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 Respondent's intended rejection of all responses to its solicitation of "qualifications" from entities interested in contracting with Respondent to perform construction management at risk services in connection with a project at Fort Lauderdale High School is illegal, arbitrary, and/or dishonest, as alleged by Petitioner.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a district school board responsible for the operation, control and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Fort Lauderdale High School) and for otherwise providing public instruction to school-aged children in the county. As authorized by Florida Administrative Code Rule 6A- 1.012, Respondent has "establish[ed] purchasing rules" (denominated as "policies"). Respondent's Policy 3320 contains Respondent's "Purchasing Policies." Part III of Respondent's Policy 3320 prescribes "Purchasing Policies" for Respondent's Facilities and Construction Management Division, and it provides, in pertinent part, as follows: All additions, modifications, and alterations to School Board properties shall conform with the State Requirement for Educational Facilities (SREF), Florida Building Code (FBC) and the laws of the State of Florida. School Board administrators shall obtain assistance in preparing bid specifications and applicable building permit(s) from the Facilities and Construction Management division for these items. Part VIII of Respondent's Policy 3320 addresses the subject of "protests arising from the competitive solicitation process" and incorporates the protest procedures found in Section 120.57(3), Florida Statutes. Respondent's Policy 7003 is entitled, "Pre- Qualification of Contractors and Selection of Architects, Engineers, Design Builders, Construction Managers, and Total Program Managers Pursuant to the Consultants Competitive Negotiation Act." It provides, in pertinent part, as follows: The School Board shall pre-qualify bidders for construction contracts, and, publicly announce, in a uniform and consistent manner, each occasion when construction and/or professional services are required to be purchased in compliance with governing statutes and regulations. The Superintendent shall establish procedures for the pre-qualification of contractors and selection of architects, engineers, design- builders, construction managers and total program managers consistent with this policy, applicable statutes and State Requirements for Educational Facilities (SREF). Rules The School Board authorizes the Superintendent to: Receive applications for Contractor Pre- Qualification on the attached application form in compliance with FS 1013.46 and SREF 4.1(8), as amended. . . . * * * 4. Designate an evaluation committee of eleven (11) voting members for the purpose of Pre-Qualification of contractors and selection of architects, engineers, design builders, construction managers and total program managers. * * * The committee shall make recommendations to the Superintendent regarding the pre- qualification of contractors. The Superintendent shall make recommendations to the Board: Along with a report from the committee containing findings of fact indicating the proposers' compliance with the procurement requirements and scoring criteria and the Board shall have the final approval of such recommendations. The Contractor Pre-Qualification Application Form "attached" to Policy 7003 contains the following description of the contractor pre-qualification process: The School Board ("Board") through the Superintendent or his/her designee, shall pre-qualify all "contractors" for construction contracts, and any other contracts that require a certificate issued pursuant to Chapter 489, Florida Statutes, including, but not limited to, all bidders, construction managers, design-builders, job- order contractors, term contractors, and all other types of contractors on an annual basis or for a specific project according to the rules set forth in the State Requirements for Educational Facilities (SREF) Section 4.1(8). Contractors shall be pre-qualified on the basis of the criteria set forth in SREF and included in the foregoing application form. In addition to the foregoing criteria the applicant shall provide the Dun and Bradstreet report indicated in the application. The evaluation committee shall be as set forth in Board Policy 7003. The applicant shall complete the form in its entirety and submit all required documents by the deadline set forth in the public announcement. Separate applications shall be submitted for each desired contracting category. The School Board of Broward County shall receive and either approve or reject each application for prequalification within sixty (60) days after receipt of application in its entirety and all required documents. Approval shall be based on the criteria and procedures set forth in SREF. The Board shall issue to all pre-qualified contractors a certificate valid for one (1) year from the date of approval or for the specific project(s). That certificate shall include the following: A statement indicating that the contractor may bid, propose, or otherwise be considered, on the specific project(s) or for this specific time period. A statement establishing the total dollar value of the work the contractor will be permitted to have under contract with the Board at any one time. The maximum value shall not exceed the contractor's bonding capacity or ten (10) times the net quick assets. A statement establishing the maximum dollar value of each individual project the contractor will be permitted to have under contract with the Board at any one time. The maximum value of each project may be up to twice the value of the largest similar project previously completed but shall not exceed the Contractor's bonding capacity or ten (10) times the net quick assets. A statement establishing the type of work the contractor will be permitted to provide. The expiration date of the certificate. It shall be the responsibility of the contractor to renew annually certificates not for a specific project. Financial statements or written verification of bonding capacity on file with the Board shall be updated annually. Failure to submit a new statement or verification of bonding capacity within thirty (30) days written notice by the Board shall automatically revoke a pre-qualification certificate. 1. Pre-qualified contractors may request a revision of their pre-qualification status at any time they believe the dollar volume of work under contract or the size or complexity of the projects should be increased if experience, staff size, staff qualifications, and other pertinent data justify the action. These procedures are in accordance with requirements set forth in Section 4.1 of the State Requirements for Educational Facilities. As the parties stipulated in Admitted Fact 6, "[o]n May 20, 2008, [Respondent] approved the Request for Qualifications No. 2008-030-FC (RFQ) entitled 'Construction Management at Risk Services for Districts 2, 3 and 4 Projects (Cooper City High School - Project No. 1931-99-02; Fort Lauderdale High School – Project No. 0951-27-01; Margate Elementary School – Project No. 1161-26-01; and Northeast High School – Project No. 1241-27-01),' and authorized the public announcement of the RFQ." "[In] [t]he summary explanation and background [section of] the Agenda Request Form [for this agenda item, it was] stated that the 'Facilities and Construction Management staff recommend[ed] the procurement of construction services utilizing Construction Management at Risk delivery method due to the complexity, scope and scale of the projects.'" This "delivery method" is to be distinguished from the "hard bid" or "design/bid/build" method of procurement, where a contractor is hired only after "the construction documents are completed." Under the "Construction Management at Risk delivery method," contrastingly, the construction manager typically assists in the development and "complet[ion]" of the "construction documents," offering advice and recommendations to maximize quality and cost efficiency. As a result, it is "not uncommon" for there to be post-solicitation changes in a project's scope and budget when this "delivery method" is employed. As the parties stipulated in Admitted Fact 7, "[a]t the time of [Respondent's] approval of the RFQ, the portion of the RF[Q] pertaining to [the FHS Project] had an advertised Proposed Construction Budget of $29,150,340 and a project scope which was described [in RFQ] as follows: 'Concurrent replacement in two phases to include: Phase I – Construct a 3- story Administration Classroom Building of 68,940 GSF to include Administration, 3 general classroom[s], 5 resource rooms, 4 Science Labs and related spaces, a 4-classroom ESE Suite, 1 Business Technology Lab, 1 Family and Consumer Science (ProStart) Lab, 1 Health Occupations Lab, 1 Pre-Law Public Service Education Lab, Custodial spaces, Textbook Storage and Student, Staff and Public Restrooms. Demolish Buildings 1, 2, 3, 4, 11, 12, 13 and 14.'" Phase II of the project was, at the time, described in the RFQ as follows: "Construct Parent drop off & pick up area and Staff/Visitor Parking; Construct Regional Athletic Facility; Renovate Building 8 into Science Labs; Demolish existing tennis courts & replace with 6 tennis courts; Demolish Swimming Pool; Construct basketball courts; Resurface Student Parking." These descriptions represented the "initial concept" of the FHS Project (the design of the project having been then only in the "conceptual stage" of development). Respondent wanted to have the benefit of the input and advice of a construction manager (working together with the architect selected for the project) in developing the project's design beyond the "conceptual stage." As the parties stipulated in Admitted Facts 12 through 19, "[b]etween the initial public release of the RFQ and the submission of proposed qualifications, [Respondent] issued seven (7) addenda revising the RFQ's terms and conditions," with "Addendum No. 4 chang[ing] the scope of the [FHS Project] component of the RFQ as follows": Delete the scope in Phase I to demolish Building #4. Delete the scope in Phase II to construct basketball courts and to resurface student parking. Revise the words "replace with 6 tennis courts" to be the words "construct five (5) tennis courts." Clarify phasing: In Phase I, demolish the existing track and athletic field and relocate existing baseball field. Clarify scope: In Phase II, for the staff parking construct a 3-story parking structure including required access road work. Clarify scope: Phase II includes renovation of existing courtyard to provide ADA access to existing gymnasium and auditorium. (Emphasis, by bolding, supplied in original). Addendum No. 6 "[r]evised the [RFQ's] Submittal Due Date to read 'No later than 2:00 p.m. on September 3, 2008.'" As the parties stipulated in Admitted Fact 20,"[a]fter [the] issuance of Addendum No. 7 to the RFQ, the scope of the [FHS Project] component of the RFQ was described as follows [with strike-throughs and underlining indicating, respectively, post-issuance deletions and additions]: Concurrent replacement in two phases to include: Phase I – Construct a 3-story Administration Classroom Building of 68,940 GSF to include Administration, 3 general classroom[s], 5 resource rooms, 4 Science Labs and related spaces, a 4-classroom ESE Suite, 1 Business Technology Lab, 1 Family and Consumer Science (ProStart) Lab, 1 Health Occupations Lab, [1 Pre-Law Public Service Education Lab], Custodial spaces, Textbook Storage and Student, Staff and Public Restrooms. Demolish the existing track and athletic field and relocate existing baseball field. Demolish Buildings 1, 2, 3, 4, 11, 12, 13 and 14. Phase II – Construct Parent drop off & pick up area and a 3-story parking structure including required road access work for Staff Parking and /Visitor Parking[.] Construct Regional Athletic Facility[.] Renovate building 8 into Science Labs[.] Demolish existing tennis courts & replace with 6 tennis courts construct five (5) tennis courts. Demolish Swimming Pool. Renovate existing courtyard to provide ADA access to existing gymnasium and auditorium. Construct basketball courts. Resurface Student Parking." As the parties stipulated in Admitted Facts 10 and 11, on August 26, 2008, the date that Respondent issued its final addendum to the RFQ (Addendum No. 7), it also issued a Revised Public Announcement publicizing the issuance of the RFQ (as revised by the seven addenda). The Revised Public Announcement read, in pertinent part, as follows: In order to supplement the expertise of the Facilities and Construction Management Department, the Superintendent of Schools, pursuant to Florida Statutes, announces that The School Board of Broward County, Florida, is in need of Construction Management Services, related to new construction and renovations of educational facilities. Pursuant to this request for qualifications, The Board will consider contracts with one of more proposers to provide these services. Services under this contract include, but are not limited to the following items and shall be in accordance with SREF [State Requirements for Educational Facilities] 1999 Chapter 4: Bid and award activities including managing bidder listing, addendum, bidding, proposals, schedule of values, contracts, guaranteed maximum price, value engineering, and bonds. Construction activities including managing meetings, contract administration, monitoring procedures, contract records, inspections, non-conformances, owner- supplied equipment, testing, project accounting, and construction services. Warranty activities including managing claims and periodic inspections. Provide other basic services as required. Refer to the Request for Qualifications for more detailed project scopes. * * * RFQ No. 2008-30-FC Project Nos. 0951 27 01/P000687 Fort Lauderdale High School (proposed construction budget $29,150,340): Phase replacement in 2 phases to include: Phase I - Demolish selected buildings, tennis courts, swimming pool, track and athletic field. Construct a 3-story Administration Classroom Buildings[2] of 68,949 GSF; parent drop off/pick-up area and visitor parking; 5 tennis courts. Relocate existing baseball field. Phase II - Demolish selected building. Construct a 3-story parking structure including required access road work; Regional Athletic Facility. Renovate existing courtyard for ADA access to Gym and Auditorium. Renovate Building 8 into Science Labs. * * * Award: Project will be awarded by Facility. Proposed Construction Budget: Includes all costs inclusive of the Construction Manager's fees, Cost of Work, and any other costs related to construction. Minimum Selection Criteria: Will include the following as a minimum, (refer to document RFQ, Article X Submittal Requirements for expanded list of selection criteria): The company's history, structure, personnel, licenses, and experience. Related projects similar in scope or amount completed by the company, including name of client or its representative. Financial information such as balance sheet and statement of operations and bonding capacity. Project management, scheduling and cost control systems the company uses for similar projects. Proposed minority business involvement in the project. . . . Cost control, value engineering techniques and constructability reviews. Description of litigation, major disputes, contract defaults and liens in the last five (5) years. Interview. Confirmation of references. Consideration of the volume of work previously awarded to each firm, with the object of effecting an equitable distribution of contracts among qualified firms, provided such distribution does not violate the principle of selection of the most qualified firms. * * * The completed RFQ response must be delivered . . . . NO LATER THAN 2:00 PM SEPTEMBER 3, 2008 * * * Qualifications Selection Evaluation Committee (QSEC): After submission, proposers will be evaluated by the Qualification Selection Evaluation Committee (QSEC) based upon the above minimum criteria. The QSEC will select no less than three (3) proposers, ranked in order of tabulated score. The QSEC will recommend the finalist(s) for award of contracts to Construction Managers to the Superintendent. The Superintendent shall either recommend award of contract(s) to the finalist(s) selected by the QSEC or recommend rejection of all proposals to the Board. After the Board approves the recommendations of the QSEC the Board will authorize the Superintendent, or designee, to negotiate a contract for services for fees to provide direct management of the Construction Management at Risk Contract. Recommendations by the Qualification Selection Evaluation Committee do not guarantee a contract will be awarded by the Board. Award of a contract does not guarantee that work will be issued. Fees will be negotiated in accordance with Board Policy 7003 and Section 287.055, F.S. Article I of the RFQ (as revised) listed "General Requirements" that "proposers [had to] meet" "[i]n order to be considered." As the parties stipulated in Admitted Fact 21, Article I.D. of the RFQ (as revised) provided, in pertinent part, as follows: All proposers must be prequalified according to 1013.46 F.S., SREF 4.1(8), and Board Policy 7003 at the time of submittal due date to this RFQ. Article I.H. of the RFQ (as revised) provided as follows: The School Board of Broward County, Florida reserves the right to reject any or all responses, to waive technicalities, or to accept the proposal that, in its sole judgment, best serves the interest of The School Board of Broward County, Florida. Article II of the RFQ (as revised) described the "Selection Process." As the parties stipulated in Admitted Fact 22, Article of the RFQ (as revised) "was entitled 'Proposal Review by Staff' and stated as follows": Facilities and Construction Management Division staff will conduct a review of the proposer's submittal to determine whether the proposer meets the terms of this RFQ, requirements of the Florida Statutes, State Requirements for Educational Facilities regulations, Florida Building Code, and any other code, statute, or standard applicable at the time of response. Facilities and Construction Management Staff will provide information to the QSEC Members showing payments made by the district to the proposing firms over the past three (3) years. Non-compliant proposals will be recommended to the committee for rejection. As the parties stipulated in Admitted Fact 23, Article of the RFQ (as revised) "was entitled 'Shortlist Selection' and stated as follows": The QSEC Members will assign points to each proposer, for each facility, based upon the Selection Criteria below and attached Selection Criteria Score Sheet in the shortlist evaluation process. Each QSEC Member shall assign points for each proposer according to the selection criteria and rank them according to their scores. The proposer receiving the most points by a QSEC Member will be considered the first choice of that QSEC Member. The firm that receives the most first choice votes from the committee will be the top-ranked proposer. The second-ranked proposer will be the proposer that receives the most points, other than the proposer who was already selected as the top-ranked, and so on. In the event of a tie a voice vote will be taken until the tie is broken. If the voice vote is not unanimous, then a roll-call vote will be taken. The selection process will establish a "shortlist" for each facility/project of not less than three (3) proposers and no more than five (5) proposers submitting proposals. Shortlist selection will be done by each facility. Article II.E. of the RFQ (as revised) called for "[p]resentations" to be made to the QSEC by the shortlisted proposers. As the parties stipulated in Admitted Fact 24, Article II.G. of the RFQ (as revised) "was entitled 'Final Selection' and stated as follows": The QSEC will interview and rank the shortlisted firms. The QSEC will assign points to each proposer, for each facility, utilizing the Selection Criteria and point schedule included with the Selection Criteria Score Sheet to finalize the selection. Note, M/WBE staff will provide scores for M/WBE categories. However, such scores are recommendations by M/WBE staff and may be adjusted by individual QSEC Members. Each QSEC Member shall assign points for each proposer according to the selection criteria and rank them according to their scores for each project/facility. The proposer receiving the most points by a QSEC Member will be considered the first choice of that QSEC Member. The proposer that receives the most first choice votes from the committee will be the top-ranked proposer. The second-ranked proposer, will be the proposer that receives the most points, other than the proposer who was selected as the top-ranked proposer, and so on. In the event of a tie a voice vote will be taken until the tie is broken. If the voice vote is not unanimous, then a roll- call vote will be taken. The QSEC will recommend the finalist(s) for award of contract to Construction Manager to the Superintendent. The Superintendent shall either recommend award of contract(s) to the finalist(s) selected by the QSEC or recommend rejection of all proposals to the Board. After the Board approves the recommendations of the QSEC the Board will authorize the Superintendent, or designee, to negotiate a contract with the top-ranked firm according to Section 287.055, F.S. The Board shall have final approval of such recommendations. Final selection will be done by each facility. Article II.H. of the RFQ (as revised) contained the "Minimum Selection Criteria." This provision read as follows: Minimum Selection Criteria: Will include the following as a minimum, (refer to this document Article XI Submittal Requirements for expanded list of selection criteria): The company's history, structure, personnel, licenses, and experience. Related projects similar in scope or amount completed by the company, including name of client or its representative. Financial information such as balance sheet and statement of operations and bonding capacity. Project management, scheduling and cost control systems the company uses for similar projects. Proposed minority business involvement in the project (refer to this document Article I, J for requirements). Cost control, value engineering techniques and constructability reviews. Description of litigation, major disputes, contract defaults and liens in the last five (5) years. Interview. Confirmation of references. Consideration of the volume of work previously awarded to each firm, with the object of effecting an equitable distribution of contracts among qualified firms, provided such distribution does not violate the principle of section of the most qualified firms. As the parties stipulated in Admitted Fact 25, Article III of the RFQ (as revised) "[was] entitled 'Competitive Negotiations' and state[d] as follows": After the QSEC ranks the firms, recommends the finalist(s) to the Superintendent, and the Superintendent recommends the finalist(s) to the Board[,] [t]he Superintendent, or designee will negotiate a contract for services for fees to provide direct management cost of the CM and Guaranteed Maximum Price (GMP). The CM contract shall maintain an "open book" project accounting process, with any savings returned to the Board. Should the negotiations not result in a contract with the finalist at a price determined by both parties to be customary, fair, competitive, and reasonable, negotiations with that firm shall be formally terminated. The Superintendent, or designee, shall undertake negotiation with the second most qualified firm and thereafter, if necessary, with the third firm. Should the Board be unable to negotiate a satisfactory contract with any of the selected firms, additional firms will be selected in accordance with the above- described procedure. Negotiation should continue in accordance with Section 287.055, F.S., or until the Board determines not to proceed and to re-advertise and repeat the process. Article IV of the RFQ (as revised) addressed the "Scope of Services." It simply provided as follows: "Refer to attached Agreement Between Owner and Construction Manager for requirements." Article 3 of the "attached Agreement Between Owner and Construction Manager" (Sample Contract) enumerated the "Construction Manager's Services." Those services to be performed by the hired construction manager during the "Pre-Design Phase" were described in Article 3.2 of the Sample Contract as follows: The Construction Manager shall review project requirements, educational specifications, on and off-site development, survey requirements, preliminary budget, and make value engineering and constructability recommendations for revisions to the Owner and Project Consultant in the form of a written report prior to the final payment for this phase. The Construction Manager shall, subject to Owner's approval and compliance with existing Owner completion schedule, establish a preliminary master project schedule identifying all phases, Critical Path elements, responsibilities of the Owner, Project Consultant, outside agencies, third parties and any other impacts which would affect project schedule and progress and update them monthly throughout the duration of the contract. When the project includes renovation or expansion of an existing Facility, the Construction Manager will assist the Construction Team in preparing an analysis package outlining the condition of the existing Facility, existing structure, existing finishes, and existing equipment, code deficiencies, energy use, and life expectancy of other building systems by providing constructability, value engineering, and cost estimates recommendations. The package should contain the Construction Manager's recommendations, cost estimates and preliminary schedules. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. The Construction Manager shall prepare detailed cost estimates and recommendations to Owner and Project Consultant at S.D. (Schematic Design), D.D. (Design Development), C.D. (50% and 100% Construction Documents) phases of the project. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for each phase. The Construction Manager shall provide project delivery options for the design, bid, and bid packaging of the project for efficient scheduling, cost control and financial resource management. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. The Construction Manager shall utilize information and reporting systems to provide the Owner with monthly reports containing accurate and current cost controls, work status, including but not limited to Work narrative, Work completed/anticipated, short term and long term schedules, estimated expenditures, and project accounting systems of the project at all times. Such information shall be provided to the Owner and Project Consultant in the form of a written report, prior to final payment for this phase. The Construction Manager shall prepare a report with the Project Team's participation which shall describe, as a minimum, the Work plan, job responsibilities, and written procedures for reports, meetings, inspections, changes to the project, building systems, and delivery analysis and other relevant matters. Such information shall be provided to the Owner and Project Consultant prior to final payment for this phase. The Construction Manager shall provide market analysis and motivation for subcontractor interest and recommendations for minority business participation. This shall include analysis of the Construction Manager's historical data for subcontracting, communication with contractor and trade organizations requesting participation, review of the Owner's M/WBE data, advertising, outreach programs, mailings to all prospective bidders identified by these actions, and reporting of all of the for[e]going to the Owner. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. The Construction Manager's personnel to be assigned during this phase and their duties and responsibilities to this project and the duration of their assignments are shown on Exhibit D to the General Conditions. All required reports and documentation shall be submitted and approved by the Owner as pre-requisite to progress payments to the Construction Manager by the Owner during this phase. Those services to be performed by the hired construction manager during the "Design Phase" were described in Article 3.3 of the Sample Contract as follows: The Construction Manager will be required to attend all project related meetings and include a summary of the meeting of its monthly report to the Owner as specified in Document 01310. The Construction Manager will periodically review to the best of their abilities all Contract documents for constructability and compliance with applicable laws, rules, codes, design standards, and ordinances. Such information shall be provided to the Owner and Project Consultant in the form of a written report in the format as noted herein prior to final payment for this phase (Refer to exhibits G and H). The Construction Manager will be required to work with and coordinate [its] activities with any additional consultants, or testing labs and others that Owner provides for the project and report all findings as specified in Document 01310. The Construction Manager shall review all Contract documents for the new and existing buildings and/or building sites and provide value engineering recommendations to minimize the Owner's capital outlay and maximize the Owner's operational resources. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. All such recommendations shall be acknowledged and incorporated into the construction documents by the Project Consultant unless otherwise authorized by the Owner in writing. The Construction Manager will review construction documents and the new and existing buildings conditions and/or building site to reduce to the best of [its] abilities conflicts, errors and omissions and shall coordinate with the Project Consultant in order to eliminate change orders due to errors, omissions and unforeseen conditions. The Construction Manager shall periodically update the master project schedule and make recommendations for recovery of lost time. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. The Construction Manager will coordinate with the Project Consultant and provide to the Project Construction Team permitting applications and requirements for the projects. The Construction Manager will periodically update cost estimates and make recommendations to keep the project within the FLCC. AT COMPLETION OF THE CONSTRUCTION MANAGER'S REVIEW OF THE PLANS AND SPECIFICATIONS, EXCEPT ONLY AS TO SPECIFIC MATTERS AS MAY BE IDENTIFIED BY APPROPRIATE WRITTEN COMMENTS PURSUANT TO THIS SECTION, CONSTRUCTION MANAGER SHALL WARRANT, WITHOUT ASSUMING THE PROJECT CONSULTANT'S RESPONSIBILITES, THAT THE PLANS AND SPECIFICATIONS ARE CONSISTENT, PRACTICAL, FEASIBLE AND CONSTRUCTIBLE. CONSTRUCTION MANAGER SHALL WARRANT THAT THE WORK DESCRIBED IN THE PLANS AND SPECIFICATIONS FOR THE VARIOUS BIDDING PACKAGES IS CONSTRUCTIBLE WITHIN THE SCHEDULED CONSTRUCTION TIME. DISCLAIMER OF WARRANTY: THE OWNER DISCLAIMS ANY WARRANTY THAT THE PLANS AND SPECIFICATIONS FOR THE PROJECT ARE ACCURATE, PRACTICAL, CONSISTENT OR CONSTRUCTIBLE OR WITHOUT DEFECT. .10. The Owner may select certain projects for expediting using fast-track construction. When this option is exercised, in writing, by SBBC, it shall be implemented in accordance with the following: A. Design/Construction documents as noted herein shall be submitted by the Consultant for review and approval by SBBC (including Building Code review and Building permit issuance for 100% completion documents), the Construction Manager and others, as applicable, having jurisdiction: Foundation/Structural/LCCA/Site and Off- Site Package-100% Documents A separate 50% completion progress set (for information only) of Building Finish Package drawings shall also be submitted which shall show all of the major characteristics of the project utilities and service, detailed site and floor plans, elevations, section, schedules, etc. Construction may begin after approvals and building permit is obtained for above package. Building Finish Package-100% Documents As mutually agreed by the parties in writing. .11 Guaranteed Maximum Price (GMP): Upon completion of the design phase [construction documents 100% complete] and prior to the bidding and award phase, the Construction Manager shall present to the Owner the GMP for the Owner[']s review and approval in accordance with Article 6 of this Agreement.