox State and Local Solutions, Inc., under ITN-DOT-13/14-8001-SM is contrary to the Department’s governing statutes, rules, or policies or to the solicitation specifications.
Findings Of Fact The ITN The Department is an agency of the State of Florida charged with planning, acquiring, leasing, constructing, maintaining, and operating toll facilities and cooperating with and assisting local governments in the development of a statewide transportation system. § 334.044(16)-(22), Fla. Stat. (2013).1/ The Department is authorized to enter contracts and agreements to help fulfill these duties. See §§ 20.23(6) and 334.044(7), Fla. Stat. FTE is a legislatively created arm of the Department and is authorized to plan, develop, own, purchase, lease, or otherwise acquire, demolish, construct, improve, relocate, equip, repair, maintain, operate, and manage the Florida Turnpike System. § 338.2216(1)(b), Fla. Stat. FTE is also authorized to cooperate, coordinate, partner, and contract with other entities, public and private, to accomplish these purposes. Id. The Department has the express power to employ the procurement methods available to the Department of Management Services under chapter 287, Florida Statutes.2/ § 338.2216(2), Fla. Stat.; see also Barton Protective Servs., LLC v. Dep’t of Transp., Case No. 06-1541BID (Fla. DOAH July 20, 2006; Fla. DOT Aug. 21, 2006). OOCEA (now known as the Central Florida Expressway Authority), MDX, and THEA are legislatively created or authorized agencies of the State with the power to fix, alter, charge, establish, and collect tolls, rates, fees, rentals, and other charges for the services and facilities system. §§ 348.0003(1)- .0004(2)(e), Fla. Stat. Each of these authorities has the power to enter contracts and to execute all instruments necessary or convenient for the carrying on of its business; to enter contracts, leases, or other transactions with any state agency or any other public body of the State; and to do all acts and things necessary or convenient for the conduct of its business and the general welfare of the authority in order to carry out the powers granted to it by law. § 348.0004(2)(g), (h), (k), Fla. Stat. On November 1, 2013, the Department advertised the ITN, soliciting proposals from vendors interested in participating in competitive negotiations for the award of a contract to provide a CCSS and associated operations and maintenance. The ITN was issued pursuant to section 287.057, Florida Statutes. The purpose of the ITN is to replace the existing customer service center systems of FTE, OOCEA, THEA, and MDX with a CCSS that can be expanded over time to include other tolling and transit agencies in the State of Florida. The CCSS is expected to process nearly all electronic toll transactions in Florida. The successful vendor will enter a contract directly with the Department. The Department will then enter agreements with the other authorities to address coordinated and joint use of the system. Generally, the ITN sets forth a selection process consisting of two parts. Part one involves: (a) the pre- qualification, or shortlisting, of vendors in order to determine a vendor’s eligibility to submit proposals; and (b) the proposal submission, evaluation, and ranking. Part two is the negotiation phase. The instant proceeding relates only to part one. Part two -- negotiations -- has yet to occur. The TRT and Selection Committee – The Evaluators Cubic alleges that “not all of the members of either [the Technical Review or Selection Committee] teams had the requisite experience or knowledge required by section 287.057(16)(a)1., Florida Statutes.” Accenture alleges that “the Selection Committee did not collectively have expertise in all of the subject areas covered by th[e] ITN.” Section 287.057(16)(a) provides in part that the agency head shall appoint “[a]t least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought.”3/ In accordance with the requirements of section 287.057(16)(a), the ITN established a Technical Review Team (TRT) that would be “composed of at least one representative from each Agency and may include consultant (private sector) staff.” The ITN also provided for a Selection Committee that would be “composed of executive management at the Agencies.” Each agency executive director appointed two individuals from their agency to the TRT. Each agency director was familiar with the background and qualifications of their appointees, who had experience in various aspects of tolling operations including tolling, software, finance, and procurement. The following individuals were appointed to serve on the TRT. Bren Dietrich, a budget and financial planner for FTE, has an accounting degree and has worked at FTE for 12 years in budget and financial planning. Mr. Dietrich has been a technical committee member for seven or eight procurements. Mohamed Hassan, a senior operations manager for FTE, has been in information technology for nearly 40 years and with FTE for 22 years handling all aspects of software development and maintenance for the state’s largest tolling authority. Mr. Hassan’s expertise is in software development and maintenance. Mr. Hassan oversees staff that is responsible for maintaining the database application systems, hardware, communications coming in and going out of the customer service center, and any development projects such as transaction processing or account management system upgrades. Steve Andriuk is a deputy executive director for MDX and oversees all tolling operations within MDX’s jurisdiction. Mr. Andriuk’s tolling background goes beyond his tenure at MDX, as he previously was an executive director at Chesapeake Bay Bridge Authority. Jason Greene, MDX’s comptroller of financial controls and budget manager, has a background in finance and accounting and in project management. Mr. Greene has been with MDX for 11 years. Lisa Lumbard, who has been with OOCEA for 16 years, is the interim chief financial officer and previously was the manager of accounting and finance. Ms. Lumbard runs OOCEA’s finance and accounting office and has both procurement experience and substantial experience in the financial aspects of back- office tolling. David Wynne is the director of toll operations of OOCEA and is responsible for the overall collection of all tolls and for the violation enforcement process. Mr. Wynne has held some iteration of this position for approximately 11 years and worked for OOCEA for 16. He also has both procurement and substantial tolling experience. Robert Reardon, THEA’s chief operating officer, is responsible for THEA’s day-to-day operations, including tolls. Mr. Reardon has been with THEA for six years and has experience as a technical evaluator for public procurements. Rafael Hernandez is THEA’s manager of toll operations and oversees all toll operations within THEA’s jurisdiction. The TRT members collectively have the requisite knowledge and experience in tolling, software, finance, and procurement. The following individuals constituted the Selection Committee. Diane Gutierrez-Scaccetti has been FTE’s executive director since 2011 and worked for the New Jersey Turnpike Authority for over 20 years, the last two as executive director and the previous 14 as deputy executive director. Laura Kelley is OOCEA’s deputy director over finance administration and the interim executive director. Ms. Kelly has 30 years’ experience in transportation finance and management, 15 of which occurred at the Department and eight of which occurred at OOCEA overseeing information technology, finance, and procurement. Javier Rodriguez, MDX’s executive director, oversees all MDX operations, including planning, finance, operations, and maintenance functions. Mr. Rodriguez has been with MDX for seven years and was with the Department for over 15 years prior to his employment with MDX. Joseph Waggoner has been THEA’s executive director for approximately seven years. Prior to joining THEA, he was with the Maryland Department of Transportation for nearly 30 years, six of which were in tolling operations. ITN section 2.6.2 provides as follows: Following Proposal Oral Presentations by all short-listed Proposers (see section 2.25 Proposal Oral Presentations for additional details) the Technical Review Team members will independently evaluate the Proposals based on the criteria provided in Section 2.5.2 and will prepare written summary evaluations. There will then be a public meeting of the Selection Committee at the date, time and location in Table 1-2 Procurement Timeline. The Technical Review Team’s compiled written summary evaluations will be submitted to the Selection Committee. The Technical Review and Selection Committee will review and discuss the individual summary evaluations, and the Selection Committee will come to consensus about ranking the Proposers in order of preference, based on their technical approach, capabilities and best value. In addition to the Technical Review Team, the Selection Committee may request attendance of others at this meeting to provide information in response to any questions. The ITN is structured such that both the TRT and the Selection Committee have shared responsibility for evaluating proposals, with the Selection Committee having ultimate responsibility for ranking the Proposers for the negotiations stage of the procurement process. Combining the eight members of the TRT with the four members of the Selection Team means that there were a total of 12 individuals tasked with the responsibility of evaluating the proposals prior to the negotiations stage of the process. Pre-Qualification and Rankings In the pre-qualification portion of the ITN, interested vendors initially submitted reference forms to demonstrate that the vendors met the minimum project experience set forth in the ITN. Vendors meeting this requirement were invited to give a full-day Pre-Qualification Oral Presentation to the TRT in which each vendor was given the opportunity to demonstrate its proposed system. Under ITN section 2.6.1, A Technical Review Team will attend the Pre- Qualification Oral Presentations and will develop scores and written comments pertaining to the reviewed area(s) identified in Section 2.5.1. The Technical Review Team will be composed of at least one representative from each Agency and may include consultant (private sector) staff. The scores provided by each Technical Review Team member for each area of the Pre- Qualification Oral Presentations will be totaled and averaged with the scores of the other Technical Review Team members to determine the average score for an area of the Pre-Qualification Oral Presentation. The average score for each area of a Pre- Qualification Oral Presentation will then be totaled to determine a total Pre- Qualification Oral Presentation score. Each vendor’s Pre-Qualification Oral Presentation was then scored based on criteria set forth in ITN section 2.5.1. Any vendor that received a score of 700 or higher was “short- listed” and invited to submit proposals. Put differently, those receiving a score of at least 700 were deemed qualified to submit formal proposals. ITN section 2.5.1 provides that the “review/evaluation of the Pre-Qualification Oral Presentations will not be included in decisions beyond determining the initial short-list of Proposers to proceed in the ITN process.” Accordingly, the scores assigned in the pre-qualification phase were irrelevant after the short-listing. Six vendors submitted pre-qualifications responses, including Xerox, Accenture, and Cubic. On January 21, 2014, the Department posted its short-list decision, identifying that all six vendors, including Xerox, Accenture, and Cubic, were deemed qualified to submit formal written proposals to the ITN (the “First Posting”). As required by section 120.57(3)(a), Florida Statutes, the posting stated, “Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes.” This posting created a point of entry to protest, and no vendor initiated a protest. After the First Posting, short-listed vendors submitted technical and price proposals and made Proposal Oral Presentations. ITN section 2.24 provides detailed instructions for technical and price proposal preparation and submission. ITN section 2.25 (as amended by Addendum 8) sets forth the process for short-listed vendors to make Proposal Oral Presentations to the TRT. Short-listed Proposers will each be scheduled to meet with the Technical Review Team for Proposal Oral Presentations of their firm’s capabilities and approach to the Scope of Work and Requirements within the time period identified in Table 1-2 Procurement Timeline. Short-listed Proposers will be notified of a time and date for their Proposal Oral Presentation. Proposal Oral Presentation sessions are not open to the public. The Selection Committee will attend these Presentations. In advance of the Proposal Oral Presentations Proposers will be given detailed instructions on what the format and content of the Proposal Oral Presentation will be, including what functionality shall be demonstrated. The Department may also provide demonstration scripts to be followed. Proposers should be prepared to demonstrate key elements of their proposed System and Project approach and to respond to specific questions regarding their Proposals. These Proposal Oral Presentations will be used to present the Proposer’s approach and improve understanding about the Department’s needs and expectations. The Technical Review Team will participate in all Proposal Oral Presentations. After each Oral Presentation, each individual on the Technical Review Team will complete a written summary evaluation of each Proposer’s technical approach and capabilities using the criteria established in Section 2.5.2 in order to assure the Technical Proposal and Oral Presentations are uniformly ranked. The evaluation will consider both the Technical Proposal and the Oral Presentations. ITN section 2.5.2 is titled “Best Value Selection” and provides as follows: The Department intends to contract with the responsive and responsible short-listed Proposer whose Proposal is determined to provide the best value to the Department. “Best value,” as defined in Section 287.012(4), F.S., means the highest overall value to the state, based on objective factors that include but are not limited to . . . . ITN section 2.5.2 goes on to delineate seven “objective factors,” or evaluation criteria, on which proposals would be evaluated: Company history Project experience and qualifications Proposed Project approach to the technical requirements Proposed approach to the Project plan and implementation Proposed approach to System Maintenance Proposed approach to Operations and performance Price ITN section 2.6.2 explains the process for evaluation of technical proposals and Proposal Oral Presentations and states that: Following Proposal Oral Presentations by all short-listed Proposers (see Section 2.25 Proposal Oral Presentations for additional details) the Technical Review Team members will independently evaluate the Proposals based on the criteria provided in Section 2.5.2 and will prepare written summary evaluations. There will then be a public meeting of the Selection Committee at the date, time and location in Table 1-2 Procurement Timeline. The Technical Review Team’s compiled written summary evaluations will be submitted to the Selection Committee. The Technical Review Team and Selection Committee will review and discuss the individual summary evaluations, and the Selection Committee will come to consensus about ranking the Proposers in order of preference, based on their technical approach, capabilities and best value. In addition to the Technical Review Team, the Selection Committee may request attendance of others at this meeting to provide information in response to any questions. Of the six short-listed vendors, five submitted proposals and gave Proposal Oral Presentations, including