[3] Those services to be performed by the hired construction manager during the "Bidding and Award Phase" were described in Article 3.4 of the Sample Contract as follows: At this stage the Construction Manager assumes the leadership responsibility for the project team. Upon obtaining all necessary approvals of the Construction Documents including a Building Permit as required by FBC and Owner approval of the latest Statement of Probable Construction Cost, the Construction Manager shall obtain bids and commence awarding construction contracts. The Owner will have the drawings and specifications printed for bidding purposes, either through its open Agreements with printing firms or as a reimbursable service through the Project Consultant, or as set forth in Article 26.03.08 in the General Conditions of this CM Agreement. The Construction Manager shall review the Owner[']s records of pre-qualified contractors, including Minority/Women Business Enterprises (M/WBE) and prepare a list of those recommended for work pursuant to this contract. The Owner reserves the right to reject any or all subcontractors recommended for approval. The Construction Manager shall maintain a list of all potential bidders, including M/WBEs and those who are approved as pre-qualified. The Construction Manager shall prepare and issue the bid packages to cover the scope of the Work for this contract. The Construction Manager, in coordination with the Owner, shall schedule pre-bid conferences as required and issue a written summary of the conference(s). Solicitation of Bids: .1 The Construction Manager shall enter into Contracts with the firm who submits the lowest, responsive and responsible bid. The Construction Manager shall advertise according to SBBC policies as amended from time to time for bids on Documents 00101 at least three (3) times, seven (7) days apart, and with the third (3rd) advertisement prior to a pre-bid conference if applicable and at least seven (7) days prior to the bid opening. Written proposals based on drawings and/or specifications shall be submitted to the Construction Manager. The written proposals shall be opened at the usual location for bid opening. A tabulation of the results shall be furnished by Construction Manager to the Owner. .6 The Construction Manager and Owner shall open at the Construction Manager location and evaluate at least three bids, if possible, for each portion of the Work solicited. The Construction Manager shall also make recommendations to the Owner for award to the lowest, responsive, and responsible bidder. A recommendation for award to other than the lowest bidder shall be justified in writing. Those services to be performed by the hired construction manager during the "Construction Phase" were described in Article 3.5 of the Sample Contract as follows: The Construction Manager shall fully comply with the provision[s] of the Owner's Project Manual, including but not limited to Division 0 and 1, and the attached General Conditions of this contract. In the event of a conflict between this Agreement and such documents the agreement shall control. The Construction Manager shall provide the minimum staffing level as set forth in Exhibit C-F for this project. The Construction Manager shall maintain and prepare monthly updates for all project schedules, including Critical Path elements, provide written progress reports, describe problems and corrective action plan(s) and conduct briefings as required by the Owner. Such information shall be provided to the Owner and Project Consultant in the form of a written report with progress payments requests. The Construction Manager may self perform certain construction work when it benefits the Owner, results in cost and time savings, and is pre-approved by the Owner in writing. The Construction Manager shall coordinate project close-out, operation, and transition to occupancy. The Construction Manager shall coordinate with the Project Consultant to provide complete project records including project manual and electronic Computer Assisted Drafting (CAD) drawings corrected to show all construction changes, additions, and deletions. (Construction Manager shall note all changes on the as-builts for the Project Consultant to reflect on the drawings and CAD disc.) The Construction Manager shall coordinate with the Owner's staff to prepare the Certificate of Final Inspection. The Construction Manager shall obtain and review all warranties, operation and maintenance manuals and other such documents, for completeness, have them corrected if necessary and submit them to the owner. The Construction Manager shall complete all punch list items generated by the Building Code Inspector (BCI), the Owner, the Project Consultant and any others having jurisdiction over the project during its inspections. Those services to be performed by the hired construction manager during the "Warranty Phase" were described in Article 3.6 of the Sample Contract as follows: The Construction Manager shall provide a minimum one (1) year warranty and shall coordinate and supervise the completion of warranty Work during the warranty period. Construction Manager shall participate with the Owner in conducting of warranty inspections held on the sixth (6th) and eleventh (11th) months after occupancy. Construction Manager shall deliver as-built drawings, warranties and guaranties to the Owner. Where any Work is performed by the Construction Manager's own forces or by subcontractors under contract with the Construction Manager, the Construction Manager shall warrant that all materials and equipment included in such work will be new except where indicated otherwise in Contract Documents, and that such Work will be free from improper workmanship and defective materials and in conformance with the Drawings and specifications. With respect to the same Work, the Construction Manager further agrees to correct all work found by the Owner to be defective in material and workmanship and not in conformance with the Drawings and Specifications for a period of one year from the Date of Owner Occupancy of the Project or a designated portion thereof or for such longer periods of time as may be set forth with respect to specific warranties contained in the trade sections of the Specifications or by Florida Law. The Construction Manager shall collect and deliver to the Owner any specific written warranties given by others as required by the Contract Documents. The Construction Manager shall provide a Warranty Summary Report at the end of the 6- month warranty period and 11-month warranty period. This report shall provide at a minimum: Description of each warranty item during the period. Date item reported to Construction Manager. Date item corrected. If more than one trip required, document each. Description of action taken to cure warranty item. Obtain signature of school principal or designee acknowledging warranty items have been completed. Other pertinent information, if applicable. Article V of the RFQ (as revised) provided the following information with respect to "Fees and Pricing": Successful proposers shall negotiate a fee for providing construction management services during the design phase and subsequently shall negotiate a GMP for construction services during the bidding and construction phase. Architectural/Engineering firms will develop Contract documents under separate contract with the Board. As the parties stipulated in Admitted Fact 26, Article VII of the RFQ (as revised) "[was] entitled 'Board's Right to Reject' and state[d] in part as follows": The Board reserves the right to reject any and all proposals and readvertise the project(s) at any time prior to Board approval of the recommended proposer(s) and the negotiated agreement(s). All costs incurred in the preparation of the Proposal and participation in this RFQ process shall be borne by the proposers. Proposals submitted in response to this RFQ shall become property of the Board and considered public documents under applicable Florida law. The District reserves the right to accept or reject any and all submittals, or to waive any technicalities or formalities when and if it is in the best interests of the District. Rejection: A submittal shall be rejected for failure to comply with one or more of the following requirements: The proposer is not licensed or registered in the State of Florida to provide the proposed services. The submittal shall be rejected if not received by The School Board of Broward County, Florida by the specified deadline. Not Applicable. Article XI of the RFQ (as revised) discussed "Submittal Requirements" and contained the following provisions concerning "Related Projects Similar in Scope (to this RFQ)" and "References": Related Projects Similar in Scope (to this RFQ): List educational projects of related scope and size. Provide name and location of project, project owner, project owner name, address phone and contact person, project cost, current project status, firm[']s key personnel assigned to the project. . . . L. References: Provide a list of all projects, clearly stating name of project, using Construction Management at Risk, completed or in progress within the last five (5) years from due date of this RFQ. If Proposer[']s firm also has offices outside the tri-county area (meaning Broward, Miami-Dade, or Palm Beach), then at a minimum provide references for all Construction Management at Risk projects in the tri-county area. List projects that are 75 percent or greater of the construction budget statement in the Public Announcement for each listed project. Provide the address, telephone numbers and contact person(s) listed as references for each project. . . . As the parties stipulated in Admitted Fact 27, "[o]n or about September 3, 2008, [Respondent] received proposed qualifications to provide construction management at risk services for [the FHS Project] from 13 vendors including Petitioner." Among the other "vendors" submitting "proposed qualifications" were Elkins Constructors, Inc., the Morganti Group, Inc., and W. G. Mills, Inc. As the parties stipulated in Admitted Fact 28, "[i]n accordance with the terms and conditions of the RFQ [as revised] and [Respondent's] governing statutes, rules and policies, Respondent's Qualifications Selection and Evaluation Committee ('QSEC') recommended the rejection of certain proposers for their failure to comply with [Respondent's] pre-qualification requirements or limits." There were three such "proposers": Elkins Constructors, Inc.; the Morganti Group, Inc.; and W. G. Mills, Inc. At the time of the "submittal due date to this RFQ [as revised]," neither Elkins Constructors, nor the Morganti Group, was "prequalified according to 1013.46 F.S., SREF 4.1(8), and Board Policy 7003" for any project. W. G. Mills, on the other hand, was "prequalified" for certain projects, but only within the following limits: a "[p]er [p]roject [l]imit [of] $25,000,000 [and an] [a]ggregate [l]imit [of] $250,000,000." The "advertised Proposed Construction Budget" of the FHS Project was $29,150,340, which was more than W. G. Mills' "[p]er [p]roject [l]imit [of] $25,000,000." As of the date "proposed qualifications" were due, there were 11 prequalified firms, including W. G. Mills, who had a "[p]er [p]roject [l]imit" of between $17,000,000 and $26,000,000. These firms were not eligible to be awarded the contract for the FHS Project because the project's "advertised Proposed Construction Budget" was in excess of their "[p]er [p]roject [l]imit." W. G. Mills was the only one of these 11 prequalified firms to respond to the RFQ (as revised). As the parties stipulated in Admitted Fact 29, "[i]n accordance with the terms and conditions of the RFQ [as revised] and [Respondent's] governing statutes, rules and policies, [the] QSEC next evaluated and short-listed the remaining proposers. It thereafter received presentations from the short-listed proposers and, after scoring those short-listed proposers, recommended Petitioner . . . to [Respondent] as the proposer with whom to negotiate a contract for services for fees to provide direct management cost of the construction manager and the project's guaranteed maximum price ('GMP')." As the parties stipulated in Admitted Fact 30, "[o]n October 7, 2008, [Respondent] approved [the] QSEC's selection of Petitioner . . . as the vendor with whom negotiations would be had for [the] Fort Lauderdale High School component of the RFQ [as revised] and 'authorized negotiations for Construction Management at Risk Services.' The scope of Construction Management at Risk services was [as noted above] included within the RFQ [as revised]. The summary explanation and background portion of the agenda item to authorize negotiations stated that the 'Superintendent's designees will negotiate the selected Constriction Management at Risk Services fees for the projects and recommend award of contracts at a future School Board Meeting.'" As the parties stated in the "Statement of the Controversy" section of their Joint Pre-Hearing Stipulation, "[n]egotiations between [Respondent] and [Petitioner] occurred between October 2008 [following Respondent's approval of the QSEC's selection of Petitioner] and December 2009." In December 2009, Cubellis, the architectural firm working on the FHS Project for Respondent, was "experiencing some financial difficulties" and there was uncertainty as to whether it would "be able to continue [on] the project." As a result, negotiations between Respondent and Petitioner were halted. Eventually, Cubellis "assigned [its] contract [with Respondent] to somebody else" (specifically, Manuel Synalovski Associates, LLC), but negotiations between Respondent and Petitioner never resumed. Petitioner's last written contract proposal was dated December 10, 2009. It was based on a proposed construction budget of $18,297,367 and provided for the following "Negotiated Contract Terms": Construction Manager Fees: Pre-Design Not Applicable Design Not Applicable Bidding & Award $37,685 Construction Phase Fee $1,172,370 Warranty $35,000 Overhead $289,200 Profit $185,385 General Conditions $659,846 Total $2,379,489 Above Fees based on scope of work issued "Project Scope" document dated 11/5/2009 per 11/9/2009 letter from M. Decker. CM Performance and Payment Bonds and GL Insurance are included based on budgeted contract amount of $18,297,367. Builders Risk, Contingency, and Subcontractor insurance costs are not included in the fees and will be shown in the schedule of values as separate line items as a cost of work. Should the cost of work increase Bonds and GL insurance fees are to be adjusted at insurance providers' invoiced amount. Overhead, profit and bond allowances for Change Orders: 10% Substantial Completion: 570 Final Completion in General Conditions 25.01.02: 600 Construction Phase Fee and General Conditions in 25.01.02: $3,050 per Consecutive Calendar Day Liquidation Damages for Substantial Completion: $1,000 per Consecutive Calendar Day Liquidation Damages for Final Completion: $600 per Consecutive Calendar Day This contract proposal was made following a December 8, 2009, negotiation session at which Denis Herrmann, Respondent's Director of Design and Construction Contracts, had stated that he had negotiated a construction management at risk contract for another project the previous day where the "Construction Manager Fees" were 13.8 percent of that particular project's proposed construction budget. Mr. Herrmann had relayed this information to Petitioner's representatives at the meeting to give them "a flavor for the range [Respondent was] talking about, not to give them a [specific] number [or percentage] that would be acceptable." The "Construction Manager Fees" proposed by Petitioner in its December 10, 2009, offer were slightly less than 13.8 percent of the $18,297,367 proposed construction budget (but they did not cover any "Pre-Design"-related or "Design"-related work). While Respondent has never, in writing, specifically rejected Petitioner's December 10, 2009, offer, neither has ever formally accepted it. As the parties stipulated in Admitted Facts 45 and 48, respectively, Respondent's "Superintendent of Schools has not placed an item on [the School Board] agenda recommending that [Respondent] enter into a contract with [Petitioner] concerning the RFQ [as revised]," and "[Respondent] has not approved a contract with [Petitioner] concerning [the] RFQ [as revised]." It has been two years since "[Respondent] approved [the] QSEC's selection of Petitioner . . . as the vendor with whom negotiations would be had." Significant changes impacting the FHS Project have occurred over that period of time. Respondent now finds itself in the midst of an "unprecedented budget crisis," making it especially imperative that it "take every [possible] step to maximize the purchasing power of the public's dollars." A precipitous decline in revenue available for capital projects (due, in large measure, to a decline in property values, coupled with a reduction in the capital outlay millage rate) has required Respondent to eliminate or scale back various planned projects. The FHS Project is among the projects that have been scaled back. As the parties stipulated in Admitted Fact 31, "[p]rior to, during and subsequent to its negotiations with [Petitioner], [Respondent] determined on several occasions that the project scope of the [FHS Project] needed to be further adjusted, ultimately resulting [in] the following project scope [with strike-throughs and underlining indicating, respectively, deletions and additions]": Concurrent Replacement in two phases to include: Demolish existing swimming pool (buildings 15 and 16). Demolish existing tennis courts and replace with 6 tennis courts. Demolish Buildings 1, 2, 3, 4, 11, 12, 13, and 14. Construct basketball courts. Construct Regional Athletic Facility. Construct (2) 3-story buildings (1 – Administration & 1 - Classroom) of approximately 68,940 GSF combined to include Administration, 3 general classrooms, 5 resource rooms, 4 science labs and related spaces, 4-classroom ESE suites, 1 Business Technology lab, 1 Family and Consumer Science (ProStart) lab, 1 Health Occupations Lab, 1 Pre-Law Public Service Education Lab, Custodial spaces, Textbook Storage, and Student, Staff and Public Restrooms. Remodel Renovate existing Science Building (building 8). Construct Parent Drop Off and Pick Up area and Staff/Visitor Parking. Resurface Student Parking. Construct New Student parking area on the West side of the site to increase parking capacity by 92 spaces. Modify existing temporary bus loop to meet SREF code and ADA standards; modifications will include barricades and covered sidewalk. Redesign courtyard to meet current ADA standards.' As the parties further stipulated in Admitted Fact 31, "[t]he project scope was revised five (5) times between October 7, 2008 and December 2, 2009[,] [and Petitioner] was notified of the changes in scope and acknowledged the same." "[R]evis[ions]" have also been made to the project's budget. Respondent's "5-Year Plan" allocates funding for all costs (including, but not limited to, construction costs4) associated with each of Respondent's funded capital projects. As the parties stipulated in Admitted Fact 32, "[Respondent] adopts and revises its 5-Year Capital Improvement Plan ('5-Year Plan') each year." As the parties further stipulated in Admitted Fact 33: [Respondent's] 5-Year Plan adopted for Fort Lauderdale High School for Fiscal Years 2009-10 to 2013-14 eliminated the $39,491,259 previously budgeted as "Capacity Additions" . . . . Instead, the 2009-10 to 2013-14 Five Year Plan provided $21,050,000 for Capacity Additions . . . . Respondent's current "5-Year Plan" (for the Fiscal Years 2010- 2011 to 2014-2015), which was adopted on September 7, 2010, allocates $22,366,085 to the FHS Project (as scaled back). The dour economic conditions responsible (in part) for the drop in tax revenues available to fund Respondent's capital projects have also led to increased competition in the construction industry and a resultant decline in construction prices. This increased competition is particularly pronounced "in the procurement area of hard bidding." During "the peak of the construction boom," before the downturn in the economy, it was not atypical for Respondent, when it "hard bid" a construction project, to get just one or even no bids in response to the solicitation. Now, Respondent "expect[s] to see between half a dozen [and] a dozen or more bidders." Moreover, recently, winning bids on "hard bid" projects have been, on average, well below these projects' advertised proposed construction budgets. Respondent has not experienced the same overall cost-savings results when it has used the "Construction Management at Risk delivery method." Given the market conditions that exist today, Respondent estimates that the construction costs for the FHS Project (as scaled back) would be no more than $16,950,000 and possibly as little as approximately $13,000,000 (if a "hard bid" were used). These amounts are considerably less than the "Proposed Construction Budget of $29,150,340" that had originally been "advertised." There are prequalified firms (including W. G. Mills) which were not eligible to be awarded the contract under the RFQ (as revised) because their "[p]er [p]roject [l]imit" was less than $29,150,340, but which would now be able to bid on a scaled-back FHS Project were it to be readvertised (with a proposed construction budget of $16,950,000). Another (and perhaps the most significant) difference between the circumstances existing at present and those that existed two years ago (vis-à-vis the FHS Project) is that the design of the project (as scaled back) has advanced to the point that, with a few revisions,5 the construction documents for the project will be 100 percent complete.6 As a result, Respondent no longer has a need for most, if not virtually all, of the "pre-design" and "design" services, described in Articles 3.2 and 3.3 of the Sample Contract, that, back in 2008, it had wanted a construction manager to perform. In April 2010, Respondent's Office of the Chief Auditor issued a report (April 2010 Audit Report) critical of Respondent's use of the "Construction Management at Risk delivery method" in connection with 14 projects "which were included in the Construction Management at Risk Kitchen/Cafeteria RFQ No. 2006-12-FC." The report read, in pertinent part, as follows: The projects included in RFQ No 2006-12-FC were sufficiently completed by the Architect/Engineer firm(s) prior to being advertised as CM at Risk construction projects. The inability [of] any CM firm to provide "professional services" and scheduling of both design and construction phases represents a deviation from the intent of Florida Statutes, SREF and the School Board's CM at Risk contract.[7] In nearly every executed CM at Risk agreement in the Kitchen/Cafeteria program, the Pre- Design and Design phase responsibilities of the CM were stricken from the contract. That is a further representation that the input required by a prospective CM to qualify for the committee selection process was not, nor was it intended to be provided. F.S. 1013.45(1)(c) also states that the use of the CM at Risk delivery method " . . . shall not unfairly penalize an entity that has relevant experience in the delivery of construction programs of similar size and complexity by methods of delivery other than program management." All of the projects in the Kitchen/Cafeteria program were originally intended to be "hard-bid" but were changed to the CM at Risk delivery method. One project was removed from the group prior to the due date of submittals for RFQ No. 2006-12-FC. That hard bid project, Margate ES, cost approximately $5.6 million, including nearly $466,226 in change orders, which was approximately $3.3 million less, on average, than the fourteen (14) projects that remained in RFQ No. 2006-12- FC. Due to the change in delivery method, general contracting firms could have been "unfairly penalized" by the decision to use the CM at Risk delivery method, as many local general contractors have the relevant experience in the delivery of construction programs of similar size and complexity by methods other than the CM at Risk delivery method.
Recommendation We recommend that Facilities & Construction Management discontinue developing construction procurement packages (i.e. RFQ and RFP) for award of CM at Risk agreements when construction management services requested are associated with reused, prototypical or otherwise sufficiently developed construction documents. Kitchen/Cafeteria program data indicates that the benefits associated with the CM at Risk delivery method were not realized using prototypical designs, as the program resulted in over $24 million in avoidable fees while circumventing applicable laws and regulations. On May 10, 2010, Mr. Herrmann sent a letter to Respondent's General Counsel requesting, in light of the April 2010 Audit Report, a "legal opinion related to the award of a Construction Manager at Risk Agreement (CM) to [Petitioner] and whether such an award would comply with Chapter 1013.45(1)(c), S. and State Requirements for Educational Facilities 1999 (SREF)," given that the FHS Project (as scaled back) was then "in the design phase and Phase III 100% Construction Documents [were] being prepared." The concluding paragraph of the letter read as follows: In this project, The Weitz Company has been selected by the board and we intend to recommend award of a contract within several months. An award of a CM agreement in this case would not violate the specific audit recommendation and we believe such an award does not violate statute or SREF. Please advise whether you concur. Mr. Herrmann has since changed his opinion. He now believes (reasonably so, in the undersigned's view) that "award of a CM agreement" in the instant case would be inconsistent with the "audit recommendation" inasmuch as the FHS Project (as scaled back) now has "sufficiently developed construction documents." On May 18, 2010, Mr. Herrmann sent another letter to Respondent's General Counsel. This letter read as follows: This is to provide you with additional information relating to a request for a legal opinion regarding the award of a Construction Manager at Risk Agreement (CM) to The Weitz Company. Please also refer to the attached memos dated 10/14/09, 11/16/09 and 5/10/10. In summary, we have requested opinions based on the following: Whether such an award would comply with applicable statutes, SREF, and board policy given the extent of the changes to the scope and budget. Whether such an award would comply with Chapter 1013.45(1)(c), F.S. and State Requirements for Educational Facilities 1999 (SREF). We have recently revised the construction cost estimate as a result of current market conditions, and the project consultant, Manuel Synalovski [Associates], LLC agrees with the revised estimate. The change in the cost estimate is as follows: In the RFQ: $29,150,340 October 2009 (Change in scope): $21,770,000 November 2009 (Market conditions): $18,297,367 May 2010 (Market conditions) $16,950,000 Please advise whether we should proceed with the award or reject all bids. Respondent's General Counsel responded to neither of these May 2010, letters from Mr. Herrmann. As the parties stipulated in Admitted Fact 34, "[o]n June 15, 2010, [Respondent] approved Item J-15 during its June 15, 2010, Regular Meeting." The "Requested Action" and "Summary Explanation and Background" section of the Agenda Request Form for this agenda item (J-15) provided as follows: REQUESTED ACTION Approve the change in the delivery method from Construction Management at Risk to Design/Bid/Build and the First Amendment to the Professional Services Agreement with Manuel Synalovski Associates, LLC (MSA) for Fort Lauderdale High School, Phased Replacement Project No. 095-27-01, dated February 12, 2008. SUMMARY EXPLANATION AND BACKGROUND Scope of Work: Basic Services Amended 6/15/10: This item changes the delivery method from Construction Management at Risk to Design/Bid/Build. Demolish existing Swimming pool (Buildings 15 and 16); demolish existing tennis courts; demolish Buildings 1, 2, and 3; construct two 3-story buildings (1 administration and 1 classroom) of approximately 68,940 gross square feet combined to include administration, 3 general classrooms, 5 resource rooms, 4 science labs and related spaces, 4 ESE classroom suite, 1 business technology lab, 1 family and consumer science (ProStart) lab, 1 health occupations lab, 1 pre-law public service education lab, custodial spaces, textbook storage, and student, staff, and public restrooms. Remodel existing science building (Building 8). Construct new parent drop off and pick up areas and staff/visitor parking. Construct new student parking area on the west side of site to increase parking capacity by 92 spaces. Modify existing temporary bus loop to meet SREF, Florida Building Code and ADA Standards. ADA modifications will include barricades and covered sidewalk. Remodel existing courtyard for ADA access to gym and auditorium. MSA and the Superintendent's Negotiations Committee negotiated a total reduction in [architectural] fees from the February 12, 2008 Board approved amount of $2,021,000 to $1,683,650. This decrease in the Basic Services Fees totals $337,350 and is decreased as follows: Phase IV (Bidding and Award) by $54,357, Phase V (Construction Administration) by $269,250, and Phase VI (Warranty) by $13,743. This fee reduction is as a result of a reduction of the original scope as per Attachment 2 to the First Amendment. This First Amendment also reduces the Fixed Limit of Construction Cost (FLCC) from $29,150,340 to $16,950,000 as a result of the reduction in scope and construction costs resulting from current market conditions. The Risk Management Department and the Office of the Chief Auditor have reviewed this First Amendment. The School Board Attorney has approved this First Amendment as to form and legal content. As the parties stipulated in Admitted Fact 35, on June 30, 2010, "[Respondent] posted its Revised Recommendation[] and Tabulation for [the FHS Project, which] set forth the following recommendation": Per Article VII.A of the RFQ, based upon the recommendation of the Qualification Selection Evaluation Committee, the Facilities and Construction Management Division intends to recommend that The School Board of Broward County, Florida, at the School Board meeting on July 20, 2010, reject all responses received for Fort Lauderdale High School Project No. P.000687. The original, intended scope of work as set forth in the original RFQ is substantially and materially different than the revised scope of work and budget in the proposed contracts and such work should be re- advertised and re-bid. This decision to "reject all responses" and "re- advertise[] and re-bid" was based on an honest and good faith exercise of discretion, intended, ultimately, to allow Respondent to receive (in the words of Mr. Herrmann) "more bang for [its] buck." As the parties stipulated in Admitted Facts 39 through 41, Petitioner timely protested Respondent's intended "reject[ion] [of] all responses." As the parties stipulated in Admitted Facts 42 through 44, after the parties had unsuccessfully attempted "to resolve the protest by mutual agreement," Respondent, at Petitioner's request, referred the matter to DOAH on August 23, 2010.