Xerox, Accenture, and Cubic. The Department then undertook a ranking using the evaluation criteria delineated in ITN section 2.5.2. To perform this ranking, TRT members individually evaluated the proposals and prepared detailed, written evaluations that tracked the evaluation criteria factors. The TRT’s evaluations, together with proposal summaries prepared by HNTB, were provided to the Selection Committee in preparation for a joint meeting of the TRT and Selection Committee on April 9, 2014. At the April 9th meeting, the TRT and Selection Committee members engaged in an in-depth discussion about the bases for and differences between the individual TRT members’ rankings and evaluations. Thereafter, the Selection Committee made its ranking decision. On April 10, 2014, the Department posted its ranking of vendors, with Xerox first, Accenture second, and Cubic third (the “Second Posting”). The Second Posting also announced the Department’s intent to commence negotiations with Xerox as the first-ranked vendor.4/ If negotiations fail with Xerox, negotiations will then begin with second-ranked vendor Accenture, then Cubic, and so on down the order of ranking until the Department negotiates an acceptable agreement. Accenture and Cubic each timely filed notices of intent to protest the Second Posting and timely filed formal written protest petitions and the requisite bonds. Negotiations are not at Issue ITN section 2.26 provides: Once Proposers have been ranked in accordance with Section 2.6.2 Proposal Evaluation, the Department will proceed with negotiations in accordance with the negotiation process described below. Proposers should be cognizant of the fact that the Department reserves the right to finalize negotiations at any time in the process that the Department determines that such election would be in the best interest of the State. Step 1: Follow the evaluation process and rank Proposals as outlined in Section 2.6 Evaluation Process. Step 2: The ranking will be posted, in accordance with the law (see Section 2.27), stating the Department’s intent to negotiate and award a contract to the highest ranked Proposer that reaches an acceptable agreement with the Department. Step 3: Once the posting period has ended, the Negotiation Team will undertake negotiations with the first-ranked Proposer until an acceptable Contract is established, or it is determined an acceptable agreement cannot be achieved with such Proposer. If negotiations fail with the first-ranked Proposer, negotiations may begin with the second-ranked Proposer, and so on until there is an agreement on an acceptable Contract. The Department reserves the option to resume negotiations that were previously suspended. Negotiation sessions are not open to the public and all negotiation sessions will be recorded by the Department. Step 4: The Negotiation Team will write a short plain statement for the procurement file that explains the basis for Proposer selection and how the Proposer’s deliverables and price will provide the best value to the state. Step 5: The Department will contract with the selected Proposer. As Accenture and Cubic protested the decision by the Department to enter negotiations with Xerox (and because of the automatic stay provision of section 120.57(3), Florida Statutes) the negotiation phase of the procurement never commenced. Thus, this proceeding concerns the Department’s actions up to the Second Posting, and not what may happen during future negotiations. Second Posting and Intended Award Section 1.2 of the ITN sets forth the procurement timeline for the CCSS project. The ITN originally indicated that the “Posting of Ranking/Intended Award” would occur on March 31, 2014. By addendum issued on February 13, 2014, the date for “Posting of Ranking/Intended Award” was changed to April 10, 2014. Section 1.3.1 of the ITN provides an agenda for the April 10, 2014, “Meeting to Summarize and Determine Ranking/Intended Award.” Section 2.27 of the ITN is labeled “POSTING OF RANKING/INTENDED AWARD.” Section 2.27.1, Ranking/Intended Award, provides that “[t]he Ranking/Intended Award will be made to the responsive and responsible Proposer that is determined to be capable of providing the best value and best meet the needs of the Department.” Section 2.27.2 is labeled “Posting of Short- list/Ranking/Intended Award” and provides in part that “[a]ny Proposer who is adversely affected by the Department’s recommended award or intended decision must . . . file a written notice of protest within seventy-two hours after posting of the Intended Award.” Joint Exhibits 10 and 12 are copies of forms used to announce the rankings of the Proposers. It is not clear from the record if these forms are a part of the ITN. Nevertheless, the forms are identical in format. Each form has three boxes that follow the words “TYPE OF POSTING.” The first box is followed by the word “Shortlist,” the second box is followed by the word “Ranking,” and the third box is followed by the words “Intended Award.” The form also has three columns that coincide with the three boxes previously referenced. The three columns are respectively labeled, “X indicates shortlisted vendor,” “ranking of negotiations,” and “X indicates intended award.” With respect to the last two columns, explanatory comments appearing at the bottom of the form read as follows: ** Ranking: The Department intends to negotiate separately and will award a contract to the highest ranked vendor that reaches an acceptable agreement with the Department. The Department will commence negotiations with the number one ranked vendor until an acceptable contract is agreed upon or it is determined an acceptable agreement cannot be reached with such vendor. If negotiations fail with the number one ranked vendor, negotiations may begin with the second-ranked vendor, and so on down the order of ranking until the Department is able to negotiate an acceptable agreement. *** Intended Award: “X” in the Intended Award column indicates the vendor whom the Department intends to award the contract to, but does not constitute an acceptance of any offer created by the vendor’s proposal or negotiations. No binding contract will be deemed to exist until such time as a written agreement has been fully executed by the Department and the awarded vendor. If irregularities are subsequently discovered in the vendor’s proposal or in the negotiations or if the vendor fails to submit required [b]onds and insurance, fails to execute the contract, or otherwise fails to comply with the ITN requirements, the Department has the right to undertake negotiations with the next highest vendor and continue negotiations in accordance with the ITN process, reject all proposals, or act in the best interest of the Department. On April 10, 2014, the Department issued a posting wherein the “Ranking” box was checked and the “Intended Award” box was not. According to Sheree Merting, it was a mistake to have only checked the “Ranking” box because the box labeled “Intended Award” should have also been checked. Petitioners contend that by not simultaneously checking both the “Ranking” and “Intended Award” boxes that the Department materially changed the process identified in the ITN. Protesters’ arguments as to this issue appear to be more related to form than substance. In looking at the plain language of the ITN, it reasonably appears that the Department intended to simultaneously announce the “Ranking” and “Intended Award.” The fact that the Department failed to combine these two items in a single notice is of no consequence because neither Cubic nor Accenture have offered any evidence establishing how they were competitively disadvantaged, or how the integrity of the bidding process was materially impaired as a consequence of the omission. In other words, Sheree Merting’s confessed error of not checking the “Intended Award” box contemporaneously with the “Ranking” box is harmless error. See, e.g., Fin. Clearing House, Inc. v. Fla. Prop. Recovery Consultants, Inc., Case No. 97-3150BID (Fla. DOAH Nov. 25, 1997; Dep’t of Banking & Fin. Feb 4, 1998)(applying harmless error rule to deny protest where agency initially violated provisions of section 287.057(15), Florida Statutes, by selecting two evaluators instead of three required by statute, but later added required evaluator). Sequential Negotiations As previously noted, section 2.26 of the ITN provides that following the ranking of the short-list proposers, the “Negotiation Team will undertake negotiations with the first- ranked Proposer until an acceptable Contract is established . . . [and] [i]f negotiations fail with the first-ranked Proposer, negotiations may begin with the second-ranked Proposer, and so on until there is an agreement on an acceptable Contract.” Petitioners assert that the Department has abandoned the sequential negotiation process set forth in section 2.26 and has announced “that it will conduct the procurement negotiations only with Xerox as the number one ranked proposer” and that the process of negotiating with only one proposer is contrary to the law because section 287.057(1)(c) “requires that the Department negotiate with all proposers within the competitive range.” Diane Gutierrez-Scaccetti testified as follows (T: 1119): Q: Now, you understand that as a result of the rankings that were posted on April 10th, negotiations under this ITN are to proceed with only a single vendor, is that right? A: I believe the ITN provided for consecutive negotiations starting with the first-ranked firm and then proceeding down until we reached a contract. Contrary to Petitioners’ assertions, the evidence establishes that the Department intends to follow the negotiation process set forth in section 2.26. Petitioners’ contention that section 287.057(1)(c) does not authorize sequential negotiations is a challenge to the terms, conditions, and specifications of the ITN and should have been filed within 72 hours after the posting of the solicitation as required by section 120.57(3)(b). Petitioners have waived their right of protest with respect to this issue. Petitioners’ waiver notwithstanding, section 287.057(1)(c) does not preclude the type of sequential negotiation process set forth in section 2.26 of the ITN. Section 287.057(1)(c) provides in part that “[t]he invitation to negotiate is a solicitation used by an agency which is intended to determine the best method for achieving a specific goal or solving a particular problem and identifies one or more responsive vendors with which the agency may negotiate in order to receive the best value.” (Emphasis added). Section 287.057(1)(c)4. provides that “[t]he agency shall evaluate replies against all evaluation criteria set forth in the invitation to negotiate in order to establish a competitive range of replies reasonably susceptible of award [and] [t]he agency may select one or more vendors within the competitive range with which to commence negotiations.” (Emphasis added). The opening paragraph of section 287.057(1)(c), which is essentially the preamble portion of the ITN provisions, expresses the purpose for which the ITN process was developed, to wit: “to determine the best method for achieving a specific goal or solving a particular problem.” In furtherance of the stated purpose, the Legislature instructs, in the preamble, that the process should “identif[y] one or more responsive vendors with which the agency may negotiate in order to receive the best value.” If the preamble is read in statutory isolation, then one could reasonably conclude that if the agency identifies more than one responsive vendor then the agency should negotiate with each of the vendors “in order to receive the best value.” Arguably, the preamble merely looks at vendor “responsiveness” as the guidepost for determining with whom the agency shall negotiate. Mere “responsiveness” however, is clearly not the only standard for selecting a vendor through the ITN process and illustrates why this portion of the statute cannot be read in isolation. As previously noted, subparagraph four of section 287.057(1)(c), provides that the agency “shall . . . establish a competitive range of replies reasonably susceptible of award,” and once this is done, “[t]he agency may select one or more vendors within the competitive range with which to commence negotiations.” (Emphasis added). By using the word “may” in subparagraph four, the Legislature is authorizing agencies to exercise discretion when selecting vendors with whom to negotiate. In exercising its discretion, agencies can decide to negotiate with a single vendor or with multiple vendors. An agency’s exercise of its discretion is not absolute and the “check” on the exercise of its discretion, in the context of the instant case, is a bid protest whereby an unsuccessful bidder can attempt to prove that the procurement process was impermissibly tainted. Contrary to Petitioners’ allegations, the sequential negotiation process utilized by the Department in the present case does not run afoul of section 287.057. Petitioners forcefully argue that they have been shutout of the negotiation process because neither of them was ranked first. This assertion mischaracterizes the nature of the sequential negotiation process used by the Department. The evidence shows that if the Department fails to come to terms with Xerox, then negotiations may begin with the second-ranked vendor, and so on down the order of ranking until the Department negotiates an acceptable agreement. The truth of the matter is that neither of the protesters has been shutout of the negotiations. It is simply the case that neither occupies the preferred position of being the highest ranked, short-listed vendor. Petitioners also argue that the Florida Department of Transportation Commodities and Contractual Services Procurement Manual – 375-040-020, prohibits sequential negotiations. For invitations to negotiate, the manual provides: There are two general negotiation methods used: Competitive Method A – Vendors are ranked based on technical qualifications and negotiations are conducted commencing with the first ranked vendor. Competitive Method B – Vendor qualifications are evaluated and vendors may be short-listed. Negotiations of scope and price will be conducted with short-listed or all vendors. An award is made to the vendor with the best combination of proposal, qualifications, and price. According to Petitioners, the ITN does not comport with either Method A or Method B. Again, Petitioners failed to timely challenge the ITN specifications regarding sequential negotiations and thus have waived this argument. Even if the merits of the argument are considered, Petitioners’ argument fails. The methods described in the manual are not the only methods available to the Department; in fact, the manual, by stating that “there are two general negotiation methods used (emphasis added),” recognizes that the methods are subject to refinement or modification as the Department deems best to meet the perceived needs of a particular solicitation as long as the final method complies with section 287.057(1), Florida Statutes. Further, the procurement manager for the ITN, Sheree Merting, testified that the shell, or template, provided by the Department’s central office, and used when drafting an invitation to negotiate, contains a combination of the manual’s methods A and B, which is referred to as A/B. The order of negotiations provided for in the ITN and reiterated in the First and Second Postings is not, therefore, inconsistent with the Department’s policies or procedures. Best Value Decision Petitioners contend that the Department, via the Second Posting, has already (and improperly) determined which vendor will provide the best value to the State even though negotiations have not yet occurred. This contention is not supported by the evidence. ITN section 2.5.2 states the Department’s intent to contract with the vendor