The Issue The issue in this case is whether Respondent's intended award of a contract to Intervenor pursuant to Request for Proposals No. 10-DC-8200 is contrary to Respondent's governing statutes, Respondent's rules and policies, and the specifications of the Request for Proposals.
Findings Of Fact The State of Florida has, by legislative enactment, developed programs to electronically supervise offenders sentenced under a community control alternative to prison, and to supervise, register, and monitor designated sexual offenders and predators under the Jessica Lunsford Act. The Department of Corrections is the agency charged with the implementation of the electronic monitoring program, and to ensure that probation officers and other community supervision personnel have access to offender monitoring data. Pro Tech and BI are both well-recognized and established providers of electronic monitoring devices and monitoring and reporting services to federal, state, and local law enforcement and correctional agencies in Florida and across the United States. Pro-Tech is the incumbent vendor to the Department for electronic monitoring services. RFP 10-DC-8200 On August 30, 2010, the Department issued RFP 10-DC- 8200, the purpose of which was to select a contractor to provide active Global Positioning Satellite (GPS) electronic monitoring services for supervision of offenders sentenced under a community control alternative to prison, and to monitor designated sexual offenders and predators under the Jessica Lunsford Act. As of June 30, 2010, the Department was utilizing approximately 2,538 active GPS units to monitor offenders. The Department projected that within three years, as many as 3,015 offenders would be on active GPS monitoring. The scope of work for the contract was detailed in section 3 of the RFP. Briefly, the winning vendor is expected to ?provide active [GPS] services 24 hours a day, 7 days a week, which shall include a monitoring system that is capable of being accessed through a secure internet connection and fully supported by a secure database for transactional records.? Provisions of the RFP that are material to this proceeding include, by section number, the following (all emphasis is in the original): 1.13 Mandatory Responsiveness Requirements: Terms, conditions or requirements that must be met by the proposer to be responsive to this RFP. The responsiveness requirements are mandatory. Failure to meet the responsiveness requirements will cause rejection of a proposal. Any proposal rejected for failure to meet mandatory responsiveness requirements will not be evaluated. Material Deviations: The Department has established certain requirements with respect to proposals to be submitted by Proposers. The use of shall, must or will (except to indicate simple futurity) in this RFP indicates a requirement or condition which may not be waived by the Department except where any deviation therefore is not material. A deviation is material if, in the Department's sole discretion, the deficient response is not in substantial accord with this RFP's requirements, provides an advantage to one Proposer over other Proposers, or has a potentially significant effect on the quantity or quality of items or services proposed, or on the cost to the Department. Material deviations cannot be waived and shall be the basis for rejection of a response. Because this is an RFP, the Department will apply this definition liberally in reviewing responses in regard to service delivery. Minor Irregularity: A variation from the RFP terms and conditions which does not affect the price proposed or gives the proposer an advantage or benefit not enjoyed by the other proposers or does not adversely impact the interests of the Department. 5.2.9 The Proposer shall provide for both the Contractor and Contractor‘s personnel, copies of any and all documents regarding complaints filed, investigations made, warning letters or inspection reports issued, or any disciplinary action imposed by Federal or State oversight agencies within the past five (5) years. Narrative/Record of Past Experience As indicated in Section 2.2 and Attachment 1, it is a mandatory responsiveness requirement that the Proposer has at least three (3) years of business/corporate experience within the last five (5) years relevant to providing electronic monitoring services and equipment similar to the services described in this RFP, to correctional, criminal justice or law enforcement agencies. Details of the Proposer‘s experience that meet this requirement shall be provided in narrative form and in sufficient detail so that the Department is able to judge its complexity and relevance. Specifically include: provide a description of past years‘ experience providing electronic monitoring equipment and services. provide a description of past experience and the specific length of time providing Active GPS services (as identified in this RFP). identify all current and/or past (or within three (3) years) federal, state or government contracts for the provision of electronic monitoring services, and the number of active GPS units utilized for each. provide a narrative summary of contract performance in the above-identified contracts, including any major adverse findings. provide the name and telephone number and address for the specified federal, state, or government contract manager. provide a summary of any exemplary or qualitative findings, recommendations, or other validations, demonstrating operational experience. (i.e., specialized accreditation, grant awards, etc.). The proposer shall provide a detailed description of the General Equipment specifications that meets or exceeds all requirements in Section 3.7.2 and specifically: provide manufacturer‘s specifications and literature on all equipment proposed, including equipment which is acquired from any other source than the proposer; describe the process utilized to notify the Department and/or the offender when a low battery condition exists in any component of the equipment (transmitter or receiver dialer); describe and list the tools necessary for installation of any of the monitoring unit equipment; and provide copies of required licensing by the Federal Communications Commission for the equipment proposed. The proposer shall provide a detailed description of the Contractor‘s method and approach for meeting or exceeding all Monitoring Center requirements in Section 3.13, and specifically: provide a copy of the staffing plan for monitoring services twenty four (24) hours a day, seven (7) days a week, including holidays; and provide a copy of the Disaster Recovery plan. The proposer shall provide a detailed description of the approach to meeting or exceeding all Training requirements in Section 3.16, and specifically: provide a description of the method(s) for securely sizing and installing the transmitter securely to offenders; provide a copy of the training curriculum; and provide a copy of proposed course/instructor evaluation form. Please note - final evaluation form to be approved by Contract Manager and/or designee. As part of the RFP process, each interested vendor was allowed to submit questions regarding the terms of the RFP, and the services being sought. The Department responded to each of the 72 questions submitted. On November 2, 2010, the responses, along with revised RFP pages resulting therefrom, were provided to each prospective vendor as RFP #10-DC-8200 Addendum #1. Among the questions for which the Department provided answers were the following: Question #11: Sections 5.3.2.3 & 5.3.2.4 on Page 38 requires that we: ?identify all current and/or past (or within (3) years) federal, state or government contracts for the provisions of electronic monitoring services, . . . .? And that we ?provide a narrative summary of contract performance in the above identified contracts,. . .? In the case of Pro Tech, this would amount to more than a hundred contracts resulting in a voluminous response. Perhaps a more reasonable requirement would be to provide the information for our 10 largest or 10 most similar contracts. Answer #11: These requirements remain as stated in the RFP. Question #16:5.3.2. Narrative/Record of Past Experience identify all current and/or past (or within three (3) years) federal, state or government contracts for the provision of electronic monitoring services, and the number of active GPS units utilized for each. Question: Since it is feasible that Proposers could have several hundred current/past contracts, will Florida Department of Corrections consider revising the requirement to be “Provide the total number of current and/or past (or within 3 years) federal, state or government contracts?” Answer #16: This requirement remains as stated in the RFP. Question #17: provide a narrative summary of contract performance in the above-identified contracts, including any major adverse findings. Question: Since it is feasible that Proposers could have several hundred current/past contracts, will Florida Department of Corrections consider revising the requirement to be “Provide a performance summary of all contracts past/present?” Answer #17: This requirement remains as stated in the RFP. Question #28: Should respondents view ?shall? and ?must? language as mandatory requirements? Answer #28: This question is confusing different terms. See Section 1.13 that defines ?Mandatory Responsiveness Requirements?. See Section 1.15 that defines ?Material Deviations? which explains the terms ?shall and must?, and should not be confused with Section 5.1 Mandatory Responsive Requirements/ Fatal Criteria. Each proposed vendor signed an Addendum Acknowledgement Form for RFP #10-DC-8200 Addendum #1, and included it as part of its proposal. By signing and submitting the Addendum Acknowledgement Form, the vendors understood that the changes reflected in the Addendum ?are applicable to the original specifications of the above-referenced RFP? and that ?this addendum now becomes a part of the original RFP.? No prospective vendor filed a protest of any of the terms, conditions, or specifications of the RFP or Addendum #1. Proposals in Response to the RFP Proposals were submitted on November 22, 2010, by Pro Tech and BI, as well as five other electronic monitoring vendors, G4S Justice Services, LLC, iSecureTrac Corporation, Satellite Tracking of People, LLC, SecureAlert, and SOS International. BI proposed using its ExacuTrack One monitoring device to monitor offenders in Florida. The ExacuTrack One is a single piece device that is affixed to the offender‘s ankle. The unit contains a GPS signal receiver, a transmitter, cellular capability to transmit data to the monitoring center, a speaker for transmitting warnings, a device for the offender to transmit acknowledgement signals, and a rechargeable battery. The ExacuTrack One device meets the specifications of the RFP. When offenders go into prohibited areas, or when tracking capabilities are interrupted, either through shielding of the GPS signal or unauthorized tampering with the device, an alert is transmitted to the monitoring center. Each customer has a time interval set by contract by which a notification is sent to the customer, which may vary based on the nature of the alert. For example, if an offender strays into a prohibited area, an alert is transmitted to the monitoring center. If the offender exits the area before the contractual time interval is exceeded, a violation report is not required. The ExacuTrack One device has the ability to transmit an audible alert to the offender when the offender enters into an exclusion zone or otherwise violates the terms of his or her release. When an audible alert is given, the offender is required to acknowledge receipt of the alert, and to exit the area. The ExacuTrack One units are fully capable of meeting the requirements of the RFP operating on their own. However, in order to provide an option to conserve battery life of the ankle device, BI proposed to use a radio frequency ?Beacon.? When an offender is in range of his or her Beacon, generally being within the perimeter of the offender‘s home, the GPS feature goes into a low power state, and data is transmitted through the Beacon, thus extending the battery charge. BI considered the Beacon to be an optional device that exceeded the requirements of the RFP, and that could be provided at no additional cost at the discretion of the Department. Monitoring of the ExacuTrack One device may be accomplished in one of two ways. The monitoring system and devices can be sold to an agency which then provides its own monitoring, referred to as a ?local host? facility. The more commonly used system and that proposed for Florida, is one in which the monitoring devices are provided to the agency, with the resulting data sent to the BI monitoring center. The data is then stored and made available through the TotalAccess case management system. Department staff, correctional and probation officers, and other authorized users can access the system to perform a number of tasks, and are notified according to contract when monitoring alerts are transmitted to the monitoring center. The BI monitoring center has fully redundant capabilities, with all data being replicated both at the primary monitoring center in Boulder, Colorado, and at the backup center in Anderson, Indiana. Review of the Proposals Mandatory Responsiveness Requirements Review The Department initially reviewed each of the proposals to determine if Mandatory Responsiveness Requirements were met. Pursuant to section 5.1 of the RFP, the only Mandatory Responsiveness Requirements/Fatal Criteria were: a) that the complete proposal be submitted on time; and b) that the certification and cover sheet be signed. No prospective vendor was determined to be non-responsive for either of the Mandatory Responsiveness Requirements. Material Deviations/Minor Irregularities Review The procedure by which the Department was to begin the process of review of those proposals that survived the Mandatory Responsiveness Requirements/Fatal Criteria review was for procurement staff to review the proposals ?for compliance with the items required in the . . . Proposal Submissions outlined in Section 5 of the RFP.? The purpose of the compliance review was to determine whether the proposals contained any deviations from the terms, conditions, and specifications of the RFP, and whether such deviations were material deviations requiring rejection of a response, or whether they were waivable minor irregularities. If a deviation was determined to be a minor irregularity, the Department reserved the right to require additional information prior to the contract award. Kelly Wright was the Department staff person who was directly, and almost exclusively, responsible for the RFP. Ms. Wright was, in consultation with the Department‘s subject matter experts, the primary drafter of the RFP. She was responsible for vendor questions and for preparing the Addendum #1 in which those questions were answered. She prepared the evaluation manual, trained the evaluators, and compiled their scores. She performed the review of the proposals for compliance with the mandatory requirements/fatal criteria, and reviewed the executive summaries and transmittal letters. It was also Ms. Wright‘s responsibility to identify deviations from the RFP requirements and initiate the process by which such deviations were resolved. Gail Hillhouse, who is Ms. Wright‘s supervisor, and is an active participant in the decision-making process for other procurements, was not materially involved in Request for Proposals No. 10-DC-8200. She did not assist Ms. Wright in the review of responses, nor was she involved in the process of resolving deviations of the proposals from the terms of the RFP. Ms. Hillhouse never reviewed the BI proposal at any time prior to the posting of the award. If during the course of the pre-evaluation review of the proposals, or otherwise during the selection process, a deviation from the terms, conditions, and specifications was discovered, Ms. Wright was to take it directly to her bureau chief, Robert Staney. Mr. Staney‘s practice was to consult with the Department‘s legal staff, and then make a determination as to whether the deviation was a non-waivable material deviation under section 1.15 of the RFP, or a waivable minor irregularity under section 1.16 of the RFP. The Department appointed an Evaluation Committee to evaluate the proposals. The evaluators were charged with scoring the proposals as they were provided to them. The evaluators were not asked to determine whether any provision of the responses constituted a material deviation from the terms, conditions, or specifications of the RFP, and none did so. The evaluators were provided with scoring sheets that established the factors, referred to as ?considers,? that were to go into each individual score by section. Most sections contained multiple ?considers? that were to be evaluated to determine the overall score for that section. In the event a proposal was ?completely utterly unresponsive? as to the ?considers? listed for a particular section, a score of zero could be assigned. A zero would generally be an indication that some item had been omitted, thus triggering a ?material deviation? review. The scoring was to be performed as a composite, and the ?considers? within a section were not to be scored individually. Therefore, even if an element of a section was omitted in its entirety, a score of greater than zero would be required as long as there was information provided regarding the other ?considers.? That was so even if the omitted ?consider? would -- standing alone -- constitute a material deviation from the terms, conditions and specifications of the RFP. Only if an evaluator assigned an overall section score of zero would a review be undertaken to determine whether that section of the proposal materially deviated from the requirements of the RFP. Neither Pro Tech nor BI scored a zero for any section. Since there were no zeros, no ?material deviation? review was made. Ms. Wright did not review the BI proposal from beginning to end until the evaluation and scoring was completed, and the award to BI was ready to be posted. The evidence in this case demonstrates that, except as related to the financial documentation discussed herein, no one in the Department reviewed the proposals to determine if they contained deviations, material or not, from the terms, conditions or specifications of the RFP, nor was any such determination made prior to the posting of the intended award. Financial Documentation Review Each prospective vendor was required to submit financial documentation of its ability to perform the contract pursuant to section 5.4 of the RFP. The financial documentation was not a Mandatory Responsiveness Requirement/Fatal Criteria pursuant to section 1.13. Rather, section 5.4.4 provided that the ?proposer shall provide financial documentation that is sufficient to demonstrate its financial viability,? and listed the items to be included in the proposal. The RFP further provided that ?[f]ailure to provide any of the aforementioned financial information may result in proposal disqualification.? The financial documentation for each proposal was reviewed by an independent Certified Public Accountant, who determined its sufficiency under section 5.4 of the RFP. Three of the responses, those of iSecureTrac Corporation, SecureAlert, and SOS International, failed to pass the Financial Documentation review, and were disqualified from further review and consideration. The CPA determined that the G4S Justice Services, LLC financial statement had several deficiencies, including the omission of items required by section 5.4.1 of the RFP. The information was provided by the CPA to the Department‘s procurement office. After consultation with legal staff, the Department determined the deficiency to be a minor irregularity, and it was therefore waived. Evaluation Each member of the evaluation committee had experience in the field of electronic monitoring. There are no disputed issues of fact regarding the qualifications or training of the evaluation team, the procedures by which the RFP scoring was performed, or of any individual score. Therefore, further findings or conclusions regarding the evaluators or the scoring of the proposals are unnecessary. Proposed Award As a result of the process of evaluating and scoring the proposals, the Department determined that BI was the highest scoring proposer. Pro Tech was the second highest scoring responsive proposer. Satellite Tracking of People, LLC and G4S Justice Services, LLC were ranked third and fourth, respectively. The final scores were calculated, and the proposers were ranked as follows: Proposers Actual points received by Proposers (X) Highest points received by any Proposal (N) Awarded Points (Z) CATEGORY 1 - Business/Corporate Experience - Maximum 300 Points - (X/N x 300 = Z) BI 209.64 253.39 248.20 G4S 186.07 253.39 220.30 Pro Tech 253.39 253.39 300 STOP 196.43 253.39 232.56 CATEGORY 2 - Technical Specs & Service Delivery Approach - Maximum 400 Points - (X/N x 400 = Z) BI 241.96 285.54 338.95 G4S 246.96 285.54 345.96 Pro Tech 285.54 285.54 400 STOP 248.57 285.54 348.21 Proposers Proposed Per Diem Unit Price (X) Lowest Verified Per Diem Unit Price of All Proposals (N) Awarded Points (Z) CATEGORY 3 - Cost Proposal - Maximum 300 Points - (N/X x 300 = Z) BI $3.00 $3.00 300 G4S $6.88 $3.00 130.81 Pro Tech $5.20 $3.00 173.08 STOP $4.15 $3.00 216.87 Total Proposal Points and Ranking Proposers Total Proposal Points Ranking BI 887.15 1 G4S 697.07 2 Pro Tech 873.08 3 STOP 797.64 4 On December 17, 2010, the Department posted its intent to award the contract to BI. The ?October 5, 2010 Incident? BI has contracts with the Department of Homeland Security, several states, and numerous political subdivisions under which persons are monitored with BI-supplied equipment. The data from the monitoring devices is transmitted to a centralized monitoring location. All of the BI GPS devices, as well as a number of radio frequency and alcohol monitoring devices, were monitored through BI‘s ?TotalAccess? system. On October 5, 2010, at approximately 7:30 a.m. MDT, the number of records contained in the ?identity column? field in the TotalAccess database, which operated on a 32-bit platform, exceeded the capacity of that field. As a result, the monitoring center could no longer receive data from any of the 16,000 devices using the TotalAccess system, which included all of BI‘s almost 9,000 GPS devices. The ?outage? lasted approximately 12 hours. Although the monitoring devices continued to collect and store data on the whereabouts of the offenders during that period, the data could not be sent to the monitoring center or accessed by officers. Offenders had no direct way of knowing that the monitoring devices were not transmitting data. When the system came back on-line at approximately 7:25 p.m. MDT, the data was transmitted from the affected devices to the monitoring center. No data was permanently lost as a result of the outage. Officers were notified of any activities that would have triggered an alert during the period of the outage. If any questions arose as to the movements of an offender during the outage, that data could be retrieved and examined after the fact. During the outage, BI customers were alerted, either by e-mail or by telephone, and advised of the problem. The customers were updated throughout the outage period. The resolution of the issue was achieved by rewriting the ?identity column? data file from 32-bit, with a capacity of 2.1 billion records, to a 64-bit file, with a capacity of 9 quintillion records. In addition, a customized monitor was developed and installed so that a warning will be provided in the future if the system nears capacity. Thus, it is unlikely that this particular problem will recur. The October 5, 2010, incident was, by BI‘s own admission, the single worst event in BI‘s operational history. Protest Issues Petitioner, Pro Tech, timely filed a protest of the award of the contract to BI. The January 3, 2011, protest petition identified the issues that formed the basis for its protest of the award of the contract to BI.1/ The issues alleged by Petitioner are: Whether BI failed to comply with section 5.3.2 of the RFP by failing to: identify all of its federal, state or government contracts under which it provided electronic monitoring services and the number of active GPS units utilized for each; and provide a narrative summary of contract performance for each contract so identified, including major adverse findings; Whether BI failed to comply with section 5.2.9 of the RFP by failing to disclose ?complaints filed, investigations made, warning letters or inspection reports issued, or any disciplinary action? by governmental entities, specifically related to the outage of service that occurred on October 5, 2010; Whether BI failed to comply with section 5.5.13 of the RFP by refusing to provide a copy of its Disaster Recovery Plan. Whether BI failed to comply with section 5.5.15 of the RFP by failing to provide a copy of its training curriculum; and Whether BI failed to comply with section 5.5.5 of the RFP by failing to provide a copy of the FCC Grant of Authorization for the ?Beacon? device identified in its proposal. Pro Tech alleged that each of the deficiencies identified in its protest petition constituted a Material Deviation from the terms, conditions, and specifications of the RFP that, pursuant to section 1.15 of the RFP, could not be waived and that warranted rejection of the BI response. On November 15, 2011, BI filed its Petition for Leave to Intervene, in which it raised, as a disputed issue of fact and law, ?[w]hether Pro Tech‘s RFP reply met all of the requirements of the RFP and/or was materially non-responsive.? The responsiveness of Pro Tech‘s proposal was not preserved as an issue remaining for disposition in the Joint Pre-Hearing Stipulation.2/ Issue 1: Failure to comply with past experience requirements Section 5.3.2. requires that details of the proposed vendors‘ experience ?shall be provided in narrative form and in sufficient detail so that the Department is able to judge its complexity and relevance,? and as part of that directive, the proposed vendor was required, in part, to ?identify all current and/or past (or within three (3) years) federal, state or government contracts for the provision of electronic monitoring services, and the number of active GPS units utilized for each,? and to ?provide a narrative summary of contract performance in the above-identified contracts, including any major adverse findings.? (emphasis added). The subsections directing the vendors to provide supportive information, including 5.3.2.3. and 5.3.2.4., can be reasonably read in no way other than to be inclusive of the requirement that such information ?shall be provided in narrative form and in sufficient detail . . .? As part of the scheduled process of refining and clarifying the terms, conditions, and specifications of the RFP, potential responding vendors were allowed to submit questions to the Department. The requirement that prospective vendors provide information regarding all government contracts was worrisome to two vendors, including Pro Tech, due to the fact that such a requirement would involve at least a hundred, and up to ?several hundred? contracts. As a result of its concern with the extent of the work necessary to identify all of its electronic monitoring contracts, Pro Tech made the specific inquiry as to whether it would be allowed to ?provide the information for our 10 largest or 10 most similar contracts.? Similarly, another vendor sought to limit the scope of the specification by requesting to ?provide the total number of current and/or past (or within 3 years) federal, state or government contracts,? rather than identifying them individually, and to provide an aggregated, rather than an individual, narrative summary of contract performance. To each question, the Department responded that ?[t]hese requirements remain as stated in the RFP.? The answers were posted by the Department, and became part of the RFP‘s terms, conditions, and specifications. The only reasonable construction of the Department‘s response is that it remained ?a requirement or condition? of the RFP for vendors to identify all electronic monitoring contracts, specify the number of GPS units utilized in each contract, and provide a narrative summary of contract performance. While that requirement may appear to be burdensome, it nonetheless is the requirement. If a proposed vendor believed the requirement to be overly broad or unnecessary, it was obligated to challenge the specification. The specification was not challenged. Failure to identify all contracts In response to section 5.3.2.3, BI responded as follows: ?While BI currently has contracts for EM equipment and services with approximately 1,000 customers, as directed by the requirements in Section 5.3.2 we are providing contracts that are similar in size and scope to those specified in this RFP only.? BI thereupon listed seven contracts, the largest of which used approximately 3,500 ExacuTrack One GPS units, and the smallest of which used 100 ExacuTrack One GPS units. BI believed that listing all of its contracts was not necessary for it to show that it had the requisite experience to perform the Florida contract. Mr. Murnock testified that ?[i]t was clear we did not respond with all one thousand contracts,? and that BI‘s deficient response was made with ?[t]he risk of being scored lower, yes, is one of the risks.? The decision to limit the information to be provided in response to what is an objectively clear requirement was made with considerable forethought and calculation. With regard to the decision to identify seven of its approximately 1,000 customers, Mr. Murnock testified that ?there's certain things that we did not put in this response. We provided our answers to that because we knew, at the risk of getting a lower score, it was a risk-risk situation, you know, where do I expose contracts, do I expose my customer list that could -- while being protected by confidentiality we don't trust, we have seen that breached in other jurisdictions, we've seen that breached here in Florida, I was not going to expose information that we feel to be protected. I answered the specification as I defined it.? (emphasis added). Mr. Murnock stated that BI‘s decision to limit contract disclosure was, in part, the result of a desire to avoid the risk of exposing its customer list because ?[t]here are some customers that don‘t like their information being disseminated.? The suggestion that BI‘s decision was driven by an altruistic concern for the interests of its customers is unconvincing. The Department requested only ?federal, state or government contracts.? No explanation was offered as to why the existence of a government contract would be confidential, or a narrative of BI‘s performance under that contract would be a problem. Regardless of the purported reasons for non-compliance, the options when faced with a clear, direct, and unambiguous requirement of a public procurement to disclose ?sensitive? information are to: a) protest the specification; b) submit the information under the procurement‘s confidential information provisions; or c) choose not to submit a proposal. Picking and choosing what required information to provide, and what not to provide, is not among the acceptable or competitive options. Section 5.2.3 of the RFP is clear and unambiguous. BI‘s response was not in substantial accord with the RFP's requirements. The suggestion that vendors are free to unreasonably ?define? terms so as to meet their subjective desires is contrary to a fair and even-handed procurement process. All vendors are expected to comply with the terms, conditions, and specifications in the same way so as to present an equal playing field. BI‘s decision to provide only a tiny percentage of its government contracts tilted the field in its favor by allowing it to devote the time saved by not compiling the required information -- time spent by the other complying vendors -- to other sections of its proposal, a result that is contrary to competition. BI‘s representation that it provided contracts ?similar in size and scope? is itself questionable. The contract with the Wisconsin DOC was described as an Electronic Home Detention Program. Wisconsin uses the BI 9000, the HomeGuard 200, and the Sobrietor systems. Those systems were not described in the proposal. There was no indication of whether they are active GPS units or whether they are comparable to the ExacuTrack One system proposed for Florida. In short, the proposal failed to provide any information that would allow the reader to conclude that the Wisconsin DOC contract is similar in scope to the services being sought by the Florida DOC. The contract with the Delaware DOC does not include monitoring of the field units, as is called for in the Florida contract. The lack of a monitoring component makes the Delaware contract dissimilar in scope from the proposed Florida contract. The information provided with regard to the Broward County, Florida contract failed to indicate whether that contract utilizes BI monitoring services. Furthermore, the Broward County narrative indicated that the Broward Pretrial Services Division ?uses BI ExacuTrack AT, HomeGuard 200, GroupGuard Plus, and BI VoiceID,? but failed to describe those units or indicate their comparability to units proposed for the Florida contract. The undersigned will presume that the ?ExacuTrack AT? is a version of the ExacuTrack One. However, the narrative failed to list the ?number of active GPS units? as required by the specification, so it is unknown how many are in service. There was little information provided that would allow a determination that the Pennsylvania contract is ?similar in size and scope? to the proposed Florida contract. The RFP proposal states that ?the Pennsylvania Office of Probation and Parole Services have been operating its own offender monitoring center . . . .? Mr. Murnock confirmed that Pennsylvania was not affected by the October 5, 2010, incident because it used its own local host monitoring system. The lack of a monitoring component makes the Pennsylvania contract dissimilar in scope from the proposed Florida contract. The proposal also indicated that Pennsylvania ?has 450 HomeGuard units and 649 BI 9000‘s units, operating through a GuardServer 750 system.? None of those units, or the GuardServer 750 system, are described in the proposal, and they are not the devices or services proposed for the Florida contract. As such, the proposal fails to provide any information that would allow the reader to conclude that the Pennsylvania contract is similar in scope to the services being sought by Florida. In addition to the fact that Wisconsin, Delaware, Broward County, and Pennsylvania contracts are not, based on the information provided in the RFP, of the same scope as the Florida proposal, the Delaware DOC contract (175 ExacuTrack One units), the Broward County, Florida contract (an unknown number of ExacuTrack AT units), the Fayette County Adult Probation contract (120 ExacuTrack One units), and the City and County of Denver contract (100 ExacuTrack One units, along with 300 radio frequency and 70 alcohol monitoring units) do not approach the size of the Florida contract. As a result of BI‘s decision to forego its duty to identify all of its contracts, as required by the RFP, the Department was left with precious few contracts ?similar in size and scope? to that proposed for Florida with which to compare. BI was a party to other contracts that included BI monitoring and the use of the GPS device proposed for Florida that it elected not to disclose. BI has a contract with the state of Missouri that includes BI monitoring services and, in part, the ExacuTrack One field device. BI failed to list its contract with the state of Missouri in its response to section 5.3.2, purportedly because it consisted predominantly of alcohol and radio frequency monitoring, with ?a few GPS, but I couldn‘t tell you the count.? However, at section 5.5.19 of its proposal, BI noted that the Missouri Department of Corrections ?awarded BI with a contract for GPS, alcohol monitoring and radio frequency? that included the use of the same ExacuTrack One unit proposed for Florida. BI touted the Missouri contract as an example of its ability to rapidly implement the Florida contract. By tucking away information regarding the Missouri contract (along with contracts with agencies in California and Illinois) in section 5.5.19, BI was not obligated to provide a narrative summary of contract performance, or contact information that would allow the Department to follow up if it so chose. The reasoning for excluding the Missouri contract is disingenuous, considering that BI listed its contract with the City and County of Denver, in which GPS monitoring is a small percentage of the total monitoring devices in that contract. Because of BI‘s failure to disclose, it is not known how many other contracts among the 1,000 include features proposed for Florida, and which may have been of value to the evaluators. BI made a calculated decision not to disclose all of its contracts. Petitioner‘s allegations that BI ?cherry-picked? the contracts it chose to disclose is a harsh assessment, but it is an assessment that is supported by the evidence of this proceeding. BI made similar decisions to limit disclosure of its contracts in past procurements, with other agencies, without the consequence of disqualification. Therefore, BI decided to stay with its practice, in the words of Mr. Murnock, to ?disseminate it as we see fit? and chose not to disclose all government electronic monitoring contracts ?at the risk of being scored low.? The fact that BI was ?allowed?3/ to proceed, despite the fact that its response was not in substantial accord with the RFP's requirements, provided a competitive advantage to BI over other proposers. The first advantage is the immeasurable advantage conferred by withholding information on its contracts, and possible problems related thereto. The more direct advantage is the time saved by BI as a result of its decision to forego the work necessary to compile the contracts, and provide a narrative summary of their performance. The competitive advantage conferred on BI was, in this case, significant. Petitioner‘s President, Mr. Chapin, testified that Pro Tech devoted two full- time employees for approximately two weeks to collect the data necessary to fully respond to section 5.2.3, in addition to the time devoted by contract account managers in verifying contract performance matters. That was time not expended by BI –- and was time that BI could use to bolster and enhance other sections of its proposal. In addition to the direct competitive advantage conferred on BI, the Department‘s failure to enforce the clear and unambiguous requirements, especially when its ?decision? was made after the preliminary results of the evaluation were known, and when the deviation benefitted the vendor proposing a lower price, fosters an appearance and opportunity for preferential treatment that compromises the integrity of the competitive process.4/ The response to section 5.2.3.3. of the RFP provided by BI is clearly deficient, is not in substantial accord with the RFP's requirements, and is a material deviation from the terms, conditions, and specifications of the RFP. The Department‘s failure to enforce the requirement in accordance with the terms of section 1.15 was clearly erroneous, contrary to competition, arbitrary, and capricious. Failure to provide a narrative summary of contract performance Section 5.3.2.4 of the RFP required proposed vendors to provide a narrative summary of their contract performance, including major adverse findings. The summaries were not limited to major adverse findings. Rather, contract performance goes beyond adverse findings, and includes the manner and efficiency in which the contract services are accomplished, whether good or bad. BI provided narrative summaries of the few contracts it chose to identify, but little information as to contract performance. The evidence in this case demonstrates that the October 5, 2010, incident was, without question, the worst single operational event in BI‘s history, and among the two or three most significant failures in the history of the electronic monitoring industry. It affected at least one of the contracts identified by BI, that being with the state of Wisconsin. It occurred while the RFP proposal was being prepared, and approximately six weeks prior to its submission. It is absurd to believe that the October 5, 2010, incident was not a significant element that should have been disclosed in any discussion of contract performance. It may well be, as asserted by BI, that its customers were satisfied with its response to the October 5, 2010, incident. If so, it would have been a simple matter to provide an assessment of the satisfaction of BI‘s customers with its response, and with a description of the remedial measures taken to ensure that it would never recur. BI did not. Although several customers, including the state of Wisconsin, expressed their concern with the situation in writing, and BI offered credits to its customers, there do not appear to have been any ?major adverse findings? as that term may be narrowly construed. As a measure of ?contract performance,? Mr. Murnock testified that the October 5, 2010, incident ?is certainly not a good incident to occur. But when you look at the specifications, we interpreted them exactly the way they were listed.? That is not the case. Rather, the decision to withhold any mention of the incident came about by a careful and measured parsing of words. BI witnesses testified that the October 5, 2011, incident was no secret, and that it had put out media coverage and press releases because it ?wanted to be an open book? regarding the incident. However, as to the ?threshold? of the items that would have to be disclosed as a significant issue of contract performance, Mr. Murnock testified that ?that would be a very long list of performance items, whether it be from a billing issue that may have been raised, to this October 5th issue.? The equation of a simple ?billing issue? with the October 5, 2010, incident -- the single worst event in BI‘s history -- serves to highlight the attitude that allowed BI to willingly avoid disclosure of a direct, material, and significant element of contract performance that affected the very goods and services being proposed for Florida. The incident was enough of a secret that no evaluator was aware of it. The evaluators acknowledged that the event was significant, and could have affected their scores on the performance section of the RFP, though none could state whether the effect would have been positive or negative. It may well be that the explanation of the prompt remedial measures would have been well received by the evaluators, and that no reduction in scores would have resulted. It may also be that the event, given its severity, would have negatively affected their scores.5/ The testimony of Department witnesses that the October 5, 2010, incident was not necessarily something that it would have wanted to know about rings hollow. There is absolutely no reason why that information would not be pertinent and material to this RFP. The suggestion that the October 5 incident was something the Department viewed with ambivalence goes more to its desire to support the contract award than it does to the sufficiency of the BI narrative of contract performance.6/ Despite what is clearly a designed and calculated effort on the part of BI to withhold information regarding the incident from the Department -- and the Department‘s inexplicable lack of concern regarding the withholding of material information regarding subject matter of the RFP -- the fact is that BI‘s proposal included ?narrative summaries,? thereby meeting the minimal requirement established in section 5.3.2.4. Despite a lack of candor on the part of BI that raises significant concern, the undersigned cannot conclude that the deficiencies in the narrative summaries constituted an issue of basic responsiveness. Therefore, the undersigned cannot find that BI‘s omission of information regarding the goods and services proposed for Florida is a material deviation from section 5.3.2.4. of the RFP. Issue 2: Failure to disclose ?complaints? related to the October 5, 2010 event Section 5.2.9. of the RFP requires proposed vendors to provide ?any and all documents regarding complaints filed, investigations made, warning letters or inspection reports issued, or any disciplinary action imposed by Federal or State oversight agencies within the past five (5) years.? Pro Tech asserts that an October 7, 2010, ?deficiency notice? from the Missouri Department of Corrections regarding the October 5, 2010, incident, and follow-up correspondence through December 23, 2010, fell within the class of governmental action that should have been disclosed, but was not. The October 7, 2011, letter from the Missouri DOC identifies itself as a ?letter of notification to BI of a deficiency notice,? and requested of BI ?a written response within 7 calendar days identifying the problem area(s) which led to the failure and what steps BI intends to initiate to ensure that the system failure is not repeated.? BI witnesses testified that a ?deficiency notice? was not one of the specific items listed in section 5.2.9 of the RFP, and that it was therefore not obligated to disclose the Missouri letter under its very narrow reading of the items requested. BI‘s candor with regard to the October 5, 2010, incident as expressed in its response to section 5.2.9. is roughly approximate to that evident from its response to section 5.3.2.4.7/ Section 5.2.9. uses very specific terms. It is doubtful that the Department intended potential vendors to disclose only those documents with the words ?complaint,? ?investigation,? ?warning letter,? ?inspection report,? or ?disciplinary action? splashed prominently across the document. Rather, a fair reading of the requirement, coupled with an interest in being open and forthright regarding performance -- an ?open book? as stated by Mr. Murnock -- would clearly include a ?deficiency notice? to be within the class of items being requested. However, since the specific RFP language listed specific items, without a more inclusive descriptor, such as ?including but not limited to,? or ?in the nature of,? the undersigned will not broaden the specific RFP requirement. Since the Missouri letter did not include the words ?complaint,? ?investigation,? ?warning letter,? ?inspection report,? or ?disciplinary action? within the body of the correspondence, despite its being plainly within the general class of those documents, the response provided by BI to section 5.2.9. was not a material deviation from that requirement of the RFP. Issue 3: Failure to provide a copy of the Disaster Recovery Plan The RFP, at section 5.5.13., provides that ?[t]he proposer shall provide a detailed description of the Contractor‘s method and approach for meeting or exceeding all Monitoring Center requirements in section 3.13, and specifically . . . provide a copy of the Disaster Recovery plan.? The requirement is clear, direct, and unambiguous. BI did not file a protest of the specification, nor did it question the submission of its Disaster Recovery Plan during the process that resulted in the issuance of Addendum #1. In response to section 5.5.13. of the RFP, BI responded as follows: ?Because of security reasons, the Disaster Recovery Plan is not included with this response. For an outline of the Disaster Recovery Plan, see „3.13.4? beginning on page 148.? BI‘s refusal to provide the Disaster Recovery Plan is reiterated in its response to section 3.13.10. There is no industry standard as to what constitutes a Disaster Recovery Plan. However, BI clearly understood what constituted its Disaster Recovery Plan, and made the calculated decision that it was not going to submit it. The response provided by BI is clearly deficient, and is not in substantial accord with the RFP's requirements. BI decided that it would not provide its Disaster Recovery Plan to the Department ?because it has always been a practice that we not provide that unless it is outside of the production of the RFP, upon request.? The decision to ignore the requirement was made with calculated and matter-of-fact intent, relying on the assumption that it would entail at most a scoring reduction. In lieu of providing the Disaster Recovery Plan as required, Ms. White testified that elements of the plan were ?listed within the RFP itself in several different sections, about 30 different pages.? Thus, according to BI, various elements of what one might expect to find in a Disaster Recovery Plan lay flung about in unrelated sections of its RFP proposal, awaiting the efforts of the intrepid evaluators to uncover their existence and significance. BI‘s assertion that it intended those far-flung elements to meet the RFP‘s requirement that it provide its Disaster Recovery Plan is belied by its express statement that, with knowledge of its action, it elected to omit the Disaster Recovery Plan. The evaluation of a procurement proposal is not akin to a game of hide-and-seek. It is unreasonable to expect evaluators to scour each proposal to glean information scattered throughout, when there is a clear, unmistakable, and mandatory direction to provide the Disaster Recovery Plan as a single, stand-alone document. Compliance with a mandatory item of a public procurement, particularly one designed to ensure that the proposing vendor can adequately reply to a disaster scenario when its services are arguably most needed, cannot be left to the chance that an evaluator might be able to sift through the proposal, and to thereby piece together an understanding of what disaster preparedness measures are proposed. The fact that the Disaster Recovery Plan contains confidential and proprietary information does not lessen the obligation to provide that information. Section 4.3.20. of the RFP provides the procedure by which confidential, proprietary, or trade secret material may be subject to protection under the Constitution and laws of Florida. If a proposed vendor believes the protections to be insufficient, it has a hard decision to make as to whether to submit or not submit a proposal. That decision does not include whether to ignore a mandatory requirement of the RFP on the chance that the consequence would be insignificant. It is clear that the Department never determined whether BI‘s admitted failure to disregard the Disaster Recovery Plan requirement was a material deviation from the terms, conditions, and specifications of the RFP. When Ms. Wright finally reviewed the BI proposal immediately before the posting of the award of the contract, she noted that BI had not submitted a copy of its Disaster Recovery Plan as required by the RFP. Ms. Wright did not follow the established procedure of discussing the issue with Mr. Staney, nor was legal staff consulted. Rather, Ms. Wright called Douglas Smith, who was an evaluator. Ms. Wright indicated that, despite BI‘s express statement that it was not submitting a copy of its Disaster Recovery Plan as required, she wanted ?to check with Mr. Smith on if he felt comfortable with what they had shared about the Disaster Recovery Plan, and was it sufficient.? Mr. Smith recalled his conversation with Ms. Wright, and indicated that ?it wasn‘t so much the Disaster Recovery Plan specifically, she was asking about the elements we reviewed. Are you comfortable with the score that was given? Are they adequate, satisfactory to be able to perform the services based on the contract?? Based on her discussion with Mr. Jones, Ms. Wright unilaterally determined that she did not need to take the issue of the omission of the Disaster Recovery Plan to Mr. Staney or to legal staff. Notably, Ms. Wright admitted that she did not make a determination of whether BI‘s admitted failure to provide a copy of its Disaster Recovery Plan, as required by the RFP, was a material deviation or a minor irregularity. Vendors with an interest in the Florida contract may have been discouraged from submitting proposals because of similar concerns with the security of their Disaster Recovery Plans, or because they did not have a stand-alone Disaster Recovery Plan. It generally cannot be known how many, if any, potential proposers may have been dissuaded from submitting a proposal because of one project specification or another. However, although the effect of an agency choosing to ignore a clear and unambiguous requirement for one proposer that is applicable to all other proposers confers a competitive advantage that is difficult to calculate, it is nonetheless real. Furthermore, withholding its Disaster Recovery Plan until after the posting of the award gave BI the opportunity to review the other proposals. If it then determined that its proposal was less than advantageous, it could effectively pull itself from the procurement by maintaining its refusal to submit its Disaster Recovery Plan when requested by the Department. Thus, the failure to submit the Disaster Recovery Plan when required was a material deviation that conferred a competitive advantage on BI that was not enjoyed by the other compliant proposers. In addition to the foregoing, the refusal to enforce the clear and unambiguous requirement that BI submit a copy of its Disaster Recovery Plan, particularly when such a waiver has occurred outside of the Department‘s normal practice of evaluating deviations from the requirements of the RFP, and after the preliminary outcome of the evaluation was known, raises the distinct appearance of favoritism and preferential treatment towards BI. BI‘s failure to provide a copy of its Disaster Recovery plan is not in substantial accord with the RFP‘s requirements, and is a material deviation from the terms, conditions, and specifications of the RFP. The Department‘s failure to enforce the requirement in accordance with the terms of section 1.15 was clearly erroneous, contrary to competition, arbitrary, and capricious. Issue 4: Failure to provide a training curriculum The RFP, at section 5.5.13, provides that ?[t]he proposer shall provide a detailed description of the approach to meeting or exceeding all Training requirements in section 3.16, and specifically: . . . provide a copy of the training curriculum.? In response to section 5.5.15 of the RFP, BI provided a summary of the topics to be covered in its course for training officers and other employees in the use of the monitoring system. The summary described the outline for the training to be provided, but did not go into detail as to manner in which the training would be provided. The RFP does not define the term ?curriculum.? In general, a curriculum is defined as ?the courses offered by an educational institution? or ?a set of courses constituting an area of specialization.? MERRIAM-WEBSTER DICTIONARY, at http://www.merriam-webster.com. In this case, there is a single training course. The information provided by BI described the basic course that it intended to provide. What appears to be the subject of Pro Tech‘s complaint is that BI did not provide a complete syllabus, or the complete set of materials, for the training course that was to be provided. A syllabus or training materials were not required. The RFP, at section 3.16, provided that: [t]he training curriculum . . . [is] hereby adopted as the approved curriculum . . . to be utilized for all training purposes under this Contract. Said curriculum . . . [is] incorporated herein as if fully stated. Any changes to these documents shall be approved in writing by the Department‘s Contract Manager. Based on that provision of the RFP, a credible argument can be made that the intent of the provision was for the proposer to submit a document far more comprehensive than provided by BI. The Department‘s proffered explanation that the ?curriculum? provided by BI was what was intended by the RFP is not convincing, and generally runs contrary to the requirements of section 3.16. However, the description of what was to constitute a curriculum was imprecise and ambiguous. The information provided by BI describes the training course offering, and may reasonably be construed -- in a broad sense of the term -- to be a curriculum. The response provided by BI to section 5.5.15 is in substantial accord with the RFP's requirements as stated, and was not a material deviation from those requirements. Issue 5: Failure to provide the FCC license for the ?Beacon? Section 5.5.5 of the RFP requires the proposed vendors to provide the Department with ?a detailed description of the General Equipment specifications that meets or exceeds all requirements in section 3.7.2,? and ?provide copies of required licensing by the Federal Communications Commission for the equipment proposed.? The equipment proposed by BI as responsive to the general equipment specifications of section 3.7.2 consists of the ExacuTrack One single piece GPS tracking unit. The ExacuTrack One meets or exceeds all requirements established in section 3.7.2. The FCC grant of equipment authorization was provided for the ExacuTrack One unit. The ?Beacon? was identified in section 5.5.21 of the RFP as a value-added service that was above and beyond the RFP‘s minimum service delivery requirements and specifications. The Beacon is not a necessary component of the equipment for tracking offenders as established in section 3.7.2, but serves as a home-base unit to transmit location and data, and conserve battery power. Section 5.5.5, is reasonably construed to require that the FCC ?license? be provided only for the general equipment proposed pursuant to section 3.7.2 of the RFP. BI complied with that requirement. Based on the terms, conditions and specifications of the RFP, the response provided by BI to section 5.5.5 is in substantial accord with the RFP's requirements, and was not a material deviation from those requirements. Ultimate Findings of Fact Based on the foregoing, the BI response to Request for Proposals, Solicitation Number 10-DC-8200, materially deviated from the mandatory terms, conditions, and specifications of sections 5.3.2.3. of the RFP, as supplemented by Addendum #1, and section 5.5.13 of the RFP. The items that rendered the BI proposal non-responsive, and that materially deviated from the terms, conditions, and specifications of the RFP, gave BI an advantage or benefit not enjoyed by the other proposers, were not minor irregularities, and could not be waived under the terms of the RFP. Based on the foregoing, Pro Tech demonstrated by a preponderance of the evidence that the award of the contract to BI was clearly erroneous, contrary to competition, arbitrary, and capricious. The undersigned is not unmindful of the fact that BI proposed the lowest cost, and that the rejection of the BI proposal will result in a higher overall cost for offender monitoring services to the state. Perhaps the fact that Pro Tech proposed a system that was scored higher based on its business experience and technical merits will offset any concerns. Regardless, the decision as to whether BI met the clear and unambiguous requirements of RFP 10-DC-8200 cannot, in the interests of fair and open competition, be the result of preferential treatment afforded to BI based on one element of a multi-factored RFP.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Corrections, enter a final order that adopts the Findings of Fact and Conclusions of Law set forth herein. It is further recommended that the contract issued in response to Request for Proposals, Solicitation Number 10-DC-8200, entitled "Global Positioning Satellite Electronic Monitoring Services" be awarded to Petitioner, Pro Tech Monitoring, Inc. as the highest scoring responsive vendor. DONE AND ENTERED this 4th day of April, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 April, 2012. 1/ The protest petition initially alleged that the evaluation team members did not meet the experience and knowledge requirements of section 287.057(16)(a), and that the price proposed by BI was unrealistically low, thereby jeopardizing the ability of BI to provide service under the contract. Both of those issues were withdrawn prior to the final hearing. 2/ If the issue of the responsiveness of the Pro Tech proposal had not been waived, the undersigned would have found and concluded that BI failed to demonstrate that the Pro Tech proposal was not responsive to the terms, conditions, and specifications of the RFP. The responsiveness issue was related solely to whether Pro Tech identified its contracts, provided narrative summaries, and disclosed complaints related thereto, in violation of sections 5.3.2. and 5.2.9. of the RFP. The only evidence of such non-responsiveness was related to a contract between G4S Justice Services, LLC, and the state of Connecticut, for which Pro Tech was a subcontractor. The RFP contained no requirement that a proposer disclose or discuss its subcontracts with other vendors, but rather required only the disclosure of ?all current and/or past (or within three (3) years) federal, state or government contracts.? Therefore, Pro Tech‘s failure to disclose its subcontract with G4S -- despite its disclosure of a different subcontract to which it was a party in Missouri - - was not a deviation from the terms, conditions, and specifications of the RFP. 3/ The suggestion that the Department ?allowed? the BI proposal to pass through the review process, or that the Department made such a decision, is a bit inaccurate. The evidence clearly demonstrates that the Department made no decision as to whether BI‘s proposal contained material deviations until faced with the issue in the context of litigation. However, for ease of reference, the terms ?allowed? and ?decision? will be used when describing the effect of BI‘s decisions to submit less information than required under the terms, conditions, and specifications of the RFP, and the Department‘s after-the-fact litigation strategy to support its determination to award the contract to BI. 4/ In Syslogic Technology Servs., Inc. v. So. Fla. Water Mgmt. Dist., Case No. 01-4385BID, at 61, n.19, (Fla. DOAH Jan. 18, 2002; SFWMD Mar. 6, 2002), Judge Van Laningham was similarly faced with a situation in which the agency failed to make a determination as to whether a deviation from the procurement specifications was material until after the proposals were scored and ranked, and the preliminary outcome known. His analysis is instructive and well-written, and is adopted, with full attribution, by the undersigned. The reason for this should be clear: If the decision on materiality were made from a post facto perspective based on extrinsic factors, then the temptation would be great to base the determination on reasons that should not bear on the issue. In particular, the materiality of a deviation should not depend on whether the deficient proposal happens to be highest ranked. To see this point, imagine a close football game in which, at the start of the fourth quarter, one team scores a go-ahead touchdown -- if the receiver came down in bounds. Would anyone think it fair if the referees awarded the points provisionally and reserved ruling on whether the touchdown should count until after the end of the game? Of course not. In a contest, potentially determinative decisions involving a competitor's compliance with the rules need to be made when the outcome is in doubt, when the effect of the decision is yet unknown; otherwise, the outcome may be manipulated. 5/ The Department would treat the failure to disclose the October 5, 2010, incident as a minor irregularity, thus allowing it to be treated as a scoring issue. However, the October 5, 2010, incident cannot be treated as a scoring issue due to BI‘s failure to disclose. Captain Yossarian would have made an appropriate evaluator of Request for Proposals No. 10-DC-8200. 6/ Again, with a tip of the hat to Judge Van Laningham: When an agency asserts for the first time as a party litigant in a bid protest that an irregularity was immaterial, the contention must be treated, not with deference as a presumptively neutral finding of ultimate fact, but with fair impartiality as a legal argument; in other words, the agency is entitled to nothing more or less than to be heard on an equal footing with the protester. Phil‘s Expert Tree Service v. Broward Co. Sch. Bd., Case No. 06- 4499BID at 42, n.13, (Fla. DOAH Mar. 19, 2007; BCSB June 11, 2007). 7/ To BI‘s credit, it did disclose an investigation by the state of New Jersey into its billing practices which, not surprisingly, ?concluded that BI was not at fault,? and for which BI included 23 pages of supportive information. COPIES FURNISHED: J. Stephen Menton, Esquire Rutledge, Ecenia, and Purnell, P.A. 119 South Monroe Street, Suite 202 Post Office Box 551 Tallahassee, Florida 32301 smenton@reuphlaw.com Christopher Ryan Maloney, Esquire Foley and Lardner Suite 1300 1 Independent Drive Jacksonville, Florida 32202 cmaloney@foley.com Benjamin J. Grossman, Esquire Foley and Lardner, LLP Suite 900 106 East College Avenue Tallahassee, Florida 32301 bjgrossman@foley.com Jonathan P. Sanford, Esquire Florida Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399 sanford.jonathan@mail.dc.state.fl.us Ken Tucker, Secretary Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399-2500 Jennifer Parker, General Counsel Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399-2500
The Issue Whether Respondent's Notice Of Intent To Award RFP-DOT-91/92-1005 to OHM Remediation Services Corporation is fraudulent, arbitrary, illegal, or dishonest.