whose proposal is determined to provide the best value and sets forth the statutorily mandated objective factors, or criteria, on which proposals will be evaluated. ITN section 2.6.2 provides that the TRT and Selection Committee will review and discuss the TRT members’ individual summary evaluations and the Selection Committee “will come to consensus about ranking the Proposers in order of preference, based on technical approach, capabilities and best value.” The evidence reflects that the evaluation factors were applied during the evaluation process to formulate a best value ranking, but the question of which vendor ultimately provides the best value to the State will not be conclusively determined until after negotiations are concluded. See § 287.057(1)(c)4., Fla. Stat. (“After negotiations are conducted, the agency shall award the contract to the responsible and responsive vendor that the agency determines will provide the best value to the state, based on the selection criteria.”). As testified by Ms. Gutierrez- Scaccetti, “[t]he Selection Committee agreed upon the ranking of firms. It has not made an award.” This is consistent with the ITN and Florida law, which require award to the best value proposer after negotiations. Evaluation Criteria Properly Followed As explained above, ITN section 2.5.2 sets forth the evaluation factors that the TRT and Selection Committee were to use in evaluating proposals. Petitioners allege that the TRT and Selection Committee did not follow the ITN and based their evaluations and rankings on factors other than those listed in ITN section 2.5.2. The evidence establishes that the TRT did in fact use these factors, as evidenced by the detailed evaluation summaries prepared by each of the eight TRT members, which almost uniformly tracked these factors. Seven of these summaries are organized by headings that mirror the seven criteria of section 2.5.2. The remaining summary, prepared by TRT member Mohamed Hassan, was formatted in terms of pros and cons, but nonetheless addressed all of the section 2.5.2 evaluation criteria. Reflective of the TRT’s approach, TRT member David Wynne prepared detailed, typed proposal summaries that are four pages long and single-spaced for each proposal. Mr. Wynne’s summaries capture his deliberate thought process in ranking the proposals and include headings that directly tie back to the evaluation criteria in the ITN. His summaries include specific details from each proposal justifying his qualitative assessment of the proposals. For example, he discusses the benefits of Xerox’s Vector 4G tolling platform, Xerox’s proposed project schedule, and maintenance. Mr. Wynne even included a breakdown of the pricing and his thoughts on how the pricing compared to the other vendors. The other TRT members had equally detailed summaries. When read as a whole, these summaries demonstrate that the TRT engaged in a rational, deliberative, and thoughtful evaluation of the proposals based on the ITN criteria. Additionally, the TRT members testified that they applied the ITN section 2.5.2 factors in conducting their evaluations. Thus, the evidence demonstrates that the TRT members did as instructed in the ITN and evaluated proposals based on ITN section 2.5.2’s factors. There is no credible basis to find that the section 2.5.2 criteria were not the bases of the TRT’s evaluations, rankings, and narratives. The evidence also establishes that the Selection Committee applied ITN section 2.5.2 factors in reaching its decision. The Selection Committee reviewed the TRT summaries, along with a detailed notebook prepared by HNTB, the Department’s consultant. The HNTB notebook was a comprehensive summary of information compiled from the vendors’ voluminous proposals and organized in a digestible format to aid the Selection Committee’s review, including helpful summaries providing head-to-head objective comparisons of vendor pricing, software development, and vendors’ exceptions and assumptions. The HNTB notebook of materials objectively compiled the content taken directly from the vendors’ own proposals and included no editorial comments or opinions by the Department’s consultants. Moreover, the HNTB notebook contained a chart summarizing the TRT’s rankings by TRT member, along with copies of each TRT member’s detailed written summaries. It also contained a detailed, 36-page pricing summary that pulled price information directly from the vendors’ proposals and summarized the information in a manner that allowed for easy side-by-side comparison. The notebook also included a systems matrix summary that was prepared by taking proposed systems information directly from the vendors’ proposals and combining it in a format that could be easily processed. In fact, the notebook even included pages copied directly from the proposals. Armed with the comprehensive TRT summaries and the HNTB notebook, the Selection Committee then engaged the TRT in a thoughtful and detailed discussion and analysis of the qualitative merits of each vendor’s proposal -- all within the bounds of the section 2.5.2 criteria. Petitioners contend that during the TRT and Selection Committee’s discussions, issues such as risk were improperly considered. Although “risk” was not a separately labeled criterion under section 2.5.2 (“risk of solution” is, however, referenced as a sub-bullet), risk is inherently a significant consideration in each of the evaluation factors. Stated differently, the concept of risk is integral to the ITN section 2.5.2 factors, and the Department properly considered such risks. For example, a vendor’s prior project experience -- whether it has successfully completed similar projects before -- was a listed criterion, which is directly relevant to the risk the Department would take in selecting a vendor, that is, the risk that the vendor’s experience is or is not sufficient to assure a timely project completion and quality services under the ITN. Indeed, section 287.057(1)(c) requires that the Department consider prior experience. Another example of risk considered by at least one Selection Committee member was the potential that Accenture’s project manager would not be assigned solely to this project, but might be shared with Accenture’s Illinois tolling project (“local presence commitment” is referenced as a sub-bullet in section 2.5.2). The evidence shows that Accenture stopped short of saying without qualification that its project manager would be released from Illinois and solely assigned to CCSS. This uncertainty raised a risk concern whether the critical project implementation would be properly managed. Considerations such as these are rational and reasonable. There is a Reasonable Basis for the Department’s Ranking Petitioners further contend that there was no reasonable basis for the Department’s intended decision to begin negotiations with Xerox. However, as explained above, the evidence demonstrates the opposite as the TRT and Selection Committee collectively discussed and considered the evaluation criteria and the Selection Committee reached consensus on moving forward to negotiations with Xerox. Moreover, there is ample evidence that the Selection Committee’s decision was rational and reasonable. The TRT and Selection Committee’s discussion at the April 9, 2014, meeting where the ranking decision was reached, demonstrates the studied analysis by which the evaluations were conducted. At the meeting, the four Selection Committee members, who had already reviewed the TRT members’ individual rankings and evaluations, each questioned the TRT members about their assessments of the proposals. Selection Committee members asked about the bases for the differences between the individual TRT members’ evaluations, and the TRT members explained why they ranked the vendors the way they did. The discussion revolved around the top three ranked vendors, Xerox, Accenture, and Cubic, which one TRT member described as being “head and shoulders