Findings Of Fact By RFP-DOT-91/92-1005, the Florida Department of Transportation (DOT), Respondent, sought bid responses to provide equipment and services on an as needed basis to assess and/or clean up contaminants in rights-of-way to be acquired for road construction projects. Principal contaminants envisioned were those resulting from abandoned and leaking petroleum tanks or other business whose waste disposal threatened ground water in the area with contamination. The Requests For Proposals (RFP) provided for technical proposals and price proposals to be submitted for evaluation. The technical evaluation is the process of reviewing the proposer's Executive Summary Management Plan and Technical Plans for understanding the project. The price evaluation is the process of examining a prospective price without evaluation of the separate cost elements and proposed profit of the potential provider (Exhibit 3). The only issue here is the price proposal. In evaluating the Price Proposals, the RFP (Exhibit 3, Section 1.16.2) provided: The Department will determine a "typical project" prior to receipt of proposals. The District Procurement Office will compute costs for the "typical project" based on fees submitted by each proposer. All responsive bid proposals will be scored in relation to the lowest computed cost for the "typical project" using the following formula: (Lowest "Typical Project" cost - by subject "Typical Project" cost) x 40 = Awarded points for price proposal. The "typical project" was prepared by Raymond Nottingham, District I Contamination Coordinator, prior to the proposals being received and opened. Although the exact content of the typical project was not included in the RFP, bidders were informed of the typical type of project they could expect to encounter under the contract during the prebid meeting and in the RFP. The price evaluation was done by matching up the prices offered by the bidders in their price proposals to the items and tasks listed in the DOT's typical project to come up with the bidders typical project cost. This is the first RFP for remediation services offered by DOT District I. In preparing this RFP, the administrative section of the statewide RFP earlier consummated by the department was utilized; however, for more specific pricing bids the price part of the RFP was largely adopted from a similar RFP prepared by DOT District VI in Miami, Florida. As a result of mixing the two RFPs, a slight possibility existed that some proposers would follow the more general descriptions allowed in the earlier statewide RFP rather than the more specific provisions of the District VI RFP. However, a careful reading of the instant RFP would have eliminated any such confusion. Section 1.17.3 of the RFP provided in pertinent part: The Price Proposal information is to be submitted in a separate sealed package marked "Price Proposal Number RFP-DOT- 91/92-1005.(sic) The Price Proposal information shall be submitted on the forms provided in the Request for Proposal or on Proposers' own forms provided the Department format is followed. The Department reserves the right to reject any proposal that is not submitted in this format. The format included in the RFP was broken down into the following classifications: Labor Classification, Heavy Equipment, Mobile Equipment, Water Equipment, Personal Protective Clothing and Equipment, Drilling, Field Analytical Equipment, Treatment Equipment, and Other. The format further indicated one fee for each item listed under the classification at an hourly rate and overtime hourly rate. The proposal submitted by Petitioner included prices for equipment offered under the following classifications: Trucks and Trailers, Personal Protective Equipment, On-Site Recovery and Treatment, Sampling and Testing Equipment, Construction and Excavation Equipment, Miscellaneous Equipment, Rental Equipment, and Expendables. The proposal submitted by Petitioner contained no price for an air stripper or crane. It lists three prices for three sizes of carbon cells, three prices for three sizes of submersible pumps, three prices for three sizes of pools, two prices for drums, three prices for pool liners, separate prices for hood and suit of protective clothing, and three prices for boots. Petitioner was the only proposer of the 17 submitting proposals that failed to submit a price for an air stripper and crane. Several proposers omitted prices for items on which the other proposers submitted a price. In attempting to keep all bidders in the process by not declaring their bid nonresponsive while being fair to all other proposers, the Department adopted different procedures for different items. Generally, when a proposers omitted a price for a particular piece of equipment, the Department inserted the highest price received from other proposers for that piece of equipment in the proposal in calculating the total bid. On other occasions where the proposer submitted more than one price and did not select the price himself, the Department averaged the prices submitted and used that figure to calculate the price for that item. Where there was obviously a lot of confusion and a wide disparity in the proposals as in establishing well point systems and quality control blanks, the Department omitted those items in calculating the prices. In totaling the bids received, only the daily rate offered was used because the RFP specified only a daily rate, and all proposers did not submit weekly and monthly rates. Part of the confusion stemmed from other parts of the RFP which did indicate that weekly and monthly rates were desired. However, since the other section did not require the submission of weekly and hourly rates, the Department in evaluating the bids did not use those rates in determining the bid price. Petitioner contends that the air stripper and crane to be used on a project can vary widely, and it is not practicable to submit a proposal for a fixed price for such an item. However, it is significant that Petitioner was the only proposer that failed to submit a price for these items. Intervenor utilized the bid forms provided with the RFP and, although Intervenor in its supplementary material listed varying prices for different sizes of the same item or different materials, it entered one price, usually the lowest, on the bid form for calculating its bid. Petitioner contends that had Respondent brought forth the lowest price for items Petitioner submitted several prices on, and disallowed the prices on air strippers and cranes, then Petitioner's bid would have been lower than the Intervenor's bid. However, in the final ranking of proposers, Petitioner stood fifth. No evidence was presented that had Petitioner's contentions been granted and applied to all proposers that Petitioner's proposal would have been lower than the other bidders whose proposals were initially deemed superior to Petitioner's proposal. By failing to follow the format contained in the RFP Petitioner's proposal was not responsive.
Recommendation It is recommended that a Final Order be entered dismissing Westinghouse Remediation Services, Inc. protest to the award of RFP-DOT-91/92-1005 and OHM Remediation Services Corporation. DONE and ORDERED this 12th day of May, 1992, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1992. APPENDIX Proposed findings submitted by Respondent and Intervenor are accepted. Those not included in Hearing Officer's findings were deemed to be unnecessary to the conclusions reached. Proposed findings submitted by Petitioner are accepted except as noted below. Those not noted below or included in Hearing Officer's findings were deemed to be unnecessary to the conclusions reached. 8. Rejected that Petitioner's price proposal followed FDOT format. 22. Rejected. 28. Rejected. Additional reasons for rejection was the wide fluctuation in prices indicating the bidders did not understand the scope of the item. 37. Rejected. Although an inappropriate substitution was selected, the price for the item was below the maximum price offered for a crane. Accordingly, Petitioner benefited from the decision to substitute an item rather than use the highest price offered. 39. While it is true that OHM and Petitioner were the only bidder submitting weekly and monthly rates the reason for FDOT using only daily rates. See HO #13. 43. Rejected. 45. Rejected. See HO #13. 47. Rejected. Table 1. Rejected. This evidence was not submitted at the hearing. COPIES FURNISHED: Neal Smith, District Manager Westinghouse Remediation Services, Inc. 675 Park North Boulevard Building F, Suite 100 Clarkston, GA 30021 Susan P. Stephens, Esquire Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Vasilis C. Katsafanas, Esquire Post Office Box 1873 Orlando, FL 32802 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building 562 Suwannee Street Tallahassee, FL 32399-0458
The Issue This is a proceeding in which the Petitioner seeks to challenge the Respondent's determination that the Petitioner's proposal submitted in response to a request for proposals was disqualified for failure to comply with all requirements of the specifications in the request for proposals or, alternatively, to require the Respondent to reject all proposals and issue a new request for proposals with improved specifications.
Findings Of Fact The Palm Beach County Workforce Development Board, Inc., Wages Coalition ("Respondent") is a Florida corporation not-for- profit organized under the laws of the State of Florida on or about August 14, 1996. The Respondent's articles of incorporation contain a statement of the purposes for which the corporation was formed. Those purposes include the following: To provide direction and oversight for initiatives related to the development of a workforce which will meet the needs of business, industry and the government to enable Palm Beach County to compete in all economic markets. . . . To promote and enhance productive employment of individuals in Palm Beach County, Florida, through the development, promotion, and implementation of programs to prepare youth and adults for successful entry into and retention in the labor force, to afford job training to economically disadvantaged and other individuals in need of such training, and to develop jobs and match all eligible individuals with job openings, through industry-specific training programs supportive of industrial and economic development, through employment- generating activities to increase job opportunities, and through other related activities. The Respondent is a "regional workforce board" within the meaning of Section 445.007, Florida Statutes. On or about January 10, 2000, the Respondent issued a Request for Proposals for Year-Round Youth Programs for Program Year 2000-2001 ("RFP"). The Petitioner timely submitted its proposal in response to the RFP, and the Respondent disqualified the Petitioner's proposal by letter dated March 2, 2000, accompanied by a document entitled "technical review sheet" signed by the Respondent's employee, Mr. Delwin Finch, and the Respondent's legal counsel, Chandler Finley, Esquire. Thereafter, by letter dated March 8, 2000, the Petitioner notified the Respondent that it wished to protest and/or appeal the disqualification of its proposal. By mutual agreement, the parties attempted to resolve the Petitioner's protest/appeal in accordance with the provisions of Section 120.57(3)(d), Florida Statutes; however, the matter was not resolved, and this administrative action followed. According to the Respondent's technical review sheet for the Petitioner's proposal, the Respondent disqualified the Petitioner's proposal based on the following items alleged to be missing from the proposal: Item 3 - Signatures for two of Petitioner's collaborating partners (Westech and Pahokee Middle schools) were missing. Item 5 - No audit, financial statement or tax return for two of Petitioner's collaborating partners (Westech and Pahokee Middle Schools). Item 6 - A detailed line item budget was not included. Item 7 - The current organizational status, current licenses and certifications, proof of insurance, proof of current financial status, employment policies, and most recent audit were not furnished for two of Petitioner's collaborating partners (Westech and Pahokee Middle Schools), no occupational license was furnished for Petitioner's collaborating partner CILO, and an adequate explanation was not furnished for the absence of these documents. Item 8 - The certifications regarding Lobbying, Debarment, Drug-Free Workplace, and Clean Air Act were not provided for two of Petitioner's collaborating partners (Westech and Pahokee Middle Schools). Item 9 - Proposal was not signed by three of Petitioner's collaborating partners (Urban league, and Westech and Pahokee Middle Schools). Evidence at the hearing establishes that three of the above described bases for disqualification were erroneous; i.e., the detailed line item budget (item 6 of the technical review sheet) was not missing, an occupational license for CILO was not required because it is a non-profit organization, and the signature of collaborating partner, Urban League, was not missing. Mr. Delwin Finch, was the representative of the Respondent who performed the technical review of all proposals received by the Respondent in response to the RFP. He disqualified the Petitioner's proposal because it stated that portions of the services referred to in the proposal would be subcontracted to West Tech School and Pahokee Middle School, but the proposal was not signed by the principals of West Tech School or Pahokee Middle School, nor was it signed by the Palm Beach County School District, and because there were no financial statements or certifications regarding Lobbying, Debarment, Drug- Free Workplace, or Clean Air Act from West Tech School, Pahokee Middle School, or the Palm Beach County School District. The Petitioner's proposal has an adequate explanation for the absence of each item of information, signature, or certification that was cited in Respondent's technical review sheet as missing. Of the eight proposals that were not disqualified, at least two other proposals omitted documents, financial statements, signatures, or certifications from collaborating partners named in such proposals, or from parties that were referred to as "subcontractor(s)." The approved proposals with such omissions were the proposals submitted by a coalition consisting of The Paxon Group, Inc., Palm Beach Community College, the 5060 Group, Street Beet, and The United Way ("the Power Coalition") and the proposal submitted by Gulfstream Goodwill Industries, Inc. The Power Coalition proposal states that it will be "subcontracting" portions of the services referred to in the proposal. However, the proposal is signed only by The Paxon Group, Inc., and Palm Beach Community College. It is not signed by any subcontractor, nor does the Power Coalition's proposal include financial statements or certifications regarding Lobbying, Debarment, Drug-Free Workplace, or Clean Air Act from any of its coalition members except for The Paxon Group. Notwithstanding the specific reference in the Power Coalition's proposal to certain services being subcontracted, and the absence from Power Coalition's proposal of signatures, financial statements, or certifications regarding Lobbying, Debarment, Drug-Free Workplace, or Clean Air Act, no deficiencies in this Paxon Group proposal were noted in the Respondent's technical review of that proposal. The proposal submitted by Gulfstream Goodwill Industries, Inc., states that it is "subcontracting" with the Palm Beach County School District. However, this proposal did not include the signature, financial statements, or certifications regarding Lobbying, Debarment, Drug-Free Workplace, or Clean Air Act from the School District. Notwithstanding the specific reference in Gulfstream Goodwill Industries, Inc.'s proposal to subcontracting with the School District, and the absence from Gulfstream Goodwill Industries, Inc.'s proposal of signatures, financial statements or certifications regarding Lobbying, Debarment, Drug-Free Workplace, or Clean Air Act from the School District, no deficiencies in the Gulfstream Goodwill Industries, Inc. proposal were noted in the Respondent's technical review of that proposal. The specifications in the subject RFP include language pursuant to which the Respondent "reserves the right to waive informalities and minor irregularities in offers received." Those specifications also provide that "[i]f a required certification or document is unavailable at the time of proposal, this must be stated and an explanation provided. Before a contract is offered, the proposer must submit the required certifications provided later in this packet." The specifications in the subject RFP also contain an appeal process which affords all proposers "the right to protest the award decision." The grounds upon which protests will be considered are itemized in the specifications. The itemized grounds for protesting the award decision are different from the grounds available in a proceeding pursuant to Section 120.57(3), Florida Statutes. The procedures for resolving protests under the subject RFP are also set forth in the specifications. Such procedures are different from the procedures provided in Section 120.57(3), Florida Statutes. The specifications in the subject RFP contain no mention of Section 120.57(3), Florida Statutes, nor has the Respondent adopted the rules required by Section 120.57(3)(a), Florida Statutes. The Respondent has had protests of award decisions under previous requests for proposals that contained the same protest resolution language as the instant RFP. All of the prior protests were resolved using the procedures set forth in the specifications. The Respondent has never previously used the procedures set forth in Section 120.57(3), Florida Statutes, to resolve a protest of one of its award decisions.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case to the following effect: Concluding that the current procurement process should be terminated and that the procurement should be begun anew with specifications and procedures consistent with the requirements of Section 120.57(3), Florida Statutes, and other state statutes related to procurement. Alternatively, should the Respondent elect to continue to go forward with the instant procurement effort, an order should be issued setting aside the disqualification of the Petitioner's proposal, and the Petitioner's proposal should be considered along with the other successful proposals. DONE AND ENTERED this 20th day of October, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 2000.
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.