above the rest” -- that is, above the vendors ranked fourth and fifth. As noted above, the Selection Committee members’ primary focus in these discussions was on risk assessment -- the financial risks, operations risks, and information technology risks that the TRT members believed accompanied each proposal. Major Selection Committee items of discussion included modifications to the existing systems, proprietary versus off- the-shelf software issues, and the vendors’ proximity to Florida. Additional discussion points included the risk associated with Accenture’s use of multiple subcontractors and Cubic’s lack of experience with certain tolling systems. From these discussions, it appears that the overriding factor behind the Selection Committee’s ranking decision at the April 9 meeting was Xerox’s proven experience with other similar and large tolling projects, including some of the country’s largest tolling systems, which Accenture and Cubic simply did not possess.5/ As one Selection Committee member expressed, Xerox brought a “comfort level” that did not exist with Accenture and Cubic. Moreover, Xerox, with 78 percent, is the leader in the evaluative category that looks at the percentage of the company’s existing baseline system that meets the CCSS requirements -- more than Accenture’s and Cubic’s combined percentages. As the percentage of existing baseline system compliance increases, the implementation risks decrease. Selection Committee members Diane Gutierrez-Scaccetti and Joseph Waggoner expressed the importance of this based on their firsthand experience with existing tolling systems in use for their respective agencies. In sum, this analysis and assessment is a valid and reasonable basis for the Department’s decision. Cubic also contends that such analysis is improper because the ITN allowed transit firms to submit proposals, thus making tolling experience an irrelevant evaluative factor. This contention fails because by prequalifying transit firms to bid, the Department was not precluded from considering a vendor’s specific tolling experience as part of the evaluative process. Contrary to Cubic’s allegation, the factors listed in ITN section 2.5.2, including “Project Experience and Qualifications,” contemplate tolling experience as being part of the relevant analysis. Therefore, the Selection Committee was fully authorized under the ITN to consider the benefits of a proven commodity -- a firm with Xerox’s extensive tolling experience. The Selection Committee’s qualitative assessment that, on the whole, Xerox was the better choice for commencing negotiations was supported by reason and logic and was wholly consistent with the ITN specifications. Petitioners further argue that the Department’s ranking decision is inconsistent with the pre-qualification scoring, where Accenture and Cubic each scored slightly higher than Xerox. This argument fails as ITN section 2.5.1 expressly provides that the evaluations and scoring of the Pre-Qualification Oral Presentations will not be included in decisions beyond determining the initial short-list. Regardless, these three vendors were essentially tied in that scoring: Accenture’s score was 885.38, Cubic’s was 874.75, and Xerox’s was 874.00. Petitioners also contend that the Selection Committee’s ranking decision is inconsistent with the ranking decision of the TRT majority. The ITN is clear, however, that the Selection Committee would be the final arbiter of ranking. No Demonstrations Were Cancelled The procurement timeline in the original ITN allotted ten business days for Proposal Oral Presentations. The revised timeline in Addendum 8 allotted two days. Cubic asserts that this reduction in presentation time occurred because the Department, without explanation, cancelled planned vendor demonstrations that were to occur during Proposal Oral Presentations, thus placing Cubic at a disadvantage as it was unable to present its demonstrations to Selection Committee members. Cubic also asserts that the cancellation of demonstrations is an indication that the Department had already made up its mind to select Xerox. The ITN and the testimony are unequivocal that no demonstrations were “cancelled.” ITN section 2.25 contemplates that the Department may request demonstrations in the proposal evaluation phase but in no way states that demonstrations will be held. Section 2.25 also provides that if any demonstrations were to be held, they would be as directed by the Department. Thus, the ITN did not guarantee Cubic any presentation, as Cubic suggests. Moreover, all vendors were treated equally in this regard. Further, the evidence reflects that the decision to hold demonstrations only during the Pre-Qualification Presentations was made when the ITN was released and that the Department never planned to have vendor demonstrations at the Proposal Oral Presentations. Indeed, during the mandatory pre- proposal meeting, the Department informed all vendors of the planned process, to include one demonstration at the pre- qualification phase and an oral presentation and question-and- answer session during the proposal and ranking phase. In short, Cubic presented no credible evidence in support of its allegations regarding the alleged cancellation of the demonstrations or any resulting harm. Exceptions and Assumptions were properly considered The ITN required vendors, in their technical proposals, to identify assumptions and exceptions to contract terms and conditions. Significantly, the ITN states that the Department is not obligated to accept any exceptions, and further that exceptions may be considered at the Department’s discretion during the evaluation process. ITN Technical Proposal Section 9 provides, in its entirety: Technical Proposal Section 9: Exceptions and Assumptions If Proposers take exception to Contract terms and conditions, such exceptions must be specified, detailed and submitted under this Proposal section in a separate, signed certification. The Department is under no obligation to accept the exceptions to the stated Contract terms and conditions. Proposers shall not identify any exceptions in the Price Proposal. All exceptions should be noted in the certification provided for in Proposal Section 9. Proposers shall not include any assumptions in their Price Proposals. Any assumptions should be identified and documented in this Section 9 of the Proposal. Any assumptions included in the Price Proposals will not be considered by the Department as a part of the Proposal and will not be evaluated or included in any Contract between the Department and the Proposer, should the Proposer be selected to perform the Work. Failure to take exception in the manner set forth above shall be deemed a waiver of any objection. Exceptions may be considered during the Proposal evaluation process at the sole discretion of the Department. Petitioners allege that the ITN did not clearly set forth how vendors’ exceptions and assumptions would be treated and that the Department accordingly failed to consider such exceptions and assumptions. This is a belated specifications challenge and therefore has been waived. Regardless, the evidence demonstrates that both the TRT and Selection Committee did, in fact, consider the exceptions and assumptions in the evaluation and ranking of proposers. The TRT and Selection Committee were instructed to consider exceptions and assumptions and to give them the weight they deemed appropriate subject to staying within the confines of the ITN’s section 2.5.2 criteria. Consistent with these instructions, some TRT members included comments regarding exceptions and assumptions in those members’ evaluation summaries, reflecting that exceptions and assumptions were considered during the evaluation process. Other TRT members considered the exceptions of minimal significance given that the Department would address them during negotiations and was not bound to agree to any. Indeed, the evidence was that it was the Department’s