Findings Of Fact The Parties Petitioner is a Florida corporation that provides software development and consulting services to various commercial entities and state agencies. It has its principal place of business in Jacksonville, Florida. Respondent is an agency of the State of Florida charged with the responsibility to regulate various professions and businesses licensed by the State of Florida. In carrying out its responsibilities it engages the services of outside vendors through competitive bidding. Respondent's principal business office is at 1940 North Monroe Street, Tallahassee, Florida. Intervenor is a California corporation that designs, manufactures and services equipment and systems for measurement, computation and communications, together with its consolidated subsidiaries. The RFP In 1993, Respondent was created by legislative action merging the Department of Professional Regulation and Department of Business Regulation. Respondent perceives that the merger was intended to improve the efficiency of the regulatory process and to facilitate accurate and efficient processing of consumer complaints. To further those purposes, on April 12, 1996 Respondent issued RFP 96-006. In the executive summary to the RFP prospective vendors who considered responding to the RFP were informed: This RFP has been developed in support of the merger for the purpose of acquiring contractor consulting service and software development to support the conversion of existing computer application systems for the Division of Florida Land Sales, Condominiums and Mobile Homes, the Division of Hotels and Restaurants, the Division of Pari-Mutual Wagering, and the conversion of regulatory, inspection, investigation and complaint processing for all the Business Regulation divisions, including the Division of Alcoholic Beverages and Tobacco. Through this Outcome Based RFP, the Department intends to contract with a vendor to not only provide analysis, system design, development, conversion, and selective consulting services, but serve as an integrator and primary contractor on this project. Contractor responding to this RFP will be expected to recommend services based on deliverable specified in this RFP. Since this is an Outcome Based RFP (see definition on Page 2), the Department will not be specifying unique contractor products and/or services or how the contractor is to design the system. In the RFP "Outcome Based RFP" was described as: A Request For Proposal in which the contractor's client will specify concepts, technology directions, size/number of things, and required results (primarily standards and system deliverables). The contractor will respond by recommending the design and proposed solutions -- how to get desired results, by what means (hardware, software, process, and contractor services), and for what cost. The purpose of the RFP was further described as: The purpose of this Outcome Based Request for Proposal (RFP) is to contract with a contractor (serving as integrator as well as contractor) to recommend (RFP bid response) and provide consultant services in conjunction with selected Department staff to: conduct an information management analysis study to identify the business functions performed as well as the data and information flows required to support these functions for the Divisions of Hotels and Restaurants, Land Sales and Condominiums, Pari-Mutual Wagering and regulatory, inspection, investigation and complaint management for all the Business Regulation Divisions, including Alcoholic Beverages and Tobacco, develop an integrated, data-driven information systems design that addresses the needs of the Business Regulation divisions and their information requirements, convert the business functions and data into the appropriate agency application system, develop detailed design and program specifications, modify existing applications and develop new applications necessary to support the system design, develop an implementation plan which provides a phased approach for migrating from the current environment to the planned environment, including system testing and training of agency personnel, provide post-implementation support for the resolution of problems. The contractor will be expected to contribute (under contract) a predetermined number of calendar months, not to exceed 26, towards systems analysis and design, specification and application development, conversion, testing, training, implementation and post- implementation support. The contractor will be responsible for designing, in detail, the methodology by which data files are to be converted from the multiple applications and various platforms and loaded into predefined relational data bases. The contractor will be responsible, under contract, for all services meeting the requirements of this RFP. All components proposed by the contractor must be at a turn-key level with 100 percent compatibility as far as integrating with installed hardware and software currently utilized by BPR. The scope of the work contemplated by the RFP through services performed by the contractor was to this effect: The Florida Department of Business and Professional Regulation (BPR) is requesting contractors to propose consulting services for system analysis, design, specification development, application, development, conversion, training, implementation and post- implementation support. The contractor will propose recommendations for products and services required and serve as an integrator/contractor. At minimum, this Business Regulation/Complaint Regulatory Management Conversion solution shall be capable of providing those services outlined within this RFP. The section addresses ten subject areas that must be addressed in contractor's proposal. Section III-A (Contractor Proposal Format) presents the required "Tab" format and refers backs to details in this section for the contractor to use. In the RFP an "Integrator" is defined as: The contractor who has total accountability, under contract, for all products and services being provided to a customer even those supplied by or acquired from other vendors and/or sub-contractors. In the RFP the term "Turn-Key" is defined as: Contractor is solely responsible for delivering a completed system with sign- ificant client involvement. Vendor awarded contract, will be responsible, under bond, for specified deliverables to the department, as well as being the integrator and contractor for the complete system as proposed which will include the roles of the contractor and appropriate involvement of BPR personnel. The RFP provided the vendors with instructions concerning the format for proposals, especially as it related to Tabs 1 through 24 and the need to complete those tabs consistent with the instructions. The vendors were reminded: [A]s required by Tab, the proposal will present specific consulting services that are recommended, and how these services will technically meet requirements as stated, and/or requirements developed and/or uncovered by the vendor that have been determined to be necessary for the project to be successful. Respondent provided a questionnaire to the vendors concerning the prospective vendors' commitment to the project. Those questions were to be answered "yes" or "no" with the opportunity for clarifying sentences to accompany the answers. The RFP instructed the vendors concerning the submission of cost information. It reminded the vendors that they should "submit firm costs to provide the state with the required deliverables, found in Section II of the RFP." The RFP described the manner in which the proposals would be evaluated through two separate committees, a "technical subcommittee" and a "vendor evaluation committee." The vendors were also reminded that the proposals would first be reviewed by the purchasing arm of the Respondent to assure that the vendors provided all mandatory documentation required by the RFP. In the instance where required documentation was missing the response would be determined "non-responsive." The evaluation process contemplated the "technical subcommittee" evaluating technology sections in responses to the RFP and providing those results to the "vendor evaluation committee." The latter committee would then evaluate other subject areas in the proposals and consolidate/finalize results from both evaluation processes into an overall rating. The RFP explained the subject areas that were to be considered by the two committees with particularity. The RFP described in detail the assignment of points and set forth the format for carrying out the evaluation process. The successful vendor would be selected upon the basis of the highest points awarded. The maximum points that could be received were 1950. The maximum points that could be received for the vendors' proposed costs were 250. The RFP sets terms and conditions and identifies mandatory requirements as: The state has established certain require- ments with respect to proposals to be submitted by proposers. The use of "are", "shall", "must" or "will" (except to indicate simple futurity) in the RFP indicates a requirement or condition. A deviation is material if the deficient response is not in substantial accord with this [sic] RFP requirements. Moreover, the RFP reminded the vendors that: Any proposal which fails to meet the mandatory requirements stated in this Request For Proposal shall be rejected. The RFP gives further instructions involving the rejections of proposals where it is stated: The department reserves the right to either make awards or to reject proposals by individual category, groups of categories, all or none, or a combination thereof. Any proposal which fails to meet the mandatory requirements stated in this Request For Proposal shall be rejected. Any proposal that contains material deviations or is conditional or incomplete shall be rejected. The department may waive an immaterial defect, but such waiver shall in no way modify the RFP requirements or excuse the proposer from full compliance with the RFP specifications and other contract requirements if the proposer is awarded the contract. The RFP refers to subcontracts where it states: The contractor is fully responsible for all work performed under the contract resulting from this RFP. The contractor may, with the consent of the department, enter into written subcontract(s) for performance of certain of its functions under the contract. The sub- contractors and the amount of the subcontract shall be identified in the contractor's response to this RFP. Subcontracts shall be approved in writing by the department's Executive sponsor, or designee, prior to the effective date of any subcontract. The Sub- contractor shall provide the Executive sponsor documentation in writing, on company letterhead, indicating known responsibilities and deliverables, with timeframes. No sub- contract which the contractor enters into with respect to performance under the contract resulting from this RFP shall in any way relieve the contractor of any respons- ibility for performance of its duties. All payments to sub-contractors shall be made by the contractor. Tabs 16, 17, 19, 20 and 21 require specific information about sub- contractors the vendor might employ in meeting the requirements in the RFP addressed under those tabs. In addition to the specific requirements in the RFP, paragraph 4 to the general conditions reminds the vendor to submit "firm prices." Paragraph 6 to the general conditions states that contract awards are made: 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. Proposers are cautioned to make no assumptions unless their proposal has been evaluated as being responsive All awards made as a result of this proposal shall conform to applicable Florida Statutes. The RFP explained the manner in which addenda to the RFP would be provided, in which case the addenda would be in writing with the content and number of pages described and sent to each vendor that received the original RFP. The RFP also contemplated the possibility that Respondent might require the vendors to supplement their responses to the RFP with oral presentations to either of the evaluation committees. The RFP explained that there would be a bidders' conference to discuss the contents of the RFP, in view of any written inquiries from the vendors and recommended changes. On April 30, 1996 the bidders' conference was conducted. In this conference information was presented to the vendors and questions from the vendors were presented to Respondent, both oral and written. On May 10, 1996, addendum number 1 resulting from the bid conference was provided to the vendors. Through addendum number 1, Respondent more specifically informed the vendors concerning its expectations in the vendors' responses to the RFP. Additionally the addendum rescheduled certain events in the bid process. It changed the proposal due date and public opening of the technology portion of the proposal to June 7, 1996. The date for opening of proposals in the cost portion was changed to July 12, 1996. The date for posting of the intended award was changed to July 17, 1996. Two vendors responded to the RFP. Those vendors were Petitioner and Intervenor. In addition to the information provided through responses to the RFP, Respondent propounded written questions to the vendors as attachments A and B. Attachment A constituted common inquiry to the vendors. Attachment B was designed to solicit additional information unique to the respective vendors. Both vendors responded to the questionnaires on July 9, 1996. Both vendors' proposals were found responsive. The two committees performed their respective evaluations. Through this process Petitioner was awarded 1206.46 points. Intervenor was awarded 1321.39 points. As a consequence, on July 16, 1996 Respondent posted notice that it intended to award a contract to Intervenor. Respondent also sent a letter on that date notifying the Petitioner that it intended to contract with Intervenor. As described in the preliminary statement, and incorporated here, Petitioner gave notice and formally challenged the decision to award. In its opposition to the decision to award to the Intervenor, Petitioner does not allege that Respondent failed to implement the procedures for evaluation in scoring the competitor's. Rather, Petitioner challenges the results obtained in that implementation. Where Respondent found Intervenor responsive to certain alleged material requirements in the RFP, Petitioner asserts that Intervenor was not responsive to those material requirements. In performing their duties the committee members who evaluated the proposals had a week to prepare themselves to render their input. During that time they were allowed to review the responses to the RFP. Following that opportunity the evaluators were allowed to seek clarification on any items where there might be uncertainty, to include legal advice from the Respondent agency. In carrying out their assignment the evaluators compared the requirements in the RFP to the responses by the vendors. Through this process no evaluator indicated that either proposal was unresponsive. In their review function the evaluators also considered the answers to the questions that had been provided by the vendors on July 9, 1996. The evaluators had been instructed to review the requirements contemplated by Tabs in the RFP, to read the RFP and the addendum to the RFP. Petitioner specifically challenges Respondent's determination that Intervenor was responsive in meeting the following alleged requirements in the RFP: Did the Intervenor Fail to Submit an Outcome Based Proposal in Response to the RFP? The RFP contemplates the necessity that a vendor will submit a proposal that is Outcome Based as defined in the RFP and explained in other provisions within the RFP. The requirement to submit an Outcome Based Proposal is a material requirement. If a vendor does not meet that requirement, the failure to comply is a material deviation from the requirements in the RFP. If a vendor does not meet the requirement for providing an Outcome Based Proposal and the evaluators ignored that irregularity, their actions would be arbitrary. Tab 3 discusses: Business Regulation/Complaint Management Conversion Project Life Cycle Presentation: This section will present the overall scope of the project and the methodology. This section will need to specifically deal with how the vendor addressed the technical design requirements as spelled out in Project Scope. As described, this Tab was designed to have the vendor identify the overall scope of the proposal and the methodology to be employed in reaching the outcome required by the RFP. As Section 3-1 to its response Intervenor replied: Hewlett-Packard's (HP) approach is to provide BPR with both fixed price and 'time-boxing'. Time-boxing is defined as an allocation of consulting hours (3360) which will be delivered by HP technical consultants or sub- contractors. HP is proposing to fix price the Information Management Analysis Study, Integrated System Design, and Project Management. The remaining sections (Detail Design and Program Specification, Data Conversion Phase, Development, System Testing, Implementation, Training, Post-Implementation Support) will be time-boxed with a total of 3360 hours. HP has made suggestions as to the number of hours to be used for these sections. However the final allocation will be mutually agreed upon by HP's project manager and BPR's project manager. HP Professional Services Methodology Moving from a legacy computing model, to a distributed, open client/server computing environment, requires the organization to rethink the process, people, and technology requirements of the enterprise. Organiza- tional integration and effective evaluation of IT solutions tend to get lost in the rush to develop specific applications. If not lost, there is rarely a structured logical process that is followed in defining, designing, developing, implementing, and operating the solution. The remaining provisions within Section 3 to the Intervenor's response to the RFP detail the overall scope of the project and the methodology to be employed. In other respects the Intervenor's response to the RFP explains the manner in which it would reach the outcome contemplated by the RFP in all phases related to its proposed consulting services in this project. Facts were not presented that proved that the evaluators acted arbitrarily in determining that the Intervenor's proposal was based upon the required outcome in the project. Did the Intervenor Submit a Firm Price Proposal? The RFP creates a material requirement that a vendor complete Attachment "E" to the RFP. Attachment "E" provides cost information from the vendor. In every respect Intervenor has complied with that requirement. The evaluators were not arbitrary in determining that the requirement was met. Notwithstanding the use of "time-boxing" for certain phases in the project, the cost information submitted in Attachment "E" assigns a money amount for those phases. By that assignment the consulting hours that are "time-boxed" have an equivalent dollar figure which constitutes firm costs for those deliverables/phases in the project. The evaluators did not act arbitrarily in assigning 234 points to the Intervenor for its cost proposal. Did the Intervenor fail to Submit a List of Sub-contractors Whose Services will be used by the Intervenor? Tab 16, Corporate (vendor) qualifications and commitment; makes it incumbent upon the vendor to indicate the sources committed to the project in terms of personnel and other resources, to include sub-contractors involved with the project. Tab 17, Corporate (vendor) financials; requires the vendor to produce financial information about it and any sub-contractors involved with the project. Tab 19, Individuals proposed to work on contract; requires resumes of individuals who work for the vendor or a sub-contractor and information about key personnel of the vendor and sub-contractors. Tab 20, Contract and support services including post-implementation plan, requires; the vendor to indicate where its services will be provided by the vendor or sub-contractors. Tab 21, Contractor questionnaire; solicits information from the vendor about sub-contractors. As seen, in many provisions the RFP requires a vendor to identify information about sub-contractor whose services would be used by the vendor. These are material requirements. If the evaluators ignored the requirements, their actions would be arbitrary. In addressing intervenor's proposal, the evaluators acted arbitrarily. The problem is that Intervenor in many places in its response has left open the possibility that it would use sub-contractors without naming those sub- contractors and their contribution to the project. Ultimately, the lack of disclosure could provide the Intervenor with an advantage that Petitioner does not enjoy and potentially adversely impact the interests of the Respondent. The following are examples in response to the RFP where Intervenor has maintained its option to use sub-contractors without disclosing information about the sub-contractors: Section 1-3: "The Regulatory Management Conversion solution being proposed is comprised of world-class services from HP and our partners." The reference to partners is seen to include the possibility that sub-contractors might be used. Section 3-1, that has been commented on, referring to time-boxing, describes allocation of the 3360 consulting hours through delivery by the intervenor's technical consultants or sub-contractors. Section 10-2, refers to the implementation of the management plan which follows-up "sub- contractor's work." Section 12-2, refers to Intervenor and its training partners offering "standard and custom instructor led training, computer based training and net work based training." Training partners is taken to mean some persons who reasonably could be considered sub-contractors. Section 13-1, makes reference to third party services involved with the Intervenor's custom solution to the project needs. The reference to third party is equivalent to a sub-contractor. Section 16-9, referring to the flexibility in managing the engagement (project) describes partnering and involvement in sub-contracting. Section 21-2, in responses to the question- naire to Tab 21, Intervenor refers to its time- boxing approach for providing services, in which, according to Section 3-1, Intervenor leaves open the possibility that it would use sub-contractors to deliver the services. It is realized that on occasions in which Intervenor was required to provide contemporaneous and detailed information concerning its intentions to use sub-contractors, answers that it gave in association with Tabs 16, 17, 19 and 20 did not refer to sub-contractors. Consequently, one might assume that Intervenor did not intend to employ sub-contractors in this project notwithstanding references to unnamed sub-contractors found in other places in the response to the RFP. This raises the issue whether the lack of reference and response to the more specific questions about the use of sub-contractors overcomes the implications of the possibility that sub-contractors will be used that is made in response to other requirements in the RFP. That internal inconsistency should not favor an interpretation that creates advantage for Intervenor and potential difficulty for Respondent, which it does. For the evaluators to allow the conflict to remain is an arbitrary act. To seek to resolve the conflict would also constitute an arbitrary act as it would require an amendment to the Intervenor's response. The fact that Respondent must approve subcontracts before their effective dates does not satisfactorily mitigate the need to disclose subcontractor information with the response. Did Intervenor's Proposal Fail to Meet the Requirements in the RFP in the Technical Categories for Tabs 4 through 7, 10, 12, 14, 15 and 21? Petitioner made allegations concerning those issues associated with Intervenor's technical responses in those tabs. However, in the proposed recommended order Petitioner limited its discussion to Tabs 5, 6, 7 and 11. It is assumed that Petitioner abandoned its contentions concerning the remaining tabs described in the interrogatory. Tab 5, Integrated system design, states: In this section the vendor will present the methodology to be used in support of the RFP requirements. The evaluators found that Intervenor had met this requirement. It has not been shown that the evaluators acted arbitrarily in determining that the Intervenor had complied with requirements at Tab 5. Tab 6, Detail design and program specifications, states: In this section the vendor will present the methodology in support of the RFP requirements. Petitioner has failed to prove that the evaluators acted arbitrarily in concluding that the Intervenor met the requirements for Tab 6. Tab 7, Data conversion states: In this section vendor [sic] will provide a description of their approach to the data conversion phase. Petitioner has failed to prove that the evaluators acted arbitrarily in determining that the Intervenor met the requirements for Tab 7. Tab 11, Post-implementation support, states: In this section the vendor [sic] will provide a description of their approach to post-implementation support. Petitioner has failed to show that the evaluators acted arbitrarily in concluding that the Intervenor had met the requirements for Tab 11. Nor has it been shown in any respect that the evaluators acted illegally, fraudulently, or dishonestly. Was the Intervenor a responsible proposer? Petitioner alleged in its petition that the Intervenor was not a responsible proposer. Petitioner did not offer proof to sustain that allegation.
Recommendation Upon consideration of the facts found in the conclusions of law reached it is, RECOMMENDED: That a final order be entered which declares Intervenor to be unresponsive to the RFP and takes such other action as Respondent deems appropriate in pursuing this project. DONE and ENTERED this 10th day of October, 1996, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1996. COPIES FURNISHED: Timothy G. Schoenwalder, Esquire Blank, Rigsby and Meenan, P.A. 204 South Monroe Street Tallahassee, Florida 32301 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Mary C. Piccard, Esquire Cummings, Lawrence and Vezina, P.A. Post Office Box 589 Tallahassee, Florida 32302-0589 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard T. Farrell, Secretary Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Forida 32399-0792
The Issue The issue presented is whether the Department acted fraudulently, arbitrarily, illegally, or dishonestly in determining that the Intervenor, rather than Petitioner, should be awarded the contract for child support enforcement legal services for Martin and Okeechobee Counties.
Findings Of Fact On July 1, 1994, the Department of Revenue (hereinafter "Department") assumed responsibility for the State of Florida's Child Support Enforcement (hereinafter "CSE") Program, taking over those responsibilities from the Department of Health and Rehabilitative Services (hereinafter "HRS"). As part of that program, HRS had in place for most counties in Florida contracts with private attorneys to establish and/or enforce child support obligations. Petitioner Douglas Reymore was, by contract, the legal services provider for Martin, Okeechobee, Indian River, and St. Lucie Counties. The Department renewed that contract for an additional year. The Department determined to rebid the legal service provider contracts for some of the counties in Florida for the 1995-1996 fiscal year. The contract for Martin and Okeechobee Counties was one of those contracts. The Department prepared a Solicitation Package and distributed it to the Department's regional offices. The Department also distributed to its regional offices a document entitled Instructions to CSE Regions for Handling the Solicitation for Legal Services Providers (hereinafter "Instructions") to govern the solicitation, evaluation, and award of the CSE contracts. The stated purpose of the Solicitation Package was to "obtain the highest possible level of legal representation at the lowest possible cost while ensuring free and open competition among prospective proposers." The solicitation was advertised in Martin and Okeechobee Counties in a timely manner from April 1 through April 5, 1995, as required in the Instructions. Upon their requests, copies of the Solicitation Package were sent by the Department to both Petitioner Douglas Reymore and to Intervenor Thomas & Associates. The Department did not provide a copy of the Instructions to any proposers prior to the opening of the proposals. Proposals were required to be received by the Department by 3:00 p.m. on Friday, May 12, 1995. Both Reymore and Thomas & Associates timely submitted proposals. The proposals were opened in the Program Administrator's Office in West Palm Beach at 4:00 p.m. that same day. The proposals timely submitted were forwarded, after opening, to the Evaluation Committee established by the Department. The Evaluation Committee was required to conduct its review and evaluation consistent with the Evaluation Committee procedures set forth in the Instructions, including attachments. Members of the Evaluation Committee for the Martin/Okeechobee Counties contract were Elaine Rosnow (Chair), Terrie Almond, Janice Blount, Donna Hilley, and Henry Smith. The names of the members of the Evaluation Committee were not disclosed to proposers prior to the opening of the timely submitted proposals. None of the members of the Evaluation Committee is an attorney, and none is considered an expert in computer technology. The Child Support Enforcement Solicitation of Proposals Evaluation Sheet, included with the Instructions, identified nine Mandatory Requirements. Those same Mandatory Requirements were also identified in the Solicitation Package sent to Reymore and to Thomas & Associates. If any of the Mandatory Requirements identified in the Evaluation Sheet and the Solicitation Package were not met by a proposal, the proposal was not to be considered further by the Evaluation Committee. The Evaluation Committee reviewed and evaluated the proposals. The proposal of Thomas & Associates was rated highest, and the Reymore proposal was rated second highest. The Evaluation Committee forwarded its scores on the proposals to the Program Administrator, who was required to award the contract to the highest ranking proposer. The Department issued its notice of award for the CSE contract for Martin and Okeechobee Counties to Thomas & Associates on May 22, 1995. The term of the contract was to be for an annual period to begin on July 1, 1995, and end on June 30, 1996. Thomas & Associates was also named as the Department's intended recipient for two other CSE contracts, those for Palm Beach County (intrastate) and Palm Beach County (interstate). A CSE legal practice under state contract, such as that for which proposals were solicited in the instant case, is high volume in nature. Currently, approximately 200 cases in Martin County and approximately 65-70 cases in Okeechobee County go to court each month. These court cases are handled by using three docket days in Martin County and one docket day in Okeechobee County each month. The Solicitation Package for the Martin/Okeechobee Counties contract projected 156 referrals to the legal services provider each month. Upon the receipt of a referral from the Department's Child Support Office, the legal services provider under contract with the Department must take the appropriate legal action to collect child support from the non-custodial parent. These legal actions include establishing paternity, obtaining support orders, and enforcing support orders. The greatest, and a substantial, difference between a private family law practice and a CSE legal practice under state contract is the caseload. Another difference is the limited funds available for expenses, such as for taking depositions and for service of process. There are also legal issues, concepts, and terms encountered in a CSE practice which are not encountered in a private family law practice. Petitioner Reymore has practiced CSE law under a state contract for three years in Martin, Okeechobee, St. Lucie, and Indian River Counties. No attorney employed by Thomas & Associates has ever practiced CSE law under a state contract. The Solicitation Package, on page four, provided as follows: Each proposal will be reviewed for responsiveness to the mandatory requirements set forth in Attachment V. Proposals that fail to satisfy all of the mandatory requirements will not be considered further. No points will be awarded for the mandatory requirements. Above the listing of Mandatory Requirements on Attachment V, similar language appears, specifically: "If any of these requirements are not met, your proposal will not be considered further." The Mandatory Requirements set forth in Attachment V include the following: The attorney/attorneys assigned to per- form contract services shall be members of The Florida Bar. A certificate of good standing from The Florida Bar shall be attached for each designated attorney. A resume for each attorney designated to do child support work shall be included with proposal. Page one of the Solicitation Package also recites that any proposal submitted must include: 1) Resumes on all attorneys who will be assigned to this contract. 