intent to sort out the exceptions and assumptions in the negotiation process and, again, that the Department need not agree to any exceptions initially set forth by the vendors. Thus, the Department acted rationally and within the bounds of the ITN and its discretion when considering exceptions and assumptions. The Selection Committee Reached Consensus Accenture alleges that the Selection Committee failed to carry out its duty to reach a “consensus” in ranking vendor proposals. The evidence establishes the exact opposite. The ITN provides that the Selection Committee will come to “consensus” about ranking the vendors in order of preference, based on technical approach, capabilities, and best value. A consensus does not require unanimity. According to the testimony of Selection Committee member Javier Rodriguez, who was the only Selection Committee member who voted for Accenture as his first choice, “at the end, Xerox got three votes from the Selection Committee; Accenture got one. So for me, consensus meant: Are we in consensus to move forward with Xerox? And as I said at the selection meeting, I didn’t object. So from a consensus standpoint, we’re moving on to starting negotiations with Xerox, and that was the intent.” Therefore, the unrebutted evidence is that the Selection Committee did, in fact, reach consensus. Subject Matter Experts Accenture contends that the TRT and Selection Committee made use of subject matter experts in the course of the evaluation and ranking in violation of Florida statutory requirements and governing procurement policies. The record, however, is void of any substantial competent evidence in support of these allegations. Tim Garrett is the tolls program manager for HNTB under the General Engineering Consulting contract for FTE. Mr. Garrett was the overall project manager assigned to support FTE in the development and execution of the ITN. He and other HNTB employees, such as Wendy Viellenave and Theresa Weekes, CPA, provided support to both TRT and Selection Committee members in regards to summarizing proposals and defining the process. There is no evidence that any employee of, or sub-consultant to, HNTB communicated qualitative assessments or opinions about any of the competing proposals to TRT or Selection Committee members. Rather, the evidence shows that HNTB facilitated the TRT’s and Selection Committee’s evaluation work by presenting to the committee members data in the form of summaries, charts, and recapitulations pulled from the voluminous technical and price proposals submitted by the five competing vendors. Other than the support provided by HNTB, the record is essentially devoid of evidence that proposal evaluators made use of subject matter experts.6/ But in any event, neither Petitioner has made a showing that the use of subject matter experts is proscribed by governing statutes, rules, policies, or the specifications of the ITN. Although the use of subject matter experts was not addressed in the ITN itself, the Department, before the Pre- Qualification Oral Presentations in early January 2014, issued written “Instructions to Technical Review Committee.” These instructions authorized TRT members to confer with subject matter experts during the procurement process on specific technical questions and subject to certain additional parameters, as follows: Subject Matter Experts Subject matter experts are authorized to support the TRC on specific technical questions that the TRC members may have throughout the procurement process. Subject matter experts may respond to questions on any aspect of the procurement or proposal, but may not be asked to, nor will they support, the evaluation of proposals, which is the responsibility of each TRC member. A subject matter expert can discuss the specific elements of the ITN and a vendor’s proposal with a TRC member, but they cannot meet with more than one TRC member at a time, unless in a public meeting – subject to the Procurement Rules of Conduct stated above. The subject matter experts are fact finders. A subject matter expert cannot disclose the specific questions asked by another TRC member. No evidence has been presented to establish that the Instructions to Technical Review Committee, as to the use of subject matter experts, violated Florida law or the terms of the ITN, or that any subject matter expert -- whether affiliated with HNTB or not -- failed to perform within the parameters set forth in the Instructions.7/ Both Petitioners devoted significant hearing time to the FTE consultancy work of John McCarey, McCarey Consultants, LLC, and John Henneman, an employee of Atkins Engineering, Inc., and sub-consultant to HNTB. There has been no showing by Petitioners that either Mr. McCarey or Mr. Henneman served as a subject matter expert to any member of the TRT or Selection Committee or that either had improper contacts in regards to the evaluation or ranking of the vendors. The undisputed evidence is that Mr. McCarey did not serve as a subject matter expert for any of the evaluators. As for Mr. Henneman, although one TRT member testified in deposition that he “believe[d]” Mr. Henneman was a technical expert or considered one of the subject matter experts, there is no evidence that Mr. Henneman served as a subject matter expert for any of the evaluators -- TRT or Selection Committee. In sum, there is simply no evidence that any of the subject matter experts had any improper influence on the TRT or Selection Committee members.8/ No Improper Contacts, Attempts to Influence, or Bias Cubic alleges that there was improper contact between the Department and Xerox during this protest that violates the statutorily imposed “cone of silence” for procurements. Cubic also asserts that there were attempts by Xerox to influence the evaluations or rankings based on the Department’s, or the other agencies’, past or existing relationships with Xerox or Xerox’s acquired entities. There simply is no record support for the assertions that there was any improper contact or any attempt by any person to influence the Department’s evaluations or rankings based on past or existing relationships between the Department and Xerox or Xerox’s acquired entities. Xerox’s counsel did not have any contact with the TRT or the Selection Committee prior to the filing of the protests and the attendant “stop” of the procurement process pursuant to section 120.57(3)(c), Florida Statutes. The only contact Xerox’s counsel had with TRT or Selection Committee members was as a participant with the Department’s counsel in pre-deposition meetings with some witnesses designated by Petitioners -- all in the context of ongoing litigation following the filing of Accenture’s and Cubic’s protest petitions. This contact is essentially no different than Petitioners’ contact with Department personnel in depositions and the trial, as well as during the section 120.57(3)(d)1., Florida Statutes, settlement conference with the Department. Furthermore, all such contact was after both the TRT’s and the Selection Committee’s work under the ITN was completed and the said contact was of no import to the procurement process. In short, there is no evidence of attempts by Xerox to influence the process, improper contact between Xerox and the Department, or Department bias in favor of Xerox. Responsiveness of Xerox’s Proposal The evidence, at best, is that the Department has yet to fully vet the representations made in the proposals by the respective Proposers, including Xerox. Protesters suggest that such a full vetting is a condition precedent to negotiations. Such an argument, however, ignores ITN section 2.12, which has to be reconciled with ITN section 2.9.1 b). ITN section 2.9.1 b) provides in part that “[t]he Proposer shall have Key Team members with the following experience at the time of Proposal submission.” The section then goes on to list several positions that fall within the “Key Team Personnel” category. Petitioners contend that the Contract Project Manager, Quality Assurance Manager, and Human Resources Manager proposed by Xerox fail to meet the “Qualifications of Key Team Personnel” set forth in ITN section 2.9.1 b), thus rendering the Xerox proposal nonresponsive. ITN section 2.12 provides in part that “[a]fter the Proposal due date and prior to Contract execution, the Department reserves the right to perform . . . [a] review of the Proposer’s . . . qualifications [and that] [t]his review will serve to verify data and representations submitted by the Proposer and may be used to determine whether the Proposer has an adequate, qualified, and experienced staff.” Xerox’s omission, at this point in the process, amounts to a non-material deviation from the ITN specifications given that ITN section 2.12 reserves in the Department the right to review key personnel representations made by Xerox, and any other short-listed Proposer, at any time “prior to Contract execution.” Cubic also contends that Xerox and Accenture submitted conditional Price Proposals rendering their proposals non- responsive under ITN section 2.16. The analysis turns on the provisions of Technical Proposal Section 9: Exceptions and Assumptions, which provides a detailed description of how exceptions and assumptions are to be provided by vendors, and explains that “[e]xceptions may be considered during the Proposal evaluation process at the sole discretion of the Department.” As provided by the ITN, all vendors included a detailed listing of exceptions and assumptions in their Technical Proposal. Consistent with the discretion afforded to the Department under ITN Technical Proposal Section 9 to consider listed exceptions during the Proposal evaluation process, the Department then made the following inquiry of each of the Proposers: Please identify whether your price proposal is based on the Department’s acceptance of the Exceptions in Section 9 of your technical proposal? Please identify whether your price proposal is based on the Department’s acceptance of the Assumptions in Section 9 of your technical proposal? Xerox responded to both inquiries as follows: “The Xerox price proposal is based on the assumptions and general risk profile created by the inclusion of Section 9. We assume the parties will reach mutual agreement on the issues raised in Section 9 without a material deviation in the price proposal.” In addition to providing written answers to the questions, the vendors also addressed these issues in the Proposal Oral Presentations in response to questions by the Department. By the end of the Proposal Oral Presentations, all three vendors had made clear to the Department that resolution of exceptions and assumptions would not affect the proposed price. For example, Xerox’s senior executive in charge of the procurement, Richard Bastan, represented that there is no financial implication to any of the exceptions and that Xerox would honor the terms and conditions and the scope of services in the ITN for the price set forth in the Price Proposal. Accordingly, none of the proposals were improperly conditioned, and Xerox, Accenture, and Cubic were treated equally. Cubic also contends that Xerox’s proposal was nonresponsive as Xerox allegedly failed to meet the stated experience minimums for transactions processed and accounts maintained. There is, however, no credible evidence to support this contention. Indeed, the evidence is that the Department, through its consultant HNTB, verified these requirements by calling the referenced projects. Moreover, Xerox met or exceeded the stated minimums with its New York project reference. The Department’s decision that Xerox was responsive on this issue is logical, reasonable, and supported by the evidence. Price Proposals ITN section 2.5.2 lists “price” as a factor to consider in determining “Best Value.” The vendors’ price proposals were presented to the TRT members for purposes of conducting their evaluations. Price was also an appropriate factor for consideration by the Selection Committee. Accenture argues that “[t]he ITN does not indicate how pricing will be considered by FDOT during the selection process.” Accenture’s contention that the ITN failed to disclose the relative importance of price is a challenge to the terms, conditions, and specifications of the ITN and should have been filed within 72 hours after the posting of the solicitation, as required by section 120.57(3)(b). Accenture has waived its right of protest with respect to this issue. Conflict of Interest Accenture complains that “[n]either Mr. Henneman nor Mr. McCarey submitted conflict of interest forms as required under the Department’s Procurement Manual . . . [because both] were present during the oral presentations made by the vendors in connection with this procurement.” Accenture also complains that Wendy Viellenave never disclosed that her husband works for TransCore, a company that is a subcontractor for Xerox. Ms. Viellenave’s husband currently works for TransCore as a maintenance and installation manager in California and has not worked in Florida in nearly twenty years. There is no credible evidence that Ms. Viellenave, through the relationship with her husband, has any “significant” direct or indirect -- financial or otherwise -- interest in TransCore that would interfere with her allegiance to the Department. The fact that Ms. Viellenave is married to an individual that works for a Xerox subcontractor is insufficient, in itself, to establish a real or potential conflict of interest. Jack Henneman currently runs the back office operation for FTE at its Boca Raton facility. His future role for the CCSS is as project manager for the implementation of the CCSS. Mr. Henneman became aware of the CCSS procurement through his work on a Florida Transportation Commission Report that culminated in 2012. This report documented the cost efficiencies for all of the tolling authorities in Florida. Mr. Henneman attended some of the Pre-Qualification Demonstrations as his schedule would permit because he is the “go-forward” project manager for the CCSS implementation. Mr. Henneman formerly worked for ACS from 2002 – 2009, and met Ms. Gutierrez-Scaccetti during his employment with the company. Mr. Henneman was the transition manager for the transfer of the back office operation of the New Jersey Turnpike from WorldCom to ACS. Mr. Henneman did not have any contact with Ms. Gutierrez-Scaccetti from approximately 2009 to 2012. In his capacity as the “go-forward” project manager, Mr. Henneman reviewed the technical proposals submitted by the vendors in the instant proceeding but he did not have any discussions with the TRT members or the Selection Committee members about the proposals. He reviewed the technical proposals for the purpose of educating himself so that he would be better prepared to carry out his functions as the “go-forward” project manager. John McCarey is a sub-consultant to FTE general engineering contractor, Atkins. Mr. McCarey has a future role as being a part of the negotiations group for the CCSS. Mr. McCarey formerly worked for Lockheed for approximately 25 years and then spent 5 years working for ACS. Mr. McCarey was the chief financial officer for ACS’s State and Local Solutions Group at one time. Mr. McCarey left the employment of ACS in 2006. Mr. McCarey currently assists with various functions, including work on issues with the consolidation of the back office systems of OOCEA and FTE. For approximately 10 years before becoming a sub-consultant, Mr. McCarey had not had any contact with Ms. Gutierrez-Scaccetti. As it relates to the CCSS project, there is no persuasive evidence that Mr. McCarey provided recommendations to the TRT or the Selection Committee.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is recommended that Petitioners’ protests be dismissed. DONE AND ENTERED this 4th day of September, 2014, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 4th day of September, 2014.