4) Certificates of good standing from The Florida Bar on all attorneys who will be assigned to this contract. The Thomas & Associates proposal included resumes and certificates of good standing from The Florida Bar for the following attorneys: Jeffrey F. Thomas, Mary Bobko Thomas, L. Denise Coffman, and Charles Willoughby. In the section of its proposal entitled Time and Personnel, Thomas & Associates specifically represented that two lawyers would be assigned to the contract: Charles Willoughby and Denise Coffman. It further represented that Jeffrey Thomas would directly supervise the lawyers and that he would also personally attend all hearings where the other party was represented by counsel. The proposal then represented that Thomas & Associates was also bidding on the Palm Beach interstate contract and the Palm Beach intrastate contract. As to the Palm Beach interstate contract, the proposal represented that Jeffrey Thomas would directly supervise the lawyers and would also personally attend all hearings where the other party is represented by counsel. The proposal then represented that the following attorneys would be assigned to Jeffrey Thomas to work on the Palm Beach interstate contract: Charles Willoughby and Denise Coffman; John C. Thomas and Kim Nutter would serve as "back ups." As to the Palm Beach intrastate contract, the Thomas & Associates proposal represented that four attorneys would staff that contract full time, and Jeffrey Thomas would directly supervise all attorneys and personally appear at all hearings where the other party is represented by an attorney. The proposal then stated that the following attorneys would be assigned to Jeffrey Thomas for that contract: Charles Willoughby, Denise Coffman, John C. Thomas, and Kim Nutter. The Thomas & Associates proposal then represented that if Thomas & Associates were awarded more than one contract, two additional lawyers would be hired. The proposal failed to identify or include any information about the two additional attorneys Thomas & Associates would hire in the event it was awarded more than one contract. The Department awarded all three contracts to Thomas & Associates. The date of the award of the other contracts is not part of the record in this cause. However, since Charles Willoughby and Denise Coffman are to be assigned full time to the Palm Beach intrastate contract and are also to be assigned to the Palm Beach interstate contract, and since Thomas & Associates represented to the Department that it would hire more lawyers if awarded more than one contract, Charles Willoughby and Denise Coffman are either not available to be assigned to the Martin/Okeechobee Counties contract, or are not the only attorneys who will perform contract services. The Solicitation Package precludes a proposer from assigning attorneys to perform services under the contract without identifying those attorneys in the proposal and submitting their resumes and certificates of good standing as part of the proposal made to the Department. The representations of Thomas & Associates committing to hire additional attorneys if it received more than one contract, as well as Thomas & Associates' commitment to assign attorneys to work on the contracts as represented in the Thomas & Associates proposal, would become conditions of any contract entered into with the Department as would all other representations in the proposal. The Thomas & Associates proposal failed to meet all of the mandatory requirements set forth in the Solicitation Package due both to the failure of Thomas & Associates to identify all attorneys to be assigned to work on the contract and Thomas & Associates' failure to include resumes and certificates of good standing for those attorneys as part of its proposal. Accordingly, the Evaluation Committee should have rejected any further consideration of the proposal submitted by Thomas & Associates and should not have gone forward with scoring the proposal submitted. The Evaluation Committee members were aware that Thomas & Associates had submitted proposals for all three contracts, that the proposal pledged the same attorneys to work on one contract full time while pledging them to work on two additional contracts, and that the proposal represented that additional lawyers would be hired if Thomas & Associates received more than one contract. Yet, the Evaluation Committee members did not consider the multiple mutually- exclusive assignments of the same attorneys in the Thomas & Associates proposal and did not consider the representation that additional unidentified attorneys would be hired. The Evaluation Committee members specifically marked their Evaluation Sheets to reflect that Thomas & Associates had met all mandatory requirements for having its proposal evaluated and scored when Thomas & Associates had not done so. Page seven of the Solicitation Package provides as follows: The proposer must provide three references for whom the proposer has rendered services similar to those being proposed. Proposals must include the name, address, telephone number, and the Name and Title of the primary and alternate contacts for each reference. The Thomas & Associates proposal failed to comply with this requirement. No references were provided in the proposal for the firm of Thomas & Associates, the proposed legal services provider. The only references provided were for Jeffrey Thomas, one of three identified attorneys designated by the Thomas & Associates proposal to perform work under the contract. No references were provided for Willoughby and Coffman, the other two attorneys identified to be assigned to the contract, and no references were provided for the two unidentified attorneys to be assigned to the contract should Thomas & Associates receive more than one contract. The Thomas & Associates proposal contained four references for Jeffrey Thomas. However, only two of those references were clients. No references were provided in the Thomas & Associates proposal from clients for whom high-volume child support or family law legal services had been provided. Accordingly, the Thomas & Associates proposal failed to include three references for whom the proposer has rendered services similar to those being proposed, as required by the Solicitation Package. The Thomas & Associates proposal also failed to include alternate contacts for each reference, as required by the Solicitation Package. Alternate contacts should have been provided for individual references in case the Evaluation Committee was unable to make contact. For Jeffrey Thomas' individual references, only office telephone numbers were provided. Alternate contacts for Jeffrey Thomas' individual references could have been provided in the form of home telephone numbers. For Jeffrey Thomas' individual references, alternate references could have been provided in lieu of alternate contacts, but were not. Due to Thomas & Associates' failure to provide alternate contacts for Jeffrey Thomas' references, or even the required number of references, the Evaluation Committee was able to reach only one of Jeffrey Thomas' references for the purpose of conducting an interview. The requirement of three references for whom the proposer has rendered services similar to those being proposed is a material requirement for the personal services contract under consideration in this cause. Thomas & Associates' failure to meet this requirement also made its proposal non- responsive to the Department's solicitation. Rather than declaring the proposal non-responsive, the Evaluation Committee members awarded points to the Thomas & Associates proposal for providing sufficient and appropriate references. No points should have been awarded to Thomas & Associates for its references. Page four of the Solicitation Package advises that any proposal must contain a detailed written Plan clearly demonstrating the proposer's ability to process referrals or case establishment activities, and identifying existing resources and proposed resources. Pages 17-20 set forth the criteria for the provision of legal services. The Plan contained in the Thomas & Associates proposal is, for the most part, simply a verbatim recitation of the language on those pages of the Solicitation Package. The few portions of the Thomas & Associates Plan which were not copied verbatim from the Solicitation Package cannot be implemented or, if implemented, would delay the processing of the Department's high-volume caseload. The Thomas & Associates Plan commits to obtaining a court date for all enforcement hearings which is no later than 45 days after receipt of a referral. The Plan further commits to using interrogatories and requests to produce in each enforcement case. Due to the time necessary for the sheriff to serve pleadings on a CSE respondent and the applicable discovery response times, it is not possible to utilize interrogatories and requests to produce in each enforcement action within the time frames asserted by Thomas & Associates in its Plan. Further, interrogatories are not necessary in many cases, and the information that can be obtained through them can also be obtained from the non- custodial parent at the final hearing. Thomas & Associates' Plan also commits to scheduling a support hearing within 45 days of receipt of a case referral from the Department when paternity is in dispute and a Human Leukocyte Antigen Test or other DNA test is requested. This schedule cannot be achieved since DNA test results are not received until four to eight months after the court orders such a test to be performed. The Thomas & Associates Plan also commits to ensuring that the judge signs appropriate income deduction orders at the time of hearing. This is not possible in Martin and Okeechobee Counties because hearings are conducted by hearing officers who then submit their written recommendations to the judge before the judge will enter an income deduction order. It is usually not possible to have a hearing, get the hearing officer's written recommendation, and have the judge review that recommendation and issue an income deduction order all in a single day. The Thomas & Associates proposal asserts that Jeffrey Thomas would appear at all hearings where the non-custodial parent is represented by an attorney under the Palm Beach County intrastate contract, the Palm Beach County interstate contract, and the Martin/Okeechobee contract. That commitment would be a special condition of any contract between the Department and Thomas & Associates, as would all provisions of the Thomas & Associates proposal. Charles Willoughby graduated from law school in 1994 and became licensed to practice in the State of Florida some time thereafter. His resume reflects no experience in any facets of marital and family law. The Thomas & Associates proposal commits that Jeffrey Thomas will "personally train" and "supervise" Willoughby in the performance of his duties. The Thomas & Associates proposal also represents that Jeffrey Thomas will personally attend all meetings with Department child support staff. It is common for the non-custodial parent to come to a hearing in a CSE case represented by an attorney without that attorney having made a prior appearance in the case or having notified anyone that the attorney will be making an appearance in the case. In Martin and Okeechobee Counties, when the non-custodial parent is represented by an attorney, the attorney first appears on the day the hearing is set in approximately 40 percent of the cases. It is impossible for a single attorney to attend every hearing under the Martin/Okeechobee Counties, Palm Beach County intrastate, and Palm Beach County interstate CSE contracts where the opposition is represented by counsel because often hearings occur simultaneously before multiple domestic relations commissioners, hearing officers, and judges at multiple courthouses. It would be inappropriate for a CSE attorney under state contract to request a continuance of a hearing to allow a more experienced attorney to appear on behalf of the Department. Further, there is no basis for believing that such a motion would be granted. Accordingly, given the Thomas & Associates commitment that Jeffrey Thomas will personally train and supervise attorney Willoughby and personally attend all meetings with Department staff, and given the numerous courthouse locations where hearings will be conducted under the three contracts awarded Thomas & Associates, it would not be physically possible for Jeffrey Thomas to personally attend all hearings where the opponent is represented by counsel. Consequently, it is not possible for Thomas & Associates to perform under the CSE contracts awarded to it in accordance with the representations made in the proposal. Members of the Evaluation Committee knew that Jeffrey Thomas could not attend all hearings where the other parties are represented by counsel at the time they were scoring the Thomas & Associates proposal. Yet, they believed that the Instructions given to them for scoring proposals did not permit them to consider the impossibility of performance. Points were awarded to the Thomas & Associates proposal for the staffing ratio of attorneys and paraprofessionals proposed. The proposal represented that each attorney will have one paralegal and one legal secretary assigned to work on the contract. The proposal, like the letterhead used by Thomas & Associates for the purpose of submitting proposals to the Department, represented that Jacquelynne O. Benefield, a certified legal assistant, would supervise the paralegal department. Her resume was also included in the proposal. Benefield is not a certified legal assistant. The Thomas & Associates' misrepresentation regarding her credentials was not known to the Evaluation Committee members when they scored the proposal. The Department's evaluation mechanism provided for extra points for minority ownership of a proposer. Page one of the Solicitation Package specified that a copy of the certificate of minority business enterprise, if applicable, must be included with the proposal. However, page six provided different information by specifying that a copy of the certification must be attached to the proposal if a business has been certified as a minority business enterprise. However, if the business has not been certified, but has at least 51 percent minority ownership, such minority ownership must be documented. The Thomas & Associates proposal asserted that Mary Thomas, Jeffrey Thomas' wife, is an American woman and owns 60 percent of Thomas & Associates. The proposal asserted that Thomas & Associates is not certified as a minority business enterprise and had only applied for such certification. The Solicitation Package, therefore, required that Thomas & Associates document Mary's minority ownership. The only documentation submitted was a copy of an application for certification without any proof that the application had even been filed. The application was dated May 4, 1995, and represented that Mary Thomas had acquired her 60 percent ownership in Thomas & Associates, a business which earned $220,000 in 1994, on April 30, 1995. The application also reflected that Jeffrey Thomas, the 40 percent owner of the firm, is the president of Thomas & Associates, while Mary Thomas, the 60 percent owner of the firm, is only the vice president. Thomas & Associates submitted no documentation of Mary Thomas' minority ownership. Had Thomas & Associates submitted even the documents required to be submitted as part of the application for certification as a minority business, the Evaluation Committee would have seen that Mary Thomas bought her 15 shares of stock by writing a check in the amount of $15 from the joint checking account of her and her husband Jeffrey. The stock certificate issued to her was dated May 30, 1995, subsequent to the Department awarding to Thomas & Associates the contract which is the subject of this proceeding. The stock certificate issued to Mary bears certificate number 1 while the stock certificate for ten shares issued to Jeffrey on September 21, 1989, bears certificate number 2. The stock transfer ledger also reflects that Mary was issued stock certificate number 1 and Jeffrey was issued stock certificate number 2 five and a half years earlier. The Thomas & Associates proposal did not document the alleged minority ownership, and Thomas & Associates was entitled to receive no points for that category. The Evaluation Committee was concerned about the alleged minority ownership being documented only by an application dated one week before the deadline for submitting proposals to the Department. The Committee contacted the Department's Tallahassee office for guidance as to how to score the alleged minority ownership. The Evaluation Committee was advised to score that category in any manner the individual members saw fit. No guidance was given to the Evaluation Committee members and no criteria were suggested for grading that category which allowed a range of points from zero to five. The scores given by the Evaluation Committee to the Thomas & Associates proposal for minority ownership covered the range from zero to five. It is illogical to give partial credit for a category such as minority ownership. Thomas & Associates either is a minority business, thereby being entitled to full credit, or it is not, thereby being entitled to no credit. Since Thomas & Associates failed to comply with the Solicitation Package requirements by documenting the alleged minority ownership, it was entitled to no points in that category. The Solicitation Package advised prospective proposers that the "evaluation of all proposals will be made by an Evaluation Committee of qualified persons who are familiar with child support services". In making the representation that the membership of the Evaluation Committee would consist of "qualified" persons, the Department intended those persons to be familiar with the requirements to carry out the terms of the CSE legal services contract, including the various means for doing that work. The Department made no effort to insure that members of the Evaluation Committee were familiar with the necessities of a high-volume CSE law practice, that members were familiar with the operations of law firms necessary to carry out that kind of practice, or that members understood the experience and needs in their region. The members of the Department's CSE staff on the Evaluation Committee do not have knowledge of how to operate a CSE law office under state contract. In the past, when proposals for CSE legal services have been solicited, attorneys have been included on the evaluation committees. The Department gave no guidance to the Evaluation Committee on how to evaluate the proposals for "attorney experience" or for their "Plan." The Evaluation Committee members gave Thomas & Associates high scores for its Plan even though some of the representations in it are not feasible in a high-volume CSE practice of law. The lack of guidance resulted in the Evaluation Committee giving high scores for Thomas & Associates' Plan, notwithstanding Thomas & Associates' obvious lack of understanding of CSE legal practice under state contract. For example, Thomas & Associates' Plan indicated that depositions would be taken in every paternity and support action. Because a very limited amount of money is available under the contract for expenses, it would not be possible to take depositions in all of those cases. Thomas & Associates' Plan also inaccurately describes the use of temporary relief hearings when no such hearings are utilized by the judicial hearing officers in Martin and Okeechobee Counties. That Plan also inaccurately suggested that a temporary relief hearing would be used when a respondent acknowledges paternity, since no temporary relief hearing is necessary in such a circumstance. Instead, the case would be scheduled on the next available docket for final hearing. The Plan also inaccurately indicates there is a need for a temporary relief hearing when the issue of support has already been resolved through a stipulation for support. Thomas & Associates' Plan also inaccurately suggests all support cases can be brought to hearing within 45 days of referral from the Department. Given the time necessary for a case to be processed by the court clerk's office and for the sheriff to serve the summons, together with the 20 days the respondent is given to respond after service, it would not be possible to meet this schedule in every case. Moreover, the sheriff is unable to obtain service on the non-custodial parent in approximately 35 percent of support cases. Such cases are not set for hearing because the court has no jurisdiction over the non-custodial parent. Instead, these cases are sent back to the Department so a correct address for the non-custodial parent can be found, if possible. Anyone familiar with a high-volume CSE practice of law under state contract would know that the above-described components of Thomas & Associates' Plan are impossible, impractical, or simply make no sense. Similarly, an experienced attorney would know that the time frames suggested for service of process and obtaining discovery were unrealistic and that it is inappropriate to seek a temporary relief hearing when a case is ready to be set for final hearing. All family law does not constitute child support enforcement law. The Evaluation Committee members' lack of qualifications is evidenced by their inability to distinguish among family law, child support, enforcement and collection, and trial and appellate areas of practice even though the Evaluation Sheet required a separate score for each of these practice areas for evaluating attorney experience. The Evaluation Committee members did not have specialized computer knowledge. Their lack of experience in computers is evidenced by the high scores awarded the Thomas & Associates proposal based on the computerized handling of the contract, notwithstanding the proposal's failure to mention any hard drive, failure to describe the random access memory (RAM) its computers contain, and failure to indicate whether its software can handle the number of files necessary to perform under the Department's contract. Without knowing the computers' hard drive capacity and the RAM of the computer, the Evaluation Committee could not judge the capability of the computers to handle the volume of files under the contract. The Evaluation Sheet utilized by the Evaluation Committee is not the same as the Evaluation Sheet which was included in the Solicitation Package. In the evaluation scheme specified in the Solicitation Package, the area that provided the largest single award of points was "attorney experience." In this area, the Solicitation Package indicated that points would be awarded for attorney experience on a "per attorney" basis. The Solicitation Package does not contain any indication that for multi-attorney firms the attorneys' years of experience will be totalled and then averaged before points are assigned. Unlike the Solicitation Package which was provided to potential proposers, the Instructions given the Evaluation Committee contained contradictory provisions, some providing for attorney experience points to be awarded on a per attorney basis and others providing for points to be awarded based on the average years of experience of all attorneys designated to work on the contract. For multiple-practitioner law firms such as Thomas & Associates, the attorney experience points differ significantly if they are computed on a "per attorney" basis and then averaged, rather than on the basis of "average years" of experience of all attorneys designated to work on the contract. When attorney experience scores are calculated on a per attorney basis, each attorney assigned to the contract must have a minimum of five years experience in an area of law for the firm to receive the maximum points for that area. When attorney experience scores are calculated on the basis of "average years" of experience of all attorneys designated to work on the contract, a multiple-practitioner firm such as Thomas & Associates can receive the maximum number of points even if some of the attorneys have no experience. Thomas & Associates received the maximum number of attorney experience points even though one of the attorneys assigned to work on the contract, Charles Willoughby, graduated from law school in 1994 and became licensed to practice law some time thereafter. The proposal admits that Willoughby has "little experience in family law matters." Conversely, the proposal does not assert that he has any experience in family law matters, any experience in child support, any experience in enforcement and collections, or any experience in trial and/or appellate work. Further, his resume does not indicate that he has any experience in the practice of law. Interestingly, not all members of the Evaluation Committee evaluated the same attorneys when computing the points to be awarded to Thomas & Associates for attorney experience. One Evaluation Committee member's Evaluation Sheet reflects that Mary Thomas was evaluated along with Jeffrey Thomas and Charles Willoughby in some areas of practice but that Mary Thomas along with Jeffrey Thomas and Denise Coffman were evaluated as to other areas of practice. In calculating Thomas & Associates' attorney experience score, the Evaluation Committee members did not consider the two additional attorneys who are unidentified but would be hired if Thomas & Associates receives more than one contract. The only way to take into account those additional attorneys would be to award each of them zero points for experience. Basing attorney experience points on the "average years" of experience of all attorneys designated to work on the contract, or on the years of experience of a single attorney in a multiple-practitioner firm, as was done by some members of the Evaluation Committee, is inconsistent with the Department's stated goal of obtaining the highest possible level of legal representation through this solicitation process. Similarly, utilizing a formula which gives the same credit for experience to an attorney practicing in the general area of family law as to an attorney practicing high-volume CSE legal services, a concept the Evaluation Committee members found to be unfair, is also inconsistent with the Department's stated goal of obtaining the highest possible level of legal representation. The maximum score Thomas & Associates could have received for attorney experience based on the per attorney scoring procedure specified in the Solicitation Package is substantially less than the number of points awarded by the Evaluation Committee. Further, if the Evaluation Committee had properly scored Thomas & Associates' attorney experience, that proposal would have received an overall average score lower than the Reymore proposal received. The Evaluation Committee awarded an average of 4.9 of the available 5 points for references to Thomas & Associates based solely on the one reference for Jeffrey Thomas it was able to contact. However, the Evaluation Committee interviewed two of the Reymore references. The Department's Tallahassee office specifically instructed the Evaluation Committee not to interview the third person listed in the Reymore proposal as a reference since she was also a member of the Evaluation Committee, something Reymore could not have known when he prepared his proposal since the names of the persons on the Evaluation Committee were not disclosed in the Department's Solicitation Package. To insure that the evaluation of the proposals was fair and equal, the Evaluation Committee had been instructed to interview an equal number of references for each proposer. By basing Thomas & Associates' score on a single interview, the Evaluation Committee members did not follow the appropriate procedure in awarding points for references. One member of the Evaluation Committee did not participate in the interviews of references. Instead, that member used another member's notes from the references' interviews to award points for references. By awarding points for references based solely on the notes of another Evaluation Committee member, that Committee member did not follow the appropriate procedure in awarding points. Despite the absence of any effort by the Department to assure that its members were qualified to evaluate a high-volume CSE practice, the Evaluation Committee was given wide discretion to evaluate the proposals using whatever criteria its individual members chose. The evaluation scheme developed for this solicitation differed from those used previously in order to give the Department's regions more flexibility. The only substantive instructions given the members of the Evaluation Committee on how to evaluate the proposals for CSE legal services were those in the Solicitation Package and the Instructions. Members of the Evaluation Committee found the Instructions inadequate, and the ranges of points with no criteria confusing. In prior solicitations for CSE legal services, evaluation committees were given a scoring matrix which set guidelines on how to score each section of a proposal. The Department's departure from the past practice of providing a scoring matrix to assist the evaluation committee in evaluating the proposals in order to give the regions more flexibility is illogical since there is no basis for the premise that the practice of law varies from region to region in the state or that different regions require different legal services. The difference in the average scores given Thomas & Associates' proposal over the Reymore proposal was 11.8 points. Had the Thomas & Associates' proposal been properly scored, the Reymore proposal would have been the highest-scoring proposal. Moreover, Reymore would have submitted the highest-scoring responsive proposal if the Thomas & Associates' proposal had been disqualified due to the failure of Thomas & Associates to include all of the Mandatory Requirements in its proposal. Thomas & Associates has not challenged the responsiveness of Reymore's proposal or the accuracy of the Evaluation Committee's scoring of the Reymore proposal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered determining the Thomas & Associates proposal to be nonresponsive and awarding to Petitioner Reymore the contract to provide child support enforcement legal services for Martin and Okeechobee Counties. DONE and ENTERED this 11th day of September, 1995, at Tallahassee, Florida. LINDA M. RIGOT, 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 11th day of September, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-20, 22-45, 48-82, 85- 95, 99-101, 106, 107, 114, 116-147, 149, 150, and 152-173 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 21 has been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Petitioner's proposed findings of fact numbered 46, 47, and 96 have been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed findings of fact numbered 98, 102-105, 108-113, and 115 have been rejected as being unnecessary to the issues involved herein. Petitioner's proposed findings of fact numbered 83, 84, 148 and 151 have been rejected as being subordinate to the issues herein. Intervenor's proposed findings of fact numbered 1-12, 15, 16, 18, 37, 76, 77, 83, 84, 87, 101, 109-111, 115, 118, 120, 123, 165, and 178 have been adopted either verbatim or in substance in this Recommended Order. Intervenor's proposed findings of fact numbered 13, 14, 21-23, 25, 26, 31-34, 38, 40, 46, 57, 61-65, 71, 90, 91, 96, 99, 117, 130-132, 158, 160, 162, 163, and 168-173 have been rejected as being irrelevant to the issues under consideration in this cause. Intervenor's proposed findings of fact numbered 17, 19, 20, 24, 42, 45, 48, 51, 58-60, 66, 72-75, 79, 85, 86, 88, 89, 92, 97, 98, 112, 113, 116, 121, 127, 133, 166, 167, 176, 177, 179, 181, and 182 have rejected as not being supported by the weight of the credible evidence in this cause. Intervenor's proposed findings of fact numbered 27, 30, 35, 39, 41, 43, 44, 47, 50, 52-56, 67-70, 80-82, 100, 102-107, 114, 124-126, 128, 129, 137, 142- 146, 148-153, 174, and 180 have rejected as being subordinate to the issues herein. Intervenor's proposed findings of fact numbered 28, 29, 36, 49, 78, 108, 119, 122, 138-141, 147, 154, 155, 157, 159, 161, 164, 175, and 183 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Intervenor's proposed findings of fact numbered 93-95, 134-136, and 156 have been rejected as being unintelligible. Respondent's proposed findings of fact numbered 1-3, 5, and 11 have adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4, 7, 10, and 20 have been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's proposed findings of fact numbered 6, 8, 9, 14, 16, and 18 have been rejected as being subordinate to the issues herein. Respondent's proposed finding of fact numbered 13 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 15, 17, 19, and 21 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: Douglas Reymore, Esquire Suite 420 10 Central Parkway Stuart, Florida 34994 Gary P. Sams, Esquire Carolyn S. Raepple, Esquire Hopping Green Sams & Smith P.A. 123 South Calhoun Street Tallahassee, Florida 32314 Thomas Barnhart, Esquire Patrick Loebig, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Jeffrey F. Thomas, Esquire Thomas & Associates Treasure Coast Bank Building Suite 209 789 South Federal Highway Stuart, Florida 34991 Noel A. Bobko, Esquire McCarthy, Summers, Bobko, et al. Suite 2-A 2081 East Ocean Boulevard Stuart, Florida 34996 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100
The Issue Whether the bids of Unisys and NCR were responsive to the Invitation to
Findings Of Fact Overview Invitation to Bid VH-2 (ITB) sought bids for full service hardware maintenance for approximately 3,500 computer terminals, printers, microcomputers and associated components and peripheral devices, located throughout the state. Upon acceptance of the lowest responsive bid, the State would enter into a six- month contract, renewable for two twelve-month periods. HRS officials considered whether to acquire the services through a Request for Proposal process or through an Invitation to Bid. The decision was made to pursue an ITB. The ITB was prepared by Harriet Parker, who, at the time, was the administrator of the HRS Data Center in Jacksonville, Florida. Ms. Parker's employment with HRS ended after the bidder's conference and after she had answered bidder's questions which came in after the bidder's conference. Ms. Parker was not employed by HRS when the bids received in response to the ITB were received. HRS issued the ITB on January 22, 1988. After a bidder's conference was held, HRS, on March 1 and 9, 1988, issued addenda to the ITB, which contained changes to the ITB. Additionally, the addendum issued on March 1, 1988 contained written responses to questions submitted by potential bidders. The ITB and addenda were reviewed by the Information Technology Resource Procurement Advisory Council. Five companies submitted bids: RAM Systems, Inc., Data Access Systems, Inc., Instrument Control Services, Inc., NCR, and Unisys. The bid of RAM Systems, Inc. was rejected as untimely. The remaining four bids were timely filed. Ms. Parker appointed three HRS employees to serve on the bid evaluation committee which reviewed the bids received in response to the ITB. The three employees were: Vincent C. Messina, a Data Communications Specialist III, James R. Hall, a Data Processing Manager II, and Hilda Fowler Moore, an administrative assistant. All three committee members were employees at the HRS Data Center in Jacksonville, Florida. At its first meeting, the committee reviewed the four bids to determine if they were in the format requested in the ITB. This review was solely as to form, instead of content. After the meeting, each committee member prepared cost extension sheets for each bid, in accordance with the method set forth in the ITB, to determine which bidder was the lowest. At the next meeting, the committee members compared the cost extension sheets each had prepared. While there were differences between them, each member had the bids ranked in the same order. The committee determined that Data Access Systems, Inc. was the lowest bidder, NCR the next lowest, then Unisys and, finally, Instrument Control Services, Inc. After further review, the bid of Data Access Systems, Inc. was rejected as nonresponsive. The committee then decided to concentrate their review on the bids of NCR, now the lowest bidder, and Unisys, now the second lowest bidder. The bid of Instrument Control Services, Inc. was laid aside, since it was the high bidder. After reviewing the content of the NCR and Unisys bids, the committee determined that both bids were responsive. Since NCR was the lowest bidder, the committee decided NCR should be awarded the bid. The Notice of Intent to award the bid was posted on April 5, 1988. Unisys timely filed its notice of intent to protest, and its formal written protest and request for a hearing. Review Standards Used by Committee The committee was not given any direction on how to evaluate the bids, and no instructions on how to determine a bid was responsive. The committee members never discussed the meaning of the terms "minor irregularity or "material deviation" and were never told the meaning of these terms. Finally, the committee members neither sought nor received legal advice on how to evaluate certain provisions contained in the bids. Mr. Messina interpreted his role on the committee to be to compare the items in each bid with the ITB. Reviewed his role as determining whether the wording of the bid would be sufficient to supply the State with a viable service agreement. His determination of whether a bid was responsive was not based on a word for word comparison of the bid with the ITB, but on an overall impression of what each bid contained. Mr. Hall reviewed the bids to make sure that each bidder was meeting what the ITB required. His main focus in reviewing each bid was whether the wording of the bid gave that bidder an advantage over another bidder. At the time of reviewing the bids, Ms. Fowler Moore's understanding of what constituted a "material deviation" was that it would be a major change which would affect an issue or an item in some way. She understood a "minor irregularity" to be a lesser difference. The committee as a group believed that there would be further review of their decision and that some differences between the bids and the ITB would be worked out later by others. The committee members did not think that their decision would be the final decision. The ITB, General Provisions The ITB, including attachments and the two addenda consisted of over 150 pages. The ITB contained a number of mandatory requirements. The ITB explained these as follows: MANDATORY REQUIREMENTS Introduction The State has established certain requirements with respect to bids to be submitted by bidders. The use of "shall", "must" or "will" (except to indicate simple futurity) in this Invitation To Bid indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with this (sic) Invitation To Bid requirements, provides an advantage to one bidder over other bidders, has a potential significant effect on the quantity or quality of items bid, or on the cost to the State. Material deviations cannot be waived. The words "should" or "may" in this Invitation To Bid indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature, will not in itself cause rejection of a bid. (Emphasis in original) On page 5, the ITB provided that "any Bid which fails to meet the mandatory requirements stated in this Invitation to Bid shall be rejected." On page 1, the ITB provided that "Bids containing terms and conditions conflicting with those contained in the invitation to bid shall be rejected. On page 6, the ITB, in describing the format to be used, provided that "there is no intent to limit the content of the Bid. Additional information deemed appropriate by the bidder should be included." The addendum issued on March 1, 1988, contained the following: Q. Can a bid contain options that HRS will consider, providing all mandatories are met? If all mandatories are met, bidder may submit options for HRS consideration. These need to be clearly identified in a separate section of the bid. The bid price should not be based on HRS acceptance of options. The ITB contained the standard language that "Any questions concerning conditions and specifications shall be directed in writing . . . for receipt no later than ten (10) days prior to the bid opening," and gave bidders the opportunity to dispute the reasonableness, necessity and competitiveness of the terms and conditions of the ITB. On page 3, the ITB provided: Contractual Mandatories A bidder's response to this Invitation To Bid shall be considered as the bidder's formal offer. The signing of the contract by the Department shall constitute the Department's written acceptance of the successful Bid and a copy of the signed contract shall be forwarded to the successful bidder. The contract for services required by this Invitation To Bid is contained herein. The contract included in the -ITB incorporated and made part of the contract both the ITB and the successful bidder's bid. Comparison of the NCR Bid with the ITB The NCR bid contained numerous changes to the provisions of the ITB. These changes are set forth below. Supplemental Bid Sheets Pages 146 and 147 of the ITB consisted of a form which each bidder was to complete and return as part of its bid. The form stated that "each designated paragraph in this Invitation to Bid must be addressed. The bidder must initial the designated item indicating concurrence." The form set forth 47 items. The layout of the form, showing the first two items for illustration purposes, was as follows: TITLE RESPONSE INITIALS Introduction Understood and Agreed Mandatory Requirements Understood and Agreed The NCR bid contained initials in the appropriate place for all items. On thirteen of the items, NCR's bid contained the words "as per Bidder's Proposal" typed under the words "Understood and Agreed" as shown in the following example: TITLE RESPONSE INITIALS Introduction Understood and Agreed as per Bidder's Proposal Mandatory Requirements Understood and Agreed as per Bidder's Proposal The words inserted by NCR related to the items in the line directly above the inserted words. The committee members interpreted the insertion of the words "as per Bidder's Proposal" in different ways. Mr. Messina interpreted it to mean that NCR was agreeing to the terms of the ITB and was offering the State something better and different which the State could accept or reject. He thought the differences would be worked out later; that the differences were more a "legal matter" than something the committee could solve. Mr. Hall interpreted it to mean that NCR agreed to the provisions of the ITB as some of the provisions had been changed by NCR. Ms. Fowler Moore interpreted it to mean that the items for which "as per Bidder's Proposal" was added were qualified and the ones where nothing was added were not qualified. Limitation of Remedies The addendum issued on March 1, 1988 contained two new pages which became part of the contract section of the ITB. These new pages were numbered 23A and 23B. In its bid, NCR changed the wording of page 23A. The relevant portions of page 23A of the NCR response are set forth below: Limitation of Remedies Contractor's entire liability and the State's exclusive remedy shall be as follows: In all situations involving performance or non-performance of machines or programming maintained or serviced [furnished] under this Agreement, the State's remedy is (1) the adjustment or repair of the machine or replacement of its parts by Contractor, or, at Contractor's option, replacement of the machine [or correction of programming] errors, or (b) if, after repeated efforts, Contractor is unable to install the machine or a replacement machine, model upgrade or feature in good working order, or to restore it to good working order, or to make programming operate, [all as warranted,] the State shall be entitled to recover actual damages to the limits set forth in this Section. * * * Contractor's liability for damages to the State for any cause whatsoever, and regardless of the form of action, whether in contractor or in tort including negligence, shall be limited to the greater of $100,000 or the actual amount laid by the State to the Contractor for the services provided under this Agreement [appropriate price stated herein for the specific machines that caused the damages or] that are the subject matter of or are directly related to the cause of action.... Contractor shall hold and save the State harmless for any and all suits and judgements against the State for personal injury or damage to real or personal property up to the value of the Agreement at the time this Agreement is terminated caused by Contractor's tortious conduct in the performance of this Agreement.... (Underlined words were added by NCR, brackets indicate words NCR struck through). The committee members felt that these changes either were necessary, enhanced the language in the ITB, or would not have much of an effect on the contract. From a legal standpoint, however, the committee was not sure what the changes meant. The committee members felt that they were not qualified to determine whether the changes constituted a material deviation and believed that decision would be made by someone else after the committee was finished. The changes made by NCR to the first paragraph help to clarify the document to meet the provisions of the ITB. The ITB was not for the purchase of machines or programming, but for the servicing of hardware. The changes made to the second paragraph enhance HRS's position and help to clarify the language. HRS's position is enhanced because under the ITB language the limitation would have been the greater of $100,000 or $0 since the ITB did not contain prices for specific machines. Again, the stricken language would apply to a purchase agreement and not to a service contract. The change to the third paragraph has the effect of nullifying the hold harmless clause, since "the value of the Agreement at the time this Agreement is terminated" is zero. Bid Bond On page 3, the ITB required bidders to submit a bid bond or bid guarantee in the amount of $10,000. If the successful bidder failed to execute a contract within ten days after notification of award, the bid guarantee was to be forfeited to the State. The bid bond submitted by NCR contained the following language: NOW, THEREFORE, the condition of the obligation is such that, if the said principal shall be awarded the said contracts and shall within (*) days after receiving notice of the award enter into a contract. . . *to be negotiated between said principal and said obligee. Since NCR's bid bond left the period of time within which to enter into a contract to be negotiated, the bid bond was not in compliance with the ITB's requirements. Invoicing On page 21, the ITB set forth certain requirements for invoices. One of the requirements was that "the invoice will include a detail list of costs for parts replaced listed on each malfunction incident report." This information was important to Ms. Parker in order for HRS to know what it was paying for, even though the contract price included both parts and labor. NCR's bid had the quoted language stricken through. On page 12, the ITB required that "Invoices for payment must be submitted to the State monthly, with at least the same level of detail found in Attachment A." Page 13 of NCR's bid, under the caption "Invoices," stated that "NCR agrees to conform with the existing payment plans as established in previous agreements between NCR and the State of Florida Comptroller's Office." The committee members did not think that the requirement that the invoice contain the cost of replacement parts was important. They assumed that they would not receive this information from the winning bidder, since they were not receiving it from the existing contractor. The committee members did not know what the previous agreements were between NCR and the Comptroller's Office. The committee assumed that NCR's response would be sufficient to meet HRS's needs. Configurations The addendum issued on March 1, 1988, contained a new page 26 for the ITB, which contained the following language: Full service maintenance for microcomputers will include the following configuration: Up to 768KB RAM plus up to one memory expansion card, up to two 5 1/4 inch 360KB or up to two 1.2MB floppy disk drives, up to 20MB hard disk, enhanced graphics capability, monochrome or color monitor, and an ICC card if required for network communications. This full service maintenance configuration was developed to include features that are basic to microcomputers connected to the HRS Data Communications Network and are, therefore, the maintenance responsibility of the Data Center. Machine features that are not included in this configuration are not covered by the maintenance contract resulting from this ITB. Enhancements that may be on a microcomputer covered by the maintenance contract but would not themselves be covered include, but are not limited to: local area network (LAN) cards, 40MB hard disk, 3 1/2 inch floppy disk drive and Bernoulli Boxes. Maintenance of these enhanced features are the responsibility of the user. (emphasis added) NCR, in listing its price for servicing certain equipment, assumed configurations that are less than those stated in the ITB. For example, NCR did not include hard disks in its configuration for some equipment. Hard disk drives are some of the more expensive items to repair and replace in computers. The committee members did not compare the configurations in the NCR bid with those in the ITB. Therefore, they did not take into account the differences between the two in determining that the NCR bid was responsive. Termination of the Contract Page 11 of the ITB provided that: The State reserves the right to cancel maintenance coverage for any single piece of equipment or any number of pieces of equipment or the entire contract upon thirty (30) days written notice to the Contractor. NCR in its bid provided that: Withdraw/Termination Neither party shall be deemed to be in default of this agreement, or of any contract entered into pursuant to it unless, as a condition precedent thereto, the other party shall have first given written notice describing with reasonable detail the condition which it perceives to be a default as outlined in Attachment D and the Bidder's Proposal, and within sixty (60) days following receipt thereof, the party receiving such notice shall have failed or refused to correct such condition. Both parties shall make all reasonable efforts to correct any problems which may lead to termination of the agreement. The evaluation committee noticed this difference, and felt that this was an area to be looked at by other persons who would do a final review. Engineering Changes The ITB, on pages 12 and 13 stated that: Cost of maintenance shall include installation of all announced engineering changes applicable to any piece of equipment covered by this contract. All engineering changes which the manufacturer considers mandatory or engineering changes which the manufacturer or the Contractor considers necessary for safety reasons must be installed as soon as possible. Contractor shall notify the State in writing of all mandatory and safety related engineering changes. Engineering changes which the manufacturer recommends but which are neither mandatory nor for safety reasons must be installed within a reasonable period of time after the Contractor has notified the State of such changes and the State has authorized the installation of such changes . . . It is the Contractor's responsibility to determine what engineering changes are available, whether they are mandatory changes, safety changes, or other changes. Furthermore, it is the Contractor's responsibility to initiate the installation of all such changes. (emphasis added) Page 9 of NCR's bid provided that: Engineering Changes should a reliability modification released from an OEM be deemed necessary by NCR, the modification will be performed during the prime shift of maintenance at no additional charge to the State of Florida. The original equipment manufacturers with whom NCR has agreements are responsible for providing notification to NCR on any engineering changes. NCR will make HRS aware of engineering changes when the necessary. information becomes available to NCR. (emphasis added) The committee assumed that if a manufacturer considered an engineering change to be mandatory, NCR would deem it to be necessary and would make this change. Therefore, the committee determined that the NCR language was responsive and would result in the State receiving the service it expected. Malfunction Incident Reports Page 10 of the ITB required that the winning bidder furnish HRS with a written--malfunction incident report upon completion of each maintenance call. The ITB went on to describe ten items which had to be included in the reports. Page 12 of the NCR bid provided the following: Reports NCR has the ability to provide monthly service reports to HRS which summarize the maintenance activity of the account. Such records may include a listing of all equipment covered in the maintenance agreement accompanied by the dates of service calls, number of service calls received per equipment type, description of problem and solution, and the time spent for repair. NCR maintains a comprehensive equipment history file to meet your reporting needs. Reporting procedures will be jointly defined by NCR and HRS. (emphasis added) One member of the evaluation committee did not consider the reports to be an important item. Another member of the committee assumed that HRS would get the information it needed from the reporting procedures to be jointly defined by NCR and HRS once the contract was awarded. Additional Equipment Page 11 of the ITB required that the contractor would be responsible for maintaining all the equipment owned by the State which is of the type set forth in the ITB, regardless of whether the specific piece of equipment is listed in the ITB or subsequently purchased. Equipment of a type not described in the ITB is not part of the agreement. NCR's bid is consistent with this requirement. Also, NCR's bid gives HRS the option of adding equipment of a type not described in the ITB, after NCR evaluates the equipment and agrees to accept it. Principal Period of Maintenance Page 9 of the ITB provided that the "Principal period of maintenance shall be at least from 8:00 a.m. to 5:00 p.m., local time at each site, Monday to Friday, exclusive of holidays observed by the Department." Also, page 17 of the ITB provided that, "Principal Period of Maintenance (PPM)" shall be defined as at least nine consecutive hours per day (usually between the hours of 8:00 a.m. and 5:00 p.m.; local time at the site) as selected by the State, Monday through Friday, excluding holidays observed at the site." Finally, page 19 of the ITB contained language similar to the language in page 9 of the ITB. In the industry, "principal period of maintenance is that period of time during which a customer is buying services, including parts and labor, at a flat rate under a contract with the service provider. Page 8 of NCR's bid provided that "NCR's Principal Period of Maintenance (PPM) is Monday through Friday, 8:00 a.m. to 5:00 p.m., including a one hour meal period." NCR's bid did not change the language contained in page 19 of the ITB, noted above, which became part of its bid. Finally, in its Attachment to the contract provided in the ITB, NCR's bid stated that "the 'Principal Period of Maintenance' shall be defined as Monday through Friday, 8:00 a.m. to 5:00 p.m., exclusive of a one hour meal period, excluding holidays." The evaluation committee discussed the differences in the language between the NCR bid and the ITB dealing with principal period of maintenance and decided that the NCR bid was responsive. Response Time, Loaner Equipment and Penalties Page 9 of the ITB required the following: 5. Contractor must provide on site response within four (4) hours in metro areas and six (6) hours in all other areas at a 95 percent response level. Metro and non-metro locations are listed in Attachment B. If the response level falls below ninety-five percent (95 percent) overall for the State on a monthly basis, the Contractor will forfeit ten percent (10 percent) of the monthly maintenance cost per unit for each incident in the month of the occurrence. 7. The Contractor will have the equipment repaired and accepted by HRS Data Center staff or the Contractor will install an equivalent substitute device within six (6) hours after the maintenance begins. Maintenance begins when the Contractor arrives at the site and takes control of the equipment. If the equipment is not repaired or the Contractor does not install equivalent working equipment, the Contractor shall forfeit ten percent (10 percent) of the monthly maintenance cost per unit for each incident in the month of the occurrence. The NCR bid, on pages 8-9, provided the following: Response Time A firm commitment to response time and a stringent set of escalation procedures will be an integral part of NCR's service program for HRS. NCR has a commitment to arriving on-site within four (4) business hours of receipt of call during NCR's Principal Period of Maintenance, for equipment located within metropolitan areas. For non- metropolitan equipment sites, the average response commitment is six (6) hours. NCR understands the State of Florida's objectives to make system availability as high as possible, and we have an internal commitment to help the State meet the goal. Should NCR fail to meet its response and escalation standards as outlined herein, NCR will entertain future negotiations relative to credits and penalties. Because of NCR's response time, repair and escalation procedures, NCR generally does not provide loaner equipment. (emphasis added) The NCR bid then continues, on pages 10-12, under the heading "Escalation/Problem Resolution," to explain the procedures NCR personnel will follow when a machine cannot be restored to good operating condition within set periods of time. The evaluation committee interpreted NCR's bid to mean that NCR would respond within six (6) hours in the non-metro areas, even though the NCR bid stated that "the average response commitment is six (6) hours." The evaluation committee believed that the ten percent (10 percent) penalties set forth in the ITB were irrelevant and not necessary, since the penalties were too low. Therefore, the committee felt that NCR's proposal to negotiate a system of penalties and credits made sense. The committee also believed that, under NCR's escalation procedures, coupled with the statement on page 8 of the NCR bid that "Periodically, a whole unit swap philosophy may be utilized to maximize system uptime," the machines would be fixed within six (6) hours or an equivalent working device (loaner) would be installed. Probationary Period Evaluation Page 145 of the ITB set forth the evaluation criteria which HRS would use to evaluate the contractor's performance during the initial 6-month term of the contract. NCR's bid added language to five of the criteria, as follows: Is the response level of ninety-five (95 percent) maintained consistently each month in all major areas of the State? On the average. Are adequate spare parts available for equipment repair within six (6) hours? Spare carts are generally available within six (6) hours; maximum of twenty- four (24) hours. Is an equivalent substitute device installed if parts are not available or if repair is expected to require more than six (6) hours? Compliance in the following manner: NCR's repair and escalation procedures may result in utilizing a substitute device to maximize system uptime. Are the changes in priorities easily accomplished? As stated, not a quantifiable standard; would prefer substitute language. Are malfunction incident reports received on a timely basis? Compliance defined in Reporting section of Bidder's Proposal. (Underlined words were added by NCR) The committee noted that the NCR bid contained changes to the evaluation language. Implementation of Contract The NCR bid, in Appendix C, contained an implementation schedule calling for service to certain equipment to begin five weeks after the contract was awarded and to the remainder of the equipment nine weeks after the contract was awarded. The ITB, while not explicitly stating when the new contractor was to begin services, appears to contemplate that full service would begin immediately, since it provides for HRS to begin paying maintenance charges on the effective date of the contract. Under the terms of the ITB, the effective date of the contract would be no later than ten days after the award was posted. One member of the evaluation committee, Mr. Hall, believed the new contractor would begin service immediately, which to him meant within a month after the award was made. Execution of Contract The ITB contemplated that the successful bidder execute the contract provided in the ITB within ten days of notification of the award. The NCR bid provided that "Upon mutual agreement of the terms and conditions between our organizations, NCR agrees to execute a contract within ten (10) days." Also, the implementation schedule set forth in Appendix C of the NCR bid provided for the contract to be negotiated and executed between the second and fifth week after notification of the award. Assignment of Contract Page 22 of the ITB provided that "This Agreement is not assignable without the prior written consent of the Customer. Any attempt to assign any of the rights, duties or obligation of this Agreement without such consent is void. In its bid, NCR struck through the word "Customer" and inserted the word "parties." Site Rules and Regulations Page 23 of the ITB stated that: The Contractor shall use its best efforts to assure that its employees and agents, while on the State's premises, shall comply with the State's site rules and regulations. The NCR bid in its attachment to the contract, under the heading "The Rules and Regulations," provided that "Execution of a contract by NCR is contingent upon NCR's review of the State's site rule and regulations." REVIEW OF THE UNISYS BID As stated earlier, the Unisys bid was found to be responsive by the evaluation committee. Unisys agreed to all the performance mandatories of the ITB. The Unisys bid did not contain any deviations from the ITB and was consistent with all the terms and conditions of the ITB. Bid?
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that HRS issue a final order finding NCR's bid to be nonresponsive and awarding the contract under the Bid No. VH-2 to Unisys. DONE and ENTERED 26th day of July, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 26th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-22525Bid The parties submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO " UNISYS' Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph 1.-14. Accepted. 15.-18. Accepted as set forth in RO34. Accepted. Rejected as a conclusion. But see Conclusions of Law section of this Order. 21.-45. Accepted. 46. Rejected as irrelevant. 47.-52. Accepted. 53. Accepted. See Conclusions of Law section of this Order. 54.-58. Accepted. 59. Accepted except for last two phrases which are rejected. The evidence is inconclusive on whether NCR would have an advantage over other bidders and whether the price of the contract was affected by this provision. 60.-63. Accepted. 64.-65. Rejected. The evidence is inconclusive as to the effect the NOR bid's language would have. See Conclusions of Law section of this Order. 66.-69. Accepted. Rejected. Since, there is no way of knowing the result of the negotiations, one cannot determine if this would result in an unfair advantage or would have an economic impact. Rejected. Delay can occur in any contract. Under the ITB, undue delay would be penalized. 72.-75. Accepted. Rejected as irrelevant. Rejected as irrelevant. The statement may be true, but that is not the situation here. 78.-79. Accepted. 80. First phrase, rejected. NCR did not agree to anything. Second phrase, accepted. 81.-83. Accepted. 84. Rejected as a conclusion and an assumption, since no one knows what the jointly defined procedures would be. 85.-86. Accepted. Accepted as what the committee felt. However, the provisions of the NCR bid dealing with additional equipment are consistent with the ITB. Rejected as contrary to facts found. 89.-90. Accepted. Accepted. See Conclusions of Law section of this Order. Accepted. Accepted. See Conclusions of Law section of this Order. 94.-97. Accepted. 98. First two sentences accepted. Third sentence rejected; the evidence does not show what is included in the payment plans with the Comptroller. 99-102. Accepted. Rejected. The evidence is inconclusive on whether this item affected the price of the bid. Rejected as irrelevant. Rejected as irrelevant. Accepted. Rejected as not supported by the evidence. The NCR bid states that NCR would prefer substitute language. 108.-112. Accepted to the extent they restate the ITB and the NCR bid. However, the implicit conclusion that this is at variance with the ITB is rejected as not supported by competent evidence. 113.-119. Accepted. 120. The introductory paragraph is rejected as a conclusion of law. Subparagraphs A. through are accepted. HRS's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph 1.-7 Accepted Accepted. Accepted. True but unnecessary. Accepted generally. Accepted. Accepted generally. Accepted generally. Rejected as not supported by the weight of the evidence. First sentence accepted. Second sentence is true as to what the evaluation committee believed. However, the overall service to the State is affected by the NCR bid. True that this is what the evaluation committee determined, believed and concluded. However, the findings of fact made in this RO differ from what the evaluation committee believed. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected. While the cost of the services may be the same, less services are provided for in the NCR bid than are called for in the ITB. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected. HRS may wish to accept the NCR bid; if it does so, however, it will agree to a different agreement than called for in the ITB. There can be no meeting of the minds when items are left to be negotiated and where the evaluation committee members did cot understand all the provisions of the NCR bid. Rejected. See RO41. Rejected as irrelevant. See also Conclusions of Law. Rejected as irrelevant. Supported by competent evidence, but unnecessary to the decision reached. Also, the fact that this was the first ITB that Ms. Parker ever prepared does not mean that HRS can now disregard its mandatory provisions. Rejected as irrelevant. NCR's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph 1-6. Accepted Subparagraphs a) through s) are accurate representations of what the ITB contained. However, the first phrase to the effect that the ITB recognized and incorporated concepts of variability is rejected. The ITB was rigid and precise. Accepted. Accepted. Accepted. First sentence, true but irrelevant. Second sentence accepted. RO2. Third sentence, true but irrelevant. Fourth sentence rejected; the ITB is neither ambivalent nor flexible. Fifth sentence rejected as irrelevant and not supported by competent evidence. Accepted. Accepted. Supported by competent evidence but unnecessary to the decision reached. Supported by competent evidence but unnecessary to the decision reached. First two sentences rejected as contrary to the weight of the evidence. Third and fourth sentences rejected as argument and conclusions. First three sentences are accepted as what they are: the evaluation committee's views, beliefs and understandings. Fourth sentence is rejected. The ITB reserved the right "to reject any and all bids or waive any minor irregularity or technicality in bids received." It did not reserve the right to waive any proposed additions or changes which are unacceptable, regardless of how material they may be. Also, the ITB did not provide for further negotiations prior to contract finalization. Fourth sentence rejected; the evidence is inconclusive on what the NCR language means. Rest of paragraph accepted. First, second and fourth sentences accepted. Third sentence rejected as contrary to the weight of the evidence and the words of the ITB. Fifth sentence rejected as irrelevant; while the NCR proposal may be more beneficial to the State it is inconsistent with the ITB. First, second, fourth and seventh sentences accepted. Third sentence rejected as irrelevant. Fourth sentence accepted. Fifth sentence rejected as irrelevant; while NCR's view may be useful, the ITB did not contemplate it. Sixth sentence accepted, but this only refers to controlling and installing the engineering change and not to deciding whether the change should be made. First, and seventh sentences accepted. Second sentence rejected as irrelevant. Third through sixth sentences reflect what NCR proposed, but this is contrary to the requirements of the ITB. Seventh sentence rejected as argument. First three sentences accepted. Fourth sentence rejected as argument. First and second sentences accepted, noting that the four week training period ended eight weeks after the notice of award. Third sentence accepted, but ITB appeared to contemplate immediate service under the contract since it provided for payments to begin upon execution of the contract. Fourth sentence accepted, but the ITB language speaks to ongoing training of the contract and not training specific to this contract. Fifth sentence accepted. Sixth sentence accepted; however, it is unclear whether the ITB contemplated a nine week delay for full implementation of the contract. First, third and sixth sentences accepted. Second, fourth and fifth sentences rejected as contrary to the weight of the evidence. Last sentence rejected as not supported by the evidence. The evaluation team considered the malfunction incident reports unimportant and did not know what the existing payment plans with the Comptroller's office were; therefore, the committee could not know if these plans met HRS's needs. Rest of paragraph accepted, except to note that there is no evidence to show that the payment plans with the Comptroller's office would meet HRS needs, and that, while HRS may now decide that parts costs are not needed, this was a mandatory requirement of the ITB. Rejected as irrelevant. If NCR or any other bidder had a problem with the ITB they could have asked for clarification or could have challenged the ITB for restricting competition. Rejected as irrelevant. 21.c. First and second sentences accepted. Third, fourth and fifth sentences irrelevant; NCR could have asked for clarification or challenged the ITB. Fourth sentence irrelevant. Sixth sentence rejected as irrelevant. Seventh sentence irrelevant and not supported by competent evidence; it is impossible to now determine what NCR would have bid. Accepted. Accepted. The first sentence being the one following the quoted material, which is accepted. First sentence rejected as being contrary to the weight of the evidence. Second sentence accepted. Third sentence rejected as irrelevant; this is the number of calls made in the past. Fourth and fifth sentences rejected as assumptions. Fifth sentence accepted. First, second and third sentences accepted. Fourth and fifth sentences rejected as irrelevant; while these statements may be true, the NCR bid's provisions conflict with the ITB. First sentence accepted. Rest of paragraph rejected as argument and conclusion. First and second sentences accepted. Third sentence rejected as irrelevant. Fourth sentence rejected; while the addendums issued to the ITB maintained February 8th as the last day for submissions and inquiries, the ITB's general conditions stated that inquiries could be sent in 10 days prior to bid opening. The limitation of remedies form was sent to bidders on March 1, 1988; bids were not due until March 29, 1988. Fifth through ninth sentences accepted. Tenth sentence rejected; the language in the NCR bid is clear and does limit NCR's liability. Eleventh and twelfth sentences rejected as irrelevant. Thirteenth sentence rejected; the NCR language does not refer to the value of the remaining contract but to the value at the time of termination, which is zero at all times. Rejected as not supported by competent evidence. The evidence is insufficient to determine whether the person was licensed at the time the bid bond was countersigned. Rejected as irrelevant. Rejected as a recitation of testimony. The evidence shows that Unisys agreed to the ITB provisions requiring a Jacksonville office. Rejected as irrelevant. Unisys agreed to the provisions of the ITB and will be penalized for failure to comply with them. Rejected as irrelevant. First sentence accepted. Second sentence rejected; this is clearly a proper option under the terms of the ITB. Rejected. See ruling on proposed finding of fact 21e. Rejected as irrelevant. COPIES FURNISHED: Edgar Lee Elzie, Jr., Esquire MacFarlane, Ferguson, Allison & Kelly 804 First Florida Bank Building Tallahassee, Florida 32301 Charles R. Holman, Jr., Esquire Unisys Corporation 4151 Ashford, Dunwoody Road, N.E. Atlanta, Georgia 30319 Elaine New, Esquire Assistant General Counsel, HRS 1323 Winewood Boulevard Building I, Room 407 Tallahassee, Florida 32399-0700 Gary P. Sams, Esquire Cheryl G. Stuart, Esquire Hopping Boyd Green & Sams Post Office Box 6526 Tallahassee, Florida 32314 Robert J. Beggs, Esquire NCR Corporation 1700 South Patterson Blvd. Dayton, Ohio 